Bannon reportedly pitched the White House a 3-point plan to derail the Mueller investigation

 

  • The former White House chief strategist Steve Bannon is proposing a three-part plan for the White House to counter the special counsel Robert Mueller and the Russia probe, The Washington Post reports.
  • First, fire Deputy Attorney General Rod Rosenstein; second, stop cooperating with the special counsel; third, President Donald Trump retroactively invokes executive privilege over witness testimony.
  • One legal expert called Bannon's theory on executive privilege "legally laughable."
  • It's unclear how successful the plan would be if Trump chose to carry it out.

Steve Bannon, the former White House chief strategist, has pitched West Wing aides a three-part plan to derail the special counsel Robert Mueller's Russia investigation, the Washington Post reported Wednesday night.

The first step of the plan reportedly calls for the firing of Deputy Attorney General Rod Rosenstein, who has been in President Donald Trump's crosshairs since reports surfaced of an FBI raid on the office and home of Trump's personal lawyer, Michael Cohen.

The second step calls for the White House to stop cooperating with Mueller's document and interview requests. White House lawyer Ty Cobb has been spearheading its response to the Russia probe, and Cobb has largely advocated for a cooperative approach toward Mueller.

The third step in Bannon's reported pitch calls for the president to retroactively assert executive privilege over White House documents and Mueller's interviews with staffers over the last year.

"The president wasn't fully briefed by his lawyers on the implications" of not exerting executive privilege over the witness interviews, Bannon told The Post. "It was a strategic mistake to turn over everything without due process, and executive privilege should be exerted immediately and retroactively."

 

Rosenstein's ouster could be imminent

How successful Bannon's plan would be, if Trump decides to carry it out, is up for debate.

Certainly, the president appears in recent days to be gearing up to implement the first step: ousting Rosenstein.

Trump's anger toward top Justice Department officials — like Rosenstein, Attorney General Jeff Sessions, and FBI director Christopher Wray — is not a new development.

But his fury reached its apex following the Cohen raids, which he reportedly believes crossed the "red line" he said investigators would breach if they examined his or his family's personal finances.

Armed with a search warrant on Monday, FBI agents apparently seized Cohen's electronic devices; personal financial documents; records of payments made to two women who claim to have had affairs with Trump; records related to a 2005 "Access Hollywood" tape featuring Trump; and attorney-client communications between Trump and Cohen.

Trump, who is said to have once asked why he couldn't have "my guys" at the "Trump Justice Department" do his bidding, began planning to fire Rosenstein after it surfaced that he had personally greenlit the FBI's raid on Cohen.

His anger has likely been bolstered by Bannon and other figures, like Fox News host Sean Hannity and ex-prosecutor Joseph diGenova, who have been pushing for Rosenstein's ouster since the Cohen raid.

It's unclear how successful the second step of Bannon's plan — for the White House to cease cooperating with Mueller's requests — will be.

Cobb is the member of Trump's legal team who has advocated most for transparency and communication with the special counsel. He did not respond to Business Insider's request for comment about whether that plan has changed in light of Bannon's reported pitch.

RELATED: People interviewed in Russia probe

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People reportedly interviewed in Robert Mueller's Russia probe
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People reportedly interviewed in Robert Mueller's Russia probe

U.S. Attorney General Jeff Sessions 

(Photo by Chip Somodevilla/Getty Images)

Former FBI Director James Comey

(REUTERS/Jonathan Ernst)

Former White House Chief of Staff Reince Priebus

(REUTERS/Joshua Roberts)

Former White House press secretary Sean Spicer

(REUTERS/Kevin Lamarque)

White House Director of Strategic Communications Hope Hicks

(Photo by Jabin Botsford/The Washington Post via Getty Images)

Trump advisor Stephen Miller

(REUTERS/Kevin Lamarque)

President Trump's son-in-law and senior advisor Jared Kushner 

(bBRENDAN SMIALOWSKI/AFP/Getty Images)

Don McGahn, general counsel for the Trump transition team

(Photo by Drew Angerer/Getty Images)

Christopher Steele, the former MI6 agent who compiled the reported Trump dossier 

(Photo by Victoria Jones/PA Images via Getty Images)

Sam Clovis, a former member of the Trump campaign

(Photo by Win McNamee/Getty Images)

CIA Director Mike Pompeo
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A 'legally laughable' theory

The third step of Bannon's plan — calling for Trump to retroactively invoke executive privilege — may run into an obstacle or two.

Andrew Wright, who served as an associate in the White House counsel's office under President Barack Obama, put it bluntly.

"Retroactive executive privilege is not a thing," he said. "There have been situations in which a particularly sensitive national security document got loose and gets retroactively classified. However, Bannon is talking about asserting executive privilege over grand jury testimony that has already been given."

Retroactive executive privilege is not a thing.

The Supreme Court ruled in United States v. Nixon that the Watergate special prosecutor's grand jury's need for information outweighed President Richard Nixon's interests in keeping confidential the Oval Office recordings of his conversations with key advisers and White House officials.

Wright said he would expect the same ruling in Trump's case.

"Once the testimony and other evidence is in the grand jury files, that bell can't be unrung," he added. "Bannon's retroactive executive privilege theory is legally laughable."

It's unclear whether Trump will act on Bannon's suggestions.

But Trump's actions over the last several days, as well as his conversations with controversial figures urging him to act on his most volatile instincts, have raised red flags among legal experts and lawmakers.

Democratic Sen. Cory Booker of New Jersey, who sits on the Senate Judiciary Committee, said in a statement Thursday that he was "encouraged by the growing momentum" behind a bipartisan measure that he and three other senators have introduced to safeguard the special counsel.

And Sen. Chuck Grassley of Iowa, the Republican chairman of the committee, said Wednesday that he will introduce a separate bipartisan bill that would protect Mueller in the event of his firing. According to The New York Times, the legislation would allow Mueller to appeal his ouster to a panel of judges and possibly be reinstated. The measure could come to a vote as early as next week.

RELATED: See images of Steve Bannon 

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Donald Trump and Steve Bannon

US President Donald Trump (L) congratulates Senior Counselor to the President Stephen Bannon during the swearing-in of senior staff in the East Room of the White House on January 22, 2017 in Washington, DC.

(MANDEL NGAN/AFP/Getty Images)

U.S. President Donald Trump (L-R), is joined by Chief of Staff Reince Priebus, Vice President Mike Pence, senior advisor Steve Bannon, Communications Director Sean Spicer and National Security Advisor Michael Flynn, as he speaks by phone with Russia's President Vladimir Putin in the Oval Office at the White House in Washington, U.S., January 28, 2017. Jonathan Ernst: "Very early in the Trump administration, weekends were as busy as weekdays. On Trump's second Saturday the official schedule said he would be making private phone calls to a number of world leaders including Russia's Vladimir Putin. I arrived early and, before sitting down at my desk walked up to Press Secretary Sean Spicer's office. He, too, was just taking his coat off. I gingerly made the suggestion that previous administrations had sometimes allowed photos of such phone calls through the Oval Office windows on the colonnade. To my mild shock, he didn't even think about it twice. "We'll do it!" he said. In truth, I really only expected the Putin call, but we were outside the windows multiple times throughout the day as the calls went on."

(REUTERS/Jonathan Ernst)

U.S. President Donald Trump talks to chief strategist Steve Bannon during a swearing in ceremony for senior staff at the White House in Washington, U.S. January 22, 2017.

(REUTERS/Carlos Barria)

Trump advisers Steve Bannon (L) and Jared Kushner (R) listen as U.S. President Donald Trump meets with members of his Cabinet at the White House in Washington, U.S., June 12, 2017.

(REUTERS/Kevin Lamarque)

Republican U.S. presidential nominee Donald Trump (C) and campaign CEO Steve Bannon (R) listen to National Park Service Interpretive Park Ranger Caitlin Kostic (2nd R) on a brief visit to Gettysburg National Military Park in Gettysburg, Pennsylvania, U.S. October 22, 2016.

(REUTERS/Jonathan Ernst)

U.S. President Donald Trump (L-R), joined by Chief of Staff Reince Priebus, Vice President Mike Pence, senior advisor Steve Bannon, Communications Director Sean Spicer and National Security Advisor Michael Flynn, speaks by phone with Russia's President Vladimir Putin in the Oval Office at the White House in Washington, U.S. January 28, 2017.

(REUTERS/Jonathan Ernst)

U.S. President Donald Trump signs a memorandum to security services directing them to defeat the Islamic State in the Oval Office at the White House in Washington, U.S. January 28, 2017. Pictured with him are White House senior advisor Steve Bannon (L-R), National Economic Council Director Gary Cohn, Vice President Mike Pence, Deputy National Security Advisor K. T. McFarland, National Security Advisor Michael Flynn, National Security Council Chief of Staff Keith Kellogg and senior advisor Kellyanne Conway.

(REUTERS/Jonathan Ernst)

Trump advisor Steve Bannon (L) watches as US President Donald Trump greets Elon Musk, SpaceX and Tesla CEO, before a policy and strategy forum with executives in the State Dining Room of the White House February 3, 2017 in Washington, DC.

(BRENDAN SMIALOWSKI/AFP/Getty Images)

Senior Advisor Jared Kusher, White House Chief Strategist Steve Bannon and President Donald Trump arrive at the start of a meeting with Senate and House legislators, in the Roosevelt Room at the White House, February 2, 2017 in Washington, DC. Lawmakers included in the meeting were Sen. Orrin Hatch (R-UT), Rep. Kevin Brady (R-TX), Sen. Ron Wyden (D-OR) and Rep. Richard Neal (D-MA).

(Photo by Drew Angerer/Getty Images)

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