Right-wing provocateur Steve Bannon is going full-steam ahead with a plan to turn his criminal case into a one-man reconnaissance mission involving the White House, the Justice Department, and the Jan. 6 Committee, where he hopes to find anything that’ll smear Democrats who’ve come after him.
Earlier this month, The Daily Beast laid out Bannon’s strategy to find any evidence that this is merely a political prosecution, or—as some have commented—generate enough suspicion to besmirch the whole thing.
The DOJ cast the strategy as an underhanded ploy to harm the Jan. 6 Committee’s ongoing investigation into the causes of the insurrection by exposing its inner workings and witnesses who’ve secretly cooperated, and the gambit seemed to be stymied when the federal judge overseeing the case issued a protective order on Dec. 10 limiting what kinds of documents Bannon could make public.
Not so fast.
Bannon’s team is interpreting the judge’s order as a green light to dig into the Biden administration and expose what they find, according to a person familiar with Bannon’s case.
“Was this a politically motivated prosecution? The communications will show that… we’re going to ask for specific documents,” said the source, who spoke to The Daily Beast on condition of anonymity. “The judge will allow us behind the curtain.”
The legal team plans to publicly file damning documents they get, the source said. What would be a cut-and-dry misdemeanor case could become an unwelcome peek into the Biden administration.
“We’re not completely restricted,” the source said.
Jared Carter, a professor at Vermont Law School who reviewed the judge’s order on The Daily Beast’s behalf, said “it does create a place” for Bannon to start filing acquired documents in court and turn his prosecution into an all-out assault on those coming after him.
“Clearly their strategy is: The best defense is a good offense. And what we're seeing is the defense team trying to employ that strategy, trying to put the government and Biden administration on its heels,” Carter said. “That can be a very effective strategy.”
Bannon’s game plan falls right in line with the comments he made on Nov. 15, the day he turned himself into the FBI and appeared in court.
“We're taking down the Biden regime,” he said on his way into the FBI’s Washington field office.
And on his way out of court a few hours later: “We’re gonna go on the offense. We’re tired of playing defense.”
Bannon’s claim that this is a political prosecution relies, in part, on remarks President Joe Biden made shortly after Marine One landed on the White House south lawn.
When asked about Bannon and other witnesses who defied congressional subpoenas to testify, he said, “I hope that the committee goes after them and holds them accountable criminally.” When asked if the Justice Department should prosecute them, the president agreed.
Here’s how Bannon tried to frame it back on that day in November: “Joe Biden ordered Merrick Garland to prosecute me from the White House lawn when he got off Marine One.”
That’s a hefty accusation with no real evidence to back it up. But Trump’s former White House adviser plans to demand memos and internal communications at the White House, Justice Department, and Jan. 6 Committee to prove it.
The point is to show that this entire prosecution was poisoned from the start.
Bannon’s team is now mounting a defense to show that the Justice Department is engaging in “selective prosecution,” which legal scholars call a longshot strategy of proving that law enforcement discriminated against Bannon by singling him out.
But this isn’t like the time the Drug Enforcement Administration was caught making 179 arrests over a decade in New York without a single white defendant. Legal scholars said Bannon isn’t being singled out because of his race or gender, so he doesn’t fit into what’s considered a protected class.
Only three Jan. 6 Committee witnesses have refused to testify. And while only Bannon has been criminally charged, Congress has already referred former Trump Chief of Staff Mark Meadows to the Justice Department for prosecution—and ex-DOJ official Jeffrey Clark might not be too far behind.
“They have to prove that in insurrection cases held by this DOJ they've chosen not to go forward. But Bannon and Meadows are the only ones saying they’re not going to do it. The selective prosecution model fails,” said Joshua E. Kastenberg, a professor at University of New Mexico’s law school.
Legal scholars also said Bannon’s mission for embarrassing memos borders on what they call “discovery abuse,” when one side uses a court battle to make unreasonable requests for evidence.
"You can’t just say we want this memo or that memo. You have to present some evidence these memos exist. You can’t base your discovery demand on conjecture,” Kastenberg said.
David Schultz, a law professor at the University of Minnesota, said the judge should severely limit this case to its core premise: Bannon got a subpoena to testify, and he didn’t show up.
“A court shouldn’t grant these discovery requests whatsoever. And even if they did, they shouldn’t affect the outcome. All of this is really the sideshow,” Schultz said.
The battle over how far Bannon’s team can reach into the filing cabinets at the White House and DOJ is expected to play out in the coming weeks, as Bannon’s case is on a fast-track to a trial set in July 2022. And while U.S. District Judge Carl J. Nichols set limits on what they could do with sensitive government documents—they have to be redacted and relevant to the case—Bannon’s legal team plans to show how the government singled out Trump’s one-time campaign chief.
Anything they find could be made public soon. In recent court filings, Bannon lawyer M. Evan Corcoran indicated plans to use what they find to try to dismiss the case before it ever goes to trial. In one filing, he wrote that his team plans to “raise historically important constitutional issues.”
It’s set to be a bitter fight all the way. While Bannon uses his War Room Pandemic daily podcast to cast the Biden presidency as illegitimate and call for “4,000 shock troops” to take back command of the U.S. government, his attorneys are throwing wrenches into the DOJ’s gears every chance they get.
Both sides can’t even agree to deadlines in the months ahead, filings show. In one snippy email Thursday morning, Corcoran lectured a federal prosecutor about how “this is not a high school homework assignment.”
“What Bannon is trying to do is make this into a bigger political issue,” Schultz said. “Maybe his attorneys know he’s got a losing case, therefore, distract the media and public and make him into a political persecution. Maybe it’s part of a martyr strategy.”