Are Bannon’s Ongoing Contacts With Trump Illegal?

Are Bannon’s Ongoing Contacts With Trump Illegal?

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Are Bannon’s Ongoing Contacts With Trump Illegal?

Bannon-Trump communications may also run afoul of obstruction of justice and witness tampering laws.

The latest news in the saga of Steve Bannon is that the former White House senior adviser has reportedly been pushing President Donald Trump to be more forceful against special counsel Robert Mueller. Bannon’s ideas allegedly include urging Trump to cut funding for the probe, telling Trump to withhold documents and pressing Trump to bring in more aggressive lawyers. These latest alleged Bannon-Trump communications come on top of other reported contacts between the two since Bannon left the White House. And it all raises serious questions as to whether Bannon is violating federal ethics laws and perhaps other statutes, including those concerning obstruction of justice.

Former White House staff members—whether encamped at Breitbart News or anywhere else—are constrained by 18 USC 207, which governs “restrictions on former officers, employees, and elected officials of the executive and legislative branches.” One provision of this statute prohibits former senior executive branch officials from communicating with their former agency for one year on behalf of other persons, whether their current employers, persons who are targets of a government investigation or anyone else. And former very senior White House officials, such as Bannon, are subject to a two-year cooling off period, which bars them not only from making such communications on behalf of others back to White House staff, but also to other very senior people in the government, such as the attorney general—and also the president.

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Another provision of the same statute prohibits former executive branch employees from contacting any part of the executive branch, including the president, with the intent to influence official decisions in any particular party matter in which the former official participated personally and substantially while in the government—all on behalf of others. The Russia investigation is such a party matter, and this means that any former government official who participated in deliberations or a decision about the Russia investigation—for example the White House decision to fire FBI Director James Comey because of the Russia investigation—may not represent back to the government on behalf of anyone else with intent to influence a government decision about the Russia investigation. The press has reported that when Bannon served in the White House he was involved in deliberations regarding the Comey firing and the Russia investigation.

None of these provisions prohibit a former government official from expressing an opinion in an op-ed or similar public forum. A former government official is also permitted to represent back to the government on behalf of himself, provided that is all he is doing and he is not acting on behalf of any other person. A former official who is being paid by someone else for work that includes communicating with government officials, however, can violate the statute.

Because of these rules, we are deeply troubled by the news reports that Bannon, with the evident support of his cohort at Brietbart News, is urging the president to take action against Mueller. Bannon might argue that he is merely expressing a personal opinion. But if Bannon’s contacts in reality involve leading a coordinated strategy closely aligned with current and former administration and Trump campaign officials, including those who may be subject to the Mueller investigation, then that would be different. In that case, Bannon may be taking on a representation role that would place him in conflict with his post-employment restrictions.

Another indicator of such a violation would be if Bannon were receiving compensation from Breitbart, his longtime patrons the Mercers or others to subsidize his overall activities, and if his communications with the president were a part of those activities. (On Thursday, Bob Mercer announced that he sold his ownership shares of Breitbart to his daughter.) Even facts like whether the phone or location Bannon used to make the calls was paid for by Breitbart or the Mercers would be some evidence that these were contacts on behalf of another party, and so illegal. So would proof that the contacts were made at the request of—or even in consultation with—Breitbart, the Mercers or others.

Finally, the Bannon-Trump communications may also run afoul of obstruction of justice and witness tampering laws. Obstruction is found where an individual interferes with an investigation with corrupt intent, such as to protect himself or a friend from prosecution. If Bannon urged Trump to hamper Mueller in order to prevent him from indicting misconduct by those involved in the Trump campaign (including Trump himself), that would present a possible obstruction issue. If the conversation turned to either of their testimony about the Russia investigation and how to shape it, that would open the question of witness tampering. We do not know whether any of this has occurred—but the contacts do raise multiple eyebrows. They merit closer scrutiny.

Many hailed the departure of Bannon from the White House as removing a potential liability from that environment. Now we know that he remains a continuing voice in the ear of Trump. In so doing, Bannon brings with him renewed risk—including to himself.

Norman Eisen is the chairman of Citizens for Responsibility and Ethics in Washington (CREW). He was chief White House ethics lawyer for President Barack Obama.

Richard Painter is the vice chairman of Citizens for Responsibility and Ethics in Washington (CREW). He was chief White House ethics lawyer for President George W. Bush.

Virginia Canter is Executive Branch Ethics Counsel for CREW and served as associate counsel for ethics to both President Obama and President Clinton.

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November 3, 2017 at 02:41AM