Steve Bannon Turns His Trial into a Soapbox

S teve Bannon was totally on-brand after the first real day of his trial on contempt-of-Congress charges yesterday. He went on a rant, inveighing against House January 6 committee chairman Bennie Thompson (D., Miss.), whom he called “gutless” for failing to show up in court to testify about the subpoenas that Bannon is accused of flouting.

The only conclusion to be drawn from this is that Bannon knows he’s going down in flames, but figures he’s probably looking at no more than a month or two in the slammer, so he might as well get his money’s worth by defiantly playing to his base.

Bannon is a shrewd guy, and he has able lawyers. He knows why Thompson was not the first prosecution witness and, indeed, won’t testify at all during the trial. It has nothing to do with Thompson’s being scared to testify, or even with the fact that he just tested positive for Covid. It is because he is utterly unnecessary to the case, which, very simply, is about whether Bannon defied lawful subpoenas, not whether the committee that issued the subpoenas is a politicized star chamber.

Instead of Thompson, Kristen Amerling was the committee witness whom prosecutors called to kick off their case yesterday. As the panel’s chief counsel and deputy staff director, Amerling was perfectly suited to the government’s purposes. She was able to authenticate the subpoenas and give the jury some brief background about what the committee is: a select committee lawfully appointed under House rules and given subpoena power to, among other things, gather information and provide a comprehensive account of the Capitol riot and the events leading up to it.

In pursuit of that mission, the committee determined that Bannon had relevant information (which he plainly does). It thus issued subpoenas seeking his testimony and his production of pertinent documents, returnable on October 18, 2021. A subpoena is a form of legal compulsion. Ergo, unless a subpoenaed person can demonstrate that the subpoena’s demand for information is somehow legally objectionable, or that he has some cognizable privilege that excuses his compliance, the subpoena must be honored.

Bannon, of course, did not comply with the committee’s subpoenas. He has no real defense against the charges of noncompliance. His lawyers are trying to raise some smoke by contending that the return date on the subpoenas was subject to negotiation, and therefore that Bannon did not willfully ignore them by letting the date come and go. Prosecutors say the correspondence between the committee and Bannon will show that this is not true. But prosecutors hardly need the correspondence if Bannon is going to destroy his own defense in public statements.

The point of Bannon’s diatribe was, rhetorically speaking, to put the committee on trial — to claim that it is illegitimate, and that Thompson would not show up because he can’t defend its partisan hardball. But the truth is that Thompson didn’t show up because the government didn’t call him as a witness.

What’s more, Bannon and his legal team know that Judge Carl H. Nichols has already ruled against their attempt to subpoena House speaker Nancy Pelosi and January 6 committee members. That’s because the narrow issue in the case is not whether the committee is a good or bad thing, but whether Bannon intentionally refused to comply with the subpoenas.

Attacking the committee chairman may be cathartic for Bannon. It may further burnish his image in the eyes of his admirers. But in the matter of his criminal trial, it eviscerates what little defense he has. If he can’t help himself but proclaim that the committee is a corrupt body, then it is rational to infer that he was motivated to fight the committee tooth and nail. And once that inference is made, one can logically conclude that his noncompliance with the subpoenas was entirely willful, not the result of confusion over whether their return date was firm.

Bannon, moreover, is undermining his inevitable post-conviction appeal. At that point, he will want to argue that he could not get a fair trial because, at the very moment Judge Nichols insisted on going forward with jury selection, the January 6 committee was publicly portraying Bannon as not only guilty of contempt but complicit in the Capitol riot.

For example, at a public session less than a week before the trial started, committee member Stephanie Murphy (D., Fla.) said that Bannon was a “close adviser” of President Trump at the time of the riot, and played video of Bannon taken the day before the riot, shortly after he’d spoken by phone with Trump, stating:

All hell is going to break loose tomorrow. It’s all converging and now we’re on, as they say, the point of attack, right, the point of attack tomorrow. I’ll tell you this: It’s not going to happen like you think it’s going to happen, Ok? It’s going to be quite extraordinarily different. And all I can say is strap in.

Murphy followed this by emphasizing that, after Bannon’s “point of attack” rhetoric, and nearly simultaneous to another phone call he had with Trump on the evening of January 5, a rally was underway at Washington’s Freedom Plaza, featuring rabble-rousers whom a Trump adviser “deemed too extreme to share the stage with the president the next morning.” The non-subtle point is that Bannon and the rest saw the riot coming and encouraged it.

Murphy’s presentation followed the first of the committee’s public hearings last month, a nationally televised prime-time spectacle during which committee chairwoman Liz Cheney (R., Wyo.) made a point of noting that “Steve Bannon . . . simply refused to comply with lawful subpoenas” — an assertion Cheney folded into her disturbing habit of implying that witnesses who’ve refused to testify should be presumed guilty because they “took the Fifth” — i.e., “invoked their Fifth Amendment rights against self-incrimination.” (To take just one of many examples I could cite, compare the Supreme Court’s 1957 decision in Grunewald v. United States, which instructed that “no implication of guilt could be drawn from [a defendant’s] invocation of his Fifth Amendment privilege”; that “one of the basic functions of the privilege is to protect innocent men”; and that many who should know better “too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.”)

All in all, then, I would have thought that Bannon had a very colorable claim that the January 6 committee, out of political spite, had attempted to influence the jury pool and undermine his right to a fair trial — including his right to refuse to testify, since the committee is frequently implying to the public that people who assert their constitutional rights do so because they are guilty. I figured an appellate court might well wonder why on earth Judge Nichols decided he had to plunge ahead with Bannon’s trial, in the middle of high-profile congressional hearings that were hyping Bannon’s connection to the riot, when Nichols could easily have delayed the trial until the committee had finished its extended exercise in political theater (as it is expected to this week).

But an appellate court is not going to have any time or sympathy for a jury-prejudice claim from a defendant who himself tries the case in the press by ranting about it on the courthouse steps. You can’t play the game of influencing the jury through the media and then expect to be taken seriously when you complain that your opponents are prejudicing the jury against you. If the judge makes a ruling that you are precluded from putting the committee on trial by calling certain witnesses, it is contemptuous of that ruling to hold a press conference in which you attempt to put the committee on trial by attacking one of those same witnesses — specifically, the committee’s chairman. And contemptuous behavior is a bad look for a defendant on trial for contempt.

Unless, of course, that defendant is a media celebrity who has already written off any prospect of acquittal and figures that, for at least a couple of days, he has a soapbox, and he might as well use it.