Bannon’s Lawyers Would Like Several More Last Bites At The Apple

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(Photo by Sean Gallup/Getty Images)

“What’s the point of going to trial if there are no defenses?” wondered Steve Bannon’s attorney David Schoen at the conclusion of a disastrous motion hearing on Monday.

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Just a week before the trial, it seems to have finally occurred to Bannon’s legal team that US District Judge Carl Nichols isn’t going to disregard controlling precedent and let them present some version of “mistake of law” as a defense to contempt of Congress charges. Nor is he going to let them postpone his date with the jury long enough to allow the GOP to take over the House and retroactively declare the subpoenas from the January 6 Select Committee null and void. The court won’t even allow Bannon to fulfill his promise to make this the “the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden” by dragging Pelosi and half the members of the committee in and putting them on the witness stand.

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Unfair! Doesn’t Judge Nichols remember that he’s a Trump appointee?

One of the only issues remaining after Monday’s hearing was Donald Trump’s batshit letter from this weekend, in which he purported to “waive Executive Privilege for you, which allows for you to go in and testify truthfully and fairly, as per the request of the Unselect Committee of political Thugs and Hacks, who have allowed no Due Process, no Cross-Examination, and no real Republican members or witnesses to be present or interviewed.”

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Bannon’s lawyers seem to be arguing that the contempt is not “complete” if their client is now willing to “cure” it by testifying, despite the fact that it’s now been nine months since Bannon give the committee the finger.

“The date for compliance was left open and remains open, having been waived and extended by conduct,” they write. And if this allows them to sneak in an executive privilege defense, despite the court having already nixed it twice, so much the better!

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“Notwithstanding the Court’s July 11, 2022, oral Order, apparently prohibiting evidence of the invocation of executive privilege, given the central role executive privilege and its withdrawal played in Mr. Bannon’s compliance, evidence of both the invocation and the withdrawal should be permitted as well to explain Mr. Bannon’s actions,” they write, cheerfully eliding the fact that the court put the kibosh on the privilege defense back in April, only reiterating it this week because Schoen and his co-counsel Evan Corcoran kept trying to bring it back in.

There’s also the minor matter that Trump never invoked privilege, and newly revealed testimony from his lawyer confirms it.

But they’re not taking “no” for an answer. The motion clearly shows that Bannon intends to present mistake of law as a defense — “his response to the subpoena was justified and therefore not a ‘willful’ ‘default,’ as he believes those terms are defined in the law” — and even refers to “cross-examination of subpoenaed witnesses Pelosi and Thompson on issues directly relevant to the accommodation process,” despite the fact that Judge Nichols quashed subpoenas for the politicians two days ago.

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And speaking of second bites at the apple, Team Bannon has renewed its motion to get his trial postponed citing publicity around the January 6 Committee hearings. Their “new” basis for continuance is a thirty-second clip from Bannon’s own podcast played at yesterday’s hearing, despite the fact that Bannon himself discusses the events of January 6 regularly on his show, airing a segment just yesterday entitled “Informants Confirmed at J6.” They’re also mad about a Sunday night CNN special on Bannon’s movement to dismantle the administrative state, which is also a frequent topic on his own show. 

Neither one of these has anything to do with whether Bannon blew off a Congressional subpoena in October of 2021, or even whether he believed he had a right to blow it it off. Nevertheless, they demand that the case be postponed in light of the “prejudice here [which] is a function of the accumulation of relevant developments.”

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There’s a status conference scheduled for tomorrow at 10am. Guess we’ll find out soon if Judge Nichols sticks with his decision to handle the “prejudice” at voir dire or lets them kick the can down the road past the midterms.

US v. Bannon [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

Topics

Capitol riot, Carl Nichols, Crime, David Schoen, Donald Trump, Evan Corcoran, Government, Steve Bannon