Editor’s Note: Norman Eisen, a former ambassador to the Czech Republic and former President Barack Obama’s “ethics czar,” was special impeachment counsel to House Judiciary Committee in 2019-2020.
Joanna Lydgate is the former chief deputy attorney general for the state of Massachusetts. Eisen is chair and Lydgate is CEO of the States United Democracy Center.
Joshua Perry is Of Counsel with Perry Guha, LLP, a litigation boutique focused on complex civil and criminal trial practice and white collar investigations.
Steve Bannon’s relationship with former President Donald Trump has landed him in the dock, charged with criminal contempt of Congress. Doubling down on his Trump-emulating defiance, Bannon has retained the ex-president’s former lawyer, David Schoen – perhaps most famous for taking part in the defense in the second impeachment when seven members of Trump’s own party voted to convict him.
Schoen is making the rounds offering Bannon’s public defense: He was just following the advice of his (prior) lawyer, who told him to respect Trump’s claims of executive privilege. But Schoen’s arguments are no better now than they were during Trump’s impeachment trial. It’s worth taking the time to debunk them.
First, Trump is no longer the president, and he doesn’t get to invoke executive privilege to shield himself and his cronies from accountability. As Judge Tonya Chutkan held last week in denying Trump’s attempt to block the National Archives from releasing January 6 documents: Presidents aren’t kings – and Trump isn’t even the president.
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.