Steve Bannon Fought the Law and the Law Won (and more)

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This post will consist of three parts, (1) the Steve Bannon indictment, (2) comments about the J6 hearing, and (3) a few more thoughts on the DOJ FAQs I posted midweek.

I. Bannon Fought the Law and the Law Won

As you no doubt heard, on Friday a jury returned a verdict of guilty against Bannon for two counts of Contempt of Congress.

I once informed a client about the Cardinal Rule of Power Struggles. It goes like this:

Never get into a power struggle with people who have more power than you do.

Steve Bannon could have used that advice. (I have found that teenagers can sometimes benefit from this advice as well.) All Steve Bannon had to do when subpoenaed was go in and take the Fifth on each question. Instead, he thumbed his nose at the committee. Normal people don’t like convictions on their record, but Bannon isn’t normal. Being charged and convicted of contempt is punishment for having failed to comply with the subpoena. It is not an attempt to get him to comply. In other words, it’s punishment, not a means for securing compliance.

Right. But my guess is that Steve Bannon (and Peter Navarro) would be totally useless as witnesses. If they did talk, you’d never believe a word. Most likely at this point, they would just go in and take the Fifth after each question. Documents are not generally covered by the Fifth Amendment, but it seems that the Committee has enough without them.

There is a chance that complying now would help with sentencing, but only if he complied in good faith, and I can’t see that happening.

A Grand jury subpoena violator can be jailed until compliance, but it isn’t punishment (or a conviction). The incarceration time can be long or short, depending on what the person decides to do.

There are two parts to this question.

(1) Bannon’s sentencing hearing is set for October 21. It takes time for the memos to be written and submitted to the court. Bannon’s defense lawyers will submit a sentencing memo arguing for leniency. Their task will be passing the laugh test. Imagine a heartfelt letter from the defendant about how he learned his lesson and from now on, he will love democratic institutions and respect rule of law.

(2) As far as the “He can do a lot of damage by then,” part, this is something I often see. People have the idea that convicting and punishing people keeps them from doing damage. In fact:

  • Crimes happen in prison.
  • People don’t get lifetime sentences, and Bannon was convicted of misdemeanors.
  • The recidivism rate is high.
  • Prison can radicalize people even more.

The criminal justice system is not equipped to solve political problems. Heck, it doesn’t even solve the crime problem.  Increasingly harsh punishments were not shown to correspond to a drop in crime. (That said, I admit that I hope Bannon gets the maximum.)

Defense lawyers are often unable to manage their clients. I know nothing about Bannon’s lawyers. For all I know, they’re not even trying.
I don’t think he wants it, necessarily. But if given a choice between (1) shutting up and being contrite, or (2) a longer jail sentence, I don’t think he CAN shut up.
Among the things he told Tucker Carlson was this:
Notice that he didn’t have the nerve to say this to a jury. It’s a lot easier to talk tough on Tucker Carlson’s show. He won’t like prison, but I observed several years ago that criminal prosecution can be a badge of honor in the GOP.
That’s because they believe the government is illegitimate. (I may write about that more this week). If you think the government is illegitimate and immoral, you see yourself as a moral crusader if you defy the government.

This was my area of practice, so I can speak with some confidence: Most issues on appeal give deference to the trial court’s decision. It’s not enough to make a good argument that the court messed up. You must show that the court abused its discretion. In federal courts, the reversal rate is under 10%.

One of my colleagues called defense appellate lawyering “lost cause lawyering.” You start with a client who lost at the trial level, and almost all the presumptions are against the client. Even when the appeal succeeds, it often doesn’t help the client. Generally, a win means that the matter is remanded to the trial court for a do-over. The trial court holds another trial, and (most often) comes to the same conclusion.

That’s why I feel confident that Steve Bannon will lose in the end.

Here’s another example of a person who expects the criminal justice system to solve a political problem:

I warned the “Indictments Now!” people you’d be disappointed. Bannon was convicted and now faces sentencing. That’s not a travesty. That’s rule of law at work.

People say this kind of thing about Banon’s appeals:

This is a misunderstanding of the maxim, “Justice delayed is justice denied.”

The phrase is used when the remedy takes so long that the injury cannot be redressed. For example, let’s say a person is sick, and restful sleep will prolong the person’s life, but the neighbors are violating curfews by having loud parties 24-7. If the trial and appeals take a year, and the person dies after three months because of the noise, justice was denied because the process took too long. This is why we have preliminary injunctions to prevent irreparable harm if a lengthy process means there will be irreparable harm.

“Justice delayed means justice denied,” absolutely does not mean “I want them all locked up sooner so how DARE they keep appealing?” All people (even those we don’t like) are afforded the same due process, and that includes the right to appeal.

There. I got that off my chest.

II. A Few Observations about the J6 Hearing

If you missed the hearing, I urge you to watch it. If you prefer to read, here is a transcript of the hearing. 

The big picture: We were shown exactly what Trump was doing as the violence unfolded on January 6. We learned that (1) Trump knew there was violence and (2) he wanted it to continue.

A few startling moments:

  • From the sequence, we learned that Trump agreed to call off the attackers only after it was clear to the White House that law enforcement had the matter under control.
  • In raw footage of Trump on Jan. 7, 2021, Trump said: “I don’t want to say the election is over.”
  • After the violence was subdued, Rudy Giuliani called Rep. Jim Jordan and Senators Marsha Blackburn, Tommy Tuberville, Bill Haggerty, Lindsey Graham, Josh Hawley, and Ted Cruz. We know why Mr. Giuliani was calling them because at 7:02 he left a voicemail for Senator Tuberville in which Giuliani said: “Hello. Senator Tuberville? Or I should say Coach Tuberville. This is Rudy Giuliani, President’s lawyer. I’m calling you because I want to discuss with you how they’re trying to rush this hearing and how we need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you.”

The committee was careful not to claim Trump doing nothing was, by itself, a crime. (They have lots of lawyers on their staff!) They referred to his refusal to call off the violence “a dereliction of duty.” In fact, his behavior goes to intention and makes him part of the overall conspiracy to stop the counting of votes.

The J6 Committee Proved Itself to be the Master of Shade

The committee (when editing clips) left in Jared Kushner’s mention that he was showering as the insurrection unfolded. As one of my followers quipped, Nero fiddled; Jared showered. (At a criminal trial, this would be considered a selectively edited video that makes the defendant look bad, but because it isn’t a criminal trial and Jared isn’t a defendant, the committee could have some fun.)

Another bit of shade was that the committee first showed Missouri Sen. Josh Hawley fist-pumping the crowd gathered to hear Trump’s speech at the Ellipse before the insurrection:

Then they showed a video of him skedaddling away from the insurrectionists in a very frightened manner:

In the hearing room, the video of Hawley running away was met with laughter. Social media exploded with jokes, like this:

What kind of meetings does Josh Hawley prefer?

Zoom meetings.

And:

What is Josh Hawley’s favorite telephone service?

Sprint.

And this one:

And this one:

The Missouri Democrats will sponsor a “Hawlin’ Hawley 5K” race.

Then people put Hawley’s sprint to various soundtracks. #8 was my favorite:

 

III. More on the Merrick Garland FAQs I sent midweek

After I finished revising my DOJ Investigation FAQs, Merrick Garland answered a question.

If, like me, you prefer to read, here is a transcript. Here was the question:

You have said time and time again that your approach is to move from the bottom up and go where the evidence leads you. Recently people have posited alternative ways to go about this. One is called the hub and spoke notion: Targeting the people around Trump and then considering the rioters as one spoke and looking at the electors as another spoke. Can you just explain to us if there was a decision made early on when you decided to go the way you did, and why you rejected other potential paths?

And as a follow-up question, have you seen anything coming out of Fulton County, GA or anything out of the January 6th committee that has moved the investigation in any direction.

Here was Garland’s answer:

There are a number of assumptions based in that leading question (which I’m very familiar with as a trial lawyer).

There is a lot speculation about what the justice department is doing, what it’s not doing, what our theories are, and what our theories aren’t.

And there will continue to be that speculation. That’s because a central tenet of the way in which the justice department investigates, and a central tenet of the rule of law, is that we do not conduct our investigations in public.

This is the most wide-ranging investigation and the most important investigation that the Justice Department entered into, and we have done so because this effort to upend a legitimate election transferring power from one administration to another cuts at the fundamentals of democracy.

We have to get this right.

For people who are concerned (as I think every American should be) we have to do two things.

We have to hold accountable every person who is criminally responsible and we must do it in a way filled with integrity and professionalism, the way the justice department conducts investigations.

Both of these things are necessary to protect our democracy.

Another question:

Do you think you have enough resources to do that? We know that the budget request you filed earlier this year was not complied with.

Garland responded with:

The Justice Department would always like additional resources and would be happy to take them, but we are going to accomplish our mission. The people in the Justice Department are committed to this. They are working 24-7 on this.

In my FAQs, I pointed out that the task of the J6 committee is easier than the task of the DOJ.

The DOJ has to collect evidence to support each element of a crime beyond a reasonable doubt. The DOJ is bound by the federal rules of evidence. The January 6 committee is not. The DOJ witnesses have to be able to withstand cross-examination. The select committee witnesses do not. The DOJ will have to contend with defenses. The January 6 committee does not.

The progress of the J6 committee gives a hint as to what is happening at the DOJ.

Initially, the July 21 hearing was supposed to be the last one. Then, because new evidence keeps coming in, and witnesses lead to new witnesses, their work will continue and they will keep presenting their evidence as they gather it to the public.

The facts lead to more facts. The evidence leads to more evidence.

If you’re tempted to ask, “Why not bring indictments now and keep investigating?” see my FAQs. 

And some dog content

Multitasking: Performing essential guard dog duties while setting new trends in canine fashion.

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