Norman Eisen is the executive chair of the States United Democracy Center. He served as former President Barack Obama's ethics czar and ambassador to the Czech Republic, and was special impeachment counsel to the House Judiciary Committee in 2019-2020. He is a senior fellow at the Brookings Institution. Dennis Aftergut is a former federal prosecutor and is currently of counsel to Lawyers Defending American Democracy. The views in this commentary belong to the authors. View more opinion at CNN.
(CNN)The conviction of former Trump adviser Steve Bannon for contempt of Congress marks an important moment -- not only in holding him individually accountable, but also in bringing to justice those who plotted to undermine the results of the 2020 presidential election.
This is the first trial involving a member of former President Donald Trump's inner circle at the time of the former president's assault on the 2020 election results. And, on Friday, our legal system called Bannon's bluff after he defied a subpoena to appear before the January 6 House select committee.
Even though Bannon's conviction is for contempt, rather than for an underlying crime, the principle remains the same. For more than two centuries, America has been a society bound by the rule of law, not the rule of men -- and we need to keep it that way.
Bannon's case was weak from the start. Opening his criminal trial, prosecutor Amanda Vaughn told the jury, "This case is about the defendant thumbing his nose at the orderly process of our government." Referring to Bannon's failure to appear before the January 6 committee, she explained: "The defendant didn't get the date wrong. He didn't get confused on where to go. He didn't get stuck on a broken down metro car. He just refused to follow the rules."
The select committee's chief counsel, Kristin Amerling, then testified to the "urgency" of getting to the truth before the current Congress' term expires in January 2023. She explained that the committee wanted to hear from Bannon, among other things, about "discussions leading up to the Jan. 6 attack with private parties who had gathered in the Willard Hotel in Washington, DC, reportedly to discuss strategies in efforts to interfere with the peaceful transfer of power or overturn the election results."
Her lengthy testimony made clear Bannon had a duty to comply, that his testimony was pertinent and that he violated the subpoena deliberately. That was enough for a conviction.
The defense raised two issues at the beginning of the trial to try to justify Bannon's lack of compliance.
First, they claimed that Bannon was still negotiating with the committee after his failure to produce subpoenaed documents and to appear, and before Congress held him in contempt.
But the evidence showed that he never asked the committee to move the deadline for his appearance. And the day after his subpoena deadline passed, his verified Gettr account posted: "Steve Bannon tells the Jan 6 select committee that he will NOT comply with their subpoena."
Second, the defense has referred to Bannon's July 9 letter indicating, eight months after he failed to appear and just days before his trial, his willingness to cooperate. The law is settled that tardy compliance with a subpoena cannot block a prosecution once it has commenced. After all, the primary aim of a criminal contempt action is to punish someone who disobeyed a subpoena regardless of whether he tries later to comply.
Despite the defense's opening statements, Bannon's legal team did not present an actual defense when the prosecutor finished presenting. Bannon's eye was evidently not on a jury acquittal but on an appeal, after conviction, of federal district court Judge Carl Nichols' pre-trial rulings. Good luck with that appeal.
Nichols, a Trump appointee, was on solid ground in rejecting Bannon's claim of executive privilege. Bannon had long since left the White House when the post-2020 election events occurred and should not have been protected by such privilege.
Nichols also rightly rejected his non-viable defense that his lawyer advised him he could defy the committee, as well as his claims that the committee's subpoena was invalid and that internal Justice Department policies protected him.
All of this led Bannon's lawyer to ask the court, "What's the point of going to trial if there are no defenses?" To which Nichols pithily replied, "Agreed." When a defendant goes to trial despite the overwhelming proof of his guilt, prosecutors say the trial is little more than "a long guilty plea."
Take note, Peter Navarro, former Trump ally and White House trade adviser who was also indicted for the same defiance. On July 15, he rejected a generous Justice Department plea deal.
Also take note, Trump, to whom both the committee and Fulton County District Attorney Fani Willis may issue a subpoena. Willis' grand jury is investigating Trump and his allies' alleged attempt to interfere in Georgia's 2020 election.
There is a simple reason why neither a legitimate congressional investigative committee nor a grand jury can tolerate this kind of defiance. If they did, subpoenaed witnesses with something to hide would never cooperate, and no investigation would ever uncover the truth.
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Here's an even more fundamental point. Subpoena defiance and the insurrection are birds of a feather. The American system of government requires that there be both a peaceful transition of power and a successful investigation of those who seek to interfere with it. Deterrence by punishment for such interference is the only way to stabilize American democracy.
Bannon has used his defiance as an opportunity to bolster his MAGA brand -- with more of his usual bravado. That, however, will not shield him from the consequences in a federal court where the judge has seen through his ploys. Bannon now faces a minimum of 30 days and up to one year in jail on each of the two counts.
In November, after being arraigned, Bannon said this trial would be "the misdemeanor from hell" for the Biden administration. Nichols and the jury made sure that did not happen -- except perhaps to Bannon himself. In a society governed by the rule of law, there is a piper to be paid.
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