Comment Former Trump adviser and right-wing podcaster Stephen K. Bannon has vowed that contempt of Congress charges against him would become “misdemeanor from hell” for the Biden administration, but after court rulings against his proposed defense, legal experts said that his trial will begin on Monday. it could be more of a quick trip to 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 going to trial if there’s no defense?” The judge simply replied, “I agree.” The exchange was a notable setback for the combative, bombastic Bannon team who live-broadcasted his declaration, “we are taking down the Biden regime,” as he surrendered to the FBI in late 2021 on charges that he had illegally defied the House committee investigating Jan . 6. The judge’s response was a lawyer’s way of urging 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 everybody has a right 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 that they’re not actually here. … In these cases, going to trial becomes what prosecutors sometimes call a lengthy guilty plea.” Judge Bannon breaks down his proposed defenses Bannon’s case, while high-profile and politically important, is a legal rarity. Over the past four decades—even when Congress referred one such 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 this trial comes amid highly-televised hearings of the House committee investigating the Jan. 6, 2021, attack on Capitol Hill — the panel to which Bannon refused to speak or provide documents, leading to his criminal prosecution. Bannon is one of two former Trump aides facing criminal charges in connection with the panel’s dismissal, along with former White House trade adviser Peter K. Navarro. On the same day Navarro was indicted in June, the Justice Department revealed that former Trump White House chief of staff Mark Meadows and communications chief Daniel Scavino Jr. would not be indicted. Unlike Bannon and Navarro, Meadows and Scavino have been engaged in months-long talks with the committee about 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 his deposition appearance. And unlike the other three men, Bannon left the Trump White House in 2017 and has been private during the 2020 election and subsequent presidential transition. Bannon’s lawyers argued that former President Donald Trump invoked executive privilege to shield the conversations from congressional investigation — but the judge in his case noted that it was far from clear that Trump invoked the privilege. Even if he did, it’s not clear that a former rather than current president can claim the privilege, or how such a claim could apply to Bannon, who was out of government for years at the time. In past cases involving information battles between executive branch officials and Congress, claims of executive privilege are as much a bargaining post as a legal principle — a way of negotiating limits on what is turned over to Congress. In Bannon’s case, however, there was little or no negotiation, and the judge warned his lawyers that the only possible defense to the contempt charge is if he knowingly missed or simply misunderstood the deadline set to respond to the committee’s requests. The judge noted that before Bannon was indicted, Trump’s lawyer had instructed him to mention any immunity or privilege to 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 Clarke to Bannon’s attorney, stating that he “did not indicate that we believe there is immunity from testifying for your client. As I told you the other day, we don’t think it exists.” 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 issues can raise, it is not clear how Bannon’s own case can last long, or whether he will testify. Official says Secret Service deleted Jan. 6 texts. agency differences account 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 tried to persuade Republican lawmakers to overturn the 2020 election results. The panel said Bannon spoke to Trump by phone that morning and evening, the last time after Bannon predicted “all hell would break loose” on Jan. 6, and the panel’s report recommending that he be found in contempt said the comments indicated that he “had some premonition of extreme events that would occur the next day.” But Bannon’s indictment and arraignment significantly reduces his chances of providing evidence to the committee. “Other than satisfying the conviction, there’s really no 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 Commission. “Any legal lessons may come much later with any appeals.” If convicted, Bannon’s potential punishment is unclear. The two counts of misdemeanor contempt are punishable by at least 30 days in jail and up to one year in jail. Court records show that three similar contempt of Congress cases indicted in D.C. federal court since 1990 resulted in guilty pleas, but none of those individuals received prison terms 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 kind 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 January 6 uprising by Trump supporters, he considered himself the ideological architect of the efforts to subvert the election and the January 6 Trump rally. Bannon’s podcast took off from YouTube after Jan. 6, but remains one of the nation’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 result in the House of Representatives, and went on to predict that Trump would simply have to declare victory regardless of the results on November 3 before promoted the baseless idea that the election was stolen in more than 120 podcast episodes through January 6. The revealing allegations continued as Bannon unsuccessfully sought to delay his trial and offered this month to address the committee at a time and place of his choosing. Prosecutors called the effort a ploy to avoid accountability that showed 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 subpoena documents. “Pray for our enemies, because we are going into the middle ages with these people. We will savage our enemies,” Bannon said a podcast as the trial approached, 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 appear to have cut off many avenues for doing so. But Bannon has shown he’s more than happy to try to make his case outside the courthouse as well as in it. Eliasson, the law professor, said one possible reason for Bannon to fight a lengthy trial is to preserve his appeal rights. But the boxing podcaster may have other motives. “Maybe it’s just a show for him, where he can play the MAGA witness and use that to raise his profile,” Eliason said. “That’s not a legal reason for him to go to trial, but it might be reason enough for him.”
