By
When it comes to members of Donald Trump’s inner circle and the Jan. 6 investigation, few have been as obstinate as Steve Bannon. It’s why his apparent change of heart stands out as notable. The New York Times reported overnight:
With his criminal trial for contempt of Congress approaching, Stephen K. Bannon, an ally of former President Donald J. Trump’s who was involved in his plans to overturn the 2020 election, has informed the House committee investigating the Capitol attack that he is now willing to testify, according to two letters obtained by The New York Times.
For those who might need a refresher, let’s revisit our earlier coverage and review how we arrived at this point.
The one thing everyone involved in the process can agree on is that Bannon has important insights related to the Jan. 6 attack on the U.S. Capitol. He was in communications with Trump in the runup to the insurrectionist riot, and he reportedly told the outgoing president, “[I]t’s time to kill the Biden presidency in the crib.”
The day before the attack, Bannon seemed to know quite a bit about what was likely to happen, telling his podcast listeners, “All hell is going to break loose tomorrow. Just understand this: All hell is going to break loose tomorrow.... [A]ll I can say is: Strap in. You have made this happen, and tomorrow it’s game day.”
With this in mind, it hardly came as a surprise when the bipartisan House committee investigating the attack issued subpoenas in September 2021, seeking information from key Trump insiders — and Bannon was at the top of the list.
When he refused to comply, the House approved a resolution finding the GOP operative in contempt of Congress. As part of the same process, the Democratic-led chamber referred the matter to the Justice Department for possible criminal prosecution, and in November 2021, Bannon was indicted by a federal grand jury, charged with one count of contempt and another involving his refusal to produce documents, despite a congressional subpoena.
The far-right operative/media personality maintained a defiant posture — until very recently. As Bannon’s criminal trial approached, and he faced the very real possibility of fines and time behind bars, his posture changed.
For months, part of Bannon’s argument was that he couldn’t cooperate with investigators because of executive privilege — a principle based on the idea that a president can withhold communications with his top aides as part of a deliberative White House process. In this case, however, it was an underwhelming argument, not only because Trump is no longer president, but also because Bannon left the White House years before the conversations in question.
Nevertheless, over the weekend, Trump sent Bannon a letter, waiving executive privilege, while whining about the investigation. (The former president literally referred to the House select committee in writing as “the Unselect Committee of political Thugs and Hacks.”)
So, what happens now? There are a couple of angles to keep an eye on as the process moves forward.
First, there’s the congressional angle. Bannon and his lawyers had insisted that the Jan. 6 committee’s subpoena was inherently illegitimate and unenforceable. They now appear to have abandoned that argument.
That said, the scope of Bannon’s cooperation remains to be seen, and we don’t yet know whether (and how often) he might plead the Fifth in response to investigators’ questions.
It also struck me as notable that the letter from Bannon’s lawyer referenced his willingness to speak at a “public hearing,” while the committee expects him to appear for a behind-closed-door interview, just as hundreds of other witnesses have already done.
If the former White House strategist believes he's entering negotiations over how he might comply with a subpoena, not whether he'll comply, it's difficult to guess how those talks might go.
Second, there’s the prosecutorial angle. If Bannon’s sudden and well timed change of heart was designed to derail the criminal case against him, federal prosecutors were unmoved.
In an overnight court filing, the Justice Department argued that Bannon’s “last-minute efforts to testify, almost 9 months after his default — he’s still made no effort to produce records — are irrelevant to whether he willfully refused to comply in October 2021 with the Select Committee’s subpoena. Any evidence or argument, related to his eleventh-hour efforts should, therefore, be excluded at trial.”
Or put another way, as far as prosecutors are concerned, Bannon broke the law last fall, even if he appears to be having second thoughts about it now.
Watch this space.
The House Jan. 6 committee is holding its seventh public hearing on Tuesday, July 12 at 1 p.m. ET. Get expert analysis in real time on our liveblog at msnbc.com/jan6hearings.