Bannon’s appeal is apt to be more interesting than his trial.
Bannon’s appeal is apt to be more interesting than his trial.
T o the surprise of no one, a federal jury in Washington, D.C., has convicted Steve Bannon on two counts of contempt of Congress for defying subpoenas — one for testimony, the other for documents — issued last autumn by the House January 6 committee.
The case took only three days to try, and the jury was out for about three hours. It was as straightforward as it gets: The subpoenas were issued, Bannon knew that they had the compulsory force of law, and he intentionally flouted them — i.e., his noncompliance was not an accident or mistake but a conscious choice.
Bannon had been a high-ranking White House aide at the beginning of the Trump administration but had a falling-out with the president and was ousted in just a few months. He made his way back into Trump’s good graces (indeed, Bannon was pardoned by Trump in connection with a federal fraud indictment), but he never worked in the administration again.
That is significant because he was not a government official at the time of the Capitol riot. Based on long-standing Justice Department guidance, administrations of both parties have taken the position for decades that the president and his top executive-branch advisers have absolute immunity from congressional subpoenas, under constitutional separation-of-powers principles.
Bannon nevertheless sought to justify his ignoring of the committee’s subpoenas by relying on former President Trump’s attempt to assert executive privilege to block the committee’s access to records of his presidency and communications with advisers. Yet there are legal questions about the extent to which Trump retains privilege when the incumbent, President Biden, has refused to support his predecessor’s attempt to invoke it.
More importantly, Judge Carl Nichols determined that Trump had not formally and effectively asserted the privilege with respect to Bannon. That finding was based on the FBI’s interview of a Trump lawyer, Justin Clark, who told the bureau that Trump had never instructed Bannon that he should be totally noncompliant with respect to the committee’s information demands. Clark also said that Trump never invoked the privilege over particular communications or information involving Bannon.
With the legal and factual bases for the privilege claim thus eradicated, and with Bannon in no position to argue that he was a covered executive official under the long-standing Justice Department guidance, Judge Nichols ruled that Bannon could not contend that he was relying on his lawyer’s advice in refusing to respond to the subpoenas. That essentially left Bannon with no viable defense.
Advice-of-counsel will surely be Bannon’s main complaint on appeal: not just whether Trump retained a confidentiality privilege and could confer it on Bannon, but whether, in any event, Bannon could be convicted of a crime requiring the government to prove a willful violation of law when Bannon contends that he was guided by what his attorney told him.
Bannon will also undoubtedly argue that (a) he was selectively prosecuted (essentially, a denial of equal protection of the law) because the Justice Department had not indicted a contempt-of-Congress charge in nearly 40 years, and (b) that he was subjected to prejudicial publicity because Judge Nichols, a Trump appointee, forged ahead with the trial, over Bannon’s vigorous objection, even as the House January 6 committee was holding its nationally televised hearings.
It is vanishingly rare for selective-prosecution claims to succeed. The criminal-contempt offense for defying Congress is unusual but not unprecedented — it was used a few times, for example, in the Watergate era. Moreover, since Bannon’s indictment, the Biden Justice Department has charged contempt against another Trump adviser, Peter Navarro (who actually was a White House aide at the time), who refused to comply with January 6 committee subpoenas. DOJ has also declined to prosecute two other Trump officials, chief of staff Mark Meadows and deputy press secretary Dan Scavino, for the same offense.
As for prejudicial publicity, Bannon would be in a much stronger position if he were not himself raging against the committee in blistering public statements, including a press conference he held on the courthouse steps at the end of a trial day this week, blasting committee chairman Bennie Thompson as “gutless” for failing to testify in the case. (The government did not call Thompson as a witness, and Nichols denied Bannon’s attempt to call him — as well as other committee members and House speaker Nancy Pelosi (D., Calif.) — based on their constitutional privilege under the Speech and Debate Clause.) A defendant who plays the publicity game is ill-suited to complain about it.
I think the judge should have waited until after this week to start the trial. The committee originally said it was finishing up its hearings this week (it now says it will have more hearings in September). This was certain to be a very short trial, and it could easily have been scheduled when the committee was not holding its public sessions.
Case in point: In yesterday’s prime-time committee hearing, right as Bannon’s jury was about to hear closing arguments and begin deliberations the next morning, the most gripping evidence was a recording of Bannon in late October 2020, telling a crowd that Trump would claim fraud even if it were clear that he had lost the 2020 election. There is no evidence, at least for now, that any juror heard that recording, but why invite the problem by trying a criminal case simultaneously with high-profile congressional hearings in which the defendant figures prominently and is portrayed as a villain?
In any event, appellate courts give trial judges broad discretion to manage juries and insulate them from publicity. Unless proof to the contrary emerges, the reviewing court will assume that the jury followed Judge Nichols’s instructions to avoid publicity about the case. Nichols may also rationally have concluded, given the players involved, that Bannon’s trial would attract intense publicity whenever it was held, so a postponement would have been pointless. And again, Bannon zealously contributed to the publicity.
Sentencing is scheduled for October. Each misdemeanor count carries a maximum of a year’s incarceration, and there is a minimum sentence of 30 days. Bannon did not testify in his own defense. That decision could have been informed by the fact that he was highly likely to be convicted. If a judge concludes that a defendant who claims innocence has testified falsely, that often results in a more severe sentence than would otherwise have been imposed. Given that Bannon’s main claims are more legal than factual, there was no point in taking the stand to argue with the prosecutor about the facts of a case he was bound to lose, at least at trial.
I don’t think the Biden Justice Department should have charged Bannon. Democrats, I believe, will also come to regret blowing up the 40-year norm against using the Justice Department as a hammer against the president’s political opposition and on behalf of the president’s party in Congress. However one comes out on those matters, Bannon’s appeal is apt to be more interesting than his trial. In the latter, he didn’t have a prayer.