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Former Trump adviser and right-wing podcaster Stephen K. Bannon has vowed that contempt of Congress charges against him would become a “crime from hell” for the Biden administration, but after court rulings against his proposed defense, legal experts said the trial of it should start on monday it could be a faster trip through court.
In a recent hearing that left Bannon’s legal strategy in tatters, his attorney, David Schoen, asked U.S. District Court Judge Carl J. Nichols, “what’s the point of having a trial if there are no defenses?” The judge simply replied, “Agreed.”
The exchange was a notable loss for Bannon’s embattled, bombastic team, which had been live-streaming his “we’re taking down the Biden regime” declaration until he turned himself in to the FBI in late 2021 on charges that he illegally sidelined a House committee investigating Yan 6.
The judge’s response was a lawyer’s way of getting Bannon to seek a settlement with the government rather than face long odds in a short trial, said Randall Eliason, a law professor at George Washington University and a former federal prosecutor.
“Obviously everyone has a right to a trial, but usually if you go to trial, there’s some legal or factual dispute that needs to be resolved,” Eliason said. “The judge’s request is that there really aren’t any here. … In these cases, going to trial becomes what prosecutors sometimes call a long plea.”
Judge Bannon rejects his proposed defenses
Bannon’s case, while famous and politically significant, is a legal rarity. Over the past four decades—even when Congress referred such a case of alleged contempt of Congress to the Justice Department for prosecution—they were rarely charged, and those that resulted in convictions or pleas were overturned. But the trial comes amid widely-watched televised hearings of the House committee investigating the Jan. 6, 2021, attack on the Capitol — a committee to which Bannon has refused to speak or provide documents that led to the criminal charges.
Bannon is one of two former Trump aides facing criminal charges in connection with the committee’s rejection, along with former White House trade adviser Peter C. Navarro. On the same day Navarro was indicted in June, the Justice Department revealed it would not file charges against former Trump White House chief of staff Mark Meadows and communications chief Daniel Scavino Jr.
Unlike Bannon and Navarro, Meadows and Scavino have engaged in months of talks with the committee over the terms and limits of potential testimony and claims of executive privilege. Meadows also turned over thousands of text messages and communications with members of Congress and other White House aides before ending negotiations and withdrawing her testimony. And unlike the other three men, Bannon left the Trump White House in 2017 and has been a private figure throughout the 2020 election and subsequent presidential transition.
Bannon’s lawyers argued that former President Donald Trump invoked executive privilege to shield the conversations from a congressional investigation — but the judge in his case noted that it was not at all clear that Trump invoked the privilege. Even if he did, it’s unclear whether a former rather than current president could assert the privilege, or how such a claim could apply to Bannon, who had been out of government for years prior to the period in question.
In past cases involving information battles between executive branch officials and Congress, claims of executive privilege have been as much a negotiating position as a legal principle — a way to negotiate limits on what is passed to Congress. In Bannon’s case, however, there was little to no negotiation, and the judge warned his lawyers that the only potential defense to the contempt charge was whether he knowingly missed or simply did not understand the deadline set for responding to the panel’s requests.
The judge noted that before Bannon was indicted, Trump’s lawyer had instructed him to invoke any committee immunity or privilege “where appropriate” — not that Bannon could simply refuse to answer any question or provide any document. Nichols also cited a letter from Trump’s attorney Justin Clark to Bannon’s attorney stating that he “has not indicated that we believe there is immunity from testifying for your client. As I pointed out to you the other day, we don’t believe there is.
Jury selection in the case is set to begin Monday, and the trial is likely to be brief — prosecutors say their case will last one day, and given the judge’s restrictions on which witnesses Bannon can call and what questions he can raise, it is not clear how Bannon’s own case could take a long time or if he would testify.
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In issuing the 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 tried to persuade Republican lawmakers to overturn the results of the 2020 election. The panel said Bannon spoke to Trump by phone this morning and evening, the last time since Bannon predicted “all hell would break loose” on Jan. 6, and the panel’s report recommending he be held in contempt said, that the comments indicated that he “had some premonition of extreme events that would occur the next day.
But indicting Bannon and bringing him to trial greatly reduces the chances that he will ever provide evidence to the committee.
“Other than the satisfaction of getting a conviction, there’s really no execution element to the case, and that seriously complicates any attempt to be used as a witness,” said Stanley Brandt, a former House attorney who represented Scavino in his dealings with the committee. “Any legal lessons can come much later with any appeals.”
If convicted, Bannon’s potential punishment is unclear. The two misdemeanor and contempt charges are punishable by at least 30 days and up to a year in jail. Court records show that the three similar contempt cases indicted in D.C. federal court since 1990 have resulted in guilty pleas, but none have received prison terms. agreements with prosecutors. Two were pardoned by the president of their party, and the third was allowed to withdraw his plea and plead guilty to a lesser charge in a bungled sentence by prosecutors.
Bannon, however, is a different kind of defendant than those former 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. Although he has denied responsibility for the Jan. 6 riot by Trump supporters, he was seen as the ideological architect of the effort to nullify the election and Trump’s Jan. 6 rally.
Bannon’s podcast launched on YouTube after Jan. 6, but remains one of the most popular in the country on Apple’s platform, with more than 200 million downloads. In September 2020, Bannon began outlining how Trump could claim election fraud and deliver the result to the House of Representatives, and went on to predict that Trump should simply declare victory regardless of the Nov. 3 results before promoting the baseless idea , that the election was stolen in more than 120 podcast episodes leading up to Jan. 6.
The apocalyptic revelations continued as Bannon unsuccessfully sought a delay in the trial and offered to speak before the committee this month at a time and place of his choosing. Prosecutors have called the effort a ploy to avoid accountability that shows further contempt for the court and the government by wasting their time and that of Congress. The committee said it would not negotiate until Bannon first produced a subpoena.
“Pray for our enemies because we are going medieval on these people. We’re going to play our enemies,” Bannon said podcast as the trial approached, adding, “Who needs prayers? Certainly not Stephen K. Bannon.
Prosecutors warned that Bannon’s desired legal defenses, such as calling prominent Democrats as witnesses, would turn the trial into a “circus,” and the judge’s rulings appear to have cut off many avenues for that.
But Bannon has shown he’s more than happy to try to make his case outside the courthouse as well as inside it.
Eliason, the law professor, said one possible reason Bannon might continue to fight a long-term trial is to preserve his right to appeal. But the podcaster may have other motives.
“Maybe this is just a show for him, one where he can play the MAGA martyr and use it to boost his reputation,” Eliason said. “That’s not a legal reason for him to be sued, but it might be reason enough for him.”
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