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D’oh (Photo by Drew Angerer/Getty Images)
Time to check in on Steve Bannon, the putrefying podcaster and onetime White House adviser who is currently under indictment for contempt of Congress after refusing to testify to the January 6 Select Committee.
Last week, his lawyers shrieked out a motion to dismiss the case based on their theory that the former president had a right to assert executive privilege over Bannon’s testimony regarding events which took place three years after he got fired from the White House. In page after page of incendiary arglebargle, his lawyers argued that Office of Legal Counsel (OLC) Opinions shielding executive branch officials from prosecution for refusing to testify about their time in government service somehow protect their client. Because what even is linear time?
The motion even goes so far as to castigate prosecutors for using the term “private citizen” to describe Bannon, who, again, got fired from the White House in 2017.
Bannon’s lawyers also devote several pages to trying to convince US District Judge Carl J. Nichols that the Committee is illegitimate and thus its subpoenas are a nullity. The theory is that Minority Leader Kevin McCarthy’s refusal to participate in the investigation deprived the Committee of its authority by ensuring that there would be no ranking member, and thus it does not exist.
The problem with this argument, which every January 6 litigant has made, is that it’s already been rejected by at least two courts. US District Judge David Carter gave it short shrift, finding that the Committee was “properly constituted” and ordering Coups 4 Dummies Memo lawyer John Eastman to comply with the subpoena.
Similarly US District Judge Timothy Kelly, like Judge Nichols a Trump appointee to the federal court in DC, refused to intrude upon congressional prerogatives by evaluating the House’s compliance with its own rules.
“True, for whatever reason the Select Committee did not give her—or anyone else—the formal title ‘ranking member,” he wrote, in an opinion ordering the RNC to comply with the Committee’s subpoena. “But to the extent there is any uncertainty about whether she fits the bill, on this record the Court must defer to the Select Committee’s decision to treat Representative Cheney as the ranking minority member for consultation purposes.”
Nevertheless, Bannon’s legal team is still flogging this dead horse, and he’s getting a little help from Republican buddies in the House. To wit, Minority Leader Kevin McCarthy and Minority Whip Steve Scalise tried to docket an amicus curiae brief yesterday making the same, tired “ranking member” argument.
“Minority representation ensures Select Committee deponents are afforded oversight of adherence to congressional rules, precedents, and established decorum,” they tut-tut, adding later that, “The Select Committee’s authority is limited to its authorizing resolution and failure to adhere to that resolution dooms any subsequent contempt prosecution.”
Sadly, it was not meant to be, as Judge Nichols immediately yeeted the filing in a terse minute order:
NOTICE OF ERROR as to STEPHEN K. BANNON regarding 75 MOTION to File Amicus Brief on behalf of the U.S. House of Representatives Minority Leader Kevin O. McCarthy and the U.S. House of Representatives Minority Whip Stephen J. Scalise by Stanley E. Woodward Jr… The following error(s) need correction: Other- Chambers did not approve of this filing and counsel is not an interested party in the case.
If and when the GOP takes back the House, McCarthy can stick a shiv in the Committee and end the investigation. But until then, he’s the head of the minority party, and his opinions on the validity of Committee subpoenas mean diddly squat.
Now let’s see if Judge Nichols buys Bannon’s argument that the prosecution must be dismissed for Bad Court Thingy. Maybe if the defense team shouts even louder?
US v. Bannon [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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