The ex-president’s invocation of the privilege is not a sufficient basis to take the law into your own hands and simply refuse to show up, as Bannon did
. Trump helped Bannon evade accountability once, pardoning
him after he was arrested for wire fraud. Not this time.
Trump’s attempt at invoking the privilege is especially weak here because he wasn’t acting as chief executive when he planned and implemented his effort to overturn the election. He was acting as a defeated candidate, and there is no candidate privilege.
Second, there’s no such thing as podcaster privilege. Even if Trump could invoke the privilege, it wouldn’t protect Bannon — he was a podcast host
, not a White House advisor, on January 6. Bannon’s whisperings with other conspirators also aren’t Oval Office advice to the president.
Third, Bannon can’t hide behind his lawyer any more than he can hide behind Trump. Schoen claims
that Bannon was merely acting on the advice of his lawyer, who told him to honor Trump’s privilege invocation. But the majority of federal courts hold that reliance on a lawyer’s advice isn’t a defense
to criminal contempt. The Godfather’s Vito Corleone didn’t get to break the law with impunity because Tom Hagen told him it was OK.
Fourth, even if good faith reliance on a lawyer’s advice were a defense, it wouldn’t help Bannon. A person who wants to invoke a legitimate privilege in good faith doesn’t simply ignore a subpoena. He responds on time, and he negotiates. He turns over all relevant documents that aren’t covered by the privilege, and produces a privilege log indicating
which documents he isn’t turning over and why. He doesn’t simply skip out on a scheduled deposition. He shows up, answers when he can, and invokes the privilege on a question-by-question basis.
Even with an executive privilege claim, the committee could plausibly pose questions that bear no connection to Trump, such as communications Bannon had with others outside the administration who were in a pre-insurrection “war room
” at the Willard Hotel in DC.
Jeffrey Clark, a Justice Department lawyer who apparently collaborated with Trump in trying to overturn
the election results, also sought to invoke the privilege — but he at least showed up
at his deposition to do it.
Bannon didn’t, and he didn’t negotiate
either. He appears not to have even tried to act in good faith. It looks like he holds Congress in abundant contempt. Now it’s officially mutual.
Fifth, and finally, with no facts or law on his side, Schoen has resorted to claiming that Congress and the DOJ are just being unfair to his client. That’s not going to cut it as a defense — try winning
a selective prosecution defense — but it’s also wrong
on the facts.
Bannon’s own words have been even more damaging than his lawyer’s. When he surrendered himself to the FBI on Monday, Bannon brazenly outlined
his intent, “I don’t want anybody to take their eye off the ball…We’re taking down the Biden regime.”
Willfulness — an informed and deliberate refusal to comply — is required to prove criminal contempt. Look for the tape of those words to be played at trial to show bad intent.
Judge Carl Nichols may be a Trump appointee, but it’s hard to conceive that he would look kindly on Bannon’s brazenness. Proof of that is his scathing decision against
Trump’s allies Rudy Giuliani, Sidney Powell and Mike Lindell, rejecting their effort to get Dominion Voting Systems’ libel case against them thrown out
It’s true that criminal contempt prosecutions are rare. They should be. They’re a big deal. But Bannon’s flagrant contempt of Congress cries out for consequences. And our republic needs them.
We are still looking for answers about what happened on January 6 and how to stop the ongoing attack waged by Bannon and his co-conspirators on the very idea of a democratic government.