At a recent hearing that left Bannon’s legal strategy in tatters, his lawyer David Schoen asked U.S. District Court Judge Carl J. Nichols, “what’s the point of going to trial if there are no defenses?” The judge replied simply: “Agreed.”
The exchange was a remarkable comedown for the combative, bombastic Bannon team that live-streamed his declaration, “we’re taking down the Biden regime” as he surrendered to the FBI in late 2021 on charges he had illegally flouted the House committee probing Jan. 6.
The judge’s response was a lawyerly way of urging Bannon to seek a plea deal with the government, rather than face long odds at a short trial, said Randall Eliason, a George Washington University law professor and former federal prosecutor.
“Obviously everyone’s entitled to a trial, but usually if you go to trial there’s some kind of legal or factual dispute that needs to be resolved,” Eliason said. “The judge’s point is, there aren’t really any here … In those instances, going to trial becomes what prosecutors sometimes call a long guilty plea.”
Bannon judge shreds his proposed defenses
Bannon’s case, while high profile and politically significant, is a legal rarity. Over the last four decades — even when Congress referred such an instance of alleged contempt of Congress to the Justice Department for prosecution — they were rarely charged, and those that did lead to convictions or pleas came undone. But this trial comes amid highly-watched televised hearings of the House committee investigating the Jan. 6, 2021, attack on the Capitol — the panel that Bannon refused to speak to, or provide documents to, leading to his criminal charges.
Bannon is one of two former Trump aides to face criminal charges in connection with rebuffing the committee, along with former White House trade adviser Peter K. Navarro. On the same day Navarro was indicted in June, the Justice Department disclosed that it would not charge former Trump White House chief of staff Mark Meadows and communications chief Daniel Scavino Jr.
Unlike Bannon and Navarro, Meadows and Scavino engaged in months of talks with the committee over the terms and limits of potential testimony and executive privilege claims. Meadows also turned over thousands of text messages and communications with members of Congress and other White House aides before ending negotiations and withdrawing his appearance for a deposition. And unlike the other three men, Bannon left the Trump White House in 2017 and was a private citizen at the time of the 2020 election and subsequent presidential transition.
Bannon’s lawyers have argued that former president Donald Trump invoked executive privilege to shield the conversations from congressional inquiry — but the judge in his case noted that it’s not at all clear Trump did invoke the privilege. Even if he did, it’s not clear that a former, rather than current president can assert the privilege, or how such a claim could apply to Bannon, who had been out of government for years by the time period in question.
In past cases involving battles for information between executive branch officials and Congress, claims of executive privilege are as much a negotiating posture as a legal principle — a way of bargaining for limits on what is turned over to Congress. In Bannon’s case, however, there was little to no negotiation, and the judge has warned his lawyers that the only potential defense to the charge of contempt is whether he knowingly missed or just misunderstood the deadline set for responding to the panel’s demands.
The judge noted that before Bannon was charged, Trump’s attorney had instructed him to cite any immunity or privilege with the committee “where appropriate” — not that Bannon could simply refuse to answer every question or provide any document. Nichols also cited a letter from Trump attorney Justin Clark to Bannon’s lawyer stating that he “didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is.”
Jury selection in the case is due to begin Monday, and the trial is likely to be brief — prosecutors say their case will take a day, and given the judge’s limitations on which witnesses Bannon can call and what issues he can raise, it’s unclear how long Bannon’s own case may take, or if he will testify.
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In issuing a subpoena to Bannon, the committee said it wanted to question him about activities at the Willard Hotel the night before the riot, when Trump supporters sought to persuade Republican lawmakers to overturn the 2020 election results. The committee said Bannon spoke with Trump by telephone that morning and evening, the last time after Bannon predicted “hell is going to break loose” Jan. 6, and the committee’s report recommending that he be found in contempt said the comments indicated he “had some foreknowledge about extreme events that would occur the next day.”
But charging Bannon and taking him to trial significantly decreases the odds he ever provides evidence to the committee.
“Other than having the satisfaction of getting a conviction, there’s not really an enforcement element to the case, and it seriously complicates any attempt to use him as a witness,” said Stanley Brand, a former House counsel who represented Scavino in his dealings with the committee. “Any legal lessons may come much later with any appeals.”
If convicted, Bannon’s potential punishment is unclear. The two misdemeanor contempt charges are each punishable by at least 30 days and up to one year in prison. Court records show that the three similar contempt of Congress cases that have been charged in D.C. federal court since 1990 all resulted in guilty pleas, but none of those individuals received jail time under plea deals with prosecutors. Two were pardoned by a president of their party and the third was allowed to withdraw his plea and admit to a lesser charge in a sentencing mix-up by prosecutors.
Bannon, however, is a different sort of defendant than those past government officials.
A former media executive who boasted of creating a “platform for the alt-right,” Bannon has championed a “populist-nationalist” movement since chairing Trump’s campaign for part of 2016. While he has denied responsibility for the Jan. 6 riot by Trump supporters, he considered himself an ideological architect of the efforts to overturn the election and the Jan. 6 Trump rally.
Bannon’s podcast was kicked off YouTube after Jan. 6 but remains one of the country’s most popular on Apple’s platform, with more than 200 million total downloads. In September 2020, Bannon began outlining how Trump could claim election fraud and throw the outcome to the House of Representatives, and continued predicting that Trump should just declare victory regardless of results on Nov. 3 before promoting the baseless idea that the election was stolen in more than 120 podcasts episodes leading up to Jan. 6.
The apocalyptic denunciations continued as Bannon unsuccessfully sought for a delay in his trial and offered this month to speak to the committee at a time and place of his choice. Prosecutors called that effort a ploy to avoid accountability that showed further contempt for the court and government by wasting their time as well as Congress’s. The committee said it would not negotiate until Bannon produced subpoenaed documents first.
“Pray for our enemies, because we’re going medieval on these people. We’re going to savage our enemies,” Bannon said in a podcast as the trial neared, adding, “Who needs prayers? Certainly not Stephen K. Bannon.”
Prosecutors had warned that Bannon’s desired legal defenses, such as calling prominent Democrats as witnesses, would have turned the trial into a “circus,” and the judge’s rulings seem to have cut off many of the avenues for doing so.
But Bannon has shown he is more than happy to try to make his case outside the courthouse as well as in it.
Eliason, the law professor, said one possible reason for Bannon to fight on through a long shot trial is to preserve his rights to appeal. But the pugilistic podcaster may have other motives.
“Maybe it’s just a show to him, one where he can play the MAGA martyr and use it to raise his profile,” said Eliason. “That’s not a legal reason to go to trial but it may be enough of a reason for him.”