On Tuesday's edition of MSNBC's "The Beat," former federal prosecutor David Kelley broke down how Steve Bannon, now on trial for contempt of Congress, faces a dilemma in how he presents his case to a jury.
On one hand, Kelley said, taking the stand could backfire badly on Bannon — as many legal experts have noted, a poor performance on the stand is one of the easiest ways to convince a jury of guilt. But, he argued, Bannon's actual legal defense for the crime — that he was simply confused about how to comply and what his legal requirements were — might not be convincing unless the jury hears it in his own words.
"I think it's going to be hard for him to not take the stand, and it's going to be — it's going to be a difficult challenge, because there's a lot of things that he'd love to say that the judge is not going to permit him to say," said Kelley.
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"The traditional advice is not to take the stand," said anchor Ari Melber. "You think, though, that given the nature of the case, that the paper case against him is so hard and strong, that he should?"
"Well, I wouldn't say he should," said Kelley. "I think if he's going to say he's confused, and look, it's a good-faith thing, I really tried, I tried to work it out with them — I don't know how effectively that comes off unless you're saying it yourself. But at the same time, I'm sure he's being told that there's a huge potential downside when he gets on that stand. So I think it's a bit of a challenge for him, I think a lot of lawyers would say, don't take the stand, but on the other side of the coin, I think if you're trying to convince a jury that you were confused, and that was really a good-faith misunderstanding, it's hard to present that effectively without taking the stand. So I think he's in a bit of a pickle on that one."
Bannon is separately trying to negotiate cooperation with the House Select Committe on January 6, after spending months stonewalling them — although any belated cooperation on his part does not call off the contempt charges.
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David Kelley on Steve Bannon's legal strategy at trial www.youtube.com
