Donald Trump is considering waiving executive privilege for Steve Bannon, according to two sources familiar with the situation, but federal prosecutors do not believe the former president’s privilege claims protected his longtime political adviser in the first place.
Trump, sources told CNN, could write a letter commemorating his position that could be used in Bannon’s defense.
The Washington Post first reported that Trump is considering writing the letter.
Bannon will face charges later this month on criminal contempt charges after he refused to cooperate with the House panel, citing broad claims of executive privilege — the first case of its kind to arise from the landmark congressional investigation. He pleaded not guilty to the charges of contempt.
Even if Bannon agrees to testify before the committee, that’s not a cure in a criminal contempt of Congress case, so it’s still unclear what impact it would have on his upcoming trial.
Bannon and several other conservatives have tried to challenge the select committee’s subpoenas in court, but their arguments have been repeatedly rejected by federal judges.
Legal experts have said Bannon’s privilege claims are shaky, in part because he left his White House role years before the attack on the US Capitol. “There is no administrative law. This is a ploy to screw up his criminal case,” CNN analyst Norm Eisen said.
The Justice Department also failed to buy Bannon’s privilege claims and sued him last year.
Last month, DC District Court Judge Carl Nichols rejected Bannon’s request to dismiss the case against him, including his arguments that the subpoenas of the House’s selected committee were illegal and that he was protected by the secrecy of the presidency. because he had been in contact with Trump at the end of his administration.
During the trial, Justice Department prosecutors, who received a House referral to prosecute him, will have to prove a relatively minor case if they want to get a conviction — that Bannon deliberately refused to comment on the congressional investigation. He will not be able to say that he has relied on the advice of his lawyer, the judge has already ruled.
This story was updated Friday with additional details.