What started as a Steve Bannon public relations stunt may have just ended as a spectacular self-own.
After nine months of refusing to answer the House Jan. 6 Committee’s questions—and fighting off related criminal contempt charges in court—the right-wing provocateur is suddenly dangling an offer to finally testify. The gambit is supposed to make the Justice Department look bad. But doing so on the eve of trial risks having him incriminate himself before Congress, then get convicted the very next week.
On Saturday, after what inside sources described as a week-long effort to convince former President Donald Trump’s inner circle, Bannon’s legal team managed to convince Trump to issue a letter waiving executive privilege. The letter allows his former White House chief strategist to testify before the Jan. 6 committee. (Never mind that a federal judge, an appellate panel, and even the Supreme Court have already said the ex-president doesn’t have any executive privilege to assert or waive anyway.)
The letter was a last-minute attempt to throw a curveball at the Justice Department just a week before Bannon’s criminal contempt of Congress trial for refusing to show up before that very committee.
But on Monday afternoon, a D.C. federal judge knocked down every conceivable defense the right-wing media personality could present at his criminal trial.
When Bannon’s lawyers argued that the politicians on the Jan. 6 committee must be forced to testify at trial, the judge questioned why Bannon’s lawyers couldn’t just ask committee staffers. When his lawyers asked for permission to tell a future jury that Bannon was just following his lawyer’s advice when he didn’t show up to Congress, the judge said no. And when they argued that the trial should be delayed, the judge told them to come back prepared for the final showdown next week.
Now Bannon is barreling toward a trial while dangling potential testimony before the congressional panel—a prime opportunity to perjure himself or explain why he broke the law—and lawyers say there’s practically nothing he can do that won’t land him in even more legal jeopardy.
“It’s going to make it very hard for him to figure out what he could say that won’t incriminate him. I think he’s going to land in trouble. It just seems inevitable,” said Michael J. Gerhardt, a constitutional law professor at the University of North Carolina.
It’s unclear if the nine-member House Select committee led by Rep. Bennie Thompson (D-MS) and Rep. Liz Cheney (R-WY) has any appetite for putting Bannon on the stand—much less on live TV, as he apparently demands. Committee staff did not answer The Daily Beast’s questions about the offer on Monday.
But from now until the trial that is set to start next week, Bannon is in limbo.
If the committee accepts his tenuous offer, Bannon is in the awkward position of putting himself in one hot seat just days before he’s in yet another. For example, committee members could ask him why he never showed up last fall—and whatever Bannon says under penalty of perjury could appear at trial just days later. If he contradicts himself on anything at any point, prosecutors can argue that he lied to Congress—yet another crime—or is lying at trial.
There’s an obvious expectation that Bannon would try to use his congressional testimony to essentially put on an episode of his MAGA-raging, daily War Room: Pandemic podcast—to grandstand, attack the committee’s work, and spew conspiracy theories. But that’s an act of self-immolation, because pissing off federal prosecutors is the last thing Bannon should be doing, lawyers said.
“If he’s calculating that he can make a better plea deal, it would undermine those strategies… he could make his situation worse if he perjures himself or is seen as an extremely uncooperative witness,” said George Washington University law school professor Catherine J. Ross.
His options at the moment: Show up and play nice or face the wrath of the Department of Justice.
In a text message to The Daily Beast, David Schoen, one of Bannon’s defense lawyers, described the team’s offer to the Jan. 6 Committee as “no game.”
He reiterated his argument that Bannon truly operated on the belief that Trump retained some kind of executive power after leaving the White House—and the committee should have sued Bannon in civil court and have a judge officially declare Trump’s executive privilege claims as invalid and force Bannon to testify instead of having the DOJ pursue criminal charges.
“Bannon is true to his word and to his principles,” Schoen wrote. “It was not his privilege to waive and his hands were tied. However, he also said he absolutely would comply if they resolved privilege with former President Trump or a judge ordered that privilege wasn’t valid. That was the only reason he didn’t comply.”
“For the committee’s part of course they should have respected that and should have told the government to drop the criminal charges; but as we suspected from the start they never really wanted his testimony. They wanted to set him up for contempt,” he added.
In recent days, Bannon’s legal team has tossed one Hail Mary after another at U.S. District Judge Carl Nichols, perhaps expecting a receptive audience from the Trump appointee who once clerked for the conservative Supreme Court Justice Clarence Thomas.
Schoen and Bannon’s other defense attorney, Evan Corcoran, have tried to use the criminal case to search for documents that might show how political forces at the Biden administration or Justice Department have chosen to target Bannon and make an example out of him for defying the congressional panel loathed by Trump-loyal Republicans. They tried to claim that DOJ memos protecting a president’s staff gave Bannon permission to ignore the Jan. 6 panel’s congressional subpoena. They tried to fall back on the idea that Bannon was merely following the advice of his other attorney, Bob Costello. And they tried to drag House Speaker Nancy Pelosi (D-CA) and other members of Congress into court to testify.
However, Nichols summarily shot down every one of those defensive maneuvers, leaving an exasperated Schoen to blurt out in court on Monday, “What’s the point of going to trial if there are no defenses?”
The three federal prosecutors trying the case, who have repeatedly insisted in court filings and in person that this case is a one-day slam dunk, have come out on top.
“He got a subpoena. He didn’t honor it. That’s illegal. That’s contempt. He’s being prosecuted for that. He doesn’t have any defenses. This is an open-and-shut case, so he has legal jeopardy,” Ross told The Daily Beast.
Bannon’s eleventh-hour offer to testify before the Jan. 6 committee also doesn’t technically absolve him of the crime for which he’s on trial, lawyers said. The DOJ prosecutors working on his case have already said in court filings that they plan to go after him no matter what.
“The Defendant’s last-minute efforts to testify, almost nine months after his default—he has still made no effort to produce records—are irrelevant,” prosecutors wrote in a filing early Monday morning, saying that jurors shouldn’t even hear about “his eleventh-hour efforts.”
“The criminal contempt statute is not intended to procure compliance; it is intended to punish past noncompliance,” they wrote.
“It’s futile, because the judge in his criminal trial ruled that it doesn’t get him off the hook. He still refused to comply with the subpoena at the time when he should have complied, and it doesn’t erase his illegal act of not showing up,” Ross said.