Trump Obstructed Justice If He Silenced Bannon, Former Justice Department Lawyer Says

Steve Bannon, the former White House chief strategist, arrives at a House Intelligence Committee closed-door meeting on January 16. He is under subpoena and must return to the committee to answer additional questions. Mark Wilson/Getty

President Donald Trump possibly obstructed justice or intimidated a witness if he did indeed tell Steve Bannon not to answer certain questions during his interview with the House Intelligence Committee, according to Laurence Tribe, a Harvard Law School professor who worked at the Department of Justice under President Barack Obama.

Foreign Policy reported Thursday that Trump "personally" decided to limit what Bannon, the former White House chief strategist, would tell House investigations on Tuesday. Trump based his decision on advice from Uttam Dhillon, a deputy White House counsel, said the report, which was based on two sources with knowledge of the matter. It was unclear how Trump conveyed the instruction to Bannon.

Related: What Does Bannon Know About Trump and Russia?

"Instructing Bannon to invoke a non-existent 'executive privilege' for pre-presidential communications—if that's what Trump in fact did—would be legally improper at the very best, and could well constitute a form of witness tampering, and, in conjunction with Trump's pattern of interference with the official probes into his campaign and the transition, an obstruction of justice," Tribe told Newsweek by email.

Other legal experts were less certain. "Privilege may not apply because of what question Bannon is being asked to answer," said Kathleen Clark, a professor at the Washington University School of Law, "but the mere assertion of privilege is not obstruction of justice."

Another legal analyst, Eric Columbus, who worked at the Justice Department and the Department of Homeland Security during the Obama administration, said in a Twitter message that the reported scenario is not unprecedented, except for one aspect: "This is conceptually similar to how things have worked in past administrations, though very rare for POTUS himself to get involved at this point."

Trump has previously faced allegations of obstruction of justice and witness intimidation. It's unlikely that prosecutors would pursue Trump for obstructing justice in this way because there are better examples, according to Norm Eisen, a senior fellow at the Brookings Institution and the former "ethics czar" under Obama.

"This would be a somewhat tenuous addition to what otherwise is shaping up to be a potentially strong case," Eisen said. "A prosecutor wouldn't want to open up himself to arguments about the president's legitimate right to enforce a privilege. So it's possible but unlikely that this will support the larger obstruction case." The same goes for witness intimidation, he added.

Bannon met this week with the House committee as part of its probe into Russia's meddling in the 2016 presidential election and any links to political campaigns. Representative Adam Schiff, the ranking member of the House Intelligence Committee, told reporters on Tuesday that Bannon's lawyer, William Burck, had informed the committee that Bannon wouldn't answer questions about his time in the White House or during the presidential transition, forcing the committee to issue a subpoena.

"His counsel then conferred again with the White House and was instructed by the White House to...refuse to answer any questions, even though he was under compulsory process, concerning the period of time during the transition and during the administration," Schiff said.

"The scope of this assertion of privilege, if that's what it is, is breathtaking. It goes well beyond we anything we have seen in this investigation," Schiff added. "This was effectively a gag order by the White House."

On Thursday, Schiff referred to Bannon in a statement: "His counsel informed our committee that he was willing to answer these questions, but that he was being directed not to by White House counsel and the president."

White House Press Secretary Sarah Huckabee Sanders said at daily press briefings that such White House involvement in congressional testimonies is not unusual. The White House did not respond to a request for comment on Thursday.

Trump will have less ability to limit what Bannon tells Special Counsel Robert Mueller, who is also investigating Russia's election meddling and possible coordination with the Trump campaign. Mueller subpoenaed Bannon to testify before a grand jury, The New York Times reported Tuesday, but Bannon and Mueller's team have since reportedly worked out an arrangement for a less formal interview.