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In preparation for his July 18 contempt of Congress trial, Steve Bannon’s lawyers are working overtime to flood the zone with shit. They’re determined to make this case about everything but their client’s refusal to comply with a subpoena from the House January 6 Select Committee. The strategy appears to involve lobbing a flaming sack of dog crap at US District Judge Carl J. Nichols’s docket every 24 hours.
But there’s a hearing this morning where some of this will get sorted out, so let’s divide this doo-doo into three piles to see if we can wade through without getting too much on our shoes.
Shit Pile 1: The Permission Slip Defense
At bottom, Bannon’s defense is that he had a permission slip to skip out on the committee’s subpoena for documents and testimony. Maybe it was signed by his lawyer Robert Costello. Maybe it was signed by Donald Trump. Maybe it was signed by the Justice Department, whose internal policy memos say it won’t prosecute a former executive branch employee for refusing to testify once privilege has been invoked. Whatever!
Bannon would like to make as many of these arguments as possible, in hopes that the jury will be confused and let him off the hook. Conversely, prosecutors would like to prevent him from making any of these arguments, for the exact same reason.
The precedent is clear that “mistake of law” is not a defense to contempt of Congress — i.e. if you think the summons is for Thursday, but it’s actually for Tuesday, you’re fine; but if you think it’s legal to tell the committee to get bent because working in the White House for seven months in 2017 immunizes you from having to testify about stuff that happened in 2021, you’re shit out of luck.
Bannon’s first plan was to present an advice of counsel defense, in which he would say, “Don’t blame me, my lawyer said it was totally legal to tell the committee to eat shit.” But that’s a mistake of law, so the court blocked it, along with Bannon’s claim that he relied in good faith on DOJ policy memos and thus didn’t have the requisite intent to break the law. So now Bannon’s legal team wants to slap sunglasses and a baseball cap on those same defenses and pass them off as “public authority” and “entrapment by estoppel.”
A public authority defense rests on the defendant’s sincere belief that he committed his crimes in cooperation with the government. In this case, Bannon would say that Donald Trump invoked executive privilege and told him to defy the subpoenas. There are a couple of serious defects with this argument.
First, Trump never invoked privilege to the committee.
“Just to reiterate, our letter referenced below [the October 6 letter] didn’t indicate that we believe there is immunity from testimony for your client,” Trump’s lawyer Justin Clark told Costello back in October, 2021. “As I indicated to you the other day, we don’t believe there is.”
And in an eleventh hour filing last night, prosecutors revealed that they interviewed Clark on June 29 and he said “that the former President never invoked executive privilege over any particular information or materials; that the former President’s counsel never asked or was asked to attend the Defendant’s deposition before the Select Committee; that the Defendant’s attorney misrepresented to the Committee what the former President’s counsel had told the Defendant’s attorney; and that the former President’s counsel made clear to the Defendant’s attorney that the letter provided no basis for total noncompliance.” Womp womp.
Second, Donald Trump wasn’t a public official in October of 2021 when Congress issued the subpoena, so he couldn’t have given Bannon permission to defy it anyway.
Entrapment by estoppel is similar to public authority, but it requires a government official to misstate the law, giving the defendant the impression that his conduct is legal. Bannon’s theory is that the Office of Legal Counsel issued policy memos over the years saying that it would decline to prosecute executive branch officials and even former officials when the executive has invoked privilege.
Leave aside for a moment the preposterous claim that executive privilege could apply to a subpoena for Bannon’s podcast transcripts. Ditto the claim that Trump, who was not the president in 2021, could make a binding assertion of executive privilege. These two defenses are basically mistakes of law, and it seems fairly likely that Judge Nichols will put the kibosh on them the way he did with advice of counsel and good faith reliance.
Nevertheless, Bannon’s lawyers have proposed jury instructions which instruct the panel that it may acquit on any of these four defenses. And on Friday, Costello moved to withdraw his appearance, just in case Judge Nichols changes his mind and lets him testify that he advised Bannon that it was legal to tell Bennie Thompson and Liz Cheney to pound sand.
When I tell you that I have spent the past five months reading flabbergasted prosecutorial motions shouting WTF, THAT’S NOT HOW THIS GOES, THAT’S NOT HOW ANY OF THIS GOES, believe me.
Shit Pile #2: BIASSSSSSSSSSSS
In November, when he got indicted, Bannon stood on the courthouse steps and promised to make this case “the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden.” His theory is that it’s somehow legal to give the finger to Congress if the subpoena is biased, and so he demands to put half the committee on the witness stand.
“I look forward to having Nancy Pelosi, and little Jamie Raskin, and shifty Schiff in here at trial answering questions,” he bragged last month.
Naturally, Pelosi et al. moved to quash the subpoenas, but Bannon says he’ll seek to have his case dismissed if they succeed.
At the same time, Bannon asked the court to order the Justice Department to cough up its internal deliberations regarding Mark Meadows and Dan Scavino, Trump’s chief of staff and his comms hack, who were also referred by Congress for contempt of Congress, and whom the DOJ declined to prosecute. Again, this is so ridiculous it can hardly be explained.
Bannon demands attorney work product … on cases unrelated to him … which he hopes will reinforce the argument that the OLC memos protect him from prosecution … even though Meadows and Scavino were White House employees on January 6, 2021 … and he was not. Alternatively, he hopes to claim selective prosecution by the DOJ, although that relies on the prosecuted person being a member of a protected class, and Bannon, like Meadows, Scavino, and most of the people in the Trump administration, is a white dude.
I. Just. Can’t.
Shit Pile #3: Chaos!
Back in January, the court put out a scheduling order, laying out a timeline for this case to proceed. Bannon’s lawyers filed motion after motion after motion, indignantly demanding that they be able to present wacko legal theories and access internal DOJ and congressional deliberations. Now they demand that the trial be postponed because these motions remain unresolved on the eve of trial. Neat trick, huh?
Similarly, Team Bannon argues that the case must be moved to October because publicity from the January 6 hearings makes it impossible for him to get a fair trial, despite the reality that their client makes his living shit-talking the House January 6 Select Committee on his podcast almost daily.
But, wait, there’s more! Because Saturday, despite the legal team’s supposed desire to minimize publicity, every reporter in DC got a copy of two letters: one from Trump, purporting to waive executive privilege, and one from Costello to the committee saying his client is now willing to testify after all.
“Dear Steve,” the former president begins, before launching into an absolute orgy of batshittery about “the illegally constituted Unselect Committee, the same group of people who created the Russia Russia Russia scam, Impeachment hoax #1, Impeachment hoax #2, the Mueller ‘Witch-Hunt (which ended in no “Collusion”), and other fake and never-ending yarns and tales.”
Lamenting the “trauma” Bannon is going through “for the love of your country,” Trump agrees to “waive Executive Privilege for you, which allows for you to go in and testify truthfully and fairly, as per the request of the Unselect Committee of political Thugs and Hacks, who have allowed no Due Process, no Cross-Examination, and no real Republican members or witnesses to be present or interviewed. It is a partisan Kangaroo Court.”
Jiminy fuckin’ Christmas.
Costello’s letter saying that his client is now ready to testify, preferably in public, looks positively rational by comparison.
“President Trump has decided that it would be in the best interests of the American people to waive executive privilege for Stephen K. Bannon, to allow Mr. Bannon to comply with the subpoena issued by your Committee,” he writes. “Mr. Bannon is willing to, and indeed prefers, to testify at your public hearing.”
The committee’s response is a subject for another post, but legally speaking, the sudden about face shouldn’t affect the prosecution. While civil contempt can function as a lever — i.e., the judge locks you up or fines you until you do what she ordered — contempt of Congress is a crime. Just like you can’t un-rob a bank by giving the money back, testifying now won’t change the fact that Bannon blew off Congress back in October.
“The criminal contempt statute is not intended to procure compliance; it is intended to punish past noncompliance,” the government responds, noting that Bannon is not offering to produce the subpoenaed documents, but only agreeing to appear for a deposition at which he’s perfectly free to plead the Fifth in answer to every question, like Mike Flynn and John Eastman. Or, hell, if the committee doesn’t get around to deposing him until after the trial, Bannon can just change his mind again — what are they going to do, prosecute him twice?
Unsurprisingly, prosecutors would like to exclude evidence of Bannon’s road to Damascus conversion from the jury.
TL, DR?
Bannon’s primary goal is to kick this can down the road and get his case postponed as long as possible. His lawyers are asking for October, but they know damn well that Judge Nichols is drowning under prosecutions of the January 6 rioters, and may not be able to reschedule this trial until 2023. And the longer Bannon drags this out, the more likely it is that he’ll get a lifeline if and when Republicans take back the White House.
His secondary goal is to convince the court to let him present one of those “permission slip” defenses, despite the fact that none of them make any sense — not as a matter of law, and not as a matter of linear time, since Bannon got fired from the White House in 2017.
Other than that, Bannon’s hoping to kick up as much dust as possible, both to confuse the jury pool and to generate publicity for his podcast and the MAGA movement.
Craven and vile, very on brand.
[US v. Bannon, Docket via Court Listener / Trump Letter, via NBC / Costello Letter, via NBC]
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