Bannon knew he was under subpoena and decided to tell the committee, ‘Screw you.’ There’s no legal defense to that.
Bannon knew he was under subpoena and decided to tell the committee, 'Screw you.' There’s no legal defense to that.
‘W hat’s the point of going to trial if there are no defenses?”
“Agreed.”
That was Judge Carl Nichols, agreeing with Steve Bannon’s lawyer, David I. Schoen. You’ve got to love Judge Nichols. At least you do if, like me, your pet peeve throughout a professional life of prosecuting and analyzing criminal cases is what I’ve always thought of as the “game theory” of trials.
Of all the old saws that roll off our tongues, none is more dubious than “there are two sides to every story.” Not always. Sometimes, the evidence is so overwhelming that there is only one side. Some judges think the constitutional right to present a defense means that we have to give you a defense, whether you have one or not. Judge Nichols, quite correctly, says no, you are entitled only to whatever defense you have. Steve Bannon doesn’t have one.
If the Pittsburgh Steelers played your high-school football team and beat them 140–0, there’s not two sides to that story. A rout is a rout.
Nobody likes to watch a rout. You may think you’d like it until you’ve sat through one. The Justice Department’s criminal contempt case against Bannon is a rout. The Constitution guarantees Bannon that he can have a trial if he insists on one. But it doesn’t guarantee that there is any point in insisting.
Bannon is charged with criminal contempt for defying the House January 6 committee’s subpoenas for testimony and documents. The fact that he is as guilty as the day is long does not mean this is a case the Justice Department should have brought. It’s not. I continue to believe his prosecution is blatantly politicized. Prior to charging Bannon, the DOJ had not brought a case of criminal contempt for defying congressional subpoenas in almost four decades. Federal prosecutors have not pursued, for example, Obama administration officials who lied to and obstructed Congress in connection with the ATF gun-walking scandal and the IRS harassment of conservative organizations.
By selectively prosecuting Bannon, Attorney General Merrick Garland has enmeshed his department in the Democrats’ Trump-obsessed politics — and gratuitously so, as the suggestion that the January 6 committee needed (as opposed to wanted) Bannon’s cooperation in order to conduct a thorough investigation is laughable. A non-partisan, apolitical Justice Department would at least have told the committee to litigate Bannon’s threadbare executive-privilege claim and get a judicial finding that it was baseless before charging. The Supreme Court invited such litigation in Trump v. Mazars, decided just a few months before the Capitol riot.
But the committee is in a politicized rush: It is racing to complete a report in hopes of influencing the midterm elections, and when — as is likely — the Republicans win those elections, they will retake the House and put the committee out of business. In Bannon’s case, then, the Democratic administration’s Justice Department has put its prosecutorial muscle at the service of the Democrats’ political agenda.
That said, Bannon has no defense.
My earlier assumption that Bannon did have one rested on his claim that former president Trump had instructed him not to cooperate with the committee, based on executive privilege. In Nixon v. Administrator (1977), the Supreme Court reasoned that former presidents maintain executive privilege. Beyond, that, a bevy of Justice Department guidance from administrations of both parties (including, for example, the Obama/Biden administration) holds that, like the president himself, the president’s closest advisers have absolute immunity from congressional subpoenas on separation-of-powers grounds.
Bannon’s problem, of course, is that he was not on the White House staff at the time he was having communications with the former president in the run-up to the January 6 “stop the steal” rally that devolved into the Capitol riot.
Now, the fact that a person is not officially on the White House staff would not necessarily preclude a claim for confidentiality. Indeed, former vice president Dick Cheney, in his memoir In My Time (which was co-written with his daughter Liz Cheney, now vice-chairwoman of the January 6 committee), explains why the Bush/Cheney administration withheld from Congress, the press, and private watch-dog organizations the identities of private parties who offered advice to a White House energy-policy advisory group chaired by the vice president: If such citizens “have to worry about lawsuits or being called before congressional committees, it would pretty severely curtail the counsel a president and vice president could receive.”
The Supreme Court gave the Bush/Cheney administration a qualified victory in the case that ensued, Cheney v. U.S. District Court (2004), observing that:
The public interest requires that a coequal branch of Government afford Presidential confidentiality the greatest protection consistent with the fair administration of justice, and give recognition to the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties. [Internal quotations from United States v. Nixon (1974) omitted.]
The Court elaborated that a wide berth for confidentiality must be given, even beyond the narrow applicability of executive privilege for high-level communications.
Still, Bannon’s situation presents salient differences (even apart from a web of statutes relevant in the Cheney case that have no bearing on Bannon’s case). In Cheney, the information demands, mainly by private groups, were directed at the executive branch itself, and thus derivatively, at the sitting vice president. There was no doubt, moreover, that the executive branch made clear objections to lower-court discovery orders on constitutional separation of powers grounds. Here, by contrast, the congressional subpoenas were directed at Bannon, not Trump. Trump is not the sitting president. Joe Biden, who is the sitting president, has declined to invoke executive privilege regarding Trump’s communications with Bannon, or otherwise object on the basis of Bannon’s claimed status as a presidential adviser.
And critically, it turns out that Bannon was wrong in claiming that Trump directed him not to cooperate with the committee. In suggesting otherwise, Bannon’s defense team represented that they were relying on communications with Trump’s lawyer, Justin Clark. Yet Clark apparently says that’s not what happened. Politico reports that Clark agreed to be interviewed by the FBI on June 29. According to prosecutors, he stated:
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 [Bannon’s] attorney misrepresented to the Committee what the former President’s counsel had told [Bannon’s] attorney; and that the former President’s counsel made clear to [Bannon’s] attorney that the letter provided no basis for total noncompliance.
Bannon was involved in the pre–January 6 consultations among Trump’s private advisers and, far from keeping them confidential, talked about them publicly. He saw many things and participated in many conversations that could be relevant to the January 6 committee’s investigation but probably are not even theoretically covered by executive privilege. So, to summarize, as a non-executive branch official, and with no support from the incumbent administration, Bannon had no personal right to blow off a congressional subpoena. To the extent he claimed to be relying on Trump’s direction, Trump apparently never told him to ignore the committee. It was thus Bannon’s duty to show up to testify, and to turn over documents, as compelled by the subpoenas. If, in so doing, he wanted to withhold information based on Trump’s theoretical privilege, Bannon needed to do that on a question-by-question or document-by-document basis, preferably with Trump’s counsel in attendance and invoking the privilege on Trump’s behalf.
Bannon, instead, told the committee to pound sand. That might have helped his podcast ratings but, as a matter of law, people in his shoes don’t get to do that with impunity when dealing with government bodies that have subpoena power.
With his misdemeanor trial scheduled to start today, and the high likelihood of conviction and a short prison sentence looming, Bannon has tried an eleventh-hour dodge, supported by Trump. He says he is now willing to testify before the committee because Trump has waived privilege. The purpose of a criminal-contempt charge, however, is to punish a contempt offense that has already happened, not to nudge a person into future compliance. An agreement to testify now does not extinguish a crime that has already happened. And since it is by no means clear that Trump had any cognizable privilege to invoke in connection with Bannon’s activities, the sudden agreement to waive whatever privilege there may be is of little moment.
Bear in mind: Judge Nichols is a Trump appointee. He is also the only judge in the District of Columbia federal court to rule that the obstruction charge on which the Justice Department relies against some of the most serious Capitol riot defendants does not apply to them. When Nichols rules that Bannon’s defenses to the contempt charges are meritless, it is because they are meritless — it is not because he is out to get Bannon or because he necessarily believes charging Bannon was an appropriate exercise of the Justice Department’s prosecutorial discretion. Bannon knew he was under subpoena and, with no basis to do so other than his brash persona, decided to tell the committee, “Screw you.” There’s no legal defense to that.
The trial begins today. Absent a last-second guilty plea, I imagine it will take longer to pick the jury than to present the evidence. So it goes in a rout.