I didn’t practice criminal law, but I do have some insight into basic legal principles, so this left me somewhat puzzled.
The excellent Marcy Wheeler notes here that the Trump appointed judge who presided over the Bannon trial opined that while he was bound by precedent to throw out Bannon’s advice of counsel defense, he wondered if it was still good law.
Back in the days when even judges appointed by Republicans were somewhat sane, the DC Circuit ruled that advice of counsel is not a good defense in a contempt of Congress case. Bannon’s judge has a point: the present Supreme Court may carve out an exception to that precedent for Republicans charged with contempt of Congress when Democrats are in the majority.
So, in the future, future Steve Bannons may merely have to follow the advice Smokey Robinson’s Mom gave to him: “You better shop around”. If the first lawyer you talk to tells you that you have to testify, find someone like Rudy Giuliani or John Eastman, who will tell you that you don’t have to testify. Case closed.
As an aside, and stop me if I’ve made this point before, but Marcy Wheeler’s blog, Emptywheel, is really the best reporting you’ll find anywhere on the various cases related to January 6th, Trump corruption generally, and other politically important prosecutions. If I was involved in representing either the government or the defendants in these various cases, I’d read her religiously. If I were a reporter for a major newspaper I’d do the same, so I could avoid the media screw ups that she constantly exposes.
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