Are Trump Associates Above the Law?

During his presidency, the answer was effectively yes. The Jan. 6 Committee and DOJ's actions will answer if that's still the case.

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The House committee investigating the January 6 attack on the U.S. Capitol issued subpoenas, and Donald Trump got upset. The former president said requests for documents and testimony were invalid because of executive privilege, which would be a weak claim even if he were still in office. Congressional oversight is part of Constitutional checks-and-balances, and the Supreme Court made clear in United States v. Nixon that the need for evidence can outweigh the need for presidential secrecy. Nevertheless, while some Trump administration officials are cooperating, such as former Assistant Attorney General Jeffrey Clark, Trump advisor Steve Bannon refused.

This raises two consequential questions:

1. Are Trump associates above the law?

2. Is Congress a coequal branch of government, or is the executive branch effectively unchecked?

There’s no doubt the Congressional subpoenas are legal. And there’s clear precedent for honoring them. Former President Bill Clinton and Vice President Al Gore gave testimony to the 9/11 Commission, as did some of their staffers. So did then-President George W. Bush, VP Dick Cheney, and senior members of their administration, under negotiated terms. Former Secretary of State Hillary Clinton sat for 11 hours of questioning before the Benghazi Committee in 2015 (which was the eighth investigation into that attack).

If Bannon or anyone else successfully defies the Jan. 6 Committee’s subpoenas, they’re above the law and Congress is subservient, not just to current presidents, but to former ones as well. And if the figures who incited the Capitol attack by lying about and trying to overturn the 2020 presidential election can escape investigation, let alone punishment, they’re more likely to try again.

Corruption at the Top

One of the most concerning things about the Trump presidency is the answer to “above the law?” was often yes. Trump and Attorney General William Barr abused power in various ways to shield the president, his family, and associates from consequences.

Some of their actions were arguably not illegal, but obviously shady, violating norms, precedent, and the spirit of the law in ways that either didn’t violate the letter, or did in ways that could not be prosecuted. For example:

• Appointing his wildly unqualified daughter Ivanka Trump and son-in-law Jared Kushner to top White House positions. (Federal anti-nepotism laws apply to everyone other than the president.)

• Granting Kushner the highest security clearance even though he failed multiple background checks. (The president can classify material at will, so technically he can declassify anything for his son-in-law.)

• Obstructing the investigation into Russia’s interference in the 2016 election. (Special Counsel Robert Mueller’s report detailed ten times Trump arguably obstructed justice, but the “unitary executive” theory argues that, since the Justice Department’s authority comes from the president, he cannot obstruct its actions by definition, and DOJ has an internal rule that a sitting president cannot be prosecuted.)

Then there were the direct attempts to put Trump associates above the law.

Most relevant for the January 6 Committee is Trump’s first impeachment — which was in response to his effort to extort Ukraine into manufacturing an investigation into Joe and Hunter Biden — when the president told executive branch officials to stonewall Congress. Previous presidents have claimed executive privilege, and negotiated with Congress on testimony, but this was the first time one issued a blanket order to reject Congressional oversight.

No top White House official honored Congress’s request to testify in the impeachment inquiry. They vowed to fight any subpoenas in court, which could take years when factoring in appeals, in a transparent attempt to stall until the 2020 election, after which it wouldn’t matter. The most notable officials who testified, E.U. Ambassador Gordon Sondland and Lt. Col. Alexander Vindman of the National Security Council, both got fired, which arguably violated federal rules against retaliation.

The corruption extended into criminal trials. Attorney General Barr gave Trump advisor Roger Stone special treatment, intervening to recommend a lower sentence after a jury convicted Stone on seven felonies. Then Barr intervened again with Trump’s disgraced former National Security Advisor Michael Flynn, ordering prosecutors to drop the case even though Flynn had confessed multiple times in court.

And if that weren't enough, Trump pardoned personal associates, including Flynn, Stone, and 2016 campaign chair Paul Manafort. This was technically legal — presidential pardon power is nearly unlimited — and unethical last minute pardons is, unfortunately, not unusual (see: Clinton, Bill). But never before had a president used the pardon power to excuse many of his political operatives of blatant crimes.

One of Trump’s corrupt pardons went to Steve Bannon, who was facing felony fraud charges for bilking Trump supporters out of over a million dollars with a fake plan to privately fund border wall construction.

Steve Bannon Should Not be Above the Law 

Congress doesn’t need anyone’s permission to issue subpoenas, but it’s still worth noting that Bannon’s is as legitimate as they come. Peril authors Bob Woodward and Robert Costa report that Bannon was in frequent contact with Trump after the election and told him to “focus on January 6.” A Washington Post investigation found that Bannon participated in meetings at the Willard hotel in D.C., in a group of rooms Team Trump called the “command center” for their effort to overturn the 2020 election. On January 5, Trump called Bannon and discussed how to get Vice President Mike Pence to declare that he had the power to reject state Electoral College votes by claiming fraud, which followed the plan laid out in a six-point memo by lawyer John Eastman. Also on January 5, Bannon told his podcast listeners “all hell is going to break loose tomorrow.”

It’s possible Bannon’s participation was minimal, his public comments just bluster. If he were charged in court with seditious conspiracy, maybe a jury would acquit. But Congress is not a criminal court, and a subpoena is far from a conviction. The available evidence clearly shows Bannon may know things that are pertinent to the investigation, which makes it eminently reasonable for the investigators to use their legal authority to subpoena him.

The main argument for executive privilege is that it’s better for the country when the president and his staff can have private conversations, and strategize—on, say, what the U.S. should do regarding China—without worrying that political opponents will take some out of context. But Bannon left the White House in August 2017, so his 2020-21 communications aren’t covered. And even if they were, there’s a good case they’re beyond executive privilege. If the result is a chilling effect on future presidents scheming to stay in power after losing reelection, that’s fine.

After Bannon said he wouldn’t honor the subpoena and missed deadlines, the committee voted to hold him in contempt of Congress. That sent the charge to the full House. A vote of 229 - 202 referred it to the Department of Justice, which determines whether to prosecute it as a criminal case.

This vote highlights how most of the GOP is on board with Trump’s anti-democracy project. 138 House Republicans formally objected to state-certified Electoral College votes on January 6 (after police and National Guard regained control of the building). 197 voted against impeaching Trump for inciting insurrection. 35 Republican Senators used the filibuster to block the creation of an independent Jan. 6 commission, and just two GOP Representatives voted to authorize the House’s Jan. 6 Committee. Now all but nine House Republicans voted against holding Bannon in contempt.

The Founders set up a system of checks and balances, believing that institutions would fight to uphold their authority against each other, but Congressional Republicans defend a blatant defiance of Congress in an attempt to cover up a violent attack on their building. Their apparent hope is to win control of the House in the 2022 elections — a live possibility, since the party opposing the president tends to gain seats in midterms — and kill off the investigation for good. 

This behavior indicates there’s no line Republican officials won’t cross, no point at which they — with a few notable but relatively powerless exceptions — will stand up for Constitutional democracy against Trumpist attempts to subvert it.

The Justice Department should prosecute Bannon to the full extent of the law, which would signal that there are consequences for defying Congress’s legal authority. However, as with the Mueller investigation and Trump’s first impeachment, part of this is a delaying tactic, dragging things out while right-wing politicians and media lie about it to muddy the picture, rile up partisans, and exhaust the public. Since the maximum penalty for criminal contempt of Congress is a year in prison and a $100,000 fine, Bannon might be okay with casting himself as a martyr for the cause, as he and others continue their anti-democracy machinations.

Prosecuting Bannon for contempt would uphold rule of law in ways the Trump administration did not, but that doesn’t hold the former president and his co-conspirators accountable for their attempt to overturn the election. The government might not have the tools to handle one of America’s two major parties turning against democracy — Trump’s self-coup attempt was such an egregious and unprecedented violation that no one had thought to criminalize it — and to the extent it does, Democrats might not have the will.

It’s About Future Elections

After Senate Republicans voted in February 2020 to protect Trump from the Constitutionally appropriate consequences of his Ukraine scheme, I wrote this:

As [Republican Senator Mitt] Romney noted, Trump used the powers of the presidency to corrupt the upcoming election to keep himself in office. Now that he got away with it, and has an Attorney General who supports it, why wouldn’t he try again?

As predicted, he did. It was bad, but ultimately thwarted.

After that, Republicans faced a choice. They could have said it’s too much, it’s over the line, and the guy’s an electoral loser anyway, we’re done. Instead, they’ve doubled-down, rallying around lies about the 2020 election, ostracizing members who won’t go along with it — such as Jan. 6 committee Vice Chair Liz Cheney (R-WY) — and passing laws at the state level that make future election subversion more likely to succeed.

If they get away with their first attempt, why wouldn’t they try again?