Bannon’s Contempt Trial Hits Its First Snag

A s I explained in my weekend column, Steve Bannon has no real defense against the misdemeanor contempt-of-Congress charges on which his criminal trial began yesterday. Now, with the jury just about in place and the opening arguments seemingly set to begin, renewed controversy has erupted over what the defense may, and may not, argue under the rulings of Judge Carl Nichols, of the federal district court in Washington, D.C.

As a result, the trial has been delayed. This delay is highly unlikely to result in the 30-day continuance Bannon’s lawyers pressed for on Tuesday morning. But it is apt to last for at least a few hours, and may push opening statements to Wednesday morning, if not later.

The case involves subpoenas served on Bannon by the House January 6 committee, which called for his testimony and production of relevant documents. The judge has ruled that Bannon may not argue that he refused to comply with the subpoenas based on former president Donald Trump’s (purported) sweeping invocation of executive privilege. Derivatively, the defense is also precluded from claiming that Bannon relied on his lawyers’ advice that (a) Trump’s supposed invocation of privilege relieved him of the duty to comply with the subpoenas; and (b) he might be able to claim immunity based on long-standing Justice Department guidance that the president’s top advisers are not subject to congressional subpoenas.

As I noted on Saturday, Bannon has not established as a matter of fact that Trump instructed him not to comply with the subpoenas, much less that executive privilege, if it had been invoked, would have covered much of what the committee wanted to ask Bannon about (which went far beyond Bannon’s communications with the then-president in the run-up to the Capitol riot).

Moreover, as a matter of law, Bannon appears not to have been even theoretically covered by executive privilege or the broader immunity that arguably shields the president’s closest advisers: At the time of the riot, it had been years since Bannon held a government job; the incumbent president, Joe Biden, declined to invoke executive privilege to block the January 6 committee from demanding information from Trump’s advisers; and the extent to which Trump could lawfully invoke executive privilege after he was out of office is, at best, extremely limited. (As I’ve detailed, here and here, the Supreme Court affirmed the D.C. Circuit’s ruling that Trump could not, by asserting executive privilege, block the committee from accessing the records of his presidency held by the National Archives. Since the clear privilege invocation for the former president’s own benefit was unavailing, a dubious invocation for Bannon’s benefit was even less tenable.)

Each misdemeanor charge carries a potential sentence of up to a year’s imprisonment, and Bannon would have to serve at least 30 days if convicted. (There have been occasions where prosecutors and defendants agree to a sentence of probation, but that won’t happen here.) With the trial imminent and the likelihood of conviction high, Bannon has sought to delay the proceedings.

He has thus argued that he cannot get a fair trial at this time, particularly with the January 6 committee holding high-profile hearings at which he is portrayed as culpable for the riot, and with CNN Special Report airing an episode about him (“Steve Bannon: Divided We Fall”) last Sunday night, hours before the scheduled start of the jury trial the next morning. Judge Nichols — a Trump appointee who has made rulings favorable to a number of other defendants charged with riot-related crimes — has rejected that argument, reasoning that a searching jury-selection process should be a sufficient safeguard against prejudice.

About a week before Monday’s scheduled trial date, Bannon also sought a delay based on what he described as former President Trump’s sudden decision to waive executive privilege; with the privilege supposedly waived, Bannon said, he would now be willing to testify before the committee, rendering the contempt charges moot. The judge rejected this ploy, too: The record is that Trump did not clearly assert executive privilege with respect to Bannon in the first place — and surely did not do so in a way that would excuse Bannon’s total refusal to comply with the subpoenas. Consequently, the newly issued “waiver” was irrelevant. Plus, a subsequent offer to comply with subpoenas is not a legal defense against a charge of contempt for defying the same subpoenas in the past.

With the trial now under way, at least to the extent the jury has been selected, and with Bannon’s major defense — that he’d relied on his lawyers’ advice in refusing to comply with the subpoenas — off the table, the case now boils down to whether he knew that he was under subpoena and intentionally refused to comply. And of this, there seems to be no doubt.

It appears, then, that the only thing left for Bannon to argue is a more minor reliance-on-counsel defense: He did not believe the compliance date written on the subpoenas was hard and fast. In other words, he might plausibly be able to contend that he believed that his lawyers were actively negotiating with the committee on both a real date and the parameters of compliance, and never had any intention of flouting the subpoenas. I doubt the defense could get very far with such a claim, since Bannon never ultimately complied with the subpoenas. But Judge Nichols insists he has always held that Bannon could argue that he did not believe the compliance deadlines were fixed — “I don’t think [my rulings] could have been clearer” on this point, Nichols said this morning.

Bannon’s lawyers now claim that they did not previously understand exactly what Nichols was permitting them to argue, and thus need a delay of at least 30 days so as to plan their defense. Prosecutors counter that Nichols’s rulings were clear, and maintain in any event that the dates on the subpoenas were firm, that Bannon knew they were firm, and that his defiance was intentional.

Judges and prosecutors always wince when defense lawyers claim they are unprepared for trial. It is a not uncommon gambit, laying the groundwork for a constitutional claim that the defendant did not receive effective assistance of counsel. If Bannon is convicted, he will thus argue on appeal that his conviction and sentence must be reversed.

Obviously, this stratagem rarely works. If it did, any defendant could delay his trial interminably by claiming, at the eleventh hour, that his lawyers were not prepared. What typically happens instead is that the judge and the government lawyers will make a record that the defense was on clear notice of what the pretrial rulings were, and simultaneously, the judge may grant a reasonable delay — anywhere from a few hours to a few days — in order to show that the court bent over backwards to accommodate the defendant’s fair-trial rights.

That is what happened in Bannon’s case this morning. I expect that the delay will be brief.