Government

Court Bench Slaps Bannon Attempt To Get Out Of Contempt Trial

Swing and a miss!

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

(Photo by Stephanie Keith/Getty Images)

Steve Bannon had a rough day in court yesterday, as US District Judge Carl John Nichols dropkicked several of the putrefying podcaster’s attempts to fend off prosecutors in his contempt of Congress case.

As yet, the only indictments arising out of the January 6 Select Committee are of Bannon and his buddy Peter Navarro, with whom he plotted to overturn Biden’s electoral college victory in a plan they dubbed “The Green Bay Sweep.” Among the dozens of witnesses who sued to protect their communications, only those two were dumb enough to refuse to even show up and plead the Fifth. But Bannon had the sense to hire a lawyer, so … slight advantage Steve!

Since his indictment, Bannon’s lawyers David Schoen, Evan Corcoran, and Robert Costello have made several bizarre arguments on behalf of their client. Like every January 6 litigant, Bannon insisted that the committee is illegitimate because it has no ranking member and is constituted in violation of the House’s own rules. No court has taken the bait on that one, and Judge Nichols said he wasn’t going to bigfoot in either and tell the House how to conduct its own business.

Bannon similarly argued that Office of Legal Counsel memoranda expressing the opinion that former executive branch employees should not be prosecuted for refusing to testify citing executive privilege blocked the DOJ from charging him. Essentially this is an entrapment by estoppel argument, with Bannon claiming that the OLC memos gave him the impression that he could defy Congress with no repercussion.

But, as Judge Nichols noted from the bench, there are two problems here. First, the OLC memos refer to former executive branch employees being asked to testify about their time in government service, and Bannon, who was fired from his White House job in 2017, is being asked about his part in an electoral coup that took place in 2020 and 2021.

“It’s more than a stretch… they specifically addressed this situation,” the judge said, according to a report by the Daily Beast’s Jose Pagliery.

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Second, Donald Trump never made a blanket assertion of immunity, as this blog has pointed out many, many times.

Trump’s lawyer Justin Clark wrote to Costello on October 16 making it very clear that the former president was not instructing his client to refuse to comply with the committee at all:

Just to reiterate, our [October 6] letter referenced below didn’t indicate that we believe there is immunity from testimony for your client. 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. But as I also indicated the other day other avenues to invoke the privilege – if you believe it to be appropriate – exist and are your responsibility. If you haven’t already I’d encourage you again to contact counsel for the committee to discuss it further.

Even if some of his communications were privileged, as prosecutor Amanda Vaughn pointed out, that wouldn’t shield “his communications with the Proud Boys, or Oath Keepers, or his meetings with members o Congress on January 5th at the Willard Hotel.”

Judge Nichols declined to find that Trump made a complete assertion of privilege which would block the committee from subpoenaing Bannon. But he did have harsh words for prosecutors, who collected attorney Costello’s communications pursuant to a warrant, supposedly to verify that he’d passed the subpoena along to his client and/or because Costello was a witness to his client’s refusal to comply with Congress. Not harsh enough to grant Bannon’s motion to dismiss based on government misconduct, though. The trial is scheduled to commence next month, although Bannon’s lawyers indicate that they will seek a postponement based on proximity to the January 6 Select Committee’s hearings taking place during June.

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Ever helpful Bannon launched himself at the microphones assembled outside the courtroom to undercut his own lawyers’ position.

“The Jan 6 committee is totally irrelevant. The ratings stink,” he snarked, before promising that his lawyers will call members of the Select Committee to testify at his trial.

Sure, dude. Keep talking.

Judge Denies Bannon’s Shaky Legal Argument for Executive Privilege [Daily Beast]
US v. Bannon [Docket via Court Listener]

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

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