Steve Bannon has been a lot of things: Media executive; provocateur; White House advisor.

But he may find his most lasting legacy is playing a key part in what could amount to a pivotal legal battle focusing on murky presidential powers.

What You Need To Know

  • Former Trump advisor Steve Bannon may end up a key player in an unprecedented legal debate surrounding executive privilege

  • Executive privilege is a widely-used term used to describe a right that presidents claim keeps them from being forced to divulge information

  • Trump claims his communication with administration or former officials is protected under executive privilege, but rules are unclear for ex-presidents

  • The debate has unleashed important legal disputes about how much authority a president has over divulging White House decision making

Congress voted earlier this month to hold Bannon in contempt for refusing to testify before a select committee investigating the Jan. 6 insurrection at the Capitol. 

Committee members say Bannon, who at that time was a former official in the Trump administration, was deeply advising the then-President in the waning days of his term, when the Republican refused to concede that he lost the election to Joe Biden.

(Bannon, said to predict that “all hell would break loose” on Jan. 6, didn’t return a request for comment.)

The contempt vote sets up the possibility that the U.S. Department of Justice will press charges against him. That would add but another chapter in the legal thicket that pits former President Donald Trump and Trump-era officials against those looking to fully account for what happened in the insurrectionary last moments of his administration.

The former president is broadly claiming executive privilege, a widely-used term used to describe a right that presidents claim keeps them from being forced to divulge information. 

While not specifically spelled out in the Constitution, executive privilege has unleashed important legal disputes about how much authority a president has over divulging White House decision making.

It’s particularly unclear when dealing with ex-presidents. That’s because President Joe Biden, who of course is in office now, waived executive privilege over certain Trump-era documents. 

"The question is who owns the privilege?" Katie Barlow, an attorney who is media editor for SCOTUSblog, said in an interview with Spectrum News. "Is it the president, the individual? Or is it the office of the Presidency?"

To hear the former president’s lawyer, the committee’s work threatens not just the 45th Commander-in-Chief — but something far greater than a single individual.

“Ultimately, the Committee is attempting to damage the republic itself, and the citizens of the United States,” reads a lawsuit filed Oct. 18 by attorneys representing Trump, “for executive privilege ‘safeguards the public interest in candid, confidential deliberations within the Executive Branch; it is ‘fundamental to the operation of Government.’”

Those on the committee are unmoved.

“We will not allow anyone to derail our work, because our work is too important: helping ensure that the future of American democracy is strong and secure,” the committee chairman, Rep. Bennie Thompson, D-Miss.,  said in prepared remarks Oct. 21.

Barlow says there’s very limited precedent: One case that relates to Trump’s is when former President Richard Nixon sought in 1977 to block a federal act aimed at taking custody of his presidential materials and preserving them. Nixon’s bid to challenge its constitutionality failed at the Supreme Court.

“Courts haven't weighed in on this a ton,” said Barlow.

The lawsuit could allow more clarity when it comes to presidential power — or ex-presidential power. What’s more, Bannon, who has had a tumultuous relationship with Trump, was an ex-official at the time of the riots. What protection, if any, does a president have when speaking to someone who isn’t in his administration? 

Like their predecessors, future presidents will surely declare executive privilege; so too many future ex-presidents. Courts in our era may finally provide some light on what’s permissible to withhold from public view.

Then again, there is one major caveat. Lawsuits take time to wind through courts — and the judicial schedule doesn’t always sync with the political calendar.

The midterm elections are about a year away. Republicans could very well be the winners and take over the House of Representatives.

That would entitle them to set their legislative priorities — including ending the Jan. 6 commission. 

Depending on how the votes go, Steve Bannon may end up a key player in legal precedence that’s stuff of law school textbooks.

Or he may never have to give up what he may know about Jan. 6.