After my post went live on Oct. 18, two significant developments occurred in the prospects of a contempt prosecution of Steve Bannon.
Jonathan Shaub is a contributing editor to Lawfare and an assistant professor of Law at the University of Kentucky J. David Rosenberg College of Law. He formerly served in the U.S. Department of Justice as an attorney-adviser in the Office of Legal Counsel and as a Bristow Fellow in the Solicitor General's Office.
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If the Jan. 6 Committee eliminates any potential claim of executive privilege, the challenges of prosecuting Bannon and other former executive branch officials may be facilitated.
The House select committee investigating the Jan. 6 attack is intent on seeking any and all information. However, the amount of information the committee receives depends on a battle between four distinct groups with different legal obligations and authorities.
The agreement is a lost opportunity that may not represent itself again for quite some time.
Senators should not concede that former President Trump has the authority to assert executive privilege and direct the withholding of evidence based on his appraisal of the public interest. And it should especially not do so in the context of impeachment.
The majority fails to consider the relevant history of congressional oversight of the executive branch.
The argument that the Senate should decline to seek specific evidence relevant to impeachment in order to protect the presidency’s generalized institutional interests badly distorts executive privilege.