Will Justice Department Prosecute Steve Bannon?

White House Chief strategist in criminal contempt of Congress. Bannon is considered a key witness because of his conversations with former President Trump in the weeks leading up to January six, and the ominous prediction Bannon made on his podcast the day before the riots. All hell is going to break loose tomorrow. Just understand this. All hell is going to break loose tomorrow. It's not gonna happen like you think it's gonna happen. Okay, It's gonna be quite extraordinary, really different.

And all I can say is strap in joining me is former federal prosecutor Jennifer Rogers, who teaches at Columbia Law School. Batten's lawyer has written to the committee and said his client will not testify or provide other evidence until the panel reaches an agreement with Trump or a court ways in on executive privilege. How do you assess that argument, Jennifer, Well, it really looks more like a stalling tactic, in part because the committee wasn't negotiating with Trump.

They haven't heard anything from Trump about this, so it really is just a way to say I'm not cooperating at all. And also, you remember, executive privilege. While we don't know the exact parameters of what it covers because there hasn't been a lot of judicial decisions on that, we do know that you can't just use it as a blanket assertion. So they asked these Bannon for all sorts of documents and for testimony about, you know, not just one particular conversation, but a whole series of events.

So the notion that you and say executive privilege, I don't have to show up at all, I don't have to send anything in is ridiculous. It's really kind of a moment by moment determination depending on who you're talking to and what the document is about. So I think those things combine suggests that Bannon is not really making an assertion and good faith here, but instead it's kind of asserting some sort of absolute immunity that borrows him

from having to do anything at all. Has a court ever ruled that a conversation with a private citizen can be covered by executive privilege? Not exactly. But the problem is, there have been so few cases involving executive privilege, so few fact patterns that have really been spun out and determined by the court, that it's not a certain that they would exclude executive privilege between a then president and a close advisor, even if that person was a former advisor.

You know, we just don't know for sure. I think it makes Bannon's claim to an executive privilege by far the weakest one of all of these witnesses that the Select Committee is looking to interview. But it's just not a hundred percent decided. The House Speakers sent the matter to the U S Attorney for d C. But the Gealice Department doesn't have to prosecute, does it. They do not have to prosecute. That's within the discretion of the

Department of Justice. And even though as you say, it goes to the d C. U S. Attorney you better believe it. Ultimately, that decision is being made by Marrick Garlands, the attorney general. So they will consider, you know, the strength of the case, the pros and cons, all of the kind of circumstances surrounding it, and they will make a decision. And they've made clear that it's their decision.

You know. Biden was asked by reporter if he thought that Bannon should be prosecuted, if this should be pressed, and he said yes, and d o j immediately came out and said, this is our decision. We are not being swayed by anyone else. We're going to make this decision on its legal and factual merits. And so you know, that's what they will try to do, trying to take

into account all of the circumstances surrounding this. Do they have to call a grand jury at least or not even that they don't have to even do that, And in fact, because the crime that they would charge is a misdemeanor crime, they don't even technically have to use a grand jury, but I expect that they would because it gives it a little bit more of a kind of an official stamp of approval to take it to a grand jury, but they don't have to do anything.

There have been a number of instances in the past couple of decades where Congress has sent a criminal referral for prosecution on contempt charges and d o J has decided not to pursue those. So they certainly can say they don't want to do it. I think they're more likely to do this case than the examples in the past that they have decided not to prosecute, But it's up to them. The last time a person was charged with contempt of Congress was in under the Reagan administration.

Why is it that this is so rarely used. I mean, we've seen people defy Congress all the time, sort of delutes congressional power. It really does. You know. Some of it has to do with who's in control of the administration. So there were lots of instances during the Trump administration where witnesses would stone wall, you know, when the Democrats

had control of the House and we're doing investigations. But there was just no way that the Department of Justice under Trump Bill Barr's Department of Justice was ever going to press a criminal case for contempt of Congress against the Trump administration person right. So some of it is because of kind of what parties are involved and who's in charge. But I also think that it's just the

way that it has developed that these things happen. It's really unfortunate that most of the time when Congress wants to speak to someone or wants documents, they negotiate, they reached some sort of concession or agreement about that, and what's happened is when they don't, the clock just kind of runs out. You know, houses only in session for two years, it changes hands a lot. So it's just become this real problem with Congress trying to conduct its

oversight responsibilities. And that's why a lot of Democratic members of the House are calling for legislation so that at minimum, you know, this wouldn't really encourage the d o J to prosecute necessarily, but at least to get judicial scrutiny more quickly to expedite judicial treatment. If Congress goes to the courts to try to get a subpoena enforced, that that would happen more quickly, because the running out of the clock is really the biggest problem here. So if

the Justice Department decides to prosecute Bannon. Could that take months years, not years, multiple but probably around a year. I mean it will be a federal criminal case, so there are a lot of steps that have to be gone through for due process, etcetera. The judge is not going to be immediately in a position to set a trial date. So a federal criminal case of this complexity, and don't think this is a particularly complex case, I

would say would take around a year. But remember that doesn't really have anything to do with whether Bannon changes his mind and decides to cooperate or not. The criminal contempt is essentially a punishment for his current refusal to cooperate, so it doesn't force him in any way to honor the subpoena and to cooperate. So so the House Select Committee is still sitting there without its documents and without its witness, even if at the same time d o

J is pursuing a criminal case against Bannon. So if he can just hold out absolutely and even if he's found guilty and sentenced and sent to prison, none of that changes the fact that he hasn't done what it is that they want him to do. Now, there's a separate way to speak contempt which is a civil contempt or you can actually put someone in prison to basically coerce them into testify. And they have not chosen to

pursue that route. They're going the criminal way, and that weighs effectively a punishment for what he's doing now, not a coercive attempt to force him in to cooperate. It's interesting, I would think that they would rather force him to cooperate. You know, you have to demonstrate that there is a likelihood that you'll get what you're after, that there's a likelihood that if you put the person in prison in order to coerce them to testify, that they will do so.

And so I don't know why it is that they haven't pursued that avenue against Steve Bannon. I think maybe they want the I don't know if you call it the cover, but they want the kind of stamp of approval of a grand jury indicting him, it being in front of the courts where he gets his due process. You know. I think maybe they feel like putting someone like Steve Bannon so close to former President Trump in prison to force him into testifying would be a step

further than they're looking to go. Right now. So let's turn now to another case of executive privilege. Trump is trying to stop the Archives from releasing his paper. Explain

his claim of executive privilege here. So he's trying to stop the National Archive from handing over sets of materials involving communications around what happened on January six, effectively, so you know, they collect these communications, email communications and the like, you know, visitor logs from the White House on important days, etcetera.

And he doesn't want any of that to become known to the publicers to the Select Committee, claiming that it would violate his executive privilege, which effectively protects communications among the president and his close aids in the executive branch about matters of presidential importance. So the president and his aids are talking about, you know, should we take a military action or should we do this national security thing. Those are things that the courts feel like they want protected.

You know, they don't want a president to be worried when he's talking to his advisors that that inform aation might someday come out. So that's effectively the executive privilege, but it doesn't cover everything, you know, it doesn't cover for example, conversations between him and people who are not his aids, And it doesn't cover things that are not kind of within the core of a president's authority and

a president's job. So it is limited. And so the fact that he wants to withhold things like the visitor logs, for example, that's not going to fly because there's no reason that that would be subject to an executive privilege. Executive privilege really is about the content of communication. So here you have a former president saying he wants to exert executive privilege and the current president saying he doesn't

want to exert executive privilege. Here are there cases where former versus president are wide and who has the privilege, So there are Back when this was being litigated in relation to form of President Nixon, the Supreme Court did talk about this issue. Usually, the current president has the privilege, has the right to either wave or assert the privilege

because it's viewed to be an institutional thing. Right. You want to protect the presidency and the president, no matter who it is at the time, their ability to consult freely with their close advisors. So the current president holds

that privilege. Now, the Supreme Court did say that in theory, they could see a former president having an interest in an ability to assert the privilege, but where the current president then disagrees and doesn't want to assert the privilege, the current president assertion would have more weight, although they didn't discount the possibility that you could have a scenario where a former president's assertion might be granted, but that

hasn't been done. In the Nixon case, Nixon wanted the privilege, current president did not want the privilege, and ultimately they ruled that there was no privilege, but they did kind of hold out that possible hope that in theory, there could be a case like that at some point. So it's not a certain Does it make a difference that it's an investigation into a possible abuse of power by the former president, you know, if he really was encouraging the January six rioters, You know, I think it does.

The problem is it's hard to know what the communications are about until you know what the communications are. But yes, I mean that theory holds, and that was another one of the findings of the Supreme Court in the Nixon case. When you're talking about either criminal behavior or behavior that just is not within the president's authority, then you're not supposed to have executive privilege over those kinds of communications.

So in a case where the president is you say, is abusing his authority, is trying to hold on to power to overturn an election, you know whether or not those are technically crimes pursued into the federal criminal Code, you wouldn't think that an assertion of executive privilege would be appropriate there. And indeed, that's more or less what President Biden has said. This was an extraordinary circumstance, really in an undercutting of our democracy, and so we need

to know what happened here. You know, this is not your run of the mill. Are we going to bomb this country? Are we going to do this sort of thing that is within the heartland of what you would want that kind of confidentiality with your advisors. This is something nefarious, This is something improper, and so we need to know what happened. So I think you're right to say that that also factors into the legitimacy of executive privilege.

What was it about? Is it about something you want protected or is it about something that you feel quite to the contrary needs to see the light of day. Trump also claims the committee subpoena is invalid because the committee has no power of investigation. That was an argument he made his lawyers made during some other lawsuits or Trump's presidency. It will not carry the day for sure.

I mean, they don't investigate in the way that law enforcement investigates, but they do investigating connection with their legislative powers. And in fact, I think the House is very interested in thinking about ways that they can establish some guardrails to avoid this sort of thing in the future. For example, you know, they're looking at this question of stonewalling and whether they want to try to pass legislation that requires

expedity handling in courts of cases involving congressional subatoinas. They may want to establish legislation around you know, who has power to bring in the National Guard if there's some sort of problem at the capital like happened on January six. So they do need some sort of legislative purpose when they are doing this kind of thing, but that's easy to find. You know, they can always say they're looking to legislate, and in fact, in this case they really are.

They really are looking for ways to avoid what happened here and to do that through passing lots. So Trump seems to be using the courts as he always has to run out the clock, perhaps until a change in leadership of the House during the mid terms. Can this be done expeditiously? Will the courts do this fast or is it impossible? Well, they can do it fast, I mean, courts can work quickly. They just don't always do that. And you know, you won't have a final determination, like

on Trump's lawsuit about the contours of executive privilege. We won't know the final word until and unless this gets all the way to the Supreme Court, frankly for their ruling on it. But that doesn't mean that things can't happen. I mean, Steve Bannon may be able to run out the clock if he refuses to cooperate. Even if he's convicted and sentenced to prison. As I said, he doesn't have to cooperate, So he may be able to run

out the clock. But the Select Committee can continue their work and seek information that is clearly not subject to executive privilege. And I think that there is enough of that kind of information that they will get a fairly full picture of what happened on January six, as long as they pressed for the information that is about this event that should not be protected by the privilege, then

I think they can. They can get what they need, but they do need to keep pushing, to move quickly and to act aggressively, or you know, you're right, the tick tick ticking of the clock will eventually catch up with them. The National Archives told Trump it will turn over the records to Congress on November twelve unless a court steps in. So if the judge doesn't issue an injunction, and if the appellate court doesn't step in, then his concerns will be ignored and they'll turn over the papers.

That's right. This is kind of the flip side of what happened pretty frequently during the Trump administration. And you know, you need an injunction to to stop whatever the action, and so here he needs an injunction to stop the National Archives from turning over the information, and he can only get one, by the way, according to the legal standards of injunction, if he can prove that he has a likelihood of success on the merit. Thanks Jennifer. That's

former federal prosecutor Jennifer Rogers. It's the first prosecution related to the two seven thirty seven Max crashes that killed three forty six people in Bowen's former chief test pilot, Mark Forkner, has been charged with deceiving federal regulators about the flight control system that was later linked to both tragedies. After Forlkner pleaded not guilty, his attorney, David Gurger, said his client did not lie and did not cause the crashes.

Everyone who was effective by this tragedy deserved a search for the truth, not a search for escapegoat. Joining me is former federal prosecute and Mark Little, a partner at Nixon Peabody, tell us about the charges that Faulkner is facing. The charges are really twofold. One is charges related to false statements and intend to a defraud regarding false writings or certifications records regarding an aircraft part. And that's a statute that's not normally used, but it's basically titled fraud

involving aircraft parts in interstate commerce. That's counts one through two, Counts three through six, or wire fraud counts. Wire fraud is an allegation that someone had a scheme and artists to defraud and obtained money and property by false and fraudulent pretenses, and that's the whole indictment. Of the six count indictment. There's also a forfeiture notice whether trying to collect any money that was gained as a result of

this alleged crime are traceable to those offenses. Mark prosecutors have a trail of what seems like incriminating email from Faulkner complaining about the max software system, the m cast that it was quote designed by clowns who in turn are supervised by monkeys, and bragging about using Jedi mind

tricks on regulators. Will those be an important part of the case against him, Well, it depends, you know, certainly, the cases an example that continues to show up in the modern era with email and electronic communications, where people sort of just say what's on their mind and don't think about what they're saying. So there's certainly some of

those statements by Forkner are gonna be embarrassing. I would expect that the government try to use those to the extent that they put knowledge in Forker's head about the end cast failure or the end cast stimulation that he learned about. I expect that defense attorneys would try to limit that because it might be prejudicial or not relevant really to the charges. In one, he says, I basically lied to the regulators unknowingly. Does that cut for him

or against him? He cuts both ways. The way it cuts against him is it's his statement acknowledging that he's received this new disclosure internally about where the MCAST operates and what circumstances, which is significantly broader than what Boeing had previously known and or disclosed the f A. Hey, so it goes against him in that way. It's that's the marker where he's saying he knew about this, and it sets the stage for future allegations that later on

he didn't tell the FAY about it. It goes for him because this word that he added unknowingly is sort of his statement that like, Wow, I've had all these conversations the FAA and they told me all this stuff internally about the MCAST, but now it's different, and now they're gonna stay highlife. I didn't lie, you know, I just didn't know about it. The email about Jedi mind

tricking regulators was to an f a A official. Does that seem to suggest that the f A A new or should have known about changes to the end casts. It wasn't like the FAA was totally in the dark here. Yeah, this is a challenging indictment for the government to bring

on a number of levels. But clearly before any of these charges came out, obviously, during the scope of the FA's investigations of those two crashes and how they occurred, clearly there were a lot of criticism of the f A certification process that they weren't hands on, that they weren't involved in certifying aircraft enough that as a regulator

there should have been much more involved. This Jedi mind statement puts a number of people in the f A a unnoticed that they should have looked harder at this. They should have taken this and said, wait, what do we got here? So clearly, when Forkner goes on trial, there's going to be a lot of effort by his attorneys. I would expect to actually put the FAY on trial. Forkner is a mid level employee. It's kind of hard to imagine that all this happened solely because of his

actions or in actions. That's right, but that's one of the real shortcomings of trying to chards one person in an environment where when you look at the indictment itself, there's some emails by him where he's worried that he's going to cost Bowing millions of dollars, And clearly there's an environment there where you've got an employee who's worried about that, and maybe that's infringing his judgment. But more to the legal point, these wire fraud counts and this

FA A fraud account. Critical elements of these charges are that Porker intended to defraud somebody of money or property. That's going to be really difficult. It's clear that he lied, and it's clear that he made some false statements and omissions, mostly omissions, but to say that he wanted to sort of make money through those lives, it looks apparently that he's a mid level employees worried about his reputation or worried about a reputation that results in people saying he

cost the company money. And that's not enough to say he intended to defraud airline customers of Bowing. What are the other elements that esecutors have to prove? For example, is materiality an element? It is? Materiality is an element in every fraud case, and they're going to have to show that but for these false statements, things would have been different. It's really hard to say, because all of the statements in the indictment that allege Forkner committed fraud,

they're really about omission. They describe a couple of different interactions that Forkner have the essay after he learned about the m casts problems, where he didn't disclose it, and what is the context of those conversations. It's really rare to charge a case just based on omissions. Usually you're looking for affirmative false statements, and omissions make it difficult to prove that somebody had a material fall statement too.

I want to talk about Boeing settlement with the Justice Department, which didn't cite Forkner by name. How will that play or will it play into his case? No, I haven't been able to review the settlement that much, but it's certainly going to play a role. I think generally for a defense of an individual to have a company workners certainly likely to blame Bowing and the pressures he received internally.

Um as he noted in some of his emails uh that that he had pressure to to not cost the company money and the defense attorney is going to, you know, maybe not legally have a basis to bring Bing into the matter, but it's certainly going to be something that's going to be in the background of the trial about how did someone how did this large company just have one person end up being charged criminally? And how did you know? What were the terms of Boeing's admissions? Did

Bing make any admissions in that settlement? There's certainly their payment of money. Um. Is it fair? The defense attorney might raise, is it fair that Bowing doesn't receive criminal charges um? When a mid level employee does for what is what looks like appears to be an institation institutional breakdown. So will the jury have to believe that he was a rogue employee who was carrying this out by himself or can they believe others were at fault as well

and still find him guilty? The jury can can believe that others were at fault as well and still find him guilty. It just goes to um the sense of I think the arguments that the defense attorneys are likely to make are that the jury will appeal to the jury's sense of fairness and a jury can you know, jury can nullify a verdict for any reason. Now there's they're biggert instructions from the court to follow the instructions and apply the elements of each charge to the facts

proven at the trial. But if the jury gets the sense that there's not fairness here, it could really go the wrong way for the government. You're a former federal prosecutor, would you rather be the prosecution or the defense? Which side do you think has a stronger case? Well, you know, uh, this this would be a tough one because you know, in this case, the crashes were so tragic, the loss of life um unnecessarily occurred, and clearly Faulkner had knowledge

of this problem that could have prevented those crashes. But it's clear that many other people new or should have known about this. And the defense are going to make a real big part of this case about the f a A and those fa A agents are going to have to testify a trial, and they're going to be you know, scorched on cross examination, and it's it's likely I would think Partner could be convicted even if Feathers weren't charged. We're not charged were involved, We're not charged

in the case. But I think that the jury, it's going to be tough for the jury, you know, to go forward U if if the defense is able to get into their arguments, the fact that partner is kind of a scapegoat. Is there a possible There's always a possibility of a plea. Do you think that the prosecutors might be looking to flip him? Uh? They might. This

was a but this was a pretty extensive investigation. And when the company entered into the settlement, and again I haven't read the terms of going settlement, it would appear that Boeing did a pretty extensive internal investigation and cooperated with the government um extensively. So I would think that I would think that they have all the information that this is probably going to be the only charge coming

out of it. Really, because even Peter de Fazio, the Democrat from Oregon said, see new leaders throughout Boeing are responsible for the culture of concealment that ultimately led to this Max crashes. He's saying, this shouldn't be the only indictment. I think he's right. I think it shouldn't be the

only indictment. But from reading the fact that you know Boing, that that Boeing was allowed to settle and at Boings UM, I would expect Boeing would have done a really thorough internal investigation into their compliance and that they would have done extent to be allowed to settle like this, they

would have extensively cooperated with the government. So my expectation, and based on my experience, the charges that came out now would have been inclusive of of all of the people they felt they could make a charge and had a reasonably likely and a conviction at trial. Things could change, of course, and partner maybe could provide conversations that weren't recorded, you know, an email or something that the government doesn't have, So of course that could always happen. But I'm surprised

it's only partner. But I would also be surprised if other people were charged in this case. What kind of sentence is he looking at? You know, the sentencing guidelines are with fraud cases are triggered and tied to what the loss amount was to the victim of the crime. Um. But if he gets convicted and they're at sentencing, the defense and the prosecution are going to have a lot of sparring over um. You know, whether whether Fortner is accountable for the loss that that these airlines suffered as

a result of the crashes. I was to the liability to passengers. Uh. And you know that that also that Boeing settlement two point five billion um. You know clearly Boeing is providing that amount. And I think that you know, he's gonna partner would argue after if he got convicted that sentencing that he wasn't responsible these losses. He would argue for a much lower sentence than maybe the guidelines,

and which the guidelines are tied two the loss amount. Otherwise, if it's the whole amount, he's gonna he's gonna have very high guidelines, probably up to life in prison. I don't expect the judge to give him that amount of time. I think a judge would probably look at this and find he was a mid level employee, but there certainly was a lot of loss of life, and you know, the number of people who died in these crashes is you know, really horrific. So I would expect a significant sentence,

maybe between five and ten years. I think there's one thing that I would add, and that is, like, there are significant appellate issues in this case, and it has to it has first starts with the wire fraud statute, and if you look at the history of the cases, there have been significant limitations of the wire fraud statute

UM by the Supreme Court UM. And the most recent one which people are familiar with is the Bridge Gate case where some employees of New Jersey Governor Chris Christie tried to um maneuver the port authority lanes to narrow to get back at a at a local mayor who wasn't supporting of Governor Christie's campaign. UM. The Supreme Court

through those wire frauds. Those wire fraud convictions out because the key word in the wire fraud statute are a steam or artist to deprive someone of money or property, money or property UM. And they alleged that Workner um defrauded the airlines. The customers are bowing of money or property. And you know, in this case, it's going to be hard to say, how did Faulkner, how does Workner intend

to defraud? Those are one It's really kind of hard to say that when it's pretty clear from his emails he was worried about his personal reputation within the company. But it's really going to be hard for the government to prove if Wawkner really wanted to rip off customers of Boeing Um and that's where the rub is in the case, and that's where the rub will be on

appeal um. And you know, with regard to regulatory cases or licenses that the courts have, there's a particular case in the Fifth Circuit in Louisiana where someone was alleged to have defrauded a license for casino, the regulator for casinos and defrauded them into issuing a license in the Supreme Court. The courts in Louisiana Fifth Circuit Court of Appeals rule that a license, our regulatory function is not

property under the Wire Frost statutes. So there are significant appellate issues at play in this indictment, and I would expect there'd be facial arguments over whether or not Wortner really intended to defraud the customers of of Boeing. Thanks Mark, that's Mark Little of Nixon Peabody And that's it for the edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law

Podcast wherever you get your favorite podcast. I'm June Grosso and you're listening to Bloomberg