When we learned this weekend that Donald Trump adviser Stephen K. Bannon was suddenly willing to testify to the Jan. 6 committee, a big and obvious question was: why? The most logical answer seemed to be that Bannon is set to go on trial next week for his previous refusal to testify and turn over documents, and this was a last-minute attempt to try averting a conviction. Another would be that Trump wants Bannon to go to bat for him, having grown weary of the largely unrebutted evidence against him presented by the committee.
But a new court filing in the Bannon saga reveals something intriguing: a dispute between his and Trump’s legal teams that appears to be ramping up.
In the filing, federal prosecutors disclosed that they recently interviewed Trump lawyer Justin Clark. They say Clark confirmed something prosecutors have long argued and that some close watchers have suspected — that Trump never actually invoked executive privilege with regard to specific things (emphasis added):
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The filing further reinforces a dispute over Bannon’s initial claim that Trump had invoked executive privilege, which Trump said this weekend he is now willing to waive. There were multiple signs that the claim wasn’t all it was cracked up to be — at least in the Trump team’s estimation — and now Clark seems to have confirmed as much.
Prosecutors didn’t detail Clark’s interview, except to characterize it as confirming its position about the Bannon legal team’s claims. But Costello fired back Monday.
“I haven’t misrepresented anything,” Costello told The Washington Post. “Clark’s statements are internally inconsistent.”
The dispute dates back to when the Jan. 6 committee was seeking Bannon’s testimony in October.
In the Oct. 6 letter, Clark instructed Bannon to “where appropriate, invoke any immunities and privileges he may have from compelled testimony in response to the Subpoena.” He also instructed Bannon not to produce any privileged documents or testimony.
But notably, the letter didn’t lay out what, in fact, was allegedly privileged. And what followed was apparently multiple attempts by Costello to get Trump’s legal team to be more specific — attempts that were apparently made in vain.
On Oct. 13, Costello wrote to Clark stating that the Jan. 6 committee didn’t regard the executive privilege claim as valid and urging Trump’s legal team to reach out to the committee.
“I would strongly suggest that a direct communication from you on behalf of President Trump would clarify the President’s position with respect to the document request and deposition requests,” Costello told Clark.
The same day, Costello sent the committee a letter stating that Clark had “informed us that President Trump is exercising his executive privilege.” He said that was why Bannon wouldn’t be producing testimony or documents.
On Oct. 14, the deadline for Bannon’s testimony lapsed. And that evening, Clark emailed Costello seemingly taking exception to how Costello had characterized the Trump legal team’s position the day before.
“To be clear, in our conversation yesterday I simply reiterated the same instruction from my letter to you dated Oct. 6, 2021, and attached below,” Clark said.
This apparently angered Costello, who quickly forwarded Clark’s email to Bannon and others and said Clark’s apparent objection was “not accurate.”
“He definitely stated that Trump was invoking the executive privilege,” Costello wrote. Costello added: “I don’t know what game Clark is playing but it puts Steve Bannon in a dangerous position. Beware.”
Two days later, on Oct. 16, Clark followed up with more explicit instructions. And crucially, he stated that the position of Trump’s legal team was that Bannon did not have immunity from testifying. Clark made it clear that Bannon’s legal team was free to make its own determination, but suggested that it shouldn’t cite Trump’s legal team for the claim.
But a new court filing in the Bannon saga reveals something intriguing: a dispute between his and Trump’s legal teams that appears to be ramping up.
In the filing, federal prosecutors disclosed that they recently interviewed Trump lawyer Justin Clark. They say Clark confirmed something prosecutors have long argued and that some close watchers have suspected — that Trump never actually invoked executive privilege with regard to specific things (emphasis added):
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While Clark is not named in the filing, the letter cited is obviously his Oct. 6 letter to Bannon’s lawyer, Robert J. Costello. And Costello is the “Defendant’s attorney” that the government claims misrepresented the Trump legal team’s position, also citing Clark’s interview as confirmation for that.On June 29, 2022, former President Donald Trump’s attorney, who sent the letter on which the Defendant claimed his noncompliance was based, confirmed what his correspondence has already established: that the former President never invoked executive privilege over any particular information or materials; that the former President’s counsel never asked or was asked to attend the Defendant’s deposition before the Select Committee; that the Defendant’s attorney misrepresented to the Committee what the former President’s counsel had told the Defendant’s attorney; and that the former President’s counsel made clear to the Defendant’s attorney that the letter provided no basis for total noncompliance in the first place.
The filing further reinforces a dispute over Bannon’s initial claim that Trump had invoked executive privilege, which Trump said this weekend he is now willing to waive. There were multiple signs that the claim wasn’t all it was cracked up to be — at least in the Trump team’s estimation — and now Clark seems to have confirmed as much.
Prosecutors didn’t detail Clark’s interview, except to characterize it as confirming its position about the Bannon legal team’s claims. But Costello fired back Monday.
“I haven’t misrepresented anything,” Costello told The Washington Post. “Clark’s statements are internally inconsistent.”
The dispute dates back to when the Jan. 6 committee was seeking Bannon’s testimony in October.
In the Oct. 6 letter, Clark instructed Bannon to “where appropriate, invoke any immunities and privileges he may have from compelled testimony in response to the Subpoena.” He also instructed Bannon not to produce any privileged documents or testimony.
But notably, the letter didn’t lay out what, in fact, was allegedly privileged. And what followed was apparently multiple attempts by Costello to get Trump’s legal team to be more specific — attempts that were apparently made in vain.
On Oct. 13, Costello wrote to Clark stating that the Jan. 6 committee didn’t regard the executive privilege claim as valid and urging Trump’s legal team to reach out to the committee.
“I would strongly suggest that a direct communication from you on behalf of President Trump would clarify the President’s position with respect to the document request and deposition requests,” Costello told Clark.
The same day, Costello sent the committee a letter stating that Clark had “informed us that President Trump is exercising his executive privilege.” He said that was why Bannon wouldn’t be producing testimony or documents.
On Oct. 14, the deadline for Bannon’s testimony lapsed. And that evening, Clark emailed Costello seemingly taking exception to how Costello had characterized the Trump legal team’s position the day before.
“To be clear, in our conversation yesterday I simply reiterated the same instruction from my letter to you dated Oct. 6, 2021, and attached below,” Clark said.
This apparently angered Costello, who quickly forwarded Clark’s email to Bannon and others and said Clark’s apparent objection was “not accurate.”
“He definitely stated that Trump was invoking the executive privilege,” Costello wrote. Costello added: “I don’t know what game Clark is playing but it puts Steve Bannon in a dangerous position. Beware.”
Two days later, on Oct. 16, Clark followed up with more explicit instructions. And crucially, he stated that the position of Trump’s legal team was that Bannon did not have immunity from testifying. Clark made it clear that Bannon’s legal team was free to make its own determination, but suggested that it shouldn’t cite Trump’s legal team for the claim.