Government

Bannon Quits Shouting About Jan. 6 Hearings To Demand Delay Of Trial Due To Publicity Around Jan. 6 Hearings

The balls on these guys!

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Steve Bannon And Lanny Davis Hold Debate In Prague

(Photo by Sean Gallup/Getty Images)

The genius of Steve Bannon’s lawyers is their willingness to make literally any inane argument, and to do it indignantly and at high decibel.

How very dare the government suggest that Bannon, who got fired from the White House in 2017, is unable to assert executive privilege over conversations he had with Trump and/or third parties like the Proud Boys in 2021!

Obviously Bannon should be able to subpoena Speaker Pelosi and Rep. Adam Schiff, as well as staff emails, because separation of powers is just, like, a suggestion, right?

And shouldn’t prosecutors be forced to hand over their internal deliberations regarding the decision last month not to charge Trump’s chief of staff Mark Meadows and his comms flack Dan Scavino for contempt of congress? Isn’t that actually Brady material? Or, in the alternative, don’t they have to hand it over because it’s, umm, relevant to Bannon’s decision in October of 2021 to blow off a subpoena from the January 6 Select Committee?

That last headscratcher was from a motion to compel discovery Bannon filed Monday in his contempt of congress prosecution. When Judge Carl J. Nichols said he was going to punt on the decision whether to let Bannon assert Office of Legal Counsel memoranda as a defense, he ordered the Justice Department to disclose any “statements or writings reflecting official DOJ policy, such as an opinion of the Office of Legal Counsel or the position of an entire division or litigating group, whether those statements are public or not, if such writings relate to the department’s policy on prosecuting or not prosecuting government or former government officials raising executive privilege claims or defenses of immunity or similar issues.”

Bannon immediately came back and claimed that the internal deliberations on the declination decisions for Meadows and Scavino were “department policy” and thus discoverable.

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Predictably, this provoked a flabbergasted reply from AUSA Amanda Vaughn, who’s been tasked with the unenviable chore of responding to this bullshit.

“[T]he Government has never understood the Court to have required the Government to provide internal analysis and attorney work product material relating to its prosecutorial decisionmaking in particular criminal matters, which is what the Defendant seeks here, particularly given courts’ well-established recognition that delving into such matters intrudes on a ‘special province’ of the Executive,” she wrote, noting that the Department has already handed over the requested OLC memoranda, despite the fact that Bannon “has not even identified a single OLC opinion that sanctions his conduct, even putting aside for a moment whether he relied on it.”

As for the purported defense that the government entrapped him into believing he could give Congress the finger with impunity based on internal DOJ policy memos (which Bannon never saw!) and is thus estopped from prosecuting him, Vaughn argues that “There is no estoppel defense available to criminal defendants under which they can cobble together out-of-context one-liners from disparate government writings and claim their conduct was legal—such a defense would have no limits and would erase criminal accountability across the board.”

But no sooner had prosecutors submitted their brief noting that Bannon’s claim of selective prosecution “does not identify of what ‘protected class’ he believes Mark Meadows and Dan Scavino are a part that he is not or why they are similarly situated to him” such that he is entitled to discover internal DOJ deliberations, then Bannon’s lawyers struck again.

This time, they’re demanding a continuance of next month’s scheduled trial date, claiming that publicity from the ongoing January 6 hearings in the House will poison the jury pool in DC.

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It would be impossible to guarantee Mr. Bannon a fair trial in the middle of much publicized Select Committee hearings which purport to broadcast investigative “findings” on topics that are referenced in the Indictment. Under the circumstances, we believe that it would be erroneous to deny a requested continuance when congressional hearings create prejudicial pretrial publicity – as has been acknowledged by the Government and found to constitute good cause for a trial continuance in another pending case in this district.

Indeed, Judge Timothy Kelly did grant a postponement of Proud Boy Ethan Nordean’s trial on charges of seditious conspiracy after the militia group featured prominently in a recent hearing. Bannon’s counsel fails to mention that Chief Judge Beryl Howell rejected a similar request for postponement from a less prominent January 6 defendant, Anthony Williams, who is charged with misdemeanor trespassing and disorderly conduct. Not for nothing, but Bannon is charged with misdemeanor contempt relating to conduct which took place in October 2021, not attempting to overthrow the government in a riot ten months earlier.

But more to the point, it takes a substantial degree of chutzpah to complain about publicity surrounding this case when Bannon talks about it almost daily on his podcast.

On Tuesday, as Media Matters pointed out, Bannon suggested that Michael Stenger, the former Senate sergeant-at-arms who died on Monday at 71 after being diagnosed with cancer, might have been murdered to keep him from testifying about fake MAGA agitators in the crown on January 6.

“Do we have a Vince Foster situation on our hands?” he wondered, adding later, “We’ll have to see. Yup, I said the quiet part out loud.”

Yesterday he hosted Trump campaign aide David Bossie for a segment titled “The Jan. 6 Committee Hates Trump More Than They Love This Country.” Then he followed up with a former White House intern who called Mark Meadows’s former aide Cassidy Hutchinson, who testified on Wednesday, a liar.

And just two weeks ago Bannon stood on the steps of the courthouse and said “I look forward to having Nancy Pelosi, and little Jamie Raskin, and shifty Schiff in here at trial answering questions.” Reps. Raskin and Schiff are on the January 6 Select Committee.

So it’s more than a little bit rich for Bannon to complain that the roughly ten seconds of video from his podcast that played during the first hearing on June 9, “inflammatory” remarks by committee members, and pervasive publicity around the hearings entitles him to a new trial at the very same moment when he’s howling about the hearings daily on his own podcast and everywhere else.

Judge Nichols ordered the government to respond to the motion for continuance by Tuesday. Looks like some line attorney’s having a fun holiday weekend!

US v. Bannon [Docket via Court Listener]

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

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