After just three days and two witnesses, prosecutors are done making their case.
After just three days and two witnesses, prosecutors are done making their case.
W ell, we knew it was going to be quick.
Prosecutors rested their case against Steve Bannon on Wednesday afternoon after calling just two witnesses. Bannon is charged with two counts of contempt of Congress for ignoring the House January 6 committee’s subpoenas, which demanded that he provide testimony and produce documents relevant to his activities around the time of the Capitol riot.
The case is straightforward. The subpoenas were returnable in October 2021. Bannon refused to show up for testimony and never produced a single document — indeed, as related in yesterday’s testimony, he still hasn’t complied with the document-production subpoena, despite suggesting on the eve of trial that he was suddenly willing to cooperate.
Bannon’s asserted basis for refusing to comply was that former president Trump had claimed executive privilege. But Judge Carl Nichols excluded that claim as a defense. As a matter of law, it is questionable whether Trump had a cognizable privilege as a former president under circumstances in which President Biden, the incumbent, did not support his predecessor’s claim (the courts have ruled against Trump on this point with respect to his own presidential records, held at the National Archives). And as a matter of fact, (a) Trump did not actually invoke privilege as to Bannon — Trump’s lawyer told the FBI that Trump never invoked with respect to particular information relevant to Bannon, and made clear to Bannon that he was not purporting to authorize total noncompliance; (b) many aspects of Bannon’s activities of interest to the committee are not conceivably covered by executive privilege, which pertains only to confidential communications with the president and his top advisers; and (c) Bannon was not a high-ranking White House staffer at the time of the events the committee is probing — he’d been out of government for over three years — so he had no basis to rely on the constitutional claim that the president and his top advisers are immune from congressional subpoenas.
Since the flawed claim that he was covered by executive privilege was Bannon’s only real rationale for noncompliance, and Judge Nichols has taken that claim off the table, Bannon has no viable defense. So he is instead attempting to (1) argue that his noncompliance was based on confusion about whether the return date on the subpoena was negotiable; and (2) mount a jury-nullification gambit, in which he frames the prosecution as a political vendetta carried out by partisan congressional Democrats and partisan Democratic prosecutors, in hopes that the jury will be repulsed by the case even if, technically, Bannon is guilty.
Neither of these avenues of attack is going to work.
- Supposed Confusion over Compliance Date
There is a difference between the points in time when (1) a person is in criminal noncompliance with a congressional subpoena (this happens when the subpoena date comes and goes with the person’s having willfully failed to comply); and (2) the criminal consequences of noncompliance kick in. There is an unavoidable delay between the former and the latter, during which the congressional committee may move to hold the noncompliant person in contempt, seek court intervention to enforce the subpoena(s), and/or may ask the Justice Department to prosecute. In Bannon’s case, the committee eschewed court proceedings. The House held Bannon in contempt in a sharply divided partisan-line vote, and then referred Bannon to the Justice Department, which finally decided to indict him.
In this delay period between the offense and the consequences, a committee will usually still want the recalcitrant witness’s testimony and documents. It may thus continue to press for cooperation even as it proceeds with holding the witness in contempt and seeks criminal prosecution. To get cooperation, moreover, a committee may be willing to forgo congressional contempt proceedings and any effort to persuade DOJ to indict.
Bannon’s defense team wants the jury to view any discussions between his lawyers and the committee during the delay period as “negotiations” over compliance. But the committee was not negotiating over whether Bannon was illegally in noncompliance — his noncompliance was already an established fact. To be sure, the committee was continuing to try to get Bannon to cooperate, and if Bannon had belatedly done so, the committee might have been willing to take steps to forgive his previous noncompliance. But understand: The committee was “negotiating” from a position of strength, because Bannon, having broken the law, was already vulnerable to prosecution. And for his part, Bannon was willfully defiant in his noncompliance; he was rationalizing his stance based on Trump’s purported invocation of privilege, not based on his own purported confusion over the deadline for compliance.
This explains Bannon’s reportedly manifest agitation in the courtroom, for the first time in the trial, during the testimony of FBI agent Stephen Hart, the government’s second and final witness. Hart explained that he had attended a meeting with Bannon and prosecutors, during which Bannon’s counsel at the time, Robert Costello, attempted to persuade the Justice Department not to file charges. Hart pointed out that Bannon had been proudly defiant in his social-media posts about his refusal to comply with the subpoenas. Not surprisingly, then, Hart testified that at the meeting, Bannon and his team did not claim to be under the misimpression that the subpoena deadline was flexible.
- Nullification
Nullification is not a legal defense. It is just an inexorable reality of our system. Because the prosecution bears the burden of proof, jury deliberations are secret, and double jeopardy bars re-prosecution after an acquittal — a jury has the raw power (though not the legal authority) to return a verdict of not guilty for reasons that are extra-legal, and sometimes even irrational. Defense lawyers thus try to rile jurors emotionally about the seeming unfairness of it all (and the more they do this, the less of a real defense they have — a fact that is rarely lost on jurors).
Since nullification defenses are not legal, judges crack down on them, restricting what defense lawyers are permitted to argue. There are practical limits, however, on what can be done. Prosecutors do not like to object in front of the jury, even validly, because they don’t want to look like they’re hiding something. And the law permits broad inquiry into the possible biases of witnesses on cross-examination. This leaves a lot of running room for defense attorneys to imply corrupt motivations. Sometimes they do so in good faith, though many other times they’re just engaging in baseless slander.
In Bannon’s case, the political context is unavoidable: It’s about subpoenas issued by a committee of Congress — i.e., by a partisan panel of a political branch of government, investigating its political opponents. Judge Nichols has insisted that he would not let the trial veer into political mudslinging, but that is a hard vow to keep under the circumstances; the best he can plausibly do is limit the mudslinging.
We saw this dynamic in the testimony of Kristin Amerling, the government’s main witness. She is among the Democrat-controlled January 6 committee’s top staffers and its chief lawyer. You don’t get to be in that position without rising up the staff chain. So, as you’d expect, she is a Democrat who has worked for years for congressional Democrats and made political contributions to Democratic candidates. She knows one of the prosecutors on the case — though they don’t see each other much, for years they’ve both been part of a book club that mainly involves people who once worked for Henry Waxman, a notoriously partisan California Democrat. Is it really a surprise that, in the Biden Justice Department, the prosecutor on a big case in Washington would turn out to be a networking Democrat? That sort of thing happens all the time, no matter which party is in power. Yet even so, Bannon lawyer Evan Corcoran attacked Amerling’s potential bias, suggesting that her pursuit of Bannon, and derivatively the committee’s, was an anti-Trump political witch hunt.
I’m not sure the blue, blue District of Columbia is the most promising venue for this line of attack. It might get someplace, I suppose, if Amerling were testifying as an eyewitness to a crime — say, stealing documents — that no one else saw Bannon commit. But she’s not; she’s a committee lawyer dryly authenticating subpoenas that Bannon acknowledges were served on him, and that he’s never complied with. The context does not lend itself to a claim of partisan fabrication: Everyone knows there was a Capitol riot and that it is appropriate for Congress to investigate. Plus, the fact that Bannon undoubtedly has information relevant to the investigation becomes more pronounced every time his lawyers claim that he relied on Trump’s supposed assertion of executive privilege (which is clear from documents introduced in evidence, even though it is not a defense in the case).
You can believe, as I do, that the committee is flawed in its composition and underhanded in its tactics, that Bannon should not have been selectively prosecuted for contempt of Congress, and that DOJ should at least have insisted that the committee try first to get its subpoena enforced through the courts. Yet, none of that changes the remorseless facts that the committee has lawful subpoena power and Bannon flouted the subpoenas it issued to him. That’s the short of it. Period.
I will say one thing in Bannon’s defense, not that it does him any good. If this judicial trial were run the way the January 6 committee runs its “hearings,” Bannon would be at liberty to tell the jury that House speaker Nancy Pelosi and the members of the committee, led by Chairman Bennie Thompson, are obviously engaged in a sinister, criminal plot because he subpoenaed them to testify but they’re all “hiding behind claims of privilege.” Thankfully, this is instead a judicial court. It has due process and follows legal rules. If Bannon’s counsel pulled a stunt like that, the judge would dress him down in front of the jury. Members of Congress have valid immunity from trial subpoena, rooted in the Constitution’s speech-and-debate clause. And contrary to what you’ve heard from the January 6 committee, reliance on a legal privilege is not an admission of misconduct.
Similarly, if Bannon opted not to testify in his defense and a prosecutor dared to draw the jury’s attention to that fact, or even to hint that his failure to testify was suggestive of guilt, the judge would declare a mistrial. The prosecutor would have so blatantly violated the Constitution that he might face professional discipline, and the court might even bar the government from retrying the case.
In Judge Nichols’s courtroom, the Constitution is alive and well, and if an error is made there is always an appeal. The same cannot be said for the committee’s conference room, from which, come prime time tonight, we’ll be hearing yet again about scoundrels who “hide behind privilege” and, heaven forbid, “take the Fifth.” There, the scoundrels in question will have no recourse.