Law professor says Steve Bannon lawyers are using an 'arcane' legal argument to keep him out of prison
(Photograph: Brendan Smialowski/AFP)

According to a report from The Guardian's Hugo Lowell, former Donald Trump adviser Steve Bannon's hopes of avoiding prison time may hinge on convincing a judge that his refusal to appear before Congress after being subpoenaed is not a "willful" act but is instead a misunderstanding based upon an interpretation of the law.

Bannon, one of the few members of Trump's inner circle to face criminal charges from the Justice Department over the Jan. 6 insurrection, is looking at up to a year in jail and thousands of dollars in fines for balking at talking to the House committee about the Capitol riot.

According to the report, Bannon and his attorneys are engaged in an "all-or-nothing" defense in the hopes that US district judge Carl Nichols will rule in favor of their latest maneuver.

"The crux of Bannon’s argument is that he could reasonably believe the subpoena was invalid when the select committee refused to allow a Trump lawyer to attend the deposition, after the former president asserted executive privilege over the materials covered by the subpoena."

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"The argument rests on a 2019 Justice Department office of legal counsel opinion (OLC) that says congressional subpoenas that prevent executive branch counsel from accompanying executive branch employees to depositions are 'legally invalid' and not enforceable," the report states.

"Bannon’s attorneys say the doctrine at issue is protecting the president’s constitutional authority to limit the disclosure of privileged information, which typically involves discussions with close presidential aides who need to be able to offer candid advice," the report continues. "And since the select committee issued only one subpoena for both documents and testimony, when the subpoena was invalidated by the panel’s refusal to allow a Trump lawyer to attend, Bannon’s attorneys contend the document request element of the subpoena also became void."

Prosecutors disagree and are pointing to the fact that Bannon was not an executive branch employee on Jan. 6, 2021.

According to assistant US attorney Amanda Vaughn, Bannon's then-lawyer, Bob Costello, never raised it as an issue at the time.

“Costello inquired – but said that he did not need an immediate answer – whether there was a way for a lawyer for President Trump to appear at the defendant’s deposition,” Vaughn countered in response to the latest claim.

According to Jonathan Shaub, a law professor and a former OLC attorney-adviser, Bannon and his attorneys are trying to use an "arcane" argument to keep him out of jail.

“Bannon’s trying to use the OLC opinions as a shield that doesn’t quite cover him, but gives him enough of a defense to fend off the DoJ’s necessity of proving criminal intent,” explained Shaub.

“He’s reaching for all the straws that he can,” Shaub continued. “It may succeed or it may not. But if Nichols rules against him, he’s certainly going to take it to the DC circuit or even up to the supreme court. He’s definitely playing a longer game here.”

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