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‘The Former President Was Not a Government Official’: Feds Want to Bar Steve Bannon from Invoking Trump in Public Authority Defense

Steve Bannon Indicted For Contempt Of Congress

Former Trump administration White House advisor Steve Bannon arrives at the FBI Washington Field Office on Nov. 15, 2021 in Washington, D.C., surrendering pending charges of contempt of Congress.

Steve Bannon should not be allowed to argue that he relied upon Donald Trump’s authority when spurning the Jan. 6th Committee’s subpoena as the “former president was not a government official” at the time, federal prosecutors wrote in a Friday filing.

Last November, the Department of Justice indicted Bannon for flouting subpoenas for written and oral testimony related to the Jan. 6 attack on the U.S. Capitol, after the ex-Trump chief strategist refused to cooperate and the House of Representatives referred the matter for prosecution.

The government’s latest filing responds to a notice by Bannon’s counsel that their client intends to invoke a so-called public authority defense. Trump has consistently tried to deflect subpoenas related to Jan. 6 attacks—and encouraged his associates to do the same—by asserting executive privilege.

President Joe Biden rejected Trump’s privilege claims, as have federal courts scrutinizing the assertions.

Before Trump’s assertions failed, the question of whether a former president could invoke executive privilege was an open one, and Bannon’s lawyers claim that he relied upon Justice Department precedent in adopting Trump’s position.

“Many of the relevant OLC Opinions and other DOJ materials reflect official DOJ policy going back consistently over six decades,” Bannon’s lawyer Robert Costello wrote on April 15. “The official materials include, but are not limited, to the written position of the former U.S. Attorney for the District of Columbia.”

The Justice Department, however, rejected those arguments, noting that Trump was not president at the time Bannon defied the subpoena.

“[T]he former President was not a government official at the time of the defendant’s default, and the defendant fails to identify any Department of Justice official with whom he consulted on his decision to default, much less one who authorized him to do so,” Assistant U.S. Attorney Amanda R. Vaughn wrote.

In a similar tactic, Bannon has asserted an “entrapment-by-estoppel” defense, a phrase for a criminal prosecution against someone who relied on statements made by a government official charged with “interpreting, administering, or enforcing the law defining the offense.”

Prosecutors say that this defense also fails because the government “never sanctioned” Bannon’s conduct.

“The Defendant’s Notice of his claimed public-authority defense is deficient, and there is nothing that can be done to rectify it because the Defendant’s decision to default was not an exercise of public authority or the product of entrapment—the decision was his own,” the legal brief states. “Neither defense is available to excuse his contempt of Congress.”

If convicted on the two misdemeanor charges leveled against him, Bannon can face a minimum of 30 days and a maximum of one year in jail on each count. Each count also carries a fine up to $100,000. Bannon dodged an unrelated prosecution for allegedly defrauding donors in the charity We Build the Wall through an eleventh-hour pardon from Trump.

Bannon’s erstwhile co-defendants in that case, however, were not former Trump officials and received no such clemency. Two of those men, Brian Kolfage and Andrew Badolato, recently pleaded guilty to serious federal crimes, and another, Timothy Shea, is slated to stand trial in May.

Bannon’s other attorney David Schoen criticized the prosecution’s filing.

“The government’s submission simply reflects the same fundamental misunderstanding of public authority defenses and the defense of entrapment by estoppel that unfortunately has been reflected in each of its submissions on the subject,” Schoen told Law&Crime in an email. “It is irresponsible to misinform the Court or the public in any case and perhaps especially in a case of some public interest.”

Read the government’s filing, below:

(Photo by Drew Angerer/Getty Images)

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."