Happy Hump Day Trump Watchers! I'm your host Cogan Schneier, Washington, D.C.-based litigation reporter at the National Law Journal. Today, I'd like to focus on the country's favorite multi-shirt-wearing ex-Trump adviser, who is back in the news in a big way despite his fall from grace last week following the publication of Michael Wolff's “Fire and Fury.” You guessed it: Today on Trump Watch, we're talkin' 'bout Bannon.

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THE BANNON BONANZA EDITION

News broke this week that Steve Bannon, who served as CEO of President Donald Trump's 2016 campaign and later as chief strategist in the White House, was subpoenaed by Robert Mueller, the special counsel, to testify before a grand jury. This broke the same day Bannon sat for a 10-hour closed-door interview before the House Intelligence Committee, during which lawmakers said Sloppy Steve (as Trump has come to know him) refused to answer questions, citing executive privilege. Then, just today, we've learned that Bannon will not testify before the grand jury, but will instead meet with investigators from Mueller's team.

That's a lot of Bannon news in the span of 24 hours. But Bannon's jaunt on the Hill and tango with Mueller present some important legal issues that I can't help but explore, like executive privilege, contempt of Congress, and why Bannon would, or would not, blab to Mueller. Let's dive in!

Bannon's lawyer, Bill Burck of Quinn Emanuel Urquhart & Sullivan (who also represents White House Counsel Don McGahn AND former White House chief of staff Reince Priebus), was reportedly relaying questions in real time to the White House over the phone during his client's interview Tuesday. The White House instructed that Bannon should not answer any questions about his time in the administration or working on the transition. Reports indicate neither the White House nor Bannon officially “asserted” executive privilege, but rather, Bannon didn't answer questions because the White House might assert privilege.

→ Not sure about you, readers, but this had me thinking, what the what? Can they do that? But Ross Garber, co-chairman of Shipman & Goodwin's government investigations and white-collar crime group, who's litigated executive privilege cases, told me this issue is tricky because there isn't a lot of case law defining the contours of executive privilege, how it can be invoked and when.

→”Claims of privilege in this context are generally negotiated and rarely wind up in court,” Garber emailed. “What is commonly referred to as 'executive privilege' is really a set of somewhat different rationales for maintaining the confidentiality of certain presidential matters.”

→ This privilege business has come up before, and will come up again as more members of Trump's inner circle testify before Congress. Executive privilege, broadly, protects executive branch conversations and communications from disclosure, and includes categories like presidential communications, state secrets and deliberative process privilege.

→ But can Trump claim that conversations that happened before he was even president, during the transition, are privileged? Ehh, some in the legal community aren't sure about that one. “The use of executive privilege over conversations with a president-elect is very hard to maintain,” writes George Washington Law Professor Jonathan Turley. “Trump was not the chief executive until he took the oath of office.”

How this gets into the courtroom: The claim of privilege annoyed lawmakers on both sides of the aisle, so much so that even GOP leaders of the committee would not rule out the possibility of holding Bannon in contempt of Congress. And that, legal nerds, is what would potentially get this dispute before a judge.

→ Here's how it works, per a Congressional Research Service report: The House can vote to authorize the committee to pursue a civil action in federal court to enforce a subpoena against Bannon. This happened to former Attorney General Eric Holder, who was sued in 2012 by a House committee to force him to comply with subpoenas related to the investigation of a botched gun-smuggling sting operation, known as Fast and Furious. That case was delayed by settlement efforts, and the judge eventually ruled against Holder in 2016 because much of the documents had been released by then.

→ Andy Wright, a professor at Savannah Law School who worked in the White House on the Fast and Furious issue, tweeted about how courts may weigh the issue: “Top line: If presented w/ a dispute, courts will assess Congress & Mueller's need against a WH interest in confidentiality. Congress has policy/oversight interests and Mueller has law enforcement/grand jury/judicial interests”

→ Of course, such a lawsuit would take months. It's unclear if that's the route House lawmakers would really take at this point.

Stop, Mueller time. While Bannon isn't blabbing for Congress, he is willing to do so for Mueller. Bannon and Mueller have reportedly struck some sort of deal under which Bannon will fully cooperate in an interview with Mueller's team, instead of facing a grand jury.

→ Bannon is willing to tell all to Mueller, and not Congress, because executive privilege would not apply when it comes to Mueller, reports said. The Supreme Court ruled in 1974, in United States vs. Nixon, that executive privilege could be overruled when it comes to a criminal investigation. Man, to be a fly on Mueller's wall.

IN OTHER TRUMP NEWS:

- Trump's DOJ will ask the Supreme Court to directly review a district court opinion striking down the administration's recission of the DACA program. More here, from moi.

- Do Trump's tweets carry the weight of law? Negatory, reports my colleague C. Ryan Barber. Read more here.

- Paul Manafort and his deputy Rick Gates still don't have a trial date (sad face). More here.

- My colleague Erin Mulvaney reports Trump tapped a Morgan Lewis partner to fill the last remaining vacancy on the National Labor Relations Board. Read more here.