Will Steve Bannon wear an American flag as a shirt to his trial? Sorry, two shirts?
Former Donald Trump advisor Stephen K. Bannon defied a subpoena to appear for a deposition on the Jan. 6 Capitol attack and refused to turn over requested documents to a House investigation. Skeptics convinced that Attorney General Merrick Garland’s Department of Justice was toothless heard Friday that a grand jury had indicted Bannon on a charge of contempt of Congress. Sorry, two counts.
Bannon will turn any jail time into a meal ticket the way G. Gordon Liddy did after Watergate, and Oliver North did after his Iran-Contra conviction, and as Kyle Rittenhouse will if he walks free. But David Frum believes before that Bannon will turn his trial into a circus the way the Chicago Seven did:
They were a disparate group of radicals—some who knew each other, some who didn’t—who went to the Democratic convention in Chicago in 1968 to spark trouble. Trouble did indeed erupt, although maybe not the exact trouble they had wanted. They were indicted and prosecuted. And then things went terribly wrong for the government.
The prosecution thought it was running a trial, a legal proceeding governed by rules. The defendants decided that they would instead mount a new kind of media spectacle intended to show total contempt for the rules, and to propagandize the viewing public into sharing their contempt. The prosecution was doing law; the defense countered with politics.
The indictment of Steve Bannon for contempt of Congress is the opening bell of a similar kind of fight over law, justice, and authority. The attack of January 6, 2021, to stop the lawful transfer of presidential power struck nearer the heart of American democracy than the disorder in the streets of Chicago had. In 1968, the worst of the violence was mostly initiated by police; in 2021, it was initiated by the pro–Donald Trump mob forcing a police officer to shoot to defend the officeholders whom it was his duty to protect. But though the details of the riots were different, there is a striking parallel between the gleeful contempt for legal authority of the far-left defendants of long ago and the pro-Trump authoritarian nationalists of today. Congress wants to hear from pro-Trump partisans about their advance knowledge, if any, of the January 6 attempt to halt the certification of the 2020 presidential election. At former President Trump’s direction, those partisans have adopted a no-cooperation strategy, pleading that the defeated ex-president should permanently enjoy the legal privileges of his former office.
That’s not a very smart legal strategy. But it’s not meant as a legal strategy. It’s a political strategy, intended, like the Chicago Seven’s strategy in Judge Julius Hoffman’s courtroom all those years ago, to discredit a legal and constitutional system that the pro-Trump partisans despise.
Frum believes Bannon and Trump partisans could use the platform to further their attempt to rewrite the history of Jan. 6 and the 2020 election, to deny that Trump radicalized his followers into assaulting the Capitol, and to claim that if something violent (we all saw live) did happen, it was justified.
“Their argument doesn’t have to make sense,” Frum writes, “because their constituency doesn’t care about it making sense. Their constituency cares about being given permission to disregard and despise the legal rules that once bound U.S. society.”
Now, in 2021–22, the project is to repeat that kind of kaleidoscope shift of denial and justification. Like the Chicago Seven, Bannon understands the political power of ridicule and contempt. He’s not coming to trial to play by somebody else’s rules. If he does eventually testify about the events of January 6, he won’t play by the rules then, either.
Bannon and Trump’s strategy of distraction and denial won’t necessarily succeed. Most people recognize reality. But to prevent the strategy from working, it’s important to anticipate it and be ready for it.
There are limits to what the law can do. The Kyle Rittenhouse trial in Kenosha, Wisconsin as well as the Ahmaud Arbery murder trial in Brunswick, Georgia will test what juries will accept as proof in criminal cases.
Bringing charges against someone as ethically stunted as Donald Trump will be even harder. Robert Mueller’s investigation demonstrated ” the inadequacy of the criminal process in a political context,” Frum explains:
… a businessman hoping for a giant payday from shady characters around a foreign dictator is not a prosecutable crime. A businessman lying on camera about his dealings with the shady characters around a foreign dictator is not a prosecutable crime. Being tipped off that the foreign dictator has potentially damaging information about a political opponent is not a prosecutable crime. Appealing on television to that dictator to hurry up and release that information is not a prosecutable crime. Once the statute of limitations has lapsed, even money laundering ceases to be a prosecutable crime.
Actions that a normal, functioning society recognizes as clearly unethical may not be illegal. Furthermore, Democrats are hamstrung by their own faith in the law in a fight against adversaries without any.
Frum concludes:
The fight to uphold law cannot be won by law itself, because the value of law in the face of violence is the very thing that’s being contested. The fight ahead is an inescapably political fight, to be won by whichever side can assemble the larger and more mobilized coalition. The Trump side is very clear-eyed about that truth. The defenders of U.S. legality and democracy against Trump need to be equally aware.
It is not clear that civil society — or what remains of it — yet comprehends what is going on any more than Judge Julius Hoffman did when he faced off against Abbie Hoffman and Bobby Seale. Recall Al Gore sighing and rolling his eyes during debate with George W. Bush in what looked like a “You don’t deserve to be on stage with me” attitude but ended up more like “I can’t believe I’m losing to this guy.” Civil society has yet to come to grips with the looking-glass nature of adversaries bent on tearing it down and the country with it.
This is not “Law and Order.” It’s professional wrestling. Expect Bannon to turn any public legal proceding into a MAGA circus. He won’t wear an American flag shirt (or two) but it would not be unprecedented.
Hoffman, one of the Chicago Seven, founded the Youth International Party (“Yippies”). Bannon means to lead the Trippies.