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New Day

Steve Bannon's Lawyer Joins New Day After Indictment. Aired 8- 8:30a ET

Aired November 16, 2021 - 08:00>   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[08:00:00]

JOHN BERMAN, CNN ANCHOR: In just a few hours, they head behind closed doors in this highly watched homicide trial. A panel of 18 jurors, eight men, 10 women, will be narrowed down to the final 12 in a random drawing.

BRIANNA KEILAR, CNN ANCHOR: This follows more than five hours of closing arguments yesterday. The prosecution painting Rittenhouse as an active shooter who provoked the violence that caused him to kill two people and wound a third. The defense portraying him as a scared teen who was just trying to defend himself and the community from a violent mob.

Shimon Prokupecz is following this in Kenosha, Wisconsin. It is our top story, of course. The stakes here very high as the jury proceeds.

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: Very high. And they're going to have a tough task ahead of them. The verdict sheet, 14 pages for the seven counts that they will need to consider. The judge adding two counts, those are two lesser included charges that relate to the death of Anthony Huber.

The one thing that the jurors will not be deciding is on that weapon charge. The judge dismissing that judge over a technicality. This, of course, after the arguments from both sides, the defense attorney saying at one point during a strange argument, saying that he was glad that Kyle Rittenhouse used his weapon, that he shot someone. Of course, the prosecutors saying that Kyle Rittenhouse brought a weapon, brought a gun to a fistfight. Here is some more of what the two attorneys were arguing.

(BEGIN VIDEO CLIP)

THOMAS BINGER, KENOSHA COUNTY ASSISTANT DISTRICT ATTORNEY: There is no doubt in this case that the defendant committed these crimes. The question is whether or not you believe that his actions were legally justified. And I submit to you that no reasonable person would have done what the defendant did.

MARK RICHARDS, RITTENHOUSE DEFENSE ATTORNEY: Every person who was shot was attacking Kyle. One with a skateboard, one with his hands, one with his feet, one with a gun. (END VIDEO CLIP)

PROKUPECZ: And the first step this morning, once the jurors get here, all 18 of them, the judge is going to select the 12 at random through a tumbler. They're going to pick out the numbers of who is going to actually decide this case. The six remaining jurors, they'll be considered alternates, they're going to stay in a courthouse just in case if something happens and they need to replace one of the jurors. But this is all set to get under way in just a few hours. And we could be headed towards a long day and certainly a long night here.

KEILAR: All right, many hours ahead. Shimon, thank you.

BERMAN: I want to bring in Judge Glenda Hatchett, founder of the Hatchett Firm, host of television court series "The Verdict," and former defense attorney and former mayor of Baltimore Stephanie Rawlings-Blake. Judge, I want to start with you, and I want to play a little bit of the prosecution here. I think it's widely agreed the prosecution might have had more work to do in the closing arguments as this jury heads into deliberations. And I think their entire argument was summed up in this bite right here. So listen.

(BEGIN VIDEO CLIP)

THOMAS BINGER, KENOSHA COUNTY ASSISTANT DISTRICT ATTORNEY: You cannot hide behind self-defense if you provoked the incident. If you created the danger, you forfeit the right to self-defense.

(END VIDEO CLIP)

BERMAN: Why was it important for the prosecution to have the jury take that back into the jury room with them?

JUDGE GLENDA HATCHETT, FOUNDER, THE HATCHETT FIRM: It was critical. He had to be able to counter the argument of self-defense for all three of these victims. And in this situation, he had to have that. He scored big by having the jury instructed on the issue of provocation. And in Wisconsin, again, the burden does not shift, the prosecution has the burden to prove beyond a reasonable doubt. But if they can establish provocation, that Rittenhouse was the person who created this situation, then that can be the counter to his defense of self- defense.

And so it's critical that he establish that, and that he drive that point home very, very clearly. And I think he did a good job on doing that yesterday.

BERMAN: The flipside is that I think defense attorneys encapsulated their entire argument, Mayor, in this clip right here. Listen.

(BEGIN VIDEO CLIP)

MARK RICHARDS, RITTENHOUSE DEFENSE ATTORNEY: Every person who was shot was attacking Kyle, one with a skateboard, one with his hands, one with his feet, one with a gun. Hands and feet can cause great bodily harm. (END VIDEO CLIP)

BERMAN: So Mayor, to you, to what extent will the jury be carrying that back with them into the jury room today?

STEPHANIE RAWLINGS-BLAKE, (D) FORMER BALTIMORE MAYOR: I think the defense was strong yesterday. Even though I think their closing argument started a bit disjointed, they closed out their argument very strong.

[08:05:00]

And the jurors are asked to contrast what the prosecution has said, that this was -- that Kyle was an active shooter. Well, if he was an active shooter, why were just three individuals shot? Well, the answer to that question, according to the defense, is because they attacked him. So that is a question that the jurors will have to address.

And they're going to try to make sense of it, and they're going to try to make sense of it, and I think that they have been given a really tough job because the defense attorney saying he was glad that Kyle shot someone, and the prosecution I think is being very smug. They're not looking to give either one of these sides a win. So they're just going to be looking at the facts of this case.

BERMAN: Talk to me more about that, Mayor. How do you think this jury will approach the case in just a few hours? Are they going to, as instructed, look at each count, each aspect of each count, or do you think they may take the 30,000 foot view?

RAWLINGS-BLAKE: I think it will be a mix. When I've been in a jury, I'm sure many people have been in the jury room, you know you take the instructions, and then you have 12 people, mostly lay people that are going to be in there trying to make sense of it. And the judge made a mess of the jury instructions. The prosecution with their witnesses, some of them giving information that was testifying in a way that was beneficial to the defense. This was a lot of -- this is a lot of messy information that the jurors are going to have to try to dissect. And at the end of the day, many of those jurors might be frustrated that they're the ones being asked to clean up this mess instead of being given a very clear case.

BERMAN: Judge, how long do you think this might take? What are we looking at here? You've been here a million times. How do you think this will play out?

HATCHETT: Yes, I think it is going to take a while, John. I think because to the mayor's point, there are just so many pieces that are disjointed in this case. But to the point, I want to go back quickly to the point about active shooter, the defense rightfully said he wasn't an active shooter. But you also had the prosecution talk about the fact that these men thought that he was a threat, and that that is why they were trying to disarm him in the process. And so I think the jury has a lot of work cut out, and I do not think we'll see a verdict very quickly in this case. I think it will take a time.

BERMAN: The lesser included charges, Judge, talk to me about how that will play into the deliberations.

HATCHETT: Yes, I think that that is -- will give them some room. So they may not decide that this was intentional, that this was negligent murder, that they may decide though that there needs to be some kind of accountability for Kyle in this situation. And so I think it gives the jury some room to come back with some kind of verdict that will hold him responsible. And for that situation, I think the prosecution will be very pleased. Otherwise, it might be a complete acquittal.

To the charge that was dismissed yesterday, let me just briefly say that people who have been saying why did that -- why was that dismissed. It was dismissed on a technicality because of the length of the barrel of the gun. But that was also a misdemeanor and would have maximum, I think, nine months. And so that wasn't a big blow, the fact for the prosecution for that charge to be dismissed, in my opinion, yesterday.

BERMAN: Judge Glenda Hatchett, Mayor Stephanie Rawlings-Blake, thank you for being with us this morning.

HATCHETT: You're very welcome. Thank you.

BERMAN: Steve Bannon talking tough after walking out of court. How will he fight charges for criminal contempt of Congress? His lawyer joins us live.

KEILAR: Plus, how Russian missiles in space forced some astronauts in orbit to take shelter. And a race against time to save a man trapped in a sinking car.

(COMMERCIAL BREAK)

KEILAR: Steve Bannon appearing in federal court after surrendering to authorities. The former adviser to President Trump was charged with contempt of Congress after refusing to comply with subpoenas from the January 6th committee. Bannon emerged from the courtroom defiant.

(BEGIN VIDEO CLIP)

STEVE BANNON, FORMER ADVISER TO PRESIDENT TRUMP: This is going to be the misdemeanor from hell for Merrick Garland, Nancy Pelosi and Joe Biden. Joe Biden ordered Merrick Garland to prosecute me from the White House lawn when he got off Marine One. And we're going to do -- we're going to go on the offense. If the administrative state wants to take me on, bring it.

(END VIDEO CLIP)

KEILAR: Joining us now is the man who you saw standing next to Steve Bannon there, his attorney David Schoen. He was also one of former president Donald Trump's impeachment lawyers. David, thank you for being with us this morning. I know that you say your client has to withhold documents and testimony because privilege has been invoked. But it hasn't. So why are you saying that?

DAVID SCHOEN, ATTORNEY FOR STEVE BANNON: Privilege has been invoked. Let me preface my comments by one thing --

KEILAR: But it hasn't.

SCHOEN: -- as a matter of courtesy, frankly. I don't want to -- before you and beat you up. I don't watch television much, but I have to say that I know that you have got a very accomplished background, very impressive both professionally and personally. So I wanted to compliment you on that.

But I don't know what you mean, exactly. Mr. Bannon's lawyer received a letter on behalf of former president Trump, invoking the privilege, directing him not to appear, directing him not to turn over documents. That's how privilege is invoked.

And as a lay person, once privilege is invoked, in my view, at least, and based on the advice he got from his lawyer, Mr. Bannon had no choice. If he were to just turn over the documents and show up for the deposition, then the genie is out of the bottle, can't be put back in. His lawyer requested that if he were to show up, that a representative of the privilege holder, the purported privilege holder, be present to be able to invoke privilege on a question-by-question basis. The House committee refused that.

Let me say this also -- I ordinarily don't comment on a --

KEILAR: I just want to ask. David, this is so important to clear up, though.

SCHOEN: Sure.

KEILAR: Because formerly Trump has never invoked executive privilege. So you're saying that he sent a letter to the former attorney for Bannon, but he has not actually invoked formally executive privilege with the January 6th committee.

SCHOEN: Frankly, with all due respect, I disagree with you. This is how privilege is invoked.

[08:15:01]

Privilege holder identifies and communicates with the person who has been directed to provide what he believes to be his privileged information, and that person acts accordingly.

And, by the way, the way this is -- I want to say this, I think for my duty of the court, I ordinarily don't comment on pending cases. But in this case, the attorney general decided to put out a press release saying this case reflects the principles of equal justice under the law. It absolutely does not.

I'm sure you're aware that since 2008, four people have been cited for contempt by the House. Not one of them was ever prosecuted criminally, and that goes across the board in different administrations. Eric Holder, Lois Lerner, Harriet Miers, Josh Bolten.

The idea this is a crime is absolutely outrageous. The House had an alternative. They could have moved for civil enforcement. This is a discovery dispute that comes up in cases.

If you believe there is a privilege, you must withhold. Mr. Bannon's lawyer advised the committee --

(CROSSTALK)

BRIANNA KEILAR, CNN ANCHOR: To be clear, David, are you comparing -- are you comparing your client to people who worked in the executive branch in those cases?

SCHOEN: Well, first of all, according to the Justice Department themselves, in the office of legal counsel opinion, the executive privilege applies to former executive department officers and the reason for that is obvious.

KEILAR: Are you talking about the 2009 Obama era decision?

SCHOEN: There are several OLC opinions --

KEILAR: Are you talking about the Obama era one or the -- I want to be clear -- are you talking about the Obama era one or Bush era. You said Obama era.

SCHOEN: There are several that make this point. Obama era, the one -- the Eric holder decision, but -- in 2009.

KEILAR: That doesn't make the point. It says the current president prevails on executive privilege. You're very clear, I'm sure, on where President Biden is.

SCHOEN: That's a completely different issue. You're mixing apples and oranges. The question -- the first question is whether executive privilege can be invoked with respect to a conversation with a person no longer in the administration. The answer to that according to the OLC is absolutely yes because the president often relies on people who have been in the administration for advice. We want those people to be able to speak freely. That's question one.

Question of who prevails between the current office holder and a former president with respect to the privilege is a completely different question. But, of course, in Nixon versus General Services Administration, they said the former president also holds the privilege. It is the institutional privilege so important here, because we want people to be able to speak freely with an executive on matters of strategy, security and otherwise. But, again --

KEILAR: Again, I mean, again, on that, U.S. v. Nixon established a president has legal duty to provide evidence to a president -- a sitting president has a duty to provide evidence of one's communications when relevant to a criminal case.

SCHOEN: Yeah, but -- but executive privilege is a well-known status and the Mazars case, the Supreme Court emphasized the sanctity of executive privilege. Once it has been invoked, go to the court and have the court determine how it should be applied. The house could have gone to court, had the discovery dispute resolved by court and Mr. Bannon's lawyer said to the House committee, if a court orders me to comply with this and says privilege doesn't apply, I will comply.

That's how it was handled. They politicized the criminal process by charging him criminally. I'm sorry, go ahead.

KEILAR: The former president, look, he may have some interesting arguments to make when it comes to executive privilege. He's not formally invoked it when it comes to testimony regarding the January 6th committee, to be very clear on that.

But Steve Bannon cannot invoke executive privilege when it is a conversation that he is having with people who are not the president, who are not part of the executive branch, Bernie Kerik, Rudy Giuliani. Those are things that are completely fair game. Why hasn't he complied?

SCHOEN: I'm not sure why you think --

KEILAR: Those are questions he answered.

SCHOEN: Mr. Bannon, yeah --

KEILAR: That's not protected by executive privilege.

SCHOEN: There are certainly conversations, if Mr. -- if you're talking about conversations outside of the executive branch, clearly those are not covered by executive privilege.

The central issue here is the invocation of executive privilege. That's where everything fell apart with respect to -- that's with respect to the charges here, not appearing and not producing the documents.

KEILAR: Part of his contempt of Congress charge is because those -- the committee has been clear, and you know this, David, they have been very clear that some of what they want to ask him about has nothing to do with conversations that he had with the president.

So those are questions that he could just by your admission there answer. He has chosen not to, which is what leads to the contempt of Congress charge. Why executive privilege is part (ph) of that?

[08:20:00]

SCHOEN: Here's the problem.

Here's the problem. This comes up regularly when privilege is at issue in depositions. Here, Mr. Bannon -- there could be questions asked that have to do with privileged areas and not privileged areas. So, if he were to show up and just started asking questions, privilege could be violated.

All he asked was if he were to show up, could a representative of the purported privilege holder be present to invoke privilege on a question by question basis. He was told the committee rules do not permit that, and so he wasn't allowed to do that. So you can't just show up and then take a chance that privilege things could come up but the privilege holder can't be there and simply unfair.

Look, part of that reflects on the committee. How can you possibly call an investigative committee when the chairman appointed to the committee is someone who sued President Trump personally, already decided and put in documents the President Trump was personally responsible for January 6th --

KEILAR: David, please, let's focus. Please, let's focus.

SCHOEN: Let's focus. It is relevant.

KEILAR: If what you're saying is that any conversation that he had with the president is something that he wanted to invoke privilege on, even though to be clear the president has not formally invoked it, Steve Bannon could answer questions about a myriad of conversations that he has had that did not involve the president. That is just a fact. And it sounds look a copout when you're saying there could be some that are protected.

SCHOEN: That's not an oh, but. For any person who does any kind of litigation, one would never head into a deposition where privilege is claimed and have the client take a chance, oh, well, maybe some of the question will be privileged, maybe they won't. But the privilege holder won't there be to have an opportunity to object.

It is the privilege holder who needs to determine whether he needs to make an objection and resolved in a court. This ought to be a civil matter resolved in a court and Mr. Bannon's lawyer very responsibly told the committee if a court orders him to answer any of the questions, he will answer them and comply. That's all.

Let a court decide. Don't charge someone criminally. Don't politicize the criminal process. That's what's happened here.

It's not an investigation. They said from the start, President Trump was responsible, Chairman Thompson said he personally suffered damages, the American people deserve a fair and open-minded investigation in a matter this serious. Not a committee made up of people exclusively who have prejudged the issue. That's not an investigation.

KEILAR: There could be an independent, as you know, panel. There is not for a reason, which is that Donald Trump opposed it. That aside, I'm wondering when it comes to Steve Bannon, believing that executive privilege applies here, is that because he alleges Trump is still president?

SCHOEN: Not at all. Look, it is very simple. You keep going around this and saying former President Trump never invoked privilege, you know, I simply disagree about that. There is a letter from Justin Clark on the president's behalf, went to Mr. Bannon's lawyer, Mr. Costello, that told him --

KEILAR: Did it go to the committee?

SCHOEN: Pardon? KEILAR: Did it go to the committee?

SCHOEN: I couldn't hear you, sorry.

Sure, the committee was made well aware of it by Mr. Costello. I got into --

KEILAR: Did he formally invoke -- David, did he formally invoke privilege with the committee?

SCHOEN: Yes, that's my understanding. Mr. Costello is in constant communication with the committee and --

KEILAR: Trump did not. Just to be clear on --

SCHOEN: -- and --

KEILAR: Trump did not invoke privilege formally with the committee.

SCHOEN: You keep saying that. And I'm telling you that Mr. Bannon advised the committee that he was advised by President Trump in writing that he is not to appear and not to answer the questions, which, by the way, is supported by the Office of Legal Counsel also when an executive -- a member of the executive branch is subpoenaed. He followed in good faith what the Justice Department policy binding on the justice department has been. So this is an equal justice -- to now bring a criminal charge.

KEILAR: A court has not found in favor of, right, some of these things are squishy. They're very much theoretical, just to be clear. Nonetheless, this committee has outlined 17 categories of documents that it sought from Steve Bannon. Does Bannon have them?

SCHOEN: I don't know I'm not going into those details now. As I say, I justify got hired on Sunday. Today is the first day I saw the subpoena in the case. So, I'm not prepared to talk about it.

I'm prepared to talk about the process. That's what interests me.

KEILAR: Okay, the process.

SCHOEN: Because Mr. Garland said this is equal justice under the law. Pardon?

KEILAR: Bannon may not be the last person to sort of face this consequence, which is clear, we don't know at this point in time. Process, you said that Bannon was acting on the advice of counsel by not testifying or providing documents to the committee. Why did you say that?

SCHOEN: Because he acted on the advice of counsel. His counsel directed -- his counsel has been clear. He directed him not to appear and not to provide the documents because executive privilege had been invoked. There is no dispute about that.

KEILAR: But you're familiar with D.C. law on this matter, right? [08:25:06]

SCHOEN: Yes, I am.

KEILAR: So it is not actually a defense. Advice of counsel is not a defense on --

SCHOEN: I disagree with that.

KEILAR: -- if I may, when it comes to contempt of Congress charges such as this, it is very clear there was a 1961 decision, this isn't even anything recent. It is very clear and you know that.

SCHOEN: One second, if you don't mind if all due respect, please don't tell me what I know. I disagree with you what you said.

KEILAR: Well, I would hope you would know it.

SCHOEN: There is a 1961 decision Lakquivilviole (ph) that says it is not a defense to criminal contempt. That case predates all of the Supreme Court jurisprudence on willful willfulness. This statute charges a willful violation. The advice of counsel, direction by counsel, not to answer questions and not to appear, is clearly relevant to the concept of willfulness.

There is another D.C. court case, I'm not going to go into the legal argument here.

KEILAR: I know.

SCHOEN: But much more than this, but I disagree 100 percent that that 1961 case still applies.

KEILAR: Are you going to request a trial by jury or -- are you going to request a trial by jury or a judge?

SCHOEN: I don't know. I don't know that yet.

KEILAR: And you have a right to be tried within 7 day0 days of indictment, do you intend to exercise that right?

SCHOEN: I don't know any of those things yet. I just got into the case, all of your questions are good questions. I didn't mean to single out one.

KEILAR: Will your client be fund-raising off his indictment?

SCHOEN: I don't know anything about that.

KEILAR: Will you advise him not to?

SCHOEN: I don't really -- I don't advise about things like that, quite frankly. I'm here just to defend the case.

KEILAR: Bannon made -- I want to play something that your client said this was on his radio show just the day before the insurrection. (BEGIN VIDEO CLIP)

STEVE BANNON, FORMER TRUMP WHITE HOUSE CHIEF STRATEGIST: All hell is going to break loose tomorrow. Just understand this. All hell is going to break loose tomorrow. It is not going to happen like you think it is going to happen, okay. It is going to be quite extraordinarily different.

And all I can say is strap in, the war room, a posse, you have made this happen and tomorrow it is game day. So strap in.

(END VIDEO CLIP)

KEILAR: What did he mean?

SCHOEN: First of all, you'd have to ask him and not me. Having met him now, I know he certainly didn't mean anything about violence. The country is upset, parts of the country. Maybe half of the can country is upset about how the election went.

Part -- a significant part of the country has concerns about election integrity. So that's -- I think he's talking to his viewers and listeners who feel that way about it. But he's not talking about violence.

KEILAR: You're saying he had no foreknowledge of the events that played out on January 6th.

SCHOEN: First of all, I'm not -- I'm not in a position to speak on his behalf about any foreknowledge, knowledge or otherwise.

KEILAR: Yes, you are. You're his lawyer.

SCHOEN: I just met him. I met him yesterday for the first time. I'm his lawyer defending against a criminal contempt charge.

What I will say this having met him, I will not believe for a second that Mr. Bannon in any way intended for there to be, condoned, accepted, ratified or otherwise any violence on January 6th or any other day. I just don't believe it.

KEILAR: And I wonder are you representing Steve Bannon because it is Donald Trump's desire that you do?

SCHOEN: No, I'm not.

KEILAR: He weighed into none of you defending Steve Bannon. He had no hand in this?

SCHOEN: I was -- I was contacted by someone who as far as I know, well, I was contacted by someone on behalf of Steve Bannon to ask me if I would represent Steve Bannon. Had nothing to do with Donald Trump or anybody else.

KEILAR: I just want to ask you about something your client said yesterday. This is a sound bite that he said just outside of the court about going on offense. Let's listen.

(BEGIN VIDEO CLIP)

BANNON: We're tired of playing defense. We're going to go on the offense on this and stand by.

We're going on the offense. Stand by.

(END VIDEO CLIP)

KEILAR: Of course, president Trump notably said that phrase stand by at one of the debates where he declined to clearly condemn white supremacists. Let's play that.

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER PRESIDENT: You want to call him -- what do you want to call him? Give me a name.

(CROSSTALK)

JOE BIDEN, THEN-PRESIDENTIAL CANDIDATE: Proud Boys.

TRUMP: Proud Boys, stand back and stand by.

(END VIDEO CLIP)

KEILAR: Is your client -- is your client sending a signal to extremists?

SCHOEN: Absolutely not. But if you give me some time, I could put together a series of videos with Democratic members of Congress saying stand by if you think that's a word that is a signal or some kind of alert. No, he's not.

He's saying there is a double standard here, this is not equal justice under the law and no American should stand by and accept this kind of politicization of the criminal process. It's not right. It's not fair. You should be outraged by it.