Government

DOJ Comes Out Swinging As Bannon Attempts To Turn Case Into Public Circus

TFW you confuse your publicity strategy with your legal strategy.

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Steve Bannon (Photo by Ben Jackson/Getty Images for SiriusXM) Stephen K. Bannon

If you don’t want to be treated like someone who’s about to publish grand jury testimony, maybe don’t stand on the courthouse steps and announce that you’re going to turn your case into “the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden.”

That’s more or less the government’s response to Steve Bannon’s objection to a proposed protective order for discovery materials in the case involving his refusal to testify to the January 6 Select Committee.

On November 17, prosecutors submitted a bog standard draft order “to which parties in this district regularly agree” which would have restricted the dissemination of grand jury testimony and other congressional and prosecutorial discovery materials to defense and witnesses as necessary. At a status hearing the next day before US District Judge Carl J. Nichols, counsel for Bannon assured the court, “With regard, obviously, to Grand Jury testimony, I think we are going to be able to reach agreement with the Government and come to a common position that we will be able to file,” adding later that he planned to “talk further with Government counsel and file something with you.”

According to the most recent government filing, that conversation never happened. Instead, Bannon filed a motion November 24 objecting to the proposed protective order in its entirety, claiming that it violates his Sixth Amendment right to a fair trial and deprives the government of access to judicial proceedings.

The DOJ filed a blistering response last night, calling out both Bannon for his own strategy to try his case in public and defense counsel for filing a “misleading” objection to the proposed order after explicitly promising to work with the government to reach an accommodation.

Prosecutors note that Bannon’s attorney David Schoen (of Trump impeachment hissy fit fame) described the indictment as “a scam from the beginning” at that press gaggle where Bannon announced that he was “going on offense” against the government. Then Team Bannon turned around and gave a blind quote to the Post hinting at a nefarious government plot to hide the truth: “Members of the public should make their own independent judgment as to whether the U.S. Department of Justice is committed to a just result based upon all the facts.”

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The government argues that Bannon and his counsel are deliberately mischaracterizing the normal rules of discovery, such as the secrecy of grand jury materials, in an attempt to foster a false public narrative.

First, the defendant has indicated he intends to publicly disseminate the materials for an improper purpose: to make extrajudicial arguments about the merits of the case pending against him and the validity of the Government’s decision to seek an indictment. Contrary to what the defendant told the Washington Post, allowing unfettered public access to discovery materials, regardless of their use or relevance to public judicial proceedings, is not the “normal process.” It is the opposite of normal.

And furthermore, the government argues, allowing Bannon to disseminate witness statements through his alt-right internet buddies amounts to “witness tampering because it will expose witnesses to public commentary on their potential testimony before trial and allow a witness to review summaries of other witnesses’ statements recounting the same event or events.” It will also expose both witnesses, congressional staffers, and jurors to potential harassment — not for nothing, but the last time Bannon went on offense, a horde of deranged thugs descended on DC and tried to overthrow the government.

“The misleading and frivolous nature of the defendant’s claims of prejudice demonstrate that they are just a cover for the real reason the defendant opposes a protective order in this case and which he and his counsel have expressed in their extrajudicial statements—that the defendant wishes to have trial through the press,” prosecutors conclude, urging the court to reject Bannon’s motion.

It’s gonna be such a shitshow.

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US v. Bannon [Docket via Court Listener]

Liz Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

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