Support The Bulwark and subscribe today.
  Join Now

Don’t Play Bannon’s Game

He now says he’s willing to testify. But most likely he wants to avoid it—and avoid jail.
July 12, 2022
Don’t Play Bannon’s Game
Steve Bannon, advisor to former President Donald Trump, speaks to the media outside of the E. Barrett Prettyman U.S. Courthouse on June 15, 2022 in Washington, DC. Bannon is appearing before a federal judge in connection with his indictment for contempt of Congress for failing to respond to a subpoena from the House Judiciary Committee on January 6. (Photo by Kevin Dietsch/Getty Images)

Steve Bannon, the Trump ally and pardonee, has reportedly told the House January 6th Committee that after months of stonewalling he is now willing to testify. This change in Bannon’s position is linked to a July 9 letter from former President Trump telling Bannon that “if you reach an agreement on a time and place for your testimony, I will waive Executive Privilege for you, which allows for you to go in and testify” before the committee.

According to some observers, one way to look at this development is that Bannon, facing an imminent trial on criminal charges of defying a congressional subpoena, has been scared straight and has finally agreed to testify in order to avoid going to the pokey. Or that Trump and Bannon both want somebody, in this case Bannon, to have a megaphone to get Trump’s side of the story out to the public.

In other words, some people actually take this stuff seriously.

They shouldn’t. Bannon likely has no intention of testifying. He’s almost certainly playing a much more strategic game, the goal of which is to avoid both jail and testifying.

Here’s how it works.

Bannon has been claiming all along that his refusal to testify is based on executive privilege, and that he was acting in good faith without criminal intent. Proof of his good faith, he will contend, is both that he relied on the advice of counsel and that he’s willing to testify now that Trump has offered to waive executive privilege.

There are, of course, all sorts of problems with the notion that Bannon’s testimony was ever legitimately protected by executive privilege, including a decision last month by a judge that Bannon had not established a predicate for such a defense “at least not at this stage” of the proceeding. But the “at least not at this stage” language leaves the issue open.

What’s changed since the judge made that ruling? Trump’s letter.

Trump’s statement that he would be willing to waive his claim of executive privilege certainly suggests that he had actually made such a claim in the first place. More than that, Trump says so explicitly: “When you first received the Subpoena to testify and provide documents, I invoked Executive Privilege.”

At the very least, Bannon will argue that this creates a disputed issue over whether Trump actually invoked executive privilege—or at least whether Bannon thought he did. Trump’s going on record with an unambiguous statement that he did, in fact, invoke executive privilege, Bannon will assert, should be more than enough to put the issue back on the table.

And Bannon does not have to win the executive privilege argument at his trial. If this were a civil trial intended to compel his compliance with the subpoena, he would have to prevail on the argument that the privilege claim legitimately shielded him from testimony. There’s no way he could do that.

But, as the DOJ pointed out at a hearing on Monday, this is not a civil trial intended to force Bannon to comply with the subpoena. Rather, it is a criminal trial “intended to punish past noncompliance.” Bannon’s newfound desire to testify, the DOJ argues, therefore “does not erase his past contempt.”

Not so fast. Bannon will argue that the DOJ’s argument that Trump’s letter does not erase his past contempt is simplistic and unconvincing. If Bannon can show that (1) prior to receiving Trump’s letter he genuinely believed that Trump had asserted executive privilege, and (2) that his lawyers advised him that he was within his rights to honor that claim of privilege, he may well be able to convince at least one juror that he acted in good faith without criminal intent. Maybe not all twelve, but he only needs one.

And that appears to be precisely what he is trying to do, although U.S. District Judge Carl J. Nichols may have thrown a wrench into Bannon’s strategy yesterday. According to press reports, Nichols said that Bannon “could not argue that he thought he was protected by executive privilege.” It seems highly unusual that a judge would rule on a defendant’s state of mind—and thus effectively on the issue of whether the defendant had the requisite criminal intent—before the trial begins and before any evidence on that issue has been presented. It seems particularly unusual that he would do so when the issue of what Bannon was told and believed is hotly contested.

If Judge Nichols’s ruling is indeed that broad—and if it holds up—then it seems almost inevitable that Bannon’s game will fail. It was built entirely on his belief that he was instructed by Trump to assert executive privilege, and that his lawyers advised him that he could legally do so. On the other hand, if Nichols’s ruling is narrower than has been reported, then Bannon’s strategy is still in play.

It goes like this:

Trump’s July 9 letter will be Exhibit A on the first prong of Bannon’s defense, that he genuinely believed that he was honoring a claim of executive privilege invoked by Trump. Trump has now stated, in writing, that he did in fact invoke executive privilege with respect to Bannon’s subpoena. Bannon will insist that his purported willingness to testify (more on that below) now that Trump has purportedly waived the executive privilege claim proves that he was never doing anything other than honoring that claim in good faith.

And Bannon’s lawyer, Robert Costello, likely will be Witness A on the second prong of Bannon’s defense, that he relied on the advice of counsel, and therefore acted in good faith and without criminal intent.

If there was ever any doubt that Bannon would assert a reliance on counsel defense, that doubt was dispelled last week when Costello asked the judge for leave to withdraw as Bannon’s attorney on the ground that he would likely be a trial witness. He identified himself as “Bannon’s sole basis of information about the facts and the law concerning this matter.”

Nothing screams “reliance on counsel” louder than a lawyer seeking to withdraw from a case on the grounds that he will likely be a witness, especially when the lawyer conspicuously points out that he was the client’s sole source of information on “the law.”

While using his stated willingness to testify—now that Trump has waived the privilege—as a defense in the criminal trial, Bannon’s game is at the same time designed to prevent him from testifying at all. It sounds like a neat trick, but it makes perfect sense if you keep in mind one central move in the game: Bannon is only pretending to be willing to testify. It is his public posture of being willing to testify, not actually testifying, that Bannon will use as his defense.

He’ll perform that little trick by putting conditions on his testimony that the Jan. 6th Committee cannot accept. He’ll demand that his testimony be public, meaning that it will be broadcast live on television. He’ll wrap this demand in the flag: The public deserves to hear the whole truth. The selectively edited fragments of testimony by other witnesses are misleading and out of context. I demand to set the record straight, and I won’t put up with being selectively misquoted. Or something like that.

Allowing Bannon to give his testimony in a publicly televised hearing, of course, would be an absolute disaster. The committee would be crazy to even consider it. Just imagine what publicly televised testimony would look like. Bannon would give direct, responsive answers only if he believed it will help him. Otherwise, he’d be belligerent, disrespectful, and evasive. He’d have selective memory whenever convenient. He’d mock and ridicule his questioners. He’d hijack the proceedings, change the narrative, spew pro-Trump, anti-committee propaganda at every turn, and take full advantage of every opportunity to undo everything the committee has accomplished. Why in the world would the committee ever sign on to that?

And Bannon wouldn’t pay a price for any of it. He’s smart enough to walk right up to the line of perjury, but not cross it. Meantime, he’d be rewarded with his drug of choice, unlimited media attention. He’d also attract more subscribers and be elevated to heroic status in Trumpworld.

By issuing his July 9 purported “waiver” letter, Trump appears to be playing along with and enabling Bannon’s game, no longer just a gleeful onlooker. The letter looks like just another gambit in the game. Carefully read, this “waiver” letter doesn’t actually waive anything. It doesn’t say that he’s agreed to waive the privilege. Rather, it’s oddly qualified. It says that he “will” waive the privilege “ifBannon reaches an agreement “on a time and place” for his testimony.

Why include a “time and place” qualification on his supposed willingness to waive executive privilege? Because Trump knows that Bannon will never convince the committee to allow him to testify on television, and that Bannon won’t testify without such an agreement. It’s an offer the committee can only refuse, meaning that it’s not a legitimate offer at all.

So, at the end of the day, contrary to the conventional wisdom, Trump hasn’t agreed to waive executive privilege, and Bannon hasn’t agreed to provide any testimony. Yet the two of them, likely working through attorney cutouts, seem to have devised a narrative to provide Bannon with an almost-plausible defense to the criminal charge of contempt of Congress. Without having to actually testify.

And who gets to play the villain in this little piece of theater authored by Bannon and Trump? Why, the Jan. 6th Committee, of course. Because the committee’s members supposedly want to hide the truth from the American people by not allowing Bannon to tell it in public.

That’s Bannon’s game. We don’t have to play along.

Philip Rotner

Philip Rotner is a columnist whose articles appear in national publications and on his website, Philip is an attorney who has practiced for over 40 years, both in private practice and as the general counsel of a global professional services firm.  Philip’s views are his own, and do not reflect the views of any organization with which he has been associated.