- Moritz Hager/Reuters
- The former White House chief strategist Steve Bannon is proposing a three-part plan for the White House to counter the special counsel Robert Mueller and the Russia probe, The Washington Post reports.
- First, fire Deputy Attorney General Rod Rosenstein; second, stop cooperating with the special counsel; third, President Donald Trump retroactively invokes executive privilege over witness testimony.
- One legal expert called Bannon’s theory on executive privilege “legally laughable.”
- It’s unclear how successful the plan would be if Trump chose to carry it out.
Steve Bannon, the former White House chief strategist, has pitched West Wing aides a three-part plan to derail the special counsel Robert Mueller’s Russia investigation, the Washington Post reported Wednesday night.
The first step of the plan reportedly calls for the firing of Deputy Attorney General Rod Rosenstein, who has been in President Donald Trump’s crosshairs since reports surfaced of an FBI raid on the office and home of Trump’s personal lawyer, Michael Cohen.
The second step calls for the White House to stop cooperating with Mueller’s document and interview requests. White House lawyer Ty Cobb has been spearheading its response to the Russia probe, and Cobb has largely advocated for a cooperative approach toward Mueller.
The third step in Bannon’s reported pitch calls for the president to retroactively assert executive privilege over White House documents and Mueller’s interviews with staffers over the last year.
“The president wasn’t fully briefed by his lawyers on the implications” of not exerting executive privilege over the witness interviews, Bannon told The Post. “It was a strategic mistake to turn over everything without due process, and executive privilege should be exerted immediately and retroactively.”
Trump tweeted later Thursday that he “agreed with the historically cooperative, disciplined approach that we have engaged in with Robert Mueller (Unlike the Clintons!). I have full confidence in Ty Cobb, my Special Counsel, and have been fully advised throughout each phase of this process.”
Rosenstein’s ouster could be imminent
How successful Bannon’s plan would be, if Trump ultimately decides to carry it out, is up for debate.
Certainly, the president appeared in recent days to be gearing up to implement the first step: ousting Rosenstein.
Trump’s anger toward top Justice Department officials – like Rosenstein, Attorney General Jeff Sessions, and FBI director Christopher Wray – is not a new development.
But his fury reached its apex following the Cohen raids, which he reportedly believes crossed the “red line” he said investigators would breach if they examined his or his family’s personal finances.
Armed with a search warrant on Monday, FBI agents apparently seized Cohen’s electronic devices; personal financial documents; records of payments made to two women who claim to have had affairs with Trump; records related to a 2005 “Access Hollywood” tape featuring Trump; and attorney-client communications between Trump and Cohen.
Trump, who is said to have once asked why he couldn’t have “my guys” at the “Trump Justice Department” do his bidding, began planning to fire Rosenstein after it surfaced that he had personally greenlit the FBI’s raid on Cohen.
His anger has likely been bolstered by Bannon and other figures, like Fox News host Sean Hannity and ex-prosecutor Joseph diGenova, who have been pushing for Rosenstein’s ouster since the Cohen raid.
It’s unclear how successful the second step of Bannon’s plan – for the White House to cease cooperating with Mueller’s requests – will be.
Cobb is the member of Trump’s legal team who has advocated most for transparency and communication with the special counsel. When asked whether the White House is considering Bannon’s suggestion to end its cooperation with Mueller, Cobb replied, “No.”
Trump’s tweet on Thursday also indicated the same.
A ‘legally laughable’ theory
- Alex Wong/Getty Images
The third step of Bannon’s plan – calling for Trump to retroactively invoke executive privilege – may run into an obstacle or two.
Andrew Wright, who served as an associate in the White House counsel’s office under President Barack Obama, put it bluntly.
“Retroactive executive privilege is not a thing,” he said. “There have been situations in which a particularly sensitive national security document got loose and gets retroactively classified. However, Bannon is talking about asserting executive privilege over grand jury testimony that has already been given.”
Retroactive executive privilege is not a thing.
The Supreme Court ruled in United States v. Nixon that the Watergate special prosecutor’s grand jury’s need for information outweighed President Richard Nixon’s interests in keeping confidential the Oval Office recordings of his conversations with key advisers and White House officials.
Wright said he would expect the same ruling in Trump’s case.
“Once the testimony and other evidence is in the grand jury files, that bell can’t be unrung,” he added. “Bannon’s retroactive executive privilege theory is legally laughable.”
It’s unclear whether Trump will act on Bannon’s suggestions.
But Trump’s actions over the last several days, as well as his conversations with controversial figures urging him to act on his most volatile instincts, have raised red flags among legal experts and lawmakers.
Democratic Sen. Cory Booker of New Jersey, who sits on the Senate Judiciary Committee, said in a statement Thursday that he was “encouraged by the growing momentum” behind a bipartisan measure that he and three other senators have introduced to safeguard the special counsel.
And Sen. Chuck Grassley of Iowa, the Republican chairman of the committee, said Wednesday that he will introduce a separate bipartisan bill that would protect Mueller in the event of his firing. According to The New York Times, the legislation would allow Mueller to appeal his ouster to a panel of judges and possibly be reinstated. The measure could come to a vote as early as next week.