David Schoen, the defense lawyer who is representing Stephen K. Bannon in his ongoing trial for contempt of Congress in federal court in Washington, DC, told Breitbart News Tuesday evening that basic civil liberties were at stake in the outcome.
“This could happen to any American,” Schoen said.
Schoen spoke to Breitbart News after both sides had presented opening arguments in the trial. Prosecutors argued that Bannon thought he was “above the law”; defense attorneys said that, on the contrary, Bannon tried to follow the law by seeking legal advice and waiting for the courts to resolve executive privilege claims.
“When you get a subpoena and you hire a lawyer, you ought to be able to rely on that lawyer’s advice,” Schoen said. He added that when Bannon was subpoenaed by the January 6 Committee to testify and provide documents about the Capitol riot, he was advised by his attorney that there were executive privilege issues to resolve.
“There is nothing wrong Bannon did in this case,” Schoen continued, “he’s just not able to tell his story. He was told: You’re not able by law to comply. Bannon simply followed his attorney’s advice.”
Schoen said that the judge in the case, Judge Carl J. Nichols, had admitted that Bannon’s defense team was likely correct on the question of willfulness — whether, in fact, Bannon had intended willfully to defy the committee.
Schoen and his colleagues have argued that Bannon and his lawyers had been negotiating with the committee, and that the timeline of letters exchanged would support the defendant’s claim.
The letters would also show that Bannon had been working through an attorney to resolve the privilege claims, Schoen said.
Judge Nichols, who was appointed by Trump, has excluded every argument against the legality of the subpoena, and the constitutionality of the committee, which many critics say has already violated the terms of its own enabling resolution.
However, Judge Nichols allowed the prosecution to call the January 6 Committee’s chief counsel, Kristin Amerling, as their first witness, and to testify specifically about her legal opinions about the validity and urgency of Bannon’s subpoena.
“The judge has made his rulings and we have to respect his decision,” Schoen told Breitbart News, “but there are more important constitutional issues for appeal here than virtually any other case I’ve handled.”
He added that Judge Nichols has said he is bound by a 1961 case, Licavoli v. U.S., in which a conviction for contempt of Congress was upheld even though the defendant had only been following his attorney’s advice. However, Schoen said, that precedent is outdated, and it would be unthinkable to punish a defendant for exercising the constitutional right to counsel.
“‘Willfulness,’ for the last thirty years at least, has required some concept that what you’re doing was wrong,” Schoen said.
“[Bannon] believed what he was doing was right.”
The trial resumes Wednesday and is expected to conclude this week.
Schoen represented President Trump in his second impeachment trial, notably destroying the House impeachment managers’ use of the Charlottesville “fine people hoax,” falsely claiming that Trump had praised neo-Nazis; he had condemned them.
Bannon was an aide to President Trump from 2016 to 2017; he is also a former executive chairman of Breitbart News.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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