For a guy who prides himself on being so smart, self-proclaimed kingmaker Steve Bannon does some stupid, stupid things.
The most recent has been his attempt to assert executive privilege as a reason for refusing to honor a subpoena to testify before the committee of the U.S. House of Representatives investigating the Jan. 6 insurrection.
Bannon’s refusal prompted the House to cite for contempt and refer the matter to the Justice Department. U.S. Attorney General Merrick Garland, after doing his due diligence and deliberating, announced a few days ago that a federal grand jury had indicted Bannon.
This shouldn’t be a shock.
Bannon made it easy for them.
There were at least two problems with Bannon’s argument that executive privilege should protect him from testifying to Congress.
The first was that he wasn’t working for the Trump administration when the Jan. 6 assault on the Capitol took place.
In fact, he hadn’t worked in the White House for more than three years when the insurrection took place. His role leading up to the events of Jan. 6 was to serve as a kind of cheerleader via a podcast and, possibly—this doubtless is what the House interrogators would like to determine—as a possible strategist, planner and enabler.
His claim that his service, for less than eight months, in the Trump administration should provide him with immunity is ludicrous.
A couple of years ago, my daughter persuaded me to sign up for one of those DNA ancestry services. It revealed that somewhere, way back when, Alexander Hamilton and I shared a common ancestor.
If I were to claim that my distant, distant relationship with George Washington’s treasury secretary should allow me to assert executive privilege, my argument would be only slightly less plausible in legal terms than Bannon’s is.
The second problem is that Bannon and his lawyers misunderstood—or perhaps deliberately misstated—the rationale for executive privilege.
It doesn’t exist to protect individuals—even presidents—from the consequences of illegal actions. The judge who denied former President Donald Trump’s sweeping assertion of executive privilege to try to shut down the congressional investigation into the Jan. 6 melee got it exactly right.
Presidents aren’t kings.
They, too, are answerable to the law.
And so are the people who work for them.
The courts have recognized and upheld executive privilege when it is asserted to protect the nation’s interests.
Not those of any specific individual.
It isn’t a blanket get-out-of-jail card for anyone who ever worked in the White House.
If Bannon wants to avoid answering the questions of the House members who want him to testify, he has a way to do that, one that is perfectly legal.
He can assert his Fifth Amendment right to refuse to answer on the grounds that doing so may tend to incriminate him.
Even a president or a former president has that right—because, again, no one in this country is above or beyond the law.
If Bannon does assert his Fifth Amendment right, that will suggest to many that he—and perhaps many in the Trump camp—have things to hide.
But that isn’t exactly a news flash.
The way the former president and his acolytes have fought anything resembling congressional oversight of their actions has sent a strong signal that they have done things about which they don’t want anyone to know.
But it takes a special kind of chutzpah to argue that attempting to thwart the will of the people and undermine the rule of law in a self-governing society is somehow a patriotic act.
That’s what Steve Bannon and his lawyers tried to do.
Instead, he revealed just how desperate he and other members of Trump world are to avoid answering questions.
Not smart at all.