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Bannon Verdict Shows No Defense Sometimes Isn’t the Best Defense

Bloomberg logo Bloomberg 7/23/2022 Erik Larson

(Bloomberg) -- Steve Bannon’s lawyers chose not to call defense witnesses, submit evidence or let the jury hear directly from the longtime Donald Trump adviser in his contempt of Congress trial.

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It was a gamble that didn’t pay off.

A Washington jury deliberated only a few hours -- having lunch during that time -- before finding Bannon guilty of two counts of contempt for defying the Jan. 6 committee’s subpoenas seeking documents and testimony. His meager defense didn’t match the build up. The right-wing radio talk show host had vowed on a podcast in the run-up to his trial in Washington “we’re going medieval on these people.” 

Former Trump Adviser Steve Bannon Attends Trial © Bloomberg Former Trump Adviser Steve Bannon Attends Trial

“For all his bluster and promise to go ‘medieval,’ Bannon had nothing to say in court, a place where truth actually matters,” said Barbara McQuade, a law professor at the University of Michigan and a former federal prosecutor.

Bannon’s lawyers gambled instead that a “kitchen sink” closing statement by his lawyer would create some semblance of reasonable doubt -- all that’s required for an acquittal. He questioned whether the committee chairman’s signature was real on the subpoena and whether the deadlines were really set in stone. Had the subpoenas really even been delivered, he asked the jury.

The panel that was carefully selected by both sides just didn’t buy it.

It was a major blow to the former president’s brand of obstinacy and it doesn’t auger well for others who took the same path, like Peter Navarro, Trump’s former trade adviser, who is facing similar charges.

For more on Bannon case:
Bannon Convicted of Contempt for Defying Jan. 6 Panel’s SubpoenaBannon Is Ringmaster in a ‘Political Circus’ on Courthouse StepsWhat’s Contempt of Congress and Executive Privilege?: QuickTake

“If there were a decent legal or factual argument available, that would have been the focus of the defense’s closing and we would not have seen the hodgepodge approach,” said former federal prosecutor Jennifer Rodgers.

The defense attorney’s closing argument was essentially the sum total of Bannon’s defense, and the prosecution jumped on its limitations and its focus on technicalities.


Video: Bannon after guilty verdict: ‘I stand with Trump and the Constitution’ (NBC News)

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“They want you to wonder ‘what am I missing here?’” Justice Department prosecutor Amanda Vaughn told jurors in the closing moments of the trial, calling the defense argument a distraction. “Your eyes aren’t deceiving you about what’s in black and white on paper. How much clearer could that subpoena have been?”

The government’s case showed that Bannon proudly defied the committee and bragged about it on social media. His refusal to cooperate had nothing to do with suspected signature flaws. Rodgers said the summation was a “kitchen sink” approach that was simply to throw a variety of innuendos at the jury -- a result of Bannon not having a good defense argument in the first place.

“Unlike the prosecution, which must convince all jurors for a unanimous verdict, the defense only needs one juror to refuse to convict to cause a hung jury,” Rodgers said. “It’s hard to tell what arguments might resonate with an individual juror.

Bannon was indicted in November on two counts of contempt of Congress for refusing to comply with a subpoena from the Jan. 6 committee seeking his testimony and production of documents. The subpoena pointed to reports of his involvement in “war room” meetings at Washington’s Willard hotel with Trump’s lawyer Rudy Giuliani and others discussing how to keep Trump in office after he lost the 2020 election. 

During the trial, prosecutors presented evidence to show Bannon thought he was above the law by deliberately choosing to ignore set deadlines on the subpoena. The government’s star witness was Kristin Amerling, chief counsel to the Jan. 6 committee, who testified that Bannon ignored multiple requests and warnings to comply with the subpoena. The committee demanded that Bannon send over documents by Oct. 7 and appear for testimony on Oct. 14, but he never did, Amerling told the jury on Wednesday. 

Amerling also said that Bannon didn’t follow procedures attached to the subpoena if he wanted to request more time.

Former Trump Adviser Steve Bannon Attends Trial © Bloomberg Former Trump Adviser Steve Bannon Attends Trial

Bannon’s defense team argued that the dates were ambiguous and implied that the contempt referral was politically-motivated -- but they didn’t call witnesses to testify to this or produce documents as evidence of these claims.

Bannon and his lawyers instead accused the House Jan. 6 committee and Justice Department of trying to make example of him, and being motivated by politics. Judge Carl J. Nichols, a Trump appointee, admonished the defense earlier this week that he wouldn’t let the trial turn into a “political circus” but he did let the defense cross-examine witnesses to show possible bias.

Even so, the judge sustained several government objections to the closing argument by Bannon’s lawyer, shutting down his attempts to claim the case was politically motivated.

“Bannon talked a big game about his trial but could hardly have played it smaller,” said Lisa Griffin, a professor of criminal procedure at Duke University’s law school. “The arguments his counsel ultimately made were inconsistent with the evidence and focused on the most minute of technicalities.”

The quick verdict pleased the Democratic leadership. “This is a triumph of our system of checks & balances and a step forward for justice, reaffirming that no one is above the law,” House Speaker Nancy Pelosi tweeted about the Bannon verdict.

Bannon’s attorney David Schoen said they will appeal the verdict. Each of the two counts on which he was found guilty carries a maximum of one year in prison and fines of up to $100,000. It’s unlikely he will face the maximum penalty.

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