Steve Bannon is being Steve Bannon, a man who could almost be described as an anarchist and one of the earliest to refer to the federal government as the “deep state,” meaning the non-political appointees that work from administration to administration. In essence, he wanted and still wants the government gutted, more vulnerable to an attempted takeover.
As everyone knows, the Select Committee needs his testimony as to what he knew back then and knows now about post-election activities, especially as applied to January 6th. He received a subpoena, ignored it, was found in contempt, and is now facing a misdemeanor charge that will not go away if he now agrees to testify. He has no real defense, except, perhaps, selective prosecution.
It has been decades since anyone has been criminally charged for contempt of Congress.
To that end, the documents charging Bannon, and the exchange of information that the prosecution is obliged to provide the defense, likely contains a great deal of evidence already collected by the committee in order to demonstrate why his testimony is so critical. According to the Daily Beast, Bannon is threatening to release that information: Bannon has also likely talked to several other witnesses and knows what they’ve been asked and how they’ve answered, even though that, too, would violate an order.
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.
Indeed, there is already a motion before the court to release that very information anyway, filed by several news organizations. The judge has not ruled on that motion.
It is a real headache for the committee. It would open up its process and information to the general public and in any complex investigation, mistakes will be made. Those mistakes are often the subject of appeals and often tossed as harmless or insufficient to reach the standard to overturn the case. But in this investigation, the Right-Wing media would explode in outrage about anything.
Additionally, the committee would desperately want to keep what it knows secret because it impacts the depositions of future witnesses. No witness knows with certainty what other witnesses have said. It makes it dangerous for the witness to lie. If Bannon releases what the committee does and doesn’t know, it poses a huge threat to that advantage.
There are surely also national secrets that they want to keep secret, at least for now.
But Bannon could do it without any real risk to himself unless the judge orders the file to be sealed and orders the parties to not discuss the evidence in the case.
“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.
Not as the case stands right now. The situation could change, as said above.
But:
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.”
It is a typical Bannon move and one that likely scares the Committee beyond what most people might suspect. It would also be dangerous for the Committee to drop the charges (for now) and pledge to attempt to depose Bannon down the road to after it knows more. But doing so would give every reluctant witness an example as to how to get around testifying because any charges filed would – again – involve having to disclose why the testimony is needed.
It is a very safe assumption that DOJ prosecutors are now asking the judge for a very serious order regarding releasing the information, making the attempt contempt of court which could be charged as a felony.
The Committee is also hoping to win its case in front of the DC Circuit Court of Appeals, and likely now needs that information even more. Documentation in writing is often much stronger than personal testimony.
The judge, U.S. District Judge Carl J. Nichols, has not ruled on the motion to release the documents. Nichols was appointed by Trump in 2019.
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