Posted on 01/19/2018 3:44:22 AM PST by Moseley
During ten hours of questioning by the House Intelligence Committee, on the instructions of the Trump White House, Steve Bannon refused to testify about his work for the Trump administration and the Trump transition team. But the leaks tell us that Bannon did testify about his time working on the Trump election campaign for president.
So let me explain, as an attorney who worked for Judicial Watch under Larry Klayman and has more recently performed legal work for Klayman at Freedom Watch. The elites in Congress and the news media should know better.
The Washington establishment was all upset, as if this were something new or unusual. In the adrenaline-soaked, hyperventilating atmosphere of official Washington, this got everyone outraged.
Ranking Democrat Adam Schiff (D-Calif.) and others demagogued the incident. As New York magazine reported: after Bannon's attorney, William Burck, conferred with White House officials, Bannon "doubled down" on his refusal to answer the committee's questions, according to Schiff.
"This was effectively a gag order by the White House preventing this witness from answering almost any question concerning his time in the transition or the administration," Schiff said.
"The scope of this assertion of privilege, if that's what it is, is breathtaking. It goes well beyond anything we have seen in this investigation," Schiff continued. "If the White House is permitted to maintain that kind of gag rule on a witness, no congressional investigation could ever be effective. So this obviously can't stand."
"The scope of this assertion of privilege, if that's what it is, is breathtaking. It goes well beyond anything we have seen in this investigation," Schiff continued. "If the White House is permitted to maintain that kind of gag rule on a witness, no congressional investigation could ever be effective. So this obviously can't stand."
(Excerpt) Read more at americanthinker.com ...
But Schiff and Himes are wrong. The reason is Touhy. Or more fully, United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), a Supreme Court case that goes back to the 1950s.
The Supreme Court's Touhy doctrine is not in itself a privilege. It is a process by which the government can preserve the status quo while questions of possible privilege or other grounds for confidentiality are considered. A government agency does have the authority under Touhy to prohibit a current or former employee or official from providing documents or testifying – even if the person wants to testify. (The legal precedents only started with Touhy itself, and this doctrine has been discussed and reasserted in federal courts for decades thereafter.)
So it is legally proper and commonplace for a government agency to put a "hold" restriction so that the agency can figure out what parts of a government employee's testimony do or do not qualify under the terms of one or even several types of privilege or confidentiality. For example, law enforcement agencies often withhold information, but only until an investigation is complete or perhaps a case goes to trial.
Steve Bannon had no authority to testify about his time at the White House once ordered not to. The White House has the right to order a current or former employee to stop until it has had time to review the situation and decide whether to invoke one or more privileges in regard to specific parts of the testimony. Anyone in the business of taking testimony from government employees, such as occurs in congressional committees, ought to know this.
Read more: http://www.americanthinker.com/articles/2018/01/bannons_refusal_to_testify.html#ixzz54d82FaQs
So basically, all of Trey Gowdy’s caterwauling is just BS?
I think Trey might have hung himself on the executive privilege matter.
Similar to the bluster over Lois Lerner, who refused to testify. Gowdy's huffing accomplished nothing.
I am not a lawyer, but I have heard that while he had the right to remain silent before it won’t apply to the Grand Jury now. Do you know if this is this true?
Speaking of Lois Lerner, isn’t it interesting that a lot of FReepers seem to think Mueller and Hillary are going to be locked up in Gitmo when there’s no will to even give Lerner a slap on the wrist?
I think so. I am an ardent supporter of Gowdy but this took him down a level and if he keeps pushing he'll go down more levels.
Reason being is it's obvious that the transition team and the actual administration do enjoy executive privilege.
That's what makes the spying on Trump during the transition makes it all the more serious, and of course his meeting and giving reassurances to allies and the like perfectly acceptable.
From the Election to the oath of office period Trump enjoys all the legal benefits befitting the office of President and. Obama last 2 months was the lamest of lame ducks and should have been limited to procedural and transition matters. No foreign policy changes.
Unless given immunity he can invoke his 5th amendment rights.
Trey Gowdy cares more about having a new hairstyle every day than he does about Nailing these CRIMINALS in Congress!!
Different goofy hair, same toothless tiger.
The investigation is supposed to be about the campaign, not Bannon’s time in office.
I’ve heard Gowdy called Roosterhead. Then I saw a pic in which he looked just like a rooster. Still laughing.
I love Trey Gowdy. But everything I have heard him say in the last 48 hours is complete B.S. I don’t know if he thinks he is saving the GOP by trashing Steve Bannon of something like that. But Trey Gowdy has to know that everything Gowdy has been saying is complete hogwash.
If he wants to complain, it is the White House who said don’t answer the questions.
That is WHY Bannon’s lawyer was telling the White House the questions in real time over the phone.
The news reports are that Steve Bannon has said he will answer all questions before the grand jury.
I am certain that if Touhy allows the White House to order bannon to refrain from answering questions that MIGHT later be determined to be covered by the deliberative process privilege or executive privilege or law enforcement confidentiality (on-going law enforcement investigation not yet complete) it would make no difference whether the questions are before Congress or the grand jury.
But the effect of that would only be the TIMING of Bannon’s testimony before the grand jury. Eventually, he may need to testify if the White House does not actually establish a valid privilege.
REMEMBER: Assertions of privilege are NOT Bannon’s privilege nor his burden to prove nor his decision one way or the other. It is the Executive Office of the President’s assertion of privilege and their problem to persuade the authorities that the privilege applies.
Bannon’s only role is to sit and wait until the Executive Office of the President works out the privilege with the courts and Congress. Bannon just can’t get ahead of that process.
But as for Bannon’s Fifth Amendment right to remain silent, that applies most of all before a grand jury. So if Bannon thinks that the answers might tend to incriminate HIM he can refuse to testify in the grand jury.
Bannon cannot claim the Fifth about OTHER people. He cannot refuse to testify about things that might incriminate someone ELSE.
bump
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