Law \ Legal

Bannon’s Lawyers Furiously Throwing Sh*t Against The Wall As Jury Selection Begins

Steve Bannon And Lanny Davis Hold Debate In Prague

(Photo by Sean Gallup/Getty Images)

Jury selection begins today in Steve Bannon’s contempt of Congress trial. It’s not clear how Trump’s former strategist thought this was going to go down when he blew off subpoenas from the January 6 Select Committee back in October — but obviously he didn’t anticipate his own lawyer wondering in open court last week, “What’s the point of going to trial if there are no defenses?” only to have Judge Carl J. Nichols nod and say “Agreed.”

It’s all been downhill for the podcaster since he stood on the courthouse steps in November and promised to make his case the “misdemeanor from hell for Merrick Garland, Nancy Pelosi and Joe Biden.” First the judge declined to overrule binding Circuit precedent that mistake of law is no defense to contempt of Congress, which put the kibosh on Bannon’s plan to claim that he was just following advice of counsel when he gave the committee the finger.

Much to the apparent astonishment of the podcaster’s lawyers, this meant that good faith reliance, public authority, and entrapment by estoppel were out, too. So the jury will not get to hear their creative theories on the Justice Department entrapping Steve Bannon with Office of Legal Counsel memos saying it’s Department policy not to prosecute executive branch officials when there’s been a valid invocation of privilege — as if executive privilege were a club, and he had a lifetime membership, despite being fired from the White House in 2017, long before any of the events relevant to the January 6 inquiry took place.

In last week’s hearing, Judge Nichols not only banhammered the putative defenses, but he quashed a subpoena for “Nancy Pelosi, and little Jamie Raskin, and shifty Schiff.” There goes Team Bannon’s crafty plan to argue that the committee’s subpoenas are invalid because Chair Bennie Thompson has bias in his heart and/or his committee has no “ranking member” — both of which the court has already ruled are not appropriate to present to the jury.

But Old Three Shirts isn’t going down without a fight. On Friday his lawyers filed a motion to either exclude congressional evidence altogether or, alternatively, to dismiss the indictment in its entirety. As with so much of Team Bannon’s output in this case, it’s an audacious exercise in wackassery.

The argument is that congress, not the United States itself, is the actual “complainant” here, and thus it violates “Mr. Bannon’s Fifth and Sixth Amendments rights to compulsory process, to Confrontation, and to present a defense at trial” if he doesn’t get to put Speaker Pelosi on the stand and hector her in front of jury. Even Roger Stone didn’t try to claim that the right to confront his accuser allowed him to depose Adam Schiff during his prosecution for making false statements to the House Intelligence Committee — although he probably wishes he had.

But Bannon’s lawyers are throwing all the shit up against the wall, arguing that, if their client isn’t allowed to “elicit critical exculpatory evidence from key Members of Congress and staff,” then the court must dismiss the indictment post haste. Alternatively, they’d like to “exclude all congressional evidence,” whatever that means.

Expect this argument to come up again as Bannon tries to assert that he was never in contempt of Congress because Chair Thompson made some offhanded comment in October about the door still being open, and thus Bannon’s offer to testify last week meant that the contempt was never complete. Coupled with Team Bannon’s dogged refusal to take no for an answer from the court on which arguments are not to be mentioned in front of the jury, particularly the mistake of law defenses, and the potential for a mistrial is high. Indeed, as recently as Friday, they were insisting that they need to refer to the legislators’ absence on the witness stand, despite the court ruling that it was out of bounds.

Meanwhile, MAGA world is already spinning any potential jury verdict as “rigged” because the trial is being held in DC, i.e. the venue where the defendant committed the alleged crimes.

Mark Levin went to Temple University Law School, but apparently he slept through Criminal Procedure. And not for nothing, but, of all the motions Bannon’s team filed, a motion to change venue wasn’t one of them. They appear to have pinned their hopes on getting favorable treatment from Judge Nichols, a Trump appointee, only to get a nasty surprise when he didn’t play along. It’s going to be a weird three weeks.

Expect shenanigans!

US v. Bannon [Docket via Court Listener]

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

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