Steve Bannon and Stephen Miller Demand the Right to Foster Right Wing Violence for the Election

Both Steve Bannon and Stephen Miller have made legal arguments in recent days, claiming not just the right, but the need, to sow right wing violence before the election.

In Bannon’s unsuccessful emergency motion to delay reporting to prison filed June 11, he argued that he needs to stay out of prison so he can “speak out on important issues” in the four months leading up to the Presidential election.

The government seeks to imprison Mr. Bannon for the four-month period leading up to the November election, when millions of Americans look to him for information on important campaign issues. This would also effectively bar Mr. Bannon from serving as a meaningful advisor in the ongoing national campaign.


There is also a strong public interest in Mr. Bannon remaining free during the run-up to the 2024 presidential election. The government seeks to imprison him for the four-month period immediately preceding the November election—giving an appearance that the government is trying to prevent Mr. Bannon from fully assisting with the campaign and speaking out on important issues, and also ensuring the government exacts its pound of flesh before the possible end of the Biden Administration.

No one can dispute that Mr. Bannon remains a significant figure. He is a top advisor to the President Trump campaign, and millions of Americans look to him for information on matters important to the ongoing presidential campaign. Yet from prison, Mr. Bannon’s ability to participate in the campaign and comment on important matters of policy would be drastically curtailed, if not eliminated. There is no reason to force that outcome in a case that presents substantial legal issues.

After two Democratic appointees denied that bid today (with former Mitch McConnell protégé Justin Walker dissenting), Bannon immediately filed an emergency appeal to SCOTUS. That, too, included Bannon’s wail about the election.

There is also no denying the fact that the government seeks to imprison Mr. Bannon for the four-month period immediately preceding the November presidential election.

Consider what “comment[s] on important matters of policy” Bannon has been making of late: At the Turning Point Conference this week, Bannon incited a room of people by declaring “Victory or Death,” while promising to arrest much of the current DOJ.

Meanwhile “Discount Goebbels” Miller’s outfit asked to submit an amicus brief supporting Trump’s challenge to Jack Smith’s request to prevent Trump from falsely claiming the FBI came to assassinate him in the Mar-a-Lago search.

Miller’s proposed amicus similarly treats the type of speech that Smith wants to limit — false claims that have already inspired a violent attack on the FBI (even before the MAGAt threats against an FBI agent involved in the Hunter Biden case last week) — as speech central to Trump’s campaign for President.

The Supreme Court has accordingly treated political speech—discussion on the topics of government and civil life—as a foundational area of protection. This principle, above all else, is the “fixed star in our constitutional constellation[:] that no official, high or petty, can prescribe what shall be orthodox in politics[ or] nationalism . . . or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.). Therefore, “[d]iscussion of public issues and debate on the qualifications of candidates” are considered “integral” to the functioning of our way of government and are afforded the “broadest protection.” Buckley, 424 U.S. at 14.

Because “uninhibited, robust, and wide-open” debate enables “the citizenry to make informed choices among candidates for office,” “the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Id. at 14-15 (citations omitted). Within this core protection for political discourse, the candidates’ own speech—undoubtedly the purest source of information for the voter about that candidate—must take even further primacy. Cf. Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 222-24 (1989) (explaining that political speech by political parties is especially favored). This must be especially true when, as here, the candidate engages in a “pure form of expression involving free speech alone rather than expression mixed with particular conduct.” Buckley, 424 U.S. at 17 (cleaned up) (contrasting picketing and parading with newspaper comments or telegrams). These principles layer together to strongly shield candidates for national office from restrictions on their speech.

Miller calls the false attack on the FBI peaceful political discourse.

Importantly, Miller dodges an argument Smith made — that Trump intended people like Bannon to repeat his false claims. In disclaiming any intent to incite imminent action, Miller ignores the exhibit showing Bannon parroting Trump’s false claim.

It cannot be said that by merely criticizing—or, even as some may argue, mischaracterizing—the government’s actions and intentions in executing a search warrant at his residence, President Trump is advocating for violence or lawlessness, let alone inciting imminent action. The government’s own exhibits prove the point. See generally ECF Nos. 592-1, 592-2. 592-3, 592-5.

But that was the point — Jack Smith argued — of including an exhibit showing Bannon doing just that.

Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard use-of-force policy as an effort to “assassinate” Trump. See Exhibit 4.

In courts up and down the East Coast, the two Stevens are making the same argument: That Trump and his team must be permitted to make false, incendiary attacks on rule of law as part of an electoral campaign.

We shall see soon whether SCOTUS chooses to protect those same false claims on rule of law.

Update: Judge Cannon denied Miller’s motion to file an amicus.

28 replies
  1. Peterr says:

    Bannon’s lawyers:

    The government seeks to imprison him for the four-month period immediately preceding the November election

    Uh, no. The government seeks to imprison him for the four-month period immediately following his conviction on the charges brought against him.

    Bannon’s lawyers:

    No one can dispute that Mr. Bannon remains a significant figure. He is a top advisor to the President Trump campaign, and millions of Americans look to him for information on matters important to the ongoing presidential campaign.

    John Ehrlichman was a top advisor to President Nixon, serving as White House Counsel and Assistant to the President for Domestic Affairs. All in all, he was kind of a big deal.

    H.R. Haldeman was a top advisor to President Nixon, serving as the White House Chief of Staff. All in all, he was kind of big deal, too.

    John Mitchell was a top advisor to President Nixon, serving as the Attorney General of the United States and then leaving that post to be the chair of Nixon’s campaign committee. He was a very big deal.

    And even with all their specialness, all three were tried in federal court, found guilty, and served time in prison.

    Steve Bannon is not that special. He’s just another run-of-the-mill convicted criminal.

    • earlofhuntingdon says:

      Brave, brave, Sir Stephen. His voice is so vital to Donny Trump, Trump will lose if Bannon is not allowed to foment violence and hatred on his behalf. Stephen Miller makes the same argument. Nice admission that Trump hasn’t a prayer of winning without the fact and promise of violence, and intends to both run and run a government based on its whimsical vindictive use. I don’t see how that’s legally relevant to his appeal.

      Btw, the govt seeks to imprison Bannon for a whopping four months. He would long ago have served it had he not fought so hard to avoid serving it. Any delay, and the timing of Bannon’s imprisonment, is wholly owing to Bannon’s conduct.

    • P J Evans says:

      And John Dean. Who was the one who talked, and served his sentence, and is still apparently feeling guilty for his part.

    • scroogemcduck says:


      Bannon was convicted way back in 2022. It amazes me that he hasn’t been jailed before now.

      • Peterr says:

        His unsuccessful appeal was only settled last month. That it took a year to get through the appeal isn’t all that unusual.

        But once that ruling came down, that is the point at which the conviction became final.

        • earlofhuntingdon says:

          Bannon’s appeal took a year and a half, Nov. 2022 to May 2024. Judge Nichols allowed him to remain free pending the decision.

          Pete Navarro, for the same crime in the same district, wasn’t so lucky before Judge Mehta. His lawyer was Stan Woodward. Go figure. He was convicted in Sept 2023, sentenced in Jan 2024, He started serving his 4-month sentence in March 2024, after Mehta, the DC Circuit and S.Ct. denied his appeal to remain free pending his appeal.

    • Error Prone says:

      Peterr et al. You misunderstand how important and special Bannon is to the Trump campaign. Otherwise a gentleman such as Trump would never have pardoned him for that wall building fraud. Where Bannon had no gravitas and allure for pardon as that nice Mr. Stone, who found Jesus.
      Bannon’s importance is underlined by how those middle of the road Mercers took their Breitbart toy from him, giving it to others. Turncoats like that show how we need four months more of Bannon now, and for months and months after. So he can continue speaking freely. After all, he cannot speak from a cell, can he? Well, yes, he can, but travel is limited. Think about it. Special is as special does. Again, look at that nice Mr. Stone. Bannon, left among the public, might find Jesus too!

    • Magbeth4 says:

      “…No one can dispute that Mr. Bannon remains a significant figure. ”

      Bannon is a legend in his own mind. Apparently, that trait is what made him an “ideal” Navy Seal. Pathological narcissist.

      Irrelevant, but, when he was in the Navy, he was, actually, a good-looking man. But the inner part of who, and what he is, has oozed out to the surface.

  2. timbozone says:

    Clearly Bannon seeks to avoid being God’s gift to the penal system. If only he’d just complied with the Congressional subpeonas none of this would have happened. The irony here is that he refused to talk to the Congress under oath but seeks to wander about the country side… telling the truth?

  3. Stephen Calhoun says:

    Bannon and Miller of course want it both ways: to contribute to the pre-election discourse while no criminal trial is allowed to provide the same benefit to the voters.

    Also, these appeals to set-up a class of protected public activity undermine equality before the law.

    • G2Geek_CHANGE-REQD says:

      This gets right to the nexus of it:

      Which shall have precedence: compliance with criminal law?, or, participation in political campaign activity?

      Bannon et. al. argue self-interestedly, that the right of candidates (and their staff and media supporters) to campaign, and more abstractly the right of the voters to choose, is supreme: even if the candidate in question (or the candidate’s inner-circle staff & supporters) are under criminal process.

      This to my mind is the political version of the extreme Calvinist position (Christian Reconstructionist, see also ‘The Family’, NAR, etc.) that ‘the elect’ are predestined for salvation and heaven, _regardless of_ whatever overt sins they might commit in this life. That’s a ‘Get Out of Hell Free’ card, and now Bannon wants the ‘Get Out of Jail Free’ card to go along with.

      I’m going to predict that Discount Goebbels (Stephen Miller) is too smart (or has the sociopath’s immunity to emotions) to incite imminent lawless or violent acts.

      And I’ll also predict that Bannon isn’t able to resist doing so, and might be goaded into doing so on the internet airwaves, by anyone who wants to put on their cesspool scuba suit and ring up his show to give him a talking-to about his pending daily life behind bars.

      The question is, how much goading will it take to get Bannon to say what he really feels?

      We’ll see.

      Bottom line: The root source of our troubles these days (or should I follow Walters’ cue from _How Civil Wars Start_ and call it ‘The Troubles’, capital T capital T?) is the gerrymander, that has brought us the predicted spiral of extremism that has gotten us to our present point. The answer to all of this is, we have got to make fair districting our No.1 priority for next year in Congress.

      That’s a thing that every one of us can influence by volunteering for relentless GOTV (Get Out The Vote) this year. Canvassing, postcards, phone calls, letters: these are our force-multipliers, this is our duty.

      [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We have adopted this minimum standard to support community security. With only (6) comments at this site to date, you will not be grandfathered to keep your existing username. Thanks. /~Rayne]

  4. Error Prone says:

    OT a bit, but Miller got his DC staffer start with my Rep in Congress at the time, Michele Bachmann.
    That item suggests Miller may have come to think of Bachmann as a flake. (Takes one to know one we said in grade school.) Miller went on to work for Jeff Sessions, and while Sessions became disloyal, Miller saw that as a dead end and cozied up.

    Now my House representation has been upgraded, to Tom Emmer. (I live in a strange part of Minnesota. With only one vote don’t blame me. I’m innocent. Feel my pain.)

  5. GSSH-FullyReduced says:

    Foot soldiers or captains of the MAGAt army, they’re both facing superior law&order forces of democracy.
    The tale of two Steve’s; while Bannon runs around with greasy hairs on fire, Miller’s teflon pate is visible from space. Where’s stoner-roger when they need him most?

  6. Error Prone says:

    The most complete online item I found about “deadly force” – including a document cloud presentation of the document in question – is by USAToday:
    Key reporting paragraphs in sequence:

    “The Law enforcement operations order detailing the Mar-A-Lago search, dated Aug. 3, 2022, mentions deadly force only in one section: A copy of the DOJ’s standard policy on use of deadly force that focuses primarily on ways to avoid using it and situations where it is not allowed.”

    “When Trump’s team criticized this inclusion in a Feb. 22 legal brief (cited by Gosar and many others), it also misquoted the document. The filing quotes the search order as saying the DOJ “may use deadly force when necessary,” but the use of force policy actually says “may use deadly force only when necessary.” ”

    “Those guidelines limiting when deadly force can be used are included in documents ordering any FBI operations, according to the bureau and past and present officials with the Justice Department.”

    “Attorney General Merrick Garland noted at a May 23 news conference that the exact same guidelines were in place in the authorization of a voluntary search of President Joe Biden’s Delaware home for classified materials. Garland lambasted the suggestion that it was unusual to include a reminder of the department’s deadly force policy or that Trump’s assassination was authorized.”
    Identical language used in the Biden document search suggests what? Earlier USAToday noted: “Documents released in the case referenced “deadly force,” prompting a flurry of claims across conservative social media, as well as claims by Trump himself and U.S. Reps. Paul Gosar and Marjorie Taylor Greene that the authorization was tantamount to greenlighting Trump’s assassination.” Authoratative opinios?

    • earlofhuntingdon says:

      Have you a point? The topic was discussed previously.

      The MAL search documents included standard language on the FBI’s potential use of force when conducting a search. It is permitted, including the use of deadly force, but is heavily circumscribed. The contemporary, post-Hoover Bureau does not generally conduct itself like a Chicago SWAT team serving a no-knock warrant at 3.00 am for a non-violent crime. Besides, the search was specifically scheduled for and conducted at a time when Trump was not at MAL.

      Please also look up copyright “fair use” requirements. Wiki would be a good start.

  7. TomA_CHANGE-REQD says:

    Marcy, I haven’t visited your blog in a very long time (since you moved to Ireland). You used to be a staunch advocate for the 1st Amendment and freedom of speech. How can our judicial system regulate speech that purports to “sow right wing violence” with specificity and uniformity via a fair and unbiased judicial process? Isn’t that a slippery slope and apt to swing from one extreme to the other with every party change in a presidential election? And I’ve read that the apocryphal “you can fire in a crowded theater” is not actually the law of the land. What gives? And what would stop an activist judiciary from locking up every raving lunatic on street corners in Anytown USA?

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We have adopted this minimum standard to support community security. With only (62) comments at this site to date, you will not be grandfathered to keep your existing username. Thanks. /~Rayne]

    • Rayne says:

      Marcy is on holiday and may not respond to your question immediately.

      Incitement to violence is not protected speech; Bannon’s speech is frequently inflammatory and may incite violence. You ask how the “judicial system regulate speech that purports to ‘sow right wing violence’ with specificity and uniformity via a fair and unbiased judicial process” and yet over more than seven decades it has decided and relied upon Brandenburg v. Ohio (1969), Watts v. United States (1969), Giboney v. Empire Storage & Ice Co. (1949), Virginia v. Black (2003), and Counterman v. Colorado (2023) to assess speech which may incite violence, be a true threat, be integral to criminal acts, be merely fighting words, and has not yet locked up “every raving lunatic on street corners in Anytown USA.

      Example: Bannon hasn’t yet been prosecuted for incitement, just contempt of Congress for failure to comply with a subpoena. He should serve his sentence for that charge.

      It’s a far greater worry that if Trump is re-elected he will make the judiciary utterly irrelevant, acting extrajudicially against his critics. Will you complain then about the slippery slope?

    • emptywheel says:

      Neither of these are about incitement, primarily.

      One is simply about being imprisoned for a crime.

      The other is about pre-trial release conditions.

      If you’ve been accused or found guilty of a crime, that comes with a curtailment of speech.

  8. TooLoose LeTruck says:

    Well gawd damn, clowns like Bannon and Miller are scary…

    Not because they’re so good at what they do, but because they’re so serious about doing it.

    And ‘Discount Goebbels’ is just about the perfect moniker for that vile little monster.

    If you had asked me 30 years ago, would there ever be a 4th Reich in this world, IMHO, I would have said ‘Absolutely’. There was just ‘something’ lurking under the surface in far too many people that made me really, really uncomfortable. I got used to being told to f*ck off a long time ago, and this is not an argument I’m pleased to have won.

    I recently finished reading ‘The Death of Democracy’ by Benjamin Carter Hett, about the end of the Weimar Republic and Hitler’s rise to power. The underlying circumstances in Germany at the time (the late 1920’s to early 30’s) are way too similar to what’s happening in this country.

    Rural versus urban… evangelicals versus secular… gender politics… rage over immigrants… the loss of something that was ‘ours’ and the desire to take it back at all costs… the conflicts are way too similar…

    Really scary…

  9. newbroom says:

    Miller and Bannon, Bannon and Miller, so many others similarly malicious. 99% of Fox, and now what % of all the others? The infection has spread. The part of the human brain that chooses hate over empathy is rooted in the basal ganglia. We know they’re snakes.

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