Government

Steve Bannon And The Terrible, Horrible, No Good, Very Bad Day *In Court*

The technical term for that was an ass-kicking.

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

If Steve Bannon had bothered to show up in court today, he’d have gotten to witness an absolute banger of a bench-slapping. As it was, his lawyers Evan Corcoran and David Schoen seemed very surprised when US District Judge Carl J. Nichols drop-kicked all but one of their eleventy-seven motions and purported defenses to the charge of criminal contempt of Congress, along with their motion to continue the trial scheduled for next Monday.

“What’s the point of going to trial if there are no defenses?” wondered Schoen, according to Lawfare’s Roger Parloff, who live-tweeted the hearing from DC.

In reality, there never were any defenses — at least not since April, when Judge Nichols blocked Bannon’s plan to claim that he’d relied on counsel of his then-lawyer Robert Costello and a companion theory that Bannon acted in good faith reliance on the former president’s invocation of executive privilege.

[Side note: Trump never invoked privilege, and new testimony from his lawyer confirms it.]

The DC Circuit held in 1961 that mistake of law is no defense to contempt of Congress. And yet, Bannon’s attorneys insisted — repeatedly, and at high decibel — that their client’s mistaken belief that the Justice Department wasn’t allowed to prosecute him meant that he could blow off a subpoena from the January 6 Select Committee with impunity.

Along the way, they gussied up the rejected advice of counsel defense and renamed it “entrapment by estoppel,” while re-christening reliance as “public authority.” But the court wouldn’t let Bannon Sharpie up his pleading to read “my lawyer told me that the Office of Legal Counsel says it won’t prosecute anyone when there’s a claim of executive privilege, and therefore they are estopped from charging me.” And furthermore Trump wasn’t a public official in October of 2021, so he couldn’t sign Bannon’s permission slip for a public authority defense. Womp womp.

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On the day he was arraigned, Bannon stood on the courthouse steps and brayed that he’d turn his case into “the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden.” Turns out … not so much. Because he’s not going to get to present evidence that the Select Committee is biased, or that its subpoenas are illegitimate, much less put Nancy Pelosi, Adam Schiff, and Jamie Raskin on the witness stand. Because, bro, do you even separation of powers?

Similarly, the court rejected Bannon’s motion to subpoena the Justice Department for internal deliberations regarding the decision not to prosecute Mark Meadows and Dan Scavino, Trump’s chief of staff and his communications flack, both of whom refused to testify for the committee. If we never again have to listen to Team Bannon shout that a podcaster who got fired from the White House in 2017 has the same claim to privilege two men who were in the Oval Office on January 6, 2021, it’ll be too soon!

Finally, the court refused to postpone the case on the theory that publicity from the January 6 Committee hearings would prejudice the jury, or alternatively that there were far too many pending motions pending to go to trial in a week. As to the first, Judge Nichols found that any potential bias could be dealt with during voir dire. And having resolved every motion from the bench, the second issue was mooted.

It wasn’t all bad news for Bannon, who won his fight to keep the jury from hearing the indictment read aloud, or receiving a copy of it with the jury instructions.

Other than that, though … bupkiss.

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US v. Bannon [Docket via Court Listener]

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

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