A subpoena is a writ issued by a court, government agency or Congress that orders a person to appear and testify. A subpoena duces tecum tells the person to show up and bring records or other documents with them. Although subpoenas are not provided for in the Constitution, they have a long history in the law and their use has been consistently upheld by the United States Supreme Court and state supreme courts as a lawful way of compelling the testimony of witnesses.
Ordinary people may get a subpoena if they have been a witness to or a victim of a crime, usually in the form of a subpoena to appear before a grand jury, preliminary hearing, or for a trial.
A subpoena is not something to thumb your nose at. Failure to comply has consequences. If you get one, it’s best to call an attorney. Your only option is to appear before the summoning body or appear on the limited basis by filing a motion to quash the subpoena — which in laymen’s terms mean to dismiss it or throw it out.
There are legitimate reasons that an individual can assert to have a subpoena quashed, set aside, or modified. For example, if a court were to issue a subpoena for voluminous amounts of records that it would be physically impossible to gather within the time ordered or if it were impossible for a person to travel the distance to the court, a court might amend a subpoena. If an attorney is subpoenaed, he or she might assert that the only information they have was obtained through the attorney-client relationship, which means that the information is privileged and cannot be revealed. In that case a subpoena could be quashed. A person can also show up and plead the Fifth Amendment, exercising their constitutional right to remain silent. But in each case, the person who got the subpoena responded.
In the case of Steve Bannon, former political strategist for Donald Trump, none of the above happened after he received a subpoena from the congressional committee investigating the events of January 6, 2020. He thumbed his nose at Congress.
According to Bannon, he was negotiating with the congressional committee and so technically did not disobey the order. It’s unclear what he means by negotiating. But if he had his lawyers talking to the prosecutors and never properly entered an appearance before the committee, Bannon did not properly comply. Obviously, the congressional committee and the Justice Department saw it that way, as did the grand jury that indicted Bannon on two counts of criminal contempt.
Last week the trial started in Washington D.C. District Court. The issue for the jury to decide was simple. Did Bannon comply with the subpoena?
In legal terms, the issue was pretty cut and dried. He either did or he did not comply. In statements to the media, Bannon asserted that he was exempt from having to comply by virtue of executive privilege because he worked for President Trump. The problem is, Bannon left Trump’s staff on August 18, 2017. He was a private citizen on January 5, 2020, when he rallied Trump supporters to the Capital and on January 6 when he did whatever he did on that day.
At the trial, Bannon’s defense team called no witnesses, and he did not testify. By asserting no defense, Bannon and his legal team placed all of the burden of proof to the government to prove he did something wrong. It took the jury around three hours to come back with a guilty verdict on two counts of criminal contempt.
Unless Bannon and his lawyers have some new theory of the law, it’s hard to see how he gets around this conviction. The facts are not in dispute. He either complied with the subpoena or he did not. The jury found he did not. The judge, a Trump appointee, has continued the case for sentencing until October. Bannon is looking at 30 days in jail on each count and a fine of up to $100,000.
Bannon left the courthouse in his usual disheveled appearance and a smirk on his face, vowing to appeal — totally unrepentant. He is apparently gambling that he will get a Trump-appointed appellate court to review his case and adopt some bizarre theory upon which they can conjure up a legal pathway to overturn his conviction. He may also believe that Trump will be re-elected and give him a pardon.
If, by some twist of legal maneuvering, he gets an appellate court to reverse his conviction, the ultimate result would be to diminish the ability of courts and congressional committees to subpoena witnesses. This would drive another nail into the heart of our American legal system. The ability to call witnesses before courts and congress is vital to our democratic process of seeking the truth.
Like so many other hypocrites in the Republican party, Bannon thinks that he is above the law. Laws and rules don’t apply to him. If this same set of facts involved a Democrat or a person of color, Bannon would be on his podcast demanding that the person be drawn and quartered, and yelling to the world that the person was obviously guilty because he failed to talk.
But he and the minions of thugs that attacked the Capital on January 6 feel that they are above the law. While Bannon blows off his conviction, time will tell. The case seems like a slam dunk for the prosecution. But who knows what a Trump-infused federal judiciary will eventually decide? The jury decided the facts — that he didn’t respond. Unless there is some underlying fault that can be found with the law that provided for the subpoena or some error in the proceedings, or some appellate court wants to mark the death knell of our system of justice, it looks like Bannon may eventually have to do the time and pay the fine — since he did the crime.
And the thought of Steve Bannon in an orange jumpsuit brings a smile to my face.
One Response to “COMMENTARY: Steve Bannon’s Legal Gamble by C. Ellen Connally”
Mel Maurer
I have always found Bannon to be contemptible – now it’s official.