Steve Bannon's attorney relayed questions, in real time, to the White House during a House Intelligence Committee interview of the former Trump chief strategist, people familiar with the closed-door session told The Associated Press.
As lawmakers probed Bannon's time working for President Donald Trump, Bannon's attorney Bill Burck was asking the White House counsel's office by phone during the Tuesday session whether his client could answer the questions. He was told by that office not to discuss his work on the transition or in the White House.
It's unclear who Burck was communicating with in the White House. He is also representing top White House lawyer Don McGahn in special counsel Robert Mueller's investigation into contacts between the Trump campaign and Russia.
Tuesday's conversations were confirmed by a White House official and a second person familiar with Bannon's interview. They spoke only on condition of anonymity because they were not authorized to speak publicly.
At the White House, press secretary Sarah Huckabee Sanders confirmed the questions were relayed over the phone and said it was a typical process.
"Sometimes they actually have a White House attorney present in the room," she said. "This time it was something that was relayed via phone and again was following standard procedure for an instance like this and something that will likely happen again on any other number of occasions, not just within this administration but future administrations."
On Wednesday, the AP also confirmed that Bannon will meet with Mueller's investigators for an interview instead of appearing before a grand jury. A person familiar with that issue confirmed the interview and said Bannon is expected to cooperate with Mueller. The person was not authorized to speak publicly about private conversations.
It's unclear when the interview might occur.
Burck didn't respond to numerous phone messages left Tuesday and Wednesday. A spokeswoman for Bannon did not respond to multiple requests for comment. Peter Carr, a spokesman for the special counsel's office, declined comment.
Bannon refused to answer a broad array of queries from the House Intelligence Committee about his time working for Trump, leading the Republican committee chairman to authorize a subpoena.
Lawmakers were expecting a similar fight Wednesday with Trump's White House as another senior aide, Rick Dearborn, was to appear for a private interview with the committee.
The developments brought to the forefront questions about White House efforts to control what current and former aides tell Congress about their time in Trump's inner circle, and whether Republicans on Capitol Hill would force the issue.
Michael Dorf, a constitutional law professor at Cornell University, said that while traditionally Congress has required a formal assertion of executive privilege in order for a witness to refuse to answer a question, more recently "we've seen people just not answer questions without asserting privilege."
"It's kind of a game of separation-of-powers chicken that's going on there," he said. "Because nobody knows the full scope of executive privilege — other than that it's not absolute from the Nixon case — no one really wants to push it."
Dorf referred to the court case surrounding the Supreme Court's rejection in 1974 of President Richard Nixon's assertion that he could use executive privilege to prevent the release of tape recordings involving him and other aides. Dorf said that though it seems unusual for a witness' lawyer to consult in real time with the White House about which questions can be answered, it is a "bit more respectful" than a pre-emptive blanket refusal to answer questions.
It is unlikely the committee will face the same White House objections with Trump's former campaign manager, Corey Lewandowski, who is also being interviewed Wednesday. He never served in the White House.
The interviews with Lewandowski and Dearborn were confirmed by two people familiar with the committee's work who spoke to the AP on condition of anonymity to discuss the confidential interviews.
The congressional subpoena for Bannon came after the former far-right media executive and recently scorned Trump adviser received a grand jury subpoena issued by Mueller. That subpoena, first reported by The New York Times, appeared to be a negotiating tactic that then prompted Bannon to agree to a sit-down with Mueller's prosecutors rather than appearing before the grand jury.
Bannon confirmed that he had received the subpoena from Mueller during his House Intelligence Committee interview, according to a person who spoke to the AP on condition of anonymity because the person wasn't authorized to publicly discuss Bannon's interactions with Mueller.
Lawmakers questioned Bannon as part of their investigation into Russian election inference and sought answers about Trump's thinking when he fired FBI Director James Comey.
But Bannon refused to answer questions about that crucial period, and as a result, the chairman, Rep. Devin Nunes, R-Calif., issued the subpoena, spokesman Jack Langer said.
A White House official said the White House counsel's office had a conversation last week with committee counsel about Bannon's testimony and was told the questions were expected to be about the campaign. The official said the White House offered to send an attorney to attend the interview and was told the move wasn't necessary.
But when the lawmaker's questions moved to Bannon's time in the White House, Bannon's lawyer got on the phone with the counsel's office.
Rep. Adam Schiff of California, the committee's top Democrat, said Bannon's refusal to answer questions from the panel "can't stand" and went far beyond other witnesses who have declined to answer specific questions. He said the committee expects to have Bannon return for more questioning.
"This was effectively a gag order by the White House preventing this witness from answering almost any question concerning his time in the administration and many questions even after he left the administration," Schiff said.
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