Are Bannon’s ongoing contacts with Trump illegal?

Norman Eisen, Richard W. Painter, and Virginia Canter write: 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.

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. [Continue reading…]

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