"Patriots are not revolutionaries trying to overthrow the government of the United States.
Patriots are Counter-Revolutionaries trying to prevent the government from overthrowing the Constitution."
The Coach’s Team (TCT) offers the best in conservative essays along with articles taken from various internet sites. The victory of Donald Trump has provided a God-sent opportunity to reverse the years of willful damage done our nation by Barack Hussein Obama.
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
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,"
"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."
That article also read: "Schiff
wasn't the only committee member who found Bannon's legal justification
appalling. Democratic [r]epresentative Jim Himes described it as a
'very novel theory of executive privilege,' on [Anderson Cooper 360]." As reported
by [The Hill]: "[t]hat stance infuriated
lawmakers. Sources described the meeting as a 'total free-for-all'
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
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.
In the short run, this serves as a
complete block on getting a government employee to
testify. Eventually, a government agency will need to review the
situation and come to a decision. At that point, the agency must
assert a valid privilege that meets all the requirements under the facts of the
circumstance. This includes the White House, which is technically
the executive office of the president.
As the Supreme Court upheld in Touhy,
if government employees went around providing documents (like James Comey) or
talking unrestrained (like Robert Mueller), then legitimate privileges would
become worthless. By the time a government agency was to assert the
privilege, it would already be too late. The horses would already
have left the barn.
The only people who got this issue
right are White House spokeswoman Sarah Huckabee Sanders and New
York magazine. Sanders
told reporters, "As with all congressional inquiries touching
upon the White House, Congress must consult with the White
House prior to obtaining confidential material. This is part of
a judicially recognized process that goes back decades."
Ms. Sanders gets it. The
preening, self-important members of Congress and the news media seem
Now, there was one part of Bannon's
refusal to testify on the White House's orders that is somewhat new: do claims
of privilege include the time that an employee or official worked on the
presidential transition team? Most people don't seem to understand
that the transition team is actually "a thing" – an actual government
entity. It is a government operation. People on payroll
actually getting paid for the transition get a government paycheck.
So there is a question whether the
White House can assert executive privilege or other privileges (like the
deliberative process privilege) over activities during the transition. But
again, Touhy allows any government agency to stop the proceedings until
such controversies can be sorted out.