Will Congress Stand Up Against Trump and Bannon Over Executive Privilege?

This article first appeared on the American Enterprise Institute site.

On Thursday, former White House official Steve Bannon appeared behind closed doors before the House Intelligence Committee.

For four hours, he was asked questions about his days on the presidential transition team and his short tenure as a senior advisor to President Trump.

Other than 25 pre-scripted questions, Bannon refused to answer any other inquiries from the members, indicating he had been instructed by the White House to invoke executive privilege on Trump's behalf.

Evidently, members from both side of the aisle were not pleased. As Politico reported, "that left even senior committee Republicans unhappy. Rep. Mike Conaway of Texas, the Republican who leads the panel's Russia investigation, said he would discuss with House Speaker Paul Ryan whether to seek contempt charges against Bannon."

Putting aside for the moment the dubious assertion that "executive privilege" can be extended to a period in which someone is not yet president, as in a transition between the election and swearing in, there is no question that presidents have long claimed the right to withhold information from Congress, the Courts and the public about internal White House deliberations and discussions within an administration pertaining to foreign policy and security affairs.

And the claim is correctly justified on the grounds that an "open" White House will inevitably lead to counselors pulling their punches on giving the president their best advice or complicate negotiations in which controversial decisions and compromises might have to be made in order to reach a satisfactory final agreement.

George Washington was the first to claim executive privilege, and he wasn't the last. So, as a matter of constitutional logic and history, executive privilege rests on solid ground.

But is it an absolute authority? Yes and no.

"Yes" to the extent it rests on the president's office and roles, but "no" to the extent it butts head with an equally important constitutional authority — the Congress's right to demand information so it can conduct its legitimate oversight and legislative responsibilities. This is one of those cases where, in theory, the system of separated powers creates diametrically opposed principled positions.

So then the question is: How is this circle to be squared?

Too often the answer from Congress is to try and go to the courts or the Justice Department with a contempt citation for it to enforce. But this means leaving the court to act as a Solomon about a dispute between the branches that is essentially political and, in the end, creating case law for an issue that is not divisible by law.

As for issuing a contempt citation that the Justice Department is to then enforce, the obvious problem is that Congress is turning over enforcement of its own prerogative to the executive branch. And even if the Justice Department were to follow through with enforcement, the issue would likely wind up back in the courts if the White House still objected.

If Congress or the Committee is serious about getting the testimony it says it wants in a timely fashion, the most appropriate path is to use its own powers. There are plenty of ways for Congress to put the squeeze on an administration to get the information it believes it needs. (Threatening to eliminate travel budgets for White House and department officials is an oldie but goodie.)

Steve Bannon, former advisor to Donald Trump, arrives at a House Intelligence Committee closed door meeting, on January 16, 2018 in Washington, DC. The committee is investigating Russian interference in the 2016 U.S. presidential election. Mark Wilson/Getty

And if Congress or the Committee members are not willing to play hardball, then the White House and the public can only conclude they are not all that serious about obtaining that information.

The members may well in the end choose the contempt citation as their preferred path. But they should be prepared to use their core authorities to ensure contempt of Congress doesn't become contempt for Congress.

Gary Schmitt is the co-director of the Marilyn Ware Center for Security Studies at AEI and the director of AEI's Program on American Citizenship. Mr. Schmitt is a former staff director of the Senate Select Committee on Intelligence. He was executive director of the President's Foreign Intelligence Advisory Board during President Ronald Reagan's second term.