Steve Bannon has an ‘arcane’ legal strategy to avoid prison: report

Steve Bannon has an ‘arcane’ legal strategy to avoid prison: report
Steve Bannon in May 2019, Wikimedia Commons

“War Room” host and former White House Chief Strategist Steve Bannon received a “get out of jail free card” when, in January 2021, then-President Donald Trump granted him a pardon for the federal charges he was facing for allegedly defrauding We Build the Wall donors. But now, 14 months into Joe Biden’s presidency, Bannon has different legal worries — and journalist Hugo Lowell, in an article published by The Guardian on March 25, describes the far-right MAGA Republican’s strategy for coping with them.

In August 2020, Bannon and three associates were hit with federal charges when prosecutors alleged that they used We Build the Wall dollars for personal expenses. We Build the Wall was a campaign to crowdfund a U.S./Mexico border wall, and prosecutors alleged that Bannon and the three others lied when they promised that 100% of the funds raised would be used for that purpose.

When Trump pardoned Bannon, his former White House chief strategist had been busy promoting the Big Lie and making the false, totally debunked claim that Trump was the real winner of the 2020 presidential election but was robbed of his victory through widespread voter fraud. On January 5, 2021 — the day before the Capitol insurrection — Bannon told “War Room” listeners, “All hell is going to break loose tomorrow.”

Sure enough, all hell did break loose on January 6, 2021 when a violent mob of Trump supporters attacked the U.S. Capitol Building. House Speaker Nancy Pelosi’s select committee on the January 6 attack has subpoenaed Bannon to testify, but he has refused to cooperate — resulting in two contempt of Congress charges from the U.S. Department of Justice.

“The former Trump aide is advancing a high-stakes — and arcane-sounding — defense as he battles the Justice Department (DOJ) in a case that could mean up to a year in federal prison and thousands of dollars in fines if convicted, but potentially defang congressional power should he prevail,” Lowell explains. “The all-or-nothing nature of the defense is characteristic of Bannon, a fierce defender and confidante of the former president even after he departed the White House seven months into the Trump Administration after a turbulent tenure as his chief strategist.”

Pelosi’s select committee wanted Bannon to sit for a deposition in October 2021, but he never showed up. Nor did Bannon turn over documents the committee requested as part of its investigation.

“The crux of Bannon’s argument is that he could reasonably believe the subpoena was invalid when the select committee refused to allow a Trump lawyer to attend the deposition, after the former president asserted executive privilege over the materials covered by the subpoena,” Lowell notes. “The argument rests on a 2019 Justice Department Office of Legal Counsel opinion (OLC) that says congressional subpoenas that prevent executive branch counsel from accompanying executive branch employees to depositions are ‘legally invalid’ and not enforceable.”

Bannon would have been allowed to have his own attorneys with him at that October 2021 deposition, but not a third-party attorney.

“Bannon’s attorneys say the doctrine at issue is protecting the president’s constitutional authority to limit the disclosure of privileged information, which typically involves discussions with close presidential aides who need to be able to offer candid advice,” Lowell writes. “In that sense, the principle extends to Bannon, they argue: the Supreme Court decided, in Nixon v. GSA 1977, that former presidents could ‘assert’ executive privilege, while a 2007 OLC opinion found executive privilege could cover discussions with private, non-executive branch employee advisers.”

Lowell adds, “And since the select committee issued only one subpoena for both documents and testimony, when the subpoena was invalidated by the panel’s refusal to allow a Trump lawyer to attend, Bannon’s attorneys contend the document request element of the subpoena also became void…. The Justice Department does not think the OLC opinions protect Bannon, in part because he was not an executive branch employee at the time of January 6, and the select committee contends Trump did not formally assert executive privilege over subpoenaed materials.”

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