President Donald Trump and ousted White House chief strategist Steve Bannon are breaking the law by continuing to confer about administration policy after Bannon's firing, said Politico on Friday.
This week, Trump has pointedly dropped Bannon's name as one of the voices urging him to take aggressive action against special counsel Robert Mueller. Bannon was dismissed from his White House job in August and returned to his position at the helm of Breitbart.com.
According to former Ambassador Norman Eisen, ex-White House ethics czar Richard W. Painter and CREW's Virginia Canter, former White House staff are bound by 18 USC 207, a law which imposes "restrictions on former officers, employees, and elected officials of the executive and legislative branches.”
One provision of the law forbids former executive branch employees 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."
Another provision of the same statute prohibits former executive branch employees from contacting any person in 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."
For example, any and all executive branch personnel who participated in discussions about the Russia investigation and the firing of ex-FBI Director James Comey may not contact the executive branch on behalf of anyone else with the intent of influencing any decisions regarding Russia or Comey.
This does not mean that former executive branch employees are forbidden from expressing their opinions in op-ed columns or other public forums. Also, former officials are allowed to communicate with the executive branch on their own behalf, provided they are not acting on behalf of any other person. If the former official is being paid by another agency to contact government officials, however, this can violate the statute.
Eisen, Painter and Canter said, "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."
By taking compensation for his role at the helm of Breitbart.com and continuing to confer with the president, Bannon is running directly afoul of regulations on the conduct of former White House officials.
"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," said the Politico column.
Finally, the actions taken by Bannon and Trump could amount to obstruction of justice and witness tampering, the writers said, explaining, "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 succeeds in getting Trump to take action against Mueller and impedes the special counsel's investigation, this amounts to a clear obstruction of justice, the essay argued.
Eisen, Painter and Canter concluded, "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."