Thursday, July 21, 2022

When "Going Medieval" Means "Not Showing Up"


 Former President Donald Trump aide Steve Bannon's defense team will not present any case to the jury in a trial where he is charged for contempt of Congress for failing to comply with subpoenas from the House committee investigating the Jan. 6 insurrection, his attorney David Schoen told the court on Thursday.

This also means Bannon himself will not take the stand, and the court may head to closing arguments and jury deliberations as soon as this afternoon.

So let me explain about what comes next:

But there are other procedural steps and pending motions that the judge and the parties still have to work through before the proceedings reach that point.

Now that US District Judge Carl Nichols has called a recess, he has instructed the parties to do a final round of discussions about the jury instructions, and they'll then submit their views to the judge.

This is the first thing:  what questions does the jury answer?  These are critical and often overlooked by non-lawyers who think it's all about the testimony and the evidence.  It isn't: it's all about the questions the jury has to answer.  The jury is never asked "Did he do it?" The jury is asked if they find that Bannon did, or did not, do certain things.  I can't be more specific than that because the questions depend on the arguments of counsel and the decision of the judge. 

Juries sit as finders of fact.  They don't determine that Bannon is "guilty," they determine what the facts are of the case.  Those facts are determined by what questions the judge instructs them (hence "jury instructions") to answer, and how (usually just "yes" or "no").  The answers to those questions determine how the law is applied to the facts, and that's the province of the judge.  Those questions will probably go to the jury late this afternoon.

When the proceedings resume at 1 p.m. ET, the parties will discuss — without the jury present — what the defense team will get to tell the jury about Bannon's decision to not testify as well as the lack of testimony from Chair Bennie Thompson or other lawmakers who Bannon's team attempted to subpoena for trial.

There is also a pending motion related to Bannon's efforts to get lawmaker testimony at the trial that will be debated then too.

After that point, the proceedings may be at a point to give the jury their instructions and for the parties to deliver their closing arguments. Jury deliberations would be the next step after that.

The pending motion and any other actions by the defense are to lay grounds for an appeal.  Having lost all their cards on calling Pelosi and Thompson, et al., and generally impugning the grounds for the subpoena as a "witch hunt" that is "politically motivated" (and therefore illegitimate), they have to raise those points on appeal.  But they can't raise those points if they haven't raised them at trial, and lost.  That's what an appeal is:  an attempt to correct the "errors" of the trial court.  But the trial court has to make the error, first.  So much of the discussion before settling on jury instructions will be establishing a record that the appellate court can review.

Bannon is basically hanging his hat on that appeal.  It's all he's got.  IMHLO, he doesn't have anything.  But never say "never."  My analysis, still, for what it's worth, runs this way:  Bannon's defense is that the whole Committee is out of order (shades of Al Pacino chewing the scenery).  That would require the DC Circuit to rule that Congress has no authority to issue subpoenas, or rather tha authority is subject to the court's approval of how Congress followed its own rules.  A separation of powers issue, IOW.  I don't see the DC Circuit taking that bait (the 5th Circuit?  Well, probably; a rogue panel, anyway.  Or may en banc.  Yeah, that could happen.  The 5th Circuit is certifiable.)  I don't see the appellate court deciding it has the power to review Congress's interpretation of its own rules.

So it's all over but the crying.  Unless the jury goes OJ on us.  But without the dramatic scene of the gloves that don't fit, why would they do that?  More likely they'll want to punish Bannon for not complying with the same kind of order they did, to show up for this pointless waste of their time.  The jury may be in a mood to go medieval on Bannon, and give him the misdemeanor from hell.

Good times, good times.

Inevitably I hit "Publish" and some fun stuff comes in:

Steve Bannon's defense attorney David Schoen is currently making arguments for why the former Trump aide's inability to call Jan. 6 committee members to the stand harmed his defense.

Schoen is going over everything he'd like to ask the select committee Chairman Bennie Thompson: Why was the subpoena necessary? Why were the deadlines what they were? Why didn't the committee file a civil lawsuit to clear up the executive privilege issues Bannon was raising?

Judge Carl Nichols sounds skeptical, noting that the letters were what the committee was communicating to Bannon.

Nichols asks Schoen: How could what is in Thompson's head inform Bannon's mens rea?

As I say, this needs to be in the record in order to form the basis for an appeal.  But I think Nichols is on solid ground.  I think the need for the subpoena is pretty damned obvious:  Bannon has yet to testify to anybody.  The deadlines were the Committee's business, it seems to me (unless they somehow violate due process?  Huh?)  And no one took Bannon's executive privilege claim seriously, including him?  He could have filed suit to quash the subpoena on this grounds.  Why didn't he?  Should the Committee do his job for him?

I really think they've been trying to build bricks without straw; or water; or mud, from the moment Bannon thumbed his nose at the Committee.

WE'RE BACK, because something actually happened which reporters and editors can cover (legal arguments are BOOOORRRINNNG!  Well, to non-lawyers, who are still in the majority.)

However, Bannon would not be able to be "telling the true facts" if he took the stand, Schoen added, citing Bannon's belief that his lawyer advised him not to testify after former President Donald Trump raised the possibility of asserting executive privilege in a letter to him.

That lawyer for Bannon, Robert Costello, didn't testify as a defense witness for the same reasons, Schoen said.

Bannon confirmed for the judge that he wouldn't testify.

"Yes, your honor," he said, standing halfway up to address the court when asked if he was waiving his right.

The real news here is the turtle raised his head and spoke (half-standing is a rebuke to the court.  I guess this is Bannon "going medieval."  Meh.)

I understand the need to explain in court that he is declining to testify in his own defense. Again, making a record and all that.  I don't get the argument about "executive privilege," since the letter mentioned is the one Trump sent on or about July 11.  That's right, 10 days ago.

Bricks: no straw, no water, no mud.

"Executive privilege" is not "King's X".  Like the more powerful 5th Amendment privilege, it must be invoked at the summoned (subpoena) hearing.  But Bannon is arguing it prevents him from speaking now, which is kinda convenient but not really in play since he's not really invoking executive privilege, just kinda sorta mentioning it for the first time in court.

So it's not really...anything.  It's a dodge, is what it is.  Again, for the record and the court of appeals.  Problem is it doesn't establish a factual basis for reversal, and doesn't really establish that executive privilege can be invoked here.  To do that he'd have to have stood on it earlier, prompted a hearing on the matter, and alleged his prosecution was a violation of the privilege.  Which, of course, he couldn't do, because it wasn't. So he pleads an empty cause as his excuse for silence (and the fact he has no defense, and never did).

I'm completely baffled as to how Costello is protected by executive privilege in this matter.  Mostly because I'm quite sure Bannon isn't, even if Trump could raise that issue at this late date.

Oh, well.  On to the jury instructions and deliberations.  Mind, they heard none of this.  The jury was called in, the defense rested (formally), and the judge dismissed everything until tomorrow morning.  If the instructions have been hashed out, the judge just wants a clean start tomorrow morning.  My guess is the jury would rather not waste another day on this, but they aren't in control.

Yeah, that's what I figured. Still more do to without the jury around, so it's not even ready to go to them until the morrow.

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