The jury in the trial of Stephen K. Bannon for contempt of Congress began its deliberations on Friday morning, after closing arguments by both sides — and after jury instructions were issued, including a controversial instruction on advice of counsel.
Judge Carl Nichols, an appointee of President Donald Trump, has followed a 1961 precedent in holding that the fact that an attorney advises a client not to obey a congressional subpoena is not a defense against a charge of contempt of Congress, or the element of “willfulness” necessary to prove the crime (a misdemeanor).
Bannon’s defense argued that he followed the advice of his lawyer — and that the exchange of letters between the lawyer and the committee indicated that there was an ongoing negotiation about compliance, not a hard deadline Bannon had to obey.
Defense attorney David Schoen told Breitbart News earlier this week that the definition of willfulness has changed in the 61 years since — and that Nichols is inclined to agree, but he feels he is bound by precedent within the District of Columbia Circuit. He instructed the jury accordingly.
Schoen, who believes that a defendant should not be punished for following the advice of counsel, expects that the judge’s ruling, among other controversial decisions, will create ample grounds for appeal, should Bannon be convicted by the jury.
Bannon, a former Trump campaign CEO, former White House adviser, and former executive chair of Breitbart News faces up to one year in prison for each of two counts, if convicted. The fact that the trial lasted five days was a surprise to some observers; few in the media had considered the weaknesses in the committee’s subpoena process that the defense raised.
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.