Steve Bannon's ‘Misdemeanor From Hell’ Trial

a defense. Bannon is standing trial in a DC federal court on Monday after a judge eviscerated most of his defenses. Joining me as former federal prosecutor Jennifer Rogers and adjunct professor at n y U Law School, Jennifer, let's start with Bannon trying to get his trial postponed and volunteering on the eve of trial to now testify before the committee. Basically, the whole game plan for defending usually is delay until

you can't delay anymore. So that's just kind of a typical thing, you know, always push it off, push it off.

But he's just trying to play a game here. I mean, he's been charged with contempt for what he did in the past in stonewalling the committee, refusing to testify, refusing to hand over documents, And this is kind of a last effort to say, well, you're claiming that I did all this stuff, but you know I'll do it now, So let's put it off so that I can actually cooperate, which is what you want after all, Like what are

we doing here sort of things. So really just the kind of last gasp for him of a way to try to put things off and delay things. And also, by the way, plant this kind of jury nullification seed in people's minds that why are we making a federal case of this if he's actually willing to do it now. So Bennon's defense wants to use this supposed new cooperation to argue at his trial that he wasn't remiss in defying a subpoena from the House Committee in the first place.

The judge said he would decide lay later whether banning can use that as a defense. But how is that relevant? Even yeah, you're right, it's not, And that's what d o J has said in their response. I mean he was charged with what he did in a specific time period that has a long past. So even if this day after they charged him with an indictment he turned around and said, hey, okay, you know what, Now, I

get that you're serious. Now I'm willing to do it, even then it would have been too late, because the point is you can't just swards a subpoena and ignore a subpoena and just get away with it and damage their investigation by doing so, and then say, okay, well I'll do it when I really get in trouble for it. So the point is it's too late to change his tune, and it's been too late for a long long time. So there's no legal way that this is a relevant argument for the jury. I think the judge is just

going to reserve, because judges often do that. They don't want to decide everything in advance. Sometimes they want to see how you and it comes in and things play out. But I cannot imagine a scenario in which the judge allowed Bannon's lawyer to put in that argument, because it's just legally completely irrelevant. All it really is a play to the jury for nullification, which is not illegally justifiable

arguments made. The judge denied Bannon's request to delay the trial because of publicity surrounding the January six Committee hearings, and he also shot down most of Bannon's other proposed defenses. Now, some of Bannon's defenses seem like they were out there, like saying the committee was improperly constituted. Were there any that seemed reasonable to you? Most of them did not. I wouldn't have been shocked to see a judge pushed the trial a little bit to get out of the

active January six Committee hearings. You do want a fair jury. You want a jury that says it can be impartial. You want a jury that isn't too steep in what going on around Trump and Bannon and the January sticks Committee. And so I wouldn't have been shocked to see the judge say, you know what stuff is going on right now? The Committee is going to be done with their hearings

in a matter of a couple of weeks. Let's push it a month so we kind of get out of that news cycle about the committee to give us a better chance of getting a jury that hasn't been watching the hearings and kind of hearing all this on a daily basis, so I wouldn't have been surprised at that. I don't think it's legal error not to do it by any stretch. So that argument could have had a

little bit of traction with the right judge. So after Judge Nichols pretty much throughout all these defenses, one of Bannon's defense attorneys said, what's the point of going to trial if there are no defenses? And Judge Nichols said, agreed, I mean, what does that say? Yeah, you know, I don't know. He's just spending right, he's just a little frustrated. I think there's a sense for I don't know that he's really meant to to put that out there. But

that's exactly the point. He doesn't have any valid defense this to this. I mean, he made a real strategic error to just completely stonewall the committee. You know, he could have done the Mark Meadows strategy, been a bit smarter about negotiating and maybe turning some things over, or at least agreeing to show up and claim his privileges in person or something. You know, there were lots of ways that he could have given a little bit and

looked like he was at least somewhat cooperative. That would have made it much harder for do O J to charge him and given him more arguments if they did. He didn't do that. He wanted to take the hundred percent I'm not doing this. Look how loyal I am. You know, I'm a stand up Trump guy. And that really is coming back to bite him now because he just doesn't have any defense at all to the way that he handled this whole subpoena inquiry. So he's got

to live with that now. He doesn't have any defenses. So as lawyers kind of like, what am I going to do at trial? You know, the way that you would complain to a colleague or a friend. What the world am I going to do standing up trying to defend this guy? And the answer is, I don't know. You know, you're gonna have to see what you can

come up with. I mean, really, what he's gonna do is make a play for jury nullification, which is not a legitimate thing to do, and the court will have to be careful in the way that it tries to kind of cabin those arguments and not letting him go too far with them. But he doesn't have any legitimate defense.

But you know that happens. Actually, I mean, it's not that uncommon that you have a defendant who insists on going to trial, refuses to plead, doesn't really have a legitimate defense, and you go through the motions because that's the defendant's right, and you end up with a conviction in those cases. And that's what I expect to see here. What would an argument for jury nullification look like? There's

a few things. I mean, he could try for nullification just on the fact that maybe you end up with some jurors who like Trump and like Bannon, and maybe you kind of appeal to them and you want them to hang up the jury right so that you can't get a conviction because just politically they're on one side, you know, ver is the other side. You might say, why make a federal case of this kind of just play to the whole what's the harm here? Really? You know,

the committees talked to a lot of people. They don't really need to talk to everybody. They're just throwing their weight around. No harm, no foul. That's another nullification argument. I mean, the argument that you raised that he actually didn't understand that the subpoena had validity. That's really more of a legal argument. I mean that the court's going

to say it's not a legitimate legal argument. But that's not as much a nullification argument as these other things, which just kind of, you know, it's almost like winking at the jury and saying, you know, okay, I get that it's you know, actually a violation, But what's the big deal. Why don't you just let me off the hook here for a reason that's not legitimate. That's really the nullification argument, and that happens. Juries do some strange things.

Defense got one ruling Bannon may present evidence to show that his failure to comply with the subpoena wasn't intentional. For example, if he was unclear on the deadline for his response, I don't know what he could put forth here. The judge said that thinking one is legally excluded or thinking a subpoena is invalid is not the same as thinking a reply date was put on hold, So he'd have to show some basic misunderstanding. Yeah, this is a strange one. All this is saying is listen, if you

have evidence like this, bring it. Of course, you know of course you're allowed to bring evidence that you know. Let's say he shows up with a letter that says this, I got this letter from the committee and it says I don't have to comply by that date. Don't worry about it. We're pushing it back. You know, you don't need to worry about this. The problem is that letter

doesn't exist. So what the judge is saying is, if you actually have evidence that means you're not guilty because they gave you, you know, a longer time frame, or they narrowed what you have to bring, and then you were charged with not bringing something that the committee said you don't have to bring. Of course you can present that evidence anyone could, right that basically shows that you're not guilty of problem is, there is no such evidence.

So that's kind of a false victory for Bannon here because he's not going to be able to show that the committee didn't try a million times over right to get the evidence from him on certain dates that they repeated over and over with a certain scope of documents and testimony they wanted that they were clear about, and

that he just completely blew all of it off. So what does the government have to show to prove his guilt, Well, they'll show that he was very clearly subpoenaed for specific information, specific testimony, that all of this was very clear to Bannon. It wasn't just that it was sent once by certified mail and then they ignored it. I mean, they have evidence that he received the subpoena right through his counsel, that he was aware of these requirements, and that he

willfully didn't comply. And so you know, there there was some discussion of this, for example on his podcast. You know, he made public statements that out it. So there's lots of ways that they can show that it was a bad faith non responsiveness, right, that this wasn't just oh, they slipped it through my mailbox and I never thought it or it was so confusing and I didn't understand it.

I mean, it was pretty clear from all of the surrounding evidence when you look at his public statements, Trump's public statements what was going on with other witnesses at the time that he knew exactly what he was doing, and what he was doing was trying to undercut their investigation by not providing them with the evidence that they were speaking from him. So Jennifer if he's convicted, he can do jail time. He can, he can, absolutely he there's actually a mandatory minimum here, so he will do

jail time if he's convicted. That's the interesting thing about this particular misdemeanor. So you know, it's not a lot of jail time. It's it's thirty days for each count and up to a year for each count. So you know he would get on the low end of that, probably the in a mom of one month per count.

But yeah, I mean, Steve Bannon very well could go to prison here, and that's obviously what he's now kind of doing all these last minute maneuverings to try to avoid I want to turn now to another Trump ally defying a subpoena. A judge has ordered Republican Senator Lindsey Graham to appear before a special grand jury in Atlanta investigating interference in the presidential election on August two. He said that Graham was a necessary and material witness to

the grand jury probe. This comes after Graham was subpoena and vowed to challenge the subpoena. What else can Graham do to fight this, Well, he's going to ultimately have to comply. I suspect he can get more time if he wants more time. August is pretty close to now, so I'm sure if you know, his lawyer contacts the D's office, they can work something out with the timing. But this is a legitimate subpoena at Georgia. Judge has

signed off. They have ways of getting cooperation from other states, so that in the worst case scenario playing in now for Lindsay Graham, if he absolutely refused to comply, he could be arrested and brought to Georgia to testify. So he certainly doesn't want to trigger that happening, so he is going to have to show up. There Goold moved to quash the subpoena, but this judge has already said that he finds, you know, he's been necessary witnessed, so

that's out. So he's going to have to comply. I think he can get more time and negotiate some sort of appearance that is more convenient for him if he wants two or three weeks or whatever it ends up being. But he's going to have to show up. Is it just political that he doesn't want to show up because you know, we all know about the two calls he

made to the Georgia Secretary of State Raffensburger. Raefensburger has already testified to the grand jury, so the grand jury knows about it, and he's been told that he's a witness. He's not a subject or a target of the investigation. I mean, I think there's a couple of things going on. One thing is in your own self interest. You want to make sure that you're not in jeopardy, So being told you're not a target is one thing. He might

also actually be seeking technical immunity. He may want an actual order of immunity UM, so his lawyer would be negotiating that UM. And then the political side, as you mentioned, I mean, he's been a loyal Trump supporter. He doesn't want to be seen as going away from that right, and he still wants to be seen as a loyal Trump supporter. So I think that those things combined is why he's reluctant. But he probably knows he's going to have to do it. This is a little bit of

show trial, right, I'm resisting, I'm not doing it. They have to come get me and then lo and behold in a couple of weeks the areas in Georgia, right, but he wants to give this kind of impression of still being on team Trump and he only has to go down there because he has absolutely no choice. Do you think it would look bad for a siting senator to ask for immunity? I don't know. I mean, listen, it's funny. We've seen We're kind of in a different

era now, right. I mean, I think it used to be that if you were a senator and you ask for immunity from criminal prosecution, everyone would be like, that's so outrageous, you know that you think you did something that you need immunity for. Nowadays we have people asking for pardons, right, So, um, I'm kind of in a

different world. And you know, I got to tell you there are a lot of criminal defense lawyers who, if they were representing Lindsey Graham, would say, thank you for your statement that he's not a target, but we want immunity. You know, that is what really protects your clients. So you know, I think a lot of lawyers would be pushing for that just as the kind of firmest protection for their clients. Now, maybe Lindsay Brown does push back and say but I'm a senator. I can't ask for immunity.

I suppose that's possible, But honestly, nowadays, in the world we live in now, with people asking for pardons, I think they're more interested in their own kind of self interest then and how it appears. So we'll see, we'll see if that's how it shakes out, if if that comes out publicly, but I think it's probably at least under discussion between Lindsey Graham and his lawyer and then perhaps with the Dass as well. Thanks so much, Jennifer. That's Jennifer Rogers of n y U Law School coming up.

Brittney Grinder on trial. This is Bloomberg Family, friends and teammates have been mounting a full court press to bring w n B A star Brittney Grinder back home from Russia, where she's been detained since February when Hashee so Sooyle was found in her luggage. Her wife, Cheryl Grinder, has been speaking out were you sitting over there, Cutchy having having coming see your rescue yet there was even a phone call with President Joe Biden and a letter from him.

National Security Adviser Jake Sullivan says the White House is doing all it can to secure her release. We are working directly with the Russian government through appropriate chan was to try to bring a speedy resolution not just to her case, but to Paul Wheelan's case as well. Surprising many, Grinder pleaded guilty to the Russian drug charges last Thursday, saying she packed in a hurry and had no criminal intent. The guilty on the charges, but I had no intention

on breaking any Russian law. Grinder's plea makes a conviction certain, but unlike in American courts, it doesn't automatically end her trial. Joining me as Jeffrey Kahn, a professor at s m used Deadman's School of Law, defendants in Russian courts are convicted. What do you think Grinder waited so long to plead guilty. Well, that's a complicated question, and there are two ways of

answering it. One is she didn't have the opportunity. She was placed in a Russian jail and subjected to pre trial detention while the state began its investigation, and so she didn't have, under Russian law really any opportunity to do so, earliers. The larger answer is the Russian criminal justice system operates on very different principles than the US adversarial system. Growth lies on something called a case file, and this case file is completely in the control of

the state. It is this binder that contains all the evidence that a court will consider. In an American court, nothing counts as evidence unless it's been provided through live witness testimony. In a Russian court, if it's not in the case file, it didn't happen. And although there are some opportunities for a defense attorney to ask for things to be included in the case file, everything, everything is in the control of the state's investigator, the sled the vattal.

And although that official is supposed to be independent from the prosecutor, and that's supposed to preserve an equality of arments between the parties, there's always this anxiety that the state can put its thumb on the scale with as much pressure as it wants. So Grinder's trial is continuing. So far there's been what we call good character evidence from a Russian team, how long after the trial concludes before she sentenced. In the Russian system an imposition of punishment.

The sentencing usually is done in very close proximity with the court's conclusion that the defendant is guilty of a crime. So conviction and sentence usually come very close together. That's another big difference between the US approach and the Russian approach. In the US approach, the individual can try to present reasons why lesser sentence should be imposed. There is very little time in the Russian system for contrition to happen.

The judge is going to impose that sentence very quickly, and so it may be that Ms Grinder was given the advice that if she wanted to be able to influence the size of her sentence, now is the time. In the beginning of Grinder's detention, it seemed like her family and supporters kept a low profile, but recently it's been just the opposite. There have been press conferences, a lot of interviews with her wife, the pressure on President Biden,

what do you think change the strategy? People who have been involved in this sort of circumstance, and it's a horrific thing to go through, and so our sympathies really have to be with Miss Grinder and her family and her supporters because it's very hard to know exactly what to do. On the one hand, people have been through this say that they're often given to the advice that the United States government could act in their interest best

if there isn't a lot of attention. And since miss Grinder was arrested just a week before the Russian Federation engaged as a war of aggression against Ukraine, that may have been very good advice. Don't let her become a bargaining chip. Let's see if we can quietly figure out what's going on and if at all possible, get this

resolved very very quickly. But when the Russian Federation started to ask for more and more extensions of time, there must have been two or three extensions of time granted, because normally the pre trial detention while the state is gathering evidence for the case file shouldn't take more than

two months. But she'd been in pre trial detention for more than four and a half months, and I think at that point perhaps the family and her supporters decided the only way to do this is to make a very very loud noise and to bring this to the forefront of attention. If she wasn't a bargaining chip before, maybe the anxiety was she had become one, and and the way to try to influence the proceedings was to make a lot of noise and gather a lot of attention.

In early May, the State Department declared that she had been wrongfully detained and didn't explain why they signated her as wrongly detained. What are the criteria that they normally use? The State Department didn't say, But that really does seem

to have been the pivot point, doesn't it. Normally states will accord a degree of of appreciation to another state's criminal justice system, just as we expect that other states, when their nationals are charged and tried in our criminal justice system, should allow our process UH to UH to

work its course. But we know from statements by the State Department after that designation was imposed that the United States had lost confidence that the the law on the books, so to speak, which to be frank, is a modern and progressive and advanced body of law that was composed not only with the help of members of the Council of Europe, but also with our own Justice Department's advice shortly after the collapse in the years following the collapse

of the Soviet Union. But the law on the book doesn't always translate into the law in action, and so I think the conclusion must have been reached that whatever the law says, Ms. Grinder's case was being dealt with in a more political fashion. And that's another big difference, UH, not a difference you'll find in the lawbooks, but a

difference between our system and theirs. When heads of state might complain to President Biden that someone is in prison, or someone is under investigation or being charged with a crime and tried, UH, the president can say, I have no influence over what state prosecutors do, and certainly what

state or federal judges would do. UM. But when a case becomes of interest to the Russian UH leadership, there isn't that separation of powers in practice, and so a lot of experts talk about the establishment of a dual state in Russia. For ordinary commercial cases, for ordinary crimes, for for issues of no interest to the state. The state allows the system to work independently, because every state wants to have a working system of justice in order

to encourage commerce and fairness and and organized society. But in the Russian case, at some point it seems Ms. Griner's case was seen to be useful and so it shifted to a political side. Of the docket, where no amount of arguing the law seems to be very helpful. There are reports that former New Mexico Governor Bill Richardson is going to travel to Russia to try to make

a deal to free her. He's done this before. I mean, is that a good idea to have someone who's not connected to the State Department go and try to negotiate? I mean, how does he know what the parameters are? Well? Uh, former in New Mexico governor, former U N ambassador, Uh, Bill Richardson is not really a first timer at this.

He has a center that focuses on high level UM hostage issues and and to some extent, I think that we could think of the State departments declaration that Ms. Grinder has been wrongfully detained as diplomatic talk for a hostage crisis. And UM, so he's going in with that degree of expertise. I I would expect that he and his center have high level contacts at the State Department and and would serve as an intermediary and experienced intermediary

in in that sense. Um. But you're right that he has no formal authority uh and uh to to do anything other than really to convey information from one side to the other. UM. In the case of UM of releasing someone like Victor boot From from federal authority UH, that would require the United States to commute his federal

sentence UH in order to release him. In Russia, it would probably occur through Article eight five of the Criminal Code, which gives the President of the Russian Federation the power to pardon an individual. And that might be why the Russian government is insisting that the UM criminal case be allowed to proceed all the way through to conviction and sentencing, because that would be the mechanism that would be used

to to effectuate the trade. Do you think that this what I call the full court press before could backfire? One reason the State Department has generally advised families not to go to the press is because of a fear that this would actually increase the price, so to speak, of return of their family member. That as someone gets

more and more attention, that person's value goes up. The State Department, I think, is also concerned that elevating this to such a high level of attention can encourage other states two sees and bring up on trial Americans who are traveling abroad on the other hand, the families of individuals who have been involved in this terrible sort of circumstance have sometimes said that they have felt that nothing was done until they spoke up and went to the press.

So could it backfire? It seems that it certainly could, but that's not known to anyone, with the exception of the Russians. Thanks Jeffrey. That's Professor Jeffrey Kahn of s m u S Deadband School of Law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg

Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten b m. Wall Street Time. I'm June Grosso and your listening to Bloomberg