December 3, 2021

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GOP revenge for the Bannon indictment may have to wait – POLITICO

4 min read

“There are a lot of Republicans eager to hear testimony from Ron Klain and Jake Sullivan when we take back the House,” Ohio Rep. Jim Jordan tweeted after the indictment came down, naming Biden’s chief of staff and national security adviser.

Yet Bannon’s case may well have no bearing on the GOP enthusiasm for hauling in the Biden White House. Legal experts say the Bannon indictment stands apart from nearly any other contempt of Congress charge in memory — from the brazenness of his defiance to his weak claim of executive privilege, which is meant to protect presidential talks with top advisers, not a private citizen’s help for a former president trying to overturn the results of an election.

“If Ron Klain ever participates in a violent insurrection against the union, then I hope they would bring him in,” said Rep. Jamie Raskin (D-Md.), a member of the Jan. 6 select committee. “What you have is a friend of a former president who is asserting an executive privilege that doesn’t apply to him. It’s absurd, and I would hope that our GOP colleagues understand that there is no legal basis for what Steve Bannon is saying.”

There’s another key issue that could frustrate Republicans’ big oversight plans for 2023: Biden will still be president. His authority to waive executive privilege — or uphold it, in the case of his own aides — carries significant legal weight until his term is up.

“That is an apples and helicopters situation,” said national security attorney Kel McClanahan of the GOP effort to compare Bannon’s situation to a future demand for testimony from Klain, Sullivan or others. “The person in power, whether they be Democrats, Republicans, Libertarians or Greens — when they own the White House, they own executive privilege, full stop.”

That means the earliest Republicans might hope to haul in top Biden aides without running into the weight of executive privilege is likely 2025. Even then, that would happen only if a Republican wins the White House in 2024 and then agrees to waive executive privilege.

McClanahan, whose group National Security Counselors filed a court brief opposing Trump’s effort to block the National Archives from sharing his White House records with congressional investigators, said a future Republican president would have unilateral authority to waive executive privilege claims over any of his predecessor’s records — just as Biden does today. But until then, it’s unlikely GOP attempts to compel testimony from Klain or others would win court approval.

Still, Republicans in Congress are viewing DOJ’s Bannon charge as a significant precedent for their own future investigative efforts. As they seethe, they’re strategizing about how to take advantage of the Jan. 6 committee’s legal and oversight moves in 2023 and beyond.

“They’re crossing lines and opening Pandora’s boxes every day in this majority, and it’s hard to close those boxes once they’re open,” said Rep. Mike Johnson (R-La.).

Kentucky Rep. James Comer, the ranking Republican on the House Oversight Committee, said the Jan. 6 committee’s blueprint could become a road map for him in a GOP-led Congress, when he’d likely have an outsize say in investigations.

“I think they’ve set new precedent for oversight and how you can obtain documents,” Comer said. “The traditional rule [is] you can’t have access to those until five years after the presidency. But they said, ‘Well, this is an extreme situation, what happened on Jan. 6.’ What if we think it was an extreme situation what happened with the Afghanistan debacle?”

Even if they can’t pry documents from the Biden administration in 2023, Republicans say they’re watching Democrats’ hard-charging approach to the Capitol riot probe and planning to deploy similar tactics if a Republican takes the White House in 2025.

Republicans will face significant pressure from their own base, particularly if they gain new power in Washington in 2022 and 2024, to get the Justice Department to prosecute people they say are lawbreakers (of which there are many).

“There will definitely be not just a push, but a demand, from Republican voters that Republicans do the same thing the Democrats have done here, next time we can’t get information out of someone when we control the House,” said one Republican House staffer who works on investigations.

Meanwhile, one legal expert said the Biden Justice Department may not be done with pursuing contempt of Congress charges now that Bannon has been indicted.

“If you’re in for a penny, I don’t know why you wouldn’t be in for a pound,” said Saikrishna Prakash, a professor at the University of Virginia School of Law, citing the House’s continuing efforts to compel testimony from former Trump aides Mark Meadows, Dan Scavino and Kash Patel. “I don’t know why they would find him in contempt and not the others.”

McClanahan said that a Republican in the White House in 2025 would certainly have the power to release virtually everything Biden might keep hidden behind executive privilege while in office. He called that trend “the Harry Reid effect” — a reference to the former Democratic leader’s decision to chip away at the filibuster in 2013, which presaged future pushes from both parties to weaken it.

“If you give the president or Congress a certain amount of authority,” McClanahan said, “you have to plan for someone you don’t like subsequently having that authority.”

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