Bannon And Navarro: A Tale Of Two Dipsh*ts

Even Alex Jones wasn't dumb enough to wind up behind bars.

It’s not easy to get indicted for contempt of Congress. Of the hundreds of witnesses subpoenaed by the House January 6 Select Committee, only Steve Bannon and Peter Navarro managed to do it. Mark Meadows and Trump’s comms lackey Dan Scavino gave it the old college try, but Attorney General Merrick Garland took a pass on them, likely because their lawyers were smart enough to spend ten minutes pretending to negotiate before telling the Committee to get bent.

But Bannon and Navarro aren’t built like that. They ostentatiously refused to cooperate at all, and then seemed shocked, SHOCKED when it came back to bite them in the ass.

Trump’s consiglieres weren’t exactly subtle in their efforts to thwart Biden’s electoral certification. They talked about it incessantly on Bannon’s War Room podcast, where the host whipped his followers into a frenzy on January 5, 2021.

“Tomorrow it's game day. So strap in. Let's get ready,” he vamped. “So many people said, ‘Man, if I was in a revolution, I would be in Washington.’ Well, this is your time in history.”

Navarro even wrote a book about their effort to disrupt Biden’s electoral certification, via a plan they dubbed “The Green Bay Sweep.” And yet the pair affected astonishment that they would fall under scrutiny from congressional investigators looking to figure out who planned an attack on American democracy.

Our Pal Pete

Navarro was subpoenaed for documents and testimony in February of 2022, and, as with a prior subpoena from the Coronavirus Select Committee, opted not to hire a lawyer to intermediate between him and Congress. That was extremely on-brand for the lay epidemiologist turned election law expert who got hired at the Trump White House after Jared Kushner went trawling Amazon book reviews for an economist whose ideas about trade wars were as puerile as his father-in-law’s.

“[N]o counsel. Executive privilege,” Navarro tapped out in response to the first query from the Committee. His later communications were less terse, but no less pissy.

“Please be advised that President Trump has invoked Executive Privilege in this matter And it is neither my privilege to waive or Joseph Biden's privilege to waive,” he wrote, adding that “Your best course of action is to directly negotiate with President Trump and his attorneys regarding any and all things related to this matter.”

He went on to note “that the United States government is in possession of all my official White House communications which your committee has requested.”

That was a lie. In fact, the US government sued him in civil court to compel him to turn over government communications stored on his encrypted Protonmail account. And he still hasn’t handed them all over, despite multiple court orders.

Navarro was arrested in June of 2022 and charged with contempt of Congress. He then spent several weeks spamming Judge Amit Mehta’s docket with snotty emails, insisting that he was going to represent himself pro se. But all hilarious things must come to an end, and eventually MAGAworld shoved attorney Stan Woodward in his direction. Woodward, who represents Trump’s documents co-defendant Walt Nauta (among other associated witnesses and confederates), argued that Navarro had a rational belief that he was entitled to assert privilege, and thus lacked the mens rea to violate 18 U.S.C. § 192, the contempt statute. But Judge Mehta shut that down, citing the 1961 DC Circuit case Licavoli v. US, in which the court ruled that an earnest belief that a subpoena is invalid is no defense to a contempt of Congress charge. The willfulness requirement is satisfied so long as the defendant knew about the subpoena and chose not to comply. So a ruptured appendix would do it, but sincerely believing that your boss made a blanket invocation of privilege would not.

This left the defendant with essentially no defense, and Woodward’s … creative … lawyering didn’t help. Neither did the 11th hour privilege invocation by Trump, nor the 13th hour claim that the jury had been contaminated by walking outside while protesters were present. Navarro was convicted and sentenced to four months in jail, despite his fervent plea that a custodial sentence was inappropriate for a Harvard educated gentlemen such as himself.

Navarro requested a stay of his sentence pending appeal to the DC Circuit, but Judge Mehta refused, noting that stays are reserved for cases raising “a substantial question of law or fact likely to result in (i) reversal [or] (ii) an order for a new trial.” And this ain’t it.

The DC Circuit and the Supreme Court both declined Navarro’s entreaties to intervene, and so in March he reported to a minimum security federal facility in Miami. Navarro is approximately two months into his sentence, but Woodward is still working his magic. Last week he filed a Rube Goldberg-style motion requesting an indicative ruling — that is, a statement from the court of how it would rule, if conditions were different. Here, Navarro wanted Judge Mehta saying that, if the DC Circuit would agree to send the case back and relinquish jurisdiction to him, he would agree to add 30 days of supervised release to that four-month sentence. Navarro would then be eligible for early release under the First Step Act, AKA the only good thing Jared Kushner ever did in his miserable life. We’ll get into the nitty-gritty of this one on tomorrow’s podcast, but suffice it to say that Woodward and Navarro were somewhat wide of the mark.

As Judge Mehta noted, the First Step Act “allows a court to impose a term of supervised release but only after it first reduces the original sentence,” and that’s not what Navarro asked for. But even if he had made a request that conformed to the statute, he wouldn’t get it.

“The nature and circumstances of Defendant’s contemptuous conduct, and the need to deter others from doing the same, weigh heavily against including any period of supervision that would allow Defendant to shorten his term of imprisonment,” the court wrote.

So Peter Navarro stays in jail.

But it looks like he might be getting a new roommate soon!

Bannon In The Big House

If Navarro was doomed by lack of effective counsel, Bannon was doomed by bad lawyering by Robert Costello, another Trumpworld regular who previously represented Rudy Giuliani and was instrumental in distributing Hunter Biden’s “laptop.”

Costello told the Committee that Donald Trump had invoked executive privilege, and so his client would not be showing up at all. This argument made even less sense for Bannon, who got fired from the White House in 2017, than it did for Navarro. And in fact, it wasn’t true. What Trump’s lawyer Justin Clark told Costello was that Bannon should “where appropriate, invoke any privileges and immunities he may have.” This was clearly not a blanket invocation of privilege, and yet Bannon took it as permission to give Congress two big middle fingers and refuse to testify.

That was a mistake, and, like Navarro, Bannon was charged with contempt of Congress. Also like Navarro, he hoped to defend himself before the jury by asserting an advice of counsel defense. Essentially, he wanted to say his lawyer told him he could do it, so he hadn’t willfully violated 18 U.S.C. § 192. But Judge Carl Nichols, a Trump appointee, cited Licavoli and barred him from blaming Costello for his failure to comply. Bannon, was convicted and sentenced to four months. But Judge Nichols, who expressed skepticism about Licavoli throughout the proceedings, stayed the order pending appeal, reasoning that the case raised “substantial question regarding what it should mean for a defendant to willfully make default under the contempt of Congress statute and what evidence a defendant should be permitted to introduce on that question.”

The DC Circuit did not agree, though, writing last week that “The argument Bannon preserved and presses on appeal is confined to disputing the mental state required for a contempt of Congress conviction. It raises no constitutional question to reaffirm Licavoli’s holding that a deliberate and intentional refusal to honor a congressional subpoena violates federal law.”

TL, DR? They’re not going to take this opportunity to overturn Licavoli, although they did withhold the mandate until Friday, May 17, to allow Bannon to petition for rehearing en banc.

In the meantime, prosecutors are tapping their watches pointedly in the direction of the court and insisting that now is the time for Ol’ Three Shirts to go to jail, do not pass go, do not collect $200.

“The D.C. Circuit rejected defendant’s appeal on all grounds,” they wrote in a motion to lift the stay pending appeal, adding that “there is no longer a ‘substantial question of law that is likely to result in a reversal or an order for a new trial.’”

It’s a pointedly aggressive move, since Bannon still has a couple of days to seek emergency relief, and the mandate itself hasn’t issued. But perhaps the DOJ can be forgiven for moving aggressively with a defendant who already slipped the noose once before. On his last morning in office, Trump pardoned Bannon for his role in a scheme to grift donors out of cash by promising to build a homebrew border wall. His co-conspirators took pleas, and have now testified against him in a New York state case arising out of the same charges. In fact, Bannon was supposed to go to trial later this month, but that was postponed because Justice Juan Merchan is a little busy right now.

Yes, Bannon’s case is being heard by the same judge presiding over Trump’s false business records case, because LOL forever and also FIRE THE WRITERS.

Fingers crossed for the funniest buddy movie of all time.

[US v. Bannon, District Court Docket / US v. Bannon, Circuit Court Docket / US v. Navarro, District Court Docket / US v. Navarro, Circuit Court Docket / J6C Referral Bannon / J6C Referral Navarro]