Stephen Bannon’s Day in Court

I have zero sympathy or respect for Stephen Bannon, and am gratified that he was found guilty the other day of contempt of Congress in the Capitol Riot inquiry. But if the mainstream media is ever going to dispel the notion that it’s biased against the Right, it’s going to have to do a better job than it has of getting the facts straight in legal cases like this. Consider this brief, passing claim from a New York Times article on the Bannon verdict:

Like many defendants, Mr. Bannon did not mount a defense case for the jury, deciding instead to rely on cross-examining the prosecution’s two witnesses: a lawyer for the committee and an F.B.I. agent who had worked on the case.

This passage conflates testifying in one’s defense in court with mounting a defense in court. It then infers that because Bannon didn’t testify in his own defense, he didn’t mount a defense.

No. Wrong. The inference is a non-sequitur. Testifying in one’s defense and mounting a defense are not the same thing.

Testifying in one’s defense is taking the stand to be formally questioned by one’s own counsel, and then submitting to cross-examination by the opposing counsel. Mounting a defense is a broader concept: it includes taking the stand in one’s defense, but refers more broadly to offering a defense of some legally relevant kind. In the usual case, it means that one answered the summons to show up in court, hired legal counsel, had one’s legal counsel show up in court (often as a proxy for a personal appearance of one’s own), and then had one’s counsel do the work of “mounting a defense,” i.e., defending one against the charges made, typically by raising objections and/or cross-examining the prosecution’s witnesses.

So Bannon did mount a defense: he had his attorneys cross-examine the prosecution’s witnesses. The defense that Bannon’s attorneys mounted most likely failed because it failed to rebut the evidence in favor of his guilt. That probably happened because the evidence of guilt outweighed any doubts that the defense could have sown. No (conceptual) problems there, but it’s egregiously wrong to infer or suggest that he was found guilty because he failed to mount a defense. The defense he mounted failed to exonerate him. He didn’t fail to mount one.

In an adversarial system of criminal justice like ours, it’s highly inadvisable for anyone, regardless of their guilt or innocence, to take the stand in their own defense in a criminal trial (or to try to exonerate themselves to law enforcement before the trial). There may be marginal exceptions to this rule, but in general, talking is a mistake, and widely acknowledged to be one.

A fully innocent person has a higher likelihood of fumbling her testimony and looking guilty than of vindicating her innocence in such a proceeding, and a less-than-fully-innocent person (in the moral sense) has even less of a chance, even if she happens to be legally innocent of the particular charges brought against her. To tempt fate by testifying in one’s defense in a criminal trial is, regardless of one’s guilt or innocence, generally an act of stupidity, not of honesty or valor. And to infer guilt from a failure to testify is, like inferring guilt from any invocation of the Fifth Amendment, an egregious error. Yet it’s done all the time, and done in a particularly cavalier way in cases like Bannon’s when it’s politically expedient to do so. 

The failure to grasp all this comes from a romanticized conception of the criminal justice system that flouts obvious realities. Criminal trials, on this romanticized understanding, are fundamentally truth-seeking endeavors. If we want to know something that’s hidden from us (and that we feel entitled to know), the thing to do is put the relevant person on trial. If he fails to testify, he has flouted our desire to know the truth. To flout that desire is clearly to declare his misology, and in so doing, tacitly to declare his guilt. Silence is suspect; innocent people insist on taking the stand. Hence any case in which the defendant fails to testify in his own defense is one in which we can be more sure than usual that he is guilty of the charges brought against him.

All of that is false. Criminal trials are not the modern-day equivalent of a Platonic dialogue or a Dworkinian tribunal of principle, i.e., open-ended, impartial inquiries that serve to expose sought-for but hitherto-unknown truths. They are, more often, highly scripted acts of bullshit artistry. This doesn’t mean that they’re necessarily unfair or unreliable. If the defendant is guilty, he’s guilty. A scripted proceeding can, with decent reliability, track that truth and lead to conviction in most of the right cases. But criminal trials are not the morality plays they purport to be, or that TV shows like “Law and Order” have tried to convince us that they are. They are scripted, rule-bound, adversarial proceedings in which unvarnished truth matters less than the right legal maneuver enacted at the right time, in the right way.

For that very reason, prosecutors are not legally deputized Socrates-figures. They are rhetorically (often morally and legally) unscrupulous opportunists, hired guns paid to “get” convictions at virtually any legally defensible cost. You can’t expect fairness or even ordinary decency from them, and can’t expect that they will help uncover the truth in cases where the truth favors the defendant. They may grudgingly hand it over, as the so-called Brady rule legally obliges them to do. But don’t count on full-fledged respect for exonerating evidence, or even count on full-fledged adherence to the Brady rule.

Like Pontius Pilate, the average prosecutor is only nominally interested in the truth (if that). Nominal interest aside, he’ll feel free to lie, manipulate, conceal, rely shamelessly on transparently fallacious reasoning, and take unapologetic advantage both of his greater knowledge of the legal system than the average defendant, as well as of the tight web of personal contacts he has with that system–a system that has no problem cutting slack to prosecutors that would never be cut to anyone else. Granted, a defendant like Bannon has a well-paid legal team to level the playing field. But people like Bannon are the exception to the rule. Distort the truth in Bannon’s case, and you end up distorting it in every other.

Journalists have to start acknowledging such facts in their coverage of criminal trials, even trials of figures as unsavory and clearly guilty as Stephen Bannon. Stephen Bannon’s refusal to take the stand is not something that “many defendants” happen to do. It’s what all defendants are advised to do, whether we’re talking about a traffic ticket, or armed robbery, or contempt of Congress. Americans have no real understanding of how their legal system works, whether de facto or de jure. That ignorance is in part a failure of civic education, but also a function of bad press coverage. A modest proposal on both counts: do the work to get it right.

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