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After Court Tosses Steve Bannon’s Ploy To Blame His Lawyer, He Tries Repeating It Again LOUDER

Steve Bannon And Lanny Davis Hold Debate In Prague

(Photo by Sean Gallup/Getty Images)

Steve Bannon’s defense team slid into the holiday weekend with another round of wackassery in his contempt of Congress case.

It started on Thursday, with a joint motion on jury instructions in which Bannon’s team reiterated that it intends to present a defense that someone, somewhere gave their client permission to give the January 6 Select Committee two big middle fingers and refuse to cooperate with a lawfully issued subpoena.

Maybe it was Donald Trump? Maybe it was the Justice Department? Maybe it was Bannon’s own lawyer, Robert Costello? Maybe it was Bannon himself, who just got super confused and signed his own permission slip — an honest mistake, it could happen to anyone!

Bannon proposes to tell the jury that the “willfulness” requirement of the charge obligates the government to “prove beyond a reasonable doubt that the defendant acted on his own violation and knew or should reasonably have known that his conduct was unlawful.” His lawyers will then instruct the panel that it cannot convict if it finds that Bannon either relied on the advice of his lawyer Robert Costello or alternatively that the putrefying podcaster pored over internal Justice Department policy memos and either reasoned himself into the good faith belief, or was entrapped into believing, that it was very cool and very legal to blow off a congressional subpoena.

The problem with these instructions, as the government points out, is that US District Judge Carl Nichols already put the kibosh on advice of counsel and good-faith reliance on the law as defenses here. Bannon’s counsel waves this off by gesturing toward “briefs and exhibits that set forth our position [which] stacked together are approximately 9 inches in height” — briefs which were already rejected by the court — and incorporating them by reference. Maybe Judge Nichols will forget!

Similarly, the court already said that a selective prosecution claim is unlikely to be “colorable.” Nevertheless, Bannon continues to demand that he be allowed to depose congressional witnesses and access internal House deliberations, both in his motions and on the courthouse steps, where he recently brayed, “I look forward to having Nancy Pelosi, and little Jamie Raskin, and shifty Schiff in here at trial answering questions.” In fact, he threatens to move for a dismissal if he fails to get these “witnesses” on the stand, insisting that the Fifth and Sixth Amendments give him the right to interrogate the legislators as to their bias, which will somehow negate the validity of subpoenas or prove his conduct was not willful.

Look, it’s a working theory, okay? Would you find it more convincing if they larded it with some extra snark? Can do!

What purports to be a primer on evidence, however, reflects little understanding of the adversary nature of a criminal trial, or the constitutional guarantees – such as confronting witnesses regarding bias – that are essential to a fair trial.

These guys are currently arguing that internal work product relating to the Justice Department’s decision not to prosecute two strangers to this case constitutes Brady material, and they still want to lecture the US Attorney on “the adversary nature of criminal trial.” You bet.

Last week, Bannon moved to postpone his July 18 trial until October based on the “much publicized Select Committee hearings which purport to broadcast investigative ‘findings’ on topics that are referenced in the Indictment.” As the government notes in reply, the committee hearings pertain to events surrounding the Capitol Riot in January 2021, not the defendant’s failure to comply with a congressional subpoena nine months later. Bannon himself was only discussed for 30 seconds during the five hearings in June, which the government suggests hardly rises to the pervasive level of publicity which would necessitate postponing his trial.

Moreover, as this website remarked last week, Bannon rants about the Committee hearings almost daily on his podcast, even as his attorneys regularly comment on the case in the media.

“W]hile the Defendant’s motion describes media coverage of the Committee’s hearings overall, the Defendant does not cite a single media article covering the Committee’s hearing that mention the Defendant. That is because there are none,” prosecutors write. “In fact, the Defendant and his attorneys have caused far more pretrial publicity about this case than the Committee hearings have by holding press conferences at the courthouse and speaking with reporters.”

Later, they add that “contemporaneous with the filing of his Motion to Continue, the Defendant was generating his own media coverage, on his own podcast, of the Committee’s hearings. See, e.g., David Bossie: The Jan. 6 Committee Hates Trump More Than They Love This Country, WarRoom, June 29, 2022 (Defendant’s podcast episode focusing on Committee hearing at which former White House aide Cassidy Hutchinson testified).”

Interestingly, the government’s motion opposing continuance makes five references to H. R. Haldeman, Nixon’s chief of staff who served 18 months for perjury, conspiracy, and obstruction of Congress. Which is probably not a coincidence.

US v. Bannon [Docket via Court Listener]

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

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