Bannon And Prosecutors Each Land Some Punches In Courtroom Brawl

Only another 57 rounds, and we might be able to call a winner.

Former Trump Strategist Steve Bannon Arrested On Fraud Charges Related To Crowdfunded Built The Wall Campaign

(Photo by Stephanie Keith/Getty Images)

It was a wild morning in DC as Steve Bannon tried to convince US District Judge Carl J. Nichols to let him trawl through prosecutors’ work product in an attempt to prove that the contempt of congress charge against him is part of a witch hunt and turn this case into “the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden.”

The podcaster was indicted after refusing to comply with a subpoena for documents and testimony from the January 6 Select Committee. His attorney Robert Costello claimed that former President Trump had asserted executive privilege and instructed Bannon to refuse to cooperate at all, which Bannon hopes to use as the basis of an advice of counsel defense at trial — i.e. he didn’t have the intent to defy congress, he just relied on his lawyer, who told him it was totally cool to tell Chair Bennie Thompson to get bent.

The problem for Bannon is that there is precedent in this Circuit saying that an advice of counsel defense is unavailable in a contempt of congress case. Prosecutors must only prove intent to defy the subpoena, and thus mistake of law and advice of counsel are unavailing. The District judge seemed pretty disinclined to take the defendant up on his invitation to overrule a Circuit decision just for funsies. Go figure.

Bannon’s total defiance put him out of step with the other January 6 witnesses, who at least feigned an attempt at compliance. Even Alex Jones and Mike Flynn showed up and plead the Fifth in response to the Committee’s questions. His position also turned out to be founded on an apparently false claim, since Trump’s lawyers explicitly refused to back Bannon’s invocation of privilege, instead gesturing vaguely at any privileges that might exist and encouraging Bannon to invoke them.

“Just to reiterate, our [October 6] letter referenced below didn’t indicate that we believe there is immunity from testimony for your client,” Trump lawyer Justin Clark wrote on October 16. “As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call.”

In two interviews in November at which he attempted to get the government not to charge his client with contempt of congress, Costello repeated his claims about Trump asserting executive privilege over Bannon’s testimony at events which took place three years after he got unceremoniously fired from the White House. The government then sought and received a warrant for the non-content data on his email and phone records.

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After filing a motion laying out exactly why they might have thought Costello wasn’t entirely candid, the government cited an entirely separate justification for seeking his communications data. Prosecutors argued that it needed Costello’s comms records to substantiate the willfulness element of the contempt charge. This also appeared to solicit a serious eye roll from the court.

In their typical incendiary style, Bannon’s lawyers seized on this as evidence of prosecutorial misconduct and have ratcheted up their demands for discovery into internal Justice Department deliberations, grand jury information, and Committee communications. They also seem fixated on kicking loose Office of Legal Counsel (OLC) memos opining that former top White House employees are immune from testifying about their government service.

First of all, OLC opinions aren’t binding on the court, as prosecutors pointed out this morning. But more to the point, the odds that there’s an opinion that says former executive branch employees are immune from testifying years after their separation from government and on topics entirely unrelated to their services are approximately the same as the odds of Steve Bannon having a good hair day. Which is to say, ZERO. If there was any reason to think this argument might work, you can bet Trump would have tried it.

Nevertheless, Bannon’s lawyers seem to have bet all their chips on being able to confuse a jury on this point, and are even suggesting that they should get their hands on grand jury information to prove that the government was “wrong about the law.” But Steve Bannon is not Don McGahn, the former White House Counsel who more or less successfully fended off a congressional subpoena based on claims of executive privilege. And so it is bizarre that Judge Nichols appeared to seriously entertain the proposition that the government is hiding some opinion that says “decrepit shit-stirrers who got fired in 2017 are eternally immune from testifying about an attempt to block certification of an election in 2021.”

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At the conclusion of the hearing, Judge Nichols asked for another round of briefing on the advice of counsel defense when the defendant is asserting executive privilege. He also blocked Bannon’s grand jury and congressional discovery requests and told the DOJ to turn over any relevant OLC or policy memos.

In short, it was a hot mess going in, and very little got cleaned up. On the other hand, maybe we’re about to see some spectacularly insane OLC memos cooked up under AG Bill Barr about executive privilege being a magical gift that cannot be destroyed once bestowed. Can’t wait!

US v. Bannon [Docket via Court Listener]


Liz Dye lives in Baltimore where she writes about law and politics.