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How Do You Solve a Problem Like Steve Bannon?

Axios reported that PardonPalooza would accelerate yesterday. But it didn’t happen. Not yet, at least.

I wonder if that’s because Trump got new visibility on his own lingering jeopardy from the Mueller investigation.

There’s a section of the Mueller Report that got declassified in the last batch which may explain why Jerome Corsi wasn’t charged. In advance of three people whose prosecution was declined — which definitely includes KT McFarland, along with two others (Erik Prince or Sam Clovis may be one, George Nader may be the other) — the report explains,

We also considered three other individuals interviews–redacted–but do not address them here because they are involved in aspects of ongoing investigations or active prosecutions to which their statements to this office may be relevant.

Corsi obviously lied to Mueller, but his lies served, in part, to support the head fake the Mueller Report used to address how Roger Stone optimized the Podesta files.

Another of those liars could be Paul Manafort.

But the third may be Steve Bannon, who told a rolling series of lies that over time approached the truth, at least about some issues. Bannon even tried to lie again to back off his grand jury testimony in advance of the Roger Stone trial.

Bannon would be interesting for several reasons. Bannon knew about Stone’s interactions with “WikiLeaks” even before he formally joined the campaign. Bannon was a key player in setting up the fall 2016 meeting with Egypt, which preceded what the government thinks could have been a foreign bribe that kept the campaign afloat (indeed, one thing Bannon seems to have always lied about was his work with George Papadopoulos on that).

But most of all, Bannon was the fourth witness — with the others being Mike Flynn, KT McFarland, and Jared Kushner — to Trump’s interactions with Russia during the Transition four years ago. He was, with Jared, the person who most consistently used his personal email to conduct discussions of back channels with Russia (though all four took measures to keep their actions hidden from the Obama Administration and other Transition team members).

And Bannon was, for testimony before HPSCI the transcript of which got shared with Mueller’s team shortly before they closed up shop, scripted to deny any discussion of sanctions (among other things). You could get a clear understanding of what the White House was trying to deny by the wording of the questions.

Mueller’s team would have had this script in time for Bannon’s grand jury appearance in January 2019. We know one thing that Bannon was asked about, and begrudgingly told the truth about, pertained to the campaign’s enthusiasm about WikiLeaks (something about which he had lied in the past and tried to again). But we don’t know what else he got asked; Stone’s prosecutors got just the part pertaining to the Stone prosecution unsealed.

At the time of his grand jury testimony and until quite recently, Bannon was represented by Bill Burck. At least with Don McGahn, whom Burck also represented, Burck did not share details of his testimony with Trump’s lawyers. We know that because Trump was blind-sided when he learned about the extent of McGahn’s testimony. If that’s true of Bannon as well, then it would mean that grand jury appearance has been a blind spot for Trump and his lawyers.

Until now. After Bannon threatened Chris Wray and Anthony Fauci with execution, Burck fired Bannon as a client. Bannon recently hired Robert Costello to represent him in his Build the Wall fraud case. On top of being the guy who brokered a pardon to Michael Cohen in an attempt to silence him, Costello’s also Rudy’s personal lawyer. So Costello now has privilege with both Bannon and Rudy, and Rudy has privilege (by dint of being Trump’s defense attorney) with Trump.

The old gang’s back together.

Thing is, if Bannon told the truth about sanctions in that grand jury appearance, it’ll make it a lot easier to unwind a bunch of expected pardons, because Bannon’s testimony could be used to push Flynn, McFarland, Jared, and Trump himself to tell the truth about what they tried with Russia four years ago, exposing each to a fresh perjury charge they would no longer be pardoned for. Even if Biden’s Attorney General was disinterested in that, I expect there to be more transparency about these issues going forward.

That makes Bannon one of the most interesting, if not the most interesting, pardon candidates, because he knows where all the bodies are buried, but he also told the truth, once.

Organized Crime

Know what you call a crowd that requires 25 pardons to cover their illegal activities of the last 5 years?

As it happens, Trump is mulling the pardons at a juncture when loyalty appears his principal concern, complaining repeatedly over the past weeks that Republicans are deserting him when he needed them to help overturn the election results.

He has largely frozen out those advisers and associates who do not seem on the same page. One person who used to speak to Trump regularly, but who delicately encouraged him to soften his post-election stance, no longer has his calls returned and hasn’t heard from Trump in weeks.

In all, the President is considering pardons for more than two dozen people in his orbit whom he believes were targeted — or could be targeted in the future — for political ends. That’s in addition to hundreds of requests from others who have approached the White House directly, and tens of thousands more whose petitions are pending at the Justice Department.

Organized crime.

Steve Bannon Hires a Pardon Broker (and Rudy Giuliani Lawyer) to Replace His Competent Lawyer

Steve Bannon just filed notice of what lawyer will defend him in his SDNY prosecution for defrauding Trump chumps. He had been represented by the very competent Bill Burck. But after Bannon started making death threats against Anthony Fauci and Christopher Wray, Burck dropped him.

Instead, Bannon hired Robert Costello.

TO THE CLERK OF COURT AND ALL PARTIES OF RECORD: PLEASE TAKE NOTICE that Robert J. Costello of Davidoff Hutcher & Citron, LLP, with offices located at 605 Third Avenue, New York, New York 10158, hereby appears on behalf of Defendant Stephen Bannon.

Costello represents Rudy Giuliani in his many sordid influence peddling investigations.

He’s also the guy who tried to buy Michael Cohen’s silence with a pardon, an investigation that fairly obviously got referred under Mueller. I guess that makes it clear what Bannon’s defense strategy will be.

The problem is, SDNY is now on notice (if they weren’t already by Trump’s promises that “Bannon will be okay”). So they can simply share their case file with New York State, where fraud is also a crime.

I may be missing something but I don’t think Trump’s evil genius is on his A game.

Trump’s Pardon Jenga, Starting with the Julian Assange Building Block

I was going to wait to address Trump’s likely use of his power of clemency in the days ahead until it was clear he was going to leave without a fight and I will return to it once that’s clear. But there have already been a slew of pieces on the likely upcoming pardons:

None of them mentions Julian Assange (though Graff does consider the possibility of a Snowden pardon, which I consider related, not least for the terms on which Glenn Greenwald is pitching a package deal as a way for Trump to damage the Deep State).

I would argue that unless a piece considers an Assange pardon, it cannot capture the complexity facing Trump as he tries to negotiate a way to use pardons (and other clemency) to eliminate his legal exposure itself.

I’m not saying Trump’s decision on whether to give Assange a pardon is his hardest decision. But it may be one a few that could bring any hope of protecting himself falling down.

Trump has talked about pardons, generally, covering a number of crimes in which he himself (or a family member) is implicated:

  • Asking DHS officials to violate the law in order to build the wall
  • Working with the National Enquirer to capture and kill damaging stories during the 2016 election
  • Dodging impeachment
  • Steve Bannon’s Build the Wall grift (which likely implicates Jr)

There are others whom Trump would give a pardon because they’re loyal criminals, like Ryan Zinke or Commerce Officials and others who’ve lied in court. There are hybrid cases; in addition to Bannon, Erik Prince has legal exposure both for his own lies that protected Trump, but also for his efforts to sell mercenary services to hostile foreign governments. And Rudy Giuliani has committed his own crimes as well as possible crimes to protect the President. With the possible exception of Rudy (who still might claim attorney client privilege to refuse to testify about Trump), those pardons create challenges, but they’re highly likely (unless Trump made some pardons contingent on remaining in power).

Then there’s the Mueller Report. In 2019 testimony to HPSCI, Michael Cohen credibly described Jay Sekulow considering mass “pre-pardons” in the summer of 2017 in an attempt to make the Russian investigation go away. But the Mueller Report itself only obviously talks about five pardons:

  • An extensive discussion of the reasons why pardons for Mike Flynn, Paul Manafort, and Roger Stone would amount to obstruction (a sentiment with which Billy Barr once agreed)
  • A discussion of Robert Costello’s efforts to broker silence from Cohen in exchange for a pardon and almost certainly a still-redacted referral of Costello for the same; Costello is currently Rudy Giuliani’s attorney
  • A question about discussions of a Julian Assange pardon, even while the report did not mention or obscured the tie with underlying evidence proving such an effort occurred, possibly as a part of a quid pro quo to optimize the WikiLeaks releases

There are difficulties — albeit surmountable ones — for pardons of Flynn and Manafort, not least because Billy Barr has found other ways for Trump to keep them out of jail (so far), even while issuing a DOJ ruling that his prior pardon dangles are not obstruction. Costello is someone who has no privilege directly with Trump and so might implicate him personally in trading pardons for silence if Trump himself is not pardoned.

But Stone (and quite possibly Don Jr) is indelibly tied to an Assange pardon.

It’s possible something might make this easier between now and January 20. If British Judge Vanessa Baraister rules on January 4, 2021 in favor of Julian Assange’s Lauri Love gambit, arguing that American prisons are not humane for those on the autism spectrum, then there’s a decent chance he’ll beat extradition. If not, his chances are slim. And even if he beats extradition the UK could choose to prosecute him on Official Secrets Act charges tied to Vault 7.

That presents Trump limited choices. He could pardon just Stone (and Don Jr, who will undoubtedly get a broad pardon in any case). But then both could be coerced to testify against Assange under threat of contempt or perjury from a Biden DOJ.

He could pardon all three, including a broad pardon (including Vault 7) for Assange. But if he did that, it could complete the conspiracy, a quid pro quo tied to Russian interference in 2016. That would make a Pence pardon of Trump much more politically costly; it would likewise make a Trump self-pardon much more toxic for even a very partisan SCOTUS to rubber stamp.

But if he doesn’t pardon Assange, he risks pissing of those who helped him in 2016, with whatever repercussions that would have for Trump Organization funding going forward. To sum up:

  • Pardoning just Stone and Jr would expose them to coercion to testify against Assange and maybe others
  • Pardoning all three would make Trump’s own pardons much less defensible to those who would have to ensure he himself got immunity
  • Pardoning Assange at all would complete the conspiracy Mueller never charged
  • Not pardoning Assange might risk ire from Russia

I’m not saying he can’t find a way out of this dilemma. But it is one of the reasons why Trump’s pardon gambit is far more complex than others are accounting for.