The Washington Post reports that former chief strategist Steve Bannon has been back at the White House, and he’s provided the Trump team with a three point plan designed to cripple Special Counsel Robert Mueller’s investigation. Among those steps is one that would extend Trump’s already extraordinary claims of privilege to allow Trump to go back in time and take away evidence already in Mueller’s hands.
The first step in the Bannon plan is that Trump should fire Deputy Attorney General Rod Rosenstein. Donald Trump has clearly wanted to take that step since Rosenstein first appointed Mueller. Firing Rosenstein would’t immediately end the investigation, but it would prevent Mueller from seeking extended authority, as was seen in the indictment of Paul Manafort and the search of Michael Cohen’s files. It would also allow Trump to have someone else ready to catch-and-kill Mueller’s final report when it is released, burying the results rather than passing them on to Congress. It’s not clear how much of Trump’s renewed attacks on Rosenstein, which has included calling the Deputy AG out by name both on Twitter and in talks with the press, is due to Bannon’s plan.
The second step is for everyone to clam up. From the beginning of the investigation, the Trump White House has made noises about cooperating, but at least in front of Senate and House committees, Trump’s staffers and associates have often refused to answer questions about their actions in the White House, the transition team, or the campaign. Bannon would make this the official policy—don’t say anything. Don’t provide documents. Refuse to cooperate.
The third step goes into territory so audacious that it’s hard to comprehend. Throughout the investigation, Trump’s team has wielded a heterodox view of executive privilege that suggested Trump could prevent someone from talking—whether that someone was current staff, former staff, or someone with a more obscure relationship to Trump—not by claiming privilege, but by claiming that anything they said could be subject to privilege. So they couldn’t say it. This untested theory may have reached its nadir in Bannon’s own testimony before the House Intelligence Committee, where he was allowed to refuse to answer, and even write his own questions.
But the new proposal from Bannon extends this claim of privilege even further—to encompass testimony that’s already been given. By giving Trump’s privilege claims the power of time travel.
Bannon’s theory goes that Trump didn’t use privilege in the past as much as he possibly could have used it.
“The president wasn’t fully briefed by his lawyers on the implications” of not invoking executive privilege, Bannon told The Washington Post in an interview Wednesday. “It was a strategic mistake to turn over everything without due process, and executive privilege should be exerted immediately and retroactively.”
Retroactively. As in, everything that’s ever been said, given, or obtained by Mueller where Trump might have made a claim of privilege, should be considered as tainted. Invalid for use against Trump.
As achingly ridiculous as this scheme may sound, Congress has notably not attempted to hold anyone in contempt for following the equally-ridiculous idea that Trump gets preemptive privilege over things they might say, without even bothering to make a formal claim of privilege. Instead Republicans have been over backwards to accommodate testimony from Bannon, Hope Hicks, Corey Lewandowski, and other that tacitly recognizes Trump’s ability to smother answers even before someone thinks up the question.
If Trump’s privilege extends into the future … why not the past? It might not be a sound legal strategy if any of these claims ever came before a court. However—see step one. If Trump fires Rosenstein and substitutes someone who gives a thumbs-up to these ideas, the new Deputy AG could wave off any report from Mueller on the basis of Bannon’s theory. What never escapes the DOJ doesn’t need to be all that air tight. It just needs to be an excuse to which Trump supporters can nod.
Considering the many, many statements from Steve Bannon that leaked out since he first left the White House, showing his utter contempt for Trump and everyone around him, it’s a bit surprising to see anyone around the White House welcoming his advice.
“If you say his name in front of the president, it’s not a pretty sight,” said a senior administration official. “The president really goes off about him.”
But while Trump hasn’t forgiven Bannon, that doesn’t mean he’s not more than willing to use any scheme at all in the face of a force five legal storm.
Trump remains furious with the Mueller probe, which on Wednesday he blasted on Twitter as “never ending and corrupt.” He has also considered firing Rosenstein, whom he has criticized for approving surveillance applications of former Trump campaign adviser Carter Page, which extended a warrant that partly relied on information that was funded in a roundabout way by Hillary Clinton’s 2016 presidential campaign.
Bannon and his allies sense that Trump simply needs a nudge to fire Rosenstein, according to the people familiar with Bannon’s discussions. They said Trump has recently told friends and aides that he is willing to engage in political warfare in the coming months to stop his presidency from being consumed by the investigation.
Trump supporters in the House, including Mark Meadows and Devin Nunes, are readying legislation to attack Rosenstein and the FBI. Based on their success in getting the Republican report from the House committee past Paul Ryan, who is a pal of Nunes, it shouldn’t be assumed that this legislation won’t end up on Mitch McConnell’s desk.
But with or without Congress’ assistance, Trump seems very close to taking that first step.