Bannon and Maxwell cases display DOJ press strategy chutzpah

Chutzpah is defined as “shameless audacity.” In his book of the same name, Alan Dershowitz said the concept is more easily demonstrated than defined. He gave the classic illustration of the kid who murders his parents and then pleads for mercy on the ground that he is an orphan. The Department of Justice’s recent actions with respect to Brian Kolfage (Steve Bannon’s co-defendant) — issuing press releases with inflammatory quotes about the allegations and the arrest while at the same time filing a motion with the court saying that the defense should not be able to respond in the press — is another good example of chutzpah. So too is DOJ’s handling of the press in the Ghislaine Maxwell case — holding a lengthy press conference with pictures and charts and opposing the defense’s motion to curtail the prosecution’s media blitz.

On Aug. 20, the DOJ arrested Kolfage, Bannon and other alleged co-conspirators for fraud in connection with an online fundraising campaign for “We Build the Wall.” Regardless of what you think of Steve Bannon, President Trump, or “the wall” — and as a liberal Democrat, I have pretty strong views — all defendants are presumed innocent and should be treated fairly.

But the Justice Department has a media machine in place to make sure that defendants — even those with lots of resources — have their reputations crushed before ever having their day in court. If anyone in the Kolfage/Bannon case is acquitted or if the charges are dismissed, there will be no press release saying that DOJ got it wrong.

Instead, DOJ issued a press release condemning the defendants that it called its “general practice” and consistent with releases that it issues regularly. In the release, the U.S. Attorney said that “the defendants defrauded hundreds of thousands of donors.” She continued: “The defendants secretly schemed to pass hundreds of thousands of dollars to [a co-defendant], which he used to fund his lavish lifestyle.” She then commended the United States Postal Service “for their partnership in investigating the case, and we remain dedicated to rooting out and prosecuting fraud wherever we find it.” This is the kind of press release that should go out on conviction, not on arrest when the defendants are still presumed innocent. It is of no moment that the first sentence of the release starts with “as alleged.”

The release did not stop there. The “Inspector-in-Charge” was also quoted: “This case should serve as a warning to other fraudsters that no one is above the law, not even a disabled war veteran or a millionaire political strategist.” He goes on to use inflammatory language, including that the defendants “lie[d],” “schemed,” used “sham invoices and accounts,” “launder[ed] donations,” “cover[ed] up their crimes,” and “show[ed] no regard for the law or the truth.”

The same U.S. Attorney’s office held a lengthy press conference at the outset of the Ghislaine Maxwell case. It used charts and blowups with pictures of Jeffrey Epstein and his various homes. The U.S. Attorney herself gave the press conference and paused for a good 5 seconds in front of the blowup of Epstein and Maxwell with her finger pointed at them to give the press enough time to get a good picture for the evening news and Twitter. There was no valid law enforcement reason for those actions. 

DOJ is no ordinary litigant. Its job is not to win, but instead to do justice. In the old days, DOJ would rarely issue a press release or hold a press conference. They usually let their pleadings and the results speak for themselves. But this has changed a great deal over the years. DOJ has its own media machine now, with press releases, staged perp walks, and rehearsed press conferences with graphics and the like. It’s unseemly. But okay, if DOJ is going to full court press the media, then defendants should at least be able to answer, right?

Kolfage did just that and called the DOJ indictment a “witch hunt” and said, “the truth will come out.” He said he was going to stand up to the “bullies” at DOJ. That language, which got reprinted far less than the quotes in the DOJ press release, seems like a fair response to someone fighting against the DOJ media releases. But the government would have nothing of it, arguing that the tweets were inappropriate because they were “likely to interfere with the Court’s ability to conduct a fair trial with an impartial jury in this case.” What chutzpah.

It was the government that issued the press release with the inflammatory language — and then complained that the defense had the audacity to respond.

The government’s chutzpah did not stop there; it proceeded to cite the 1966 Supreme Court case of Sam Sheppard, in which the High Court reversed Dr. Sheppard’s conviction because the pro-prosecution pretrial and trial publicity made it virtually impossible that he could get a fair trial as promised by the Constitution. That case said nothing about a defendant being able to respond to the prosecution’s over-the-top press statements; in fact, part of the problem in the Sheppard case was the newspaper would only cover prosecution theories without including anything from the defense. Imagine that: The prosecution gets reversed for revving up the media against Sheppard where the defense didn’t get a real chance to respond, and now — 60 years later — the government cites the Sheppard case in support of its argument that the defense shouldn’t be permitted to respond to its press releases.

In Maxwell’s case, the defense rightly said that enough was enough. The prosecution should not be permitted to do what happened in Sheppard and turn the case into a circus. But the court denied the motion and simply warned the government about its behavior going forward.

We saw the same issue come up in the Harvey Weinstein trial, where Gloria Allred and other celebrities spoke to the media regularly calling for a conviction. When the defense attorney, Donna Rotunno, tried to respond with an op-ed calling for jurors to be fair, she was unfairly criticized.

After holding foreigners hostage in Iraqi hotels, Iraqi dictator Saddam Hussein infamously sent them bills for room and board. Dershowitz described this and other stories in his book. If he writes volume two, he can include the DOJ press strategy – inflame the press and the public against defendants and then complain that the defense is responding.

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.