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(Photo by Stephanie Keith/Getty Images)
“Is the prosecutors’ playbook The Prince or The Little Prince?” Steve Bannon’s attorneys demand indignantly. “Are they being disingenuous or are they in another world?”
And they’re off to the races! The podcaster’s lawyers and prosecutors spent yesterday blasting each other in dueling motions, each one more furious than the last. Again.
Bannon’s team got the ball rolling by insisting that their client is entitled to a postponement of his July 18 trial for contempt of Congress arising from his refusal to comply with a subpoena from the January 6 Select Committee. Poor Steve Bannon, who stood on the courthouse steps and promised to make this case “the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden,” just can’t get a fair trial in DC while the committee hearings are ongoing.
When he made this claim last week, the government pointed out that Bannon, who constantly runs his mouth about the committee on his own podcast, was only mentioned during two of the six hearings so far, and only for 30 seconds in total. In response, the defendant entered an exhibit purporting to tally up the “mentions of the name ‘Steve Bannon’ on broadcast television, cable television, and radio” in the 24 hours after the hearings, along with the “publicity value” of those appearances — as if the government was somehow responsible for airing expensive television spots in Cleveland, Norfolk, and Tampa Bay to discredit the defendant with potential jurors in DC.
Bannon further argues that his team is far too busy filing motions and trying to convince US District Judge Carl J. Nichols that their client got permission to blow off the committee — maybe from Donald Trump, maybe from the Office of Legal Counsel, maybe because Nancy Pelosi is biased and subpoenas from Democrats don’t count — and simply can’t go to trial now.
In reply, the government snorts, “Likely recognizing the lack of merit to his pretrial publicity claims, the Defendant for the first time in his reply advances a new reason for a continuance: because there are motions outstanding in this case,” noting that Bannon’s legal team agreed to the motions schedule, and if they haven’t finished briefing the court yet, that’s on them.
“The Defendant’s gamesmanship by requesting a continuance because of the very schedule he has suggested and manufactured should be rejected,” US Attorney Matthew Graves added.
But the fun wasn’t over yet! Bannon’s lawyers came back to insult the prosecutors for failing to understand the inherent rightness of the discovery demand for internal Justice Department deliberations about whether to levy contempt charges against Trump aides Dan Scavino and Mark Meadows.
“The Government’s response misses the thrust of Mr. Bannon’s motion in just about every regard,” they argue. “Additionally, to the extent it attempts to address the defense of entrapment by estoppel, the opposition yet again reflects a fundamental misunderstanding of the defense.”
Just to be clear, the defense’s position is that Bannon’s communications with Trump (not to mention with Rudy Giuliani, the Proud Boys, and various members of the Trump campaign) are covered by executive privilege. But DOJ work product from 2022 regarding two people who have nothing to do with this case is discoverable as Brady/Giglio material or perhaps because it may have influenced Bannon’s decision to give Congress the finger six months prior in 2021.
Moreover, Judge Nichols already already nixed Bannon’s plan to assert advice of counsel and good-faith reliance as defenses in April. At this point, the only issue is whether he can rename those two rejected defenses “public authority” and/or “entrapment by estoppel” and present them to a jury.
Not for nothing, but the Office of Legal Counsel memos Bannon purports to have relied on when he told Chair Bennie Thompson to get bent describe the DOJ’s policy not to prosecute former executive branch employees who refuse to testify about their government service pursuant to an invocation of executive privilege. Steve Bannon got fired from the White House in 2017, and even Donald Trump’s lawyer warned him that he didn’t have blanket immunity from congressional subpoena. And anyway, as the government points out, there’s no indication that Bannon ever saw the memoranda on which he claims to have relied.
But if the facts and the law — not to mention objective reality — are against you, pound the table.
“The Government’s assertions are patently and demonstrably false in all regards,” the defendant’s lawyers shout, adding that “Mr. Bannon will reply by simply referring to the record which unequivocally demonstrates the point.”
Sure, entrapment by estoppel requires a public official to actually tell the defendant that his conduct is legal. But “Mr. Bannon has emphasized the rationale of each of the OLC opinions and other authoritative DOJ writings to support the reasonableness of his belief that the relevant principles enunciated in the OLC opinions apply” to him.
Okay, if you want to get technical, a public authority defense relies on proving that a government official told the defendant his conduct was permitted, and, as the government points out, “the former President was not a government official at the time the Defendant was served with and defied the subpoena.” But see, “Mr. Bannon (and Mr. Costello) relied on the express words in each opinion and their view that their reliance was reasonable and correct is bolstered by the rationale that makes it crystal clear that the bases for the conclusions and directives in the authoritative writings are triggered when executive privilege is invoked.”
Close enough, right?
Clearly the defense plan is to wave their hands and shout, hoping Judge Nichols won’t notice that their argument is just good-faith reliance and advice of counsel, stacked on each other’s shoulders and disguised in a trench coat. We’ll get some idea whether the plan is going to work on Monday July 11, when the court has scheduled a 10 a.m. hearing on all this wackassery.
Be there, will be wild.
US v. Bannon [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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