Schoen is doing the rounds offer for sale Bannon’s public defense: He was only following the advice of his (earlier) attorney, who told him to respect Trump’s claims of executive privilege. But Schoen’s arguments are no better now than they were in the Trump impeachment trial. It’s well worth the time to troubleshoot them.
First, Trump is no longer president, and he has no right to invoke executive privilege to protect himself and his associates from accountability. As Judge Tonya Chutkan put it last week in refuse Trump’s attempt to block the National Archives from releasing documents on January 6: The president isn’t a king — and Trump isn’t even a president.
The ex-president’s call for privilege is not a sufficient basis to take the law into your hands and simply refuse to appear, like Bannon did. Trump helped Bannon evade accountability once, forgiveness him after he was arrested for electronic fraud. Not this time.
Trump’s attempt to claim privilege here is particularly weak because he did not act as chief executive officer when planning and executing his effort to overturn the election. He is acting like a defeated candidate, and has no candidate privileges.
Second, there is no such thing as podcaster privilege. Even if Trump could claim the privilege, it wouldn’t protect Bannon – he’s a podcast server, who is not a White House adviser, on January 6. Bannon’s whispers to other conspirators are not Oval Office advice to the president, either.
Third, Bannon can’t hide behind his attorney any more than he can hide behind Trump. Schoen claim that Bannon was merely acting on the advice of his attorney, who told him to respect Trump’s call for privilege. But most federal courts have held that relying on an attorney’s advice is not defense contempt for criminals. The Godfather’s Vito Corleone doesn’t break the law with impunity because Tom Hagen told him it’s okay.
Fourth, even if it’s good to trust a lawyer’s advice as a defense, it won’t help Bannon. A person who wants to ask for a legal favor in good faith does not simply ignore the subpoena. He responds at the right time, and he negotiates. He turned over all the related non-privileged documents and created the privileged log shown What documents did he not turn over and why. He doesn’t simply ignore a scheduled appointment. He shows up, answers when he can, and asks for privileges on a question-by-question basis.
Even with the request for executive privilege, the committee could reasonably raise questions unrelated to Trump, such as what communications Bannon had with others outside the administration who were are in the pre-insurgency period”command room“at the Willard Hotel in DC.
Jeffrey Clark, a Justice Department attorney who apparently teamed up with Trump to try overturn election results, also sought to attract privilege – but at least he shown in his place to do it.
Bannon didn’t, and neither did he negotiate one in two. He didn’t seem to be trying to act in good faith. It seems he holds Congress in contempt. It’s officially mutual now.
Fifth, and finally, with no facts or legislation on his side, Schoen resorted to claims that Congress and the DOJ were treating his clients unfairly. That won’t cut it as a defensive measure – give it a try win a selective prosecutorial defense – but it also Mistake about the truth.
Bannon’s words were even more damaging than the lawyer’s. When he surrendered to the FBI on Monday, Bannon brazenly tell his intentions, “I don’t want anyone to take their eyes off the ball… We’re bringing down the Biden regime.”
Willfulness – an informed and intentional refusal to comply – is necessary to demonstrate contempt of the criminal. Find a tape of those words that was played at the trial to show bad intentions.
Judge Carl Nichols may have been Trump’s appointee, but it’s hard to think he would take Bannon’s brazenness seriously. Proof of that is his harsh decision against Trump’s allies, Rudy Giuliani, Sidney Powell and Mike Lindell, rejected their attempt to get the Dominion Electoral System smear lawsuit against them throw out.
It is true that criminal prosecutions are rare. They should be. They are a big problem. But Bannon’s blatant contempt for Congress spoke out about the consequences. And our republic needs them.
We are still searching for answers about what happened on January 6th and how to stop the ongoing attack by Bannon and his accomplices based on the idea of a democratic government.
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