What started as a public relations stunt by Steve Bannon may have just ended as a spectacular suicide.
After nine months of refusing to answer questions from a Jan. 6 House committee — and dismissing related criminal contempt charges — the right-wing provocateur is suddenly offering to finally testify. The gambit is supposed to make the Justice Department look bad. But if he does so on the eve of trial, he risks incriminating himself before Congress and then being convicted the very next week.
On Saturday, after what insiders described as a week-long effort to persuade former President Donald Trump’s inner circle, Bannon’s legal team succeeded in convincing Trump to issue a letter waiving executive privilege. The letter allows his former White House chief strategist to testify before the committee on January 6. (Never mind that a federal judge, an appeals panel and even the Supreme Court have already said the former president has no executive privilege to assert or waive anyway.)
The letter was a last-minute attempt to backtrack on the Justice Department just a week before Bannon’s contempt of Congress lawsuit for refusing to appear before that same committee.
But on Monday afternoon, a federal judge in the District of Columbia dismissed any possible defense the right-wing media personality could have presented in his criminal trial.
When Bannon’s lawyers argued that politicians from the Jan. 6 committee should be compelled to testify at trial, the judge questioned why Bannon’s lawyers couldn’t just ask committee officials. When his lawyers asked for permission to tell prospective jurors that Bannon was simply following his lawyer’s advice when he failed to appear before Congress, the judge refused. And when they objected that the trial should be delayed, the judge told them to come back prepared for the final battle next week.
Now Bannon is moving toward a trial as he dangles potential testimony before a congressional panel — a prime opportunity to perjure himself or explain why he broke the law — and lawyers say there’s virtually nothing he can do that doesn’t put him in even greater legal danger.
“It will be very difficult for him to know what he can say that will not incriminate him. I think there will be problems. It just seems inevitable,” said Michael J. Gerhardt, a professor of constitutional law at the University of North Carolina.
It’s unclear whether the nine-member House Select Committee, led by Rep. Benny Thompson (D-MS) and Rep. Liz Cheney (R-WY), has any appetite to put Bannon on the stand — much less on live television, as as he apparently demands. Commission officials did not respond to The Daily Beast’s questions about the offer Monday.
But between now and the trial, which is set to begin next week, Bannon is in limbo.
If the committee accepts his fragile proposal, Bannon is in the awkward position of putting himself in one hot seat just days before he finds himself in another. For example, committee members could ask him why he never appeared last fall — and whatever Bannon says under penalty of perjury could come up at trial just days later. If he contradicts himself at any point, prosecutors can allege that he lied to Congress — another felony — or that he lied at trial.
There is an obvious expectation that Bannon will try to use his congressional testimony to essentially release an episode of his MAGA raging, daily podcast War Room: Pandemic — to get on the podium, attack the committee’s work and spew conspiracy theories . But it’s an act of self-immolation, because angering federal prosecutors is the last thing Bannon should be doing, lawyers said.
“If he figures he can get a better plea deal, that would undermine those strategies … he could make things worse if he perjures or is seen as an extremely recalcitrant witness,” said Catherine J. Ross, professor of law at George Washington University. .
His options now: Show up and play nice or face the wrath of the Justice Department.
In a text message to The Daily Beast, David Schoen, one of Bannon’s defenders, described the team’s Jan. 6 proposal to the committee as “no game.”
He reiterated his argument that Bannon was indeed operating under the belief that Trump retained some executive power after leaving the White House — and the committee should have sued Bannon in civil court and had a judge formally declare Trump’s claims of executive privilege invalid and compel Bannon to testify instead of the DOJ bringing criminal charges.
“Bannon is true to his word and to his principles,” Schoen wrote. “It was not his prerogative to opt out and his hands were tied. However, he also said he would absolutely comply if they granted ex-President Trump a privilege or a judge ruled the privilege invalid. That was the only reason he didn’t comply.
“On the commission’s part, of course they had to respect that and they had to tell the government to drop the criminal charges; but as we suspected from the beginning, they never asked for his testimony. They wanted to set him up for disrespect,” he added.
In recent days, Bannon’s legal team has thrown one Hail Mary after another at U.S. District Judge Carl Nichols, likely expecting a receptive audience from the Trump appointee, who once clerked for conservative Supreme Court Justice Clarence Thomas.
Schoen and Bannon’s other defense attorney, Evan Corcoran, sought to use the criminal case to seek documents that could show how political forces in the Biden administration or the Justice Department chose to target Bannon and make an example of him. him for defying Congress, a panel hated by Trump-loyal Republicans. They tried to argue that Justice Department memos protecting the president’s staff gave Bannon permission to ignore the panel’s Jan. 6 congressional subpoena. They tried to fall back on the idea that Bannon was simply following the advice of his fellow lawyer, Bob Costello. And they tried to bring House Speaker Nancy Pelosi (D-CA) and other members of Congress to court to testify.
But Nichols quickly rejected each of those defense maneuvers, leaving an exasperated Schoen to blurt out in court Monday: “What’s the point of going to trial if there’s no defense?”
The three federal prosecutors handling the case, who have repeatedly insisted in court documents and in person that this case was a one-day hit, came out on top.
“He got a summons. He did not respect it. This is illegal. This is contempt. He is on trial for it. He has no protection. It’s an open and shut case, so he’s in legal jeopardy,” Ross told The Daily Beast.
Bannon’s eleventh-hour offer to testify before the committee on Jan. 6 also does not technically absolve him of the crime for which he is on trial, attorneys said. Justice Department prosecutors working on his case have already said in court documents that they plan to prosecute him no matter what.
“The defendant’s last-minute efforts to testify, nearly nine months after his default — he has still made no effort to produce records — are irrelevant,” prosecutors wrote in a filing early Monday morning, saying jurors did not they should even hear about “his eleventh hour efforts.
“The criminal contempt statute is not designed to enforce compliance; is intended to punish past non-compliance,” they wrote.
“It’s useless because the judge in his criminal trial decided it didn’t let him off the hook.” He still refused to comply with the subpoena at the time he was due, and that does not negate his unlawful act of failure to appear,” Ross said.
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