Steve Bannon—the right-wing media personality turned adviser to Donald Trump turned right-wing media personality again—became the first person in nearly 40 years to be indicted on a charge of criminal contempt of Congress last month after he refused to cooperate with the House committee investigating the Jan. 6 insurrection. Now, Bannon appears to be using his criminal case to go after the committee that went after him.
Bannon is attempting to force investigators to potentially expose who they’ve talked to and what they’ve said, peek into secret communications on the committee, and create a playbook for other resistant witnesses, according to several legal experts.
“There's no cost to opposing Congress if you can give Congress a black eye for even daring to ask you questions,” said Kel McClanahan, an attorney who specializes in national security matters.
As Bannon faces criminal charges, he’s entitled to the evidence against him. And in a typical galaxy-brain, Bannon countergambit, Trump’s former senior adviser is trying to make some of that evidence public.
According to a Sunday night court filing by federal prosecutors, that includes secret witness interviews by law enforcement and internal communications between House committee staff members. The Justice Department claims that, if this material were exposed to the public, it would cause “specific harms” like “witness tampering," with the added effect of making it difficult to find impartial jurors at a future trial.
In a court filing on Tuesday, Bannon’s lawyers said the government’s argument was “festooned with hyperbole… perhaps designed to score points with the media.” That same day, a “press coalition” of 15 news organizations—including Buzzfeed, CNN, and The Washington Post—sided with Bannon and asked the judge overseeing the case to make documents available and reject what it called “this broad gag order.”
But while most press coverage of this fight has hinged on the accusation that Bannon is trying to turn this into a media circus or spectacle, some legal scholars say the real intention is to harm the investigation itself. One called it “graymail,” a legal defense tactic that’s tantamount to blackmail and has since been outlawed.
“It’s not about trying the case in the media. It’s about making it costly for the committee to go after him,” McClanahan told The Daily Beast. “It is graymail, pure and simple: You can’t touch me, because if you do then I’ll spill your secrets.”
In that sense, Bannon is severely raising the cost of coming after him—making good on his promise to turn this into the “misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden.”
Bannon’s attorneys on this case did not respond to repeated inquiries from The Daily Beast. However, in court documents, they strongly pushed back against the idea that Bannon’s strategy is to improperly use the evidence.
“This is a misdemeanor case,” they wrote in Tuesday’s filing. “It is not a case where witnesses have been intimidated. In the absence of any specific, particularized showing of actual harm, the Government conjures up a bogeyman.”
Instead, Bannon’s lawyers said, “being able to use discovery materials to identify and question witnesses is not an improper purpose.”
There’s no indication Bannon’s team wants to spill everything. His lawyers have drafted a proposed order for the judge which would still keep secret the documents produced during the grand jury that indicted him on Nov. 12.
Bannon is being represented by two attorneys in his criminal contempt case. One is M. Evan Corcoran, a former federal prosecutor who almost took a high-ranking job at the U.S. Attorney’s Office in Washington during Trump’s final year in office, according to The National Law Journal. The other is David I. Schoen, one of the lawyers who represented Trump during his second impeachment trial in the U.S. Senate.
Bannon’s spokeswoman, Alexandra Preate, did not comment, pointing to the legal filings in the case.
But other attorneys say the overall tactic of prying open the safe this early in a court case is unprecedented, a prelude to a nasty fight ahead.
"Normally this doesn’t come up. His whole thing is about blowing up the whole system. He's almost an anarchist,” said Jennifer Rodgers, a former Manhattan federal prosecutor who now teaches at Columbia University.
“It might not really be about the contents of any particular document. It might be about the process,” she said.
There’s a general sentiment by lawyers monitoring the case that exposing the committee’s work while its investigation is still underway could open it up to public criticism and potentially hamper its work. But the real damage might simply come from throwing a wrench in any future prosecutions of others who are refusing to answer the committee’s questions, like former White House Chief of Staff Mark Meadows, who has been threatened with contempt charges by the committee for not cooperating. The same goes for Jeffrey Clark, the former Justice Department official who allegedly tried to have the DOJ help Trump overturn the 2020 election, who refused to answer questions and was voted “in contempt” by the committee on Wednesday evening.
Given that most congressional contempt cases would be nearly identical, exposing witnesses in Bannon’s case would give other resisters a long heads-up about what’s coming.
“That’s one of his goals: to try to make it more difficult for the committee to enforce its subpoenas in the future,” said Jonathan David Shaub, a University of Kentucky law professor who previously worked at the Justice Department.
“It’s a chilling effect,” Shaub added. “If you know you’re going to have to disclose a ton of information, you probably won’t bring that first prosecution until you have the other ones.”
The select committee investigating the Jan. 6 insurrection, led by Rep. Bennie G. Thompson, did not provide comment on the matter.
U.S. District Judge Carl J. Nichols, who was appointed to the bench by Trump in 2019, has yet to rule on whether the documents in question will be made public.
At this point, all eyes are actually on the District of Columbia appellate court’s upcoming decision on Trump’s legal battle against the committee, which will determine whether the former president has any legitimate argument of residual executive privilege now that he’s left the White House. That case could embolden or eviscerate the claims currently being made by Bannon, Clark and others—that they can’t talk because Trump says so.
But Trump’s fickle loyalties to his underlings could have a more immediate impact—as evidenced in the way he was so quick to turn his back on his longtime former attorney Michael Cohen, who later became a thorn in his side.
Case in point: the way Trump has turned on Meadows this week.
After writing a largely sycophantic book about his time as Trump’s chief of staff, Trump rejected one story on Wednesday that Meadows wrote in his soon-to-be released book.
Meadows wrote that Trump had tested positive for COVID before his first debate with Joe Biden, days before Trump or the White House ever disclosed that he had coronavirus.
Trump immediately threw Meadows under the bus and issued a statement calling the report “Fake News.”