Judge Orders Steve Bannon to Appear for FTC Questioning

Judge Orders Steve Bannon to Appear for FTC Questioning

The judge, noting that the Federal Trade Commission's data-privacy probe began in March 2019, said the agency’s investigative demand for Bannon's testimony was not overly burdensome.

Christopher “Casey” Cooper testifies at his confirmation hearing in 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

Steve Bannon must submit to questioning from the Federal Trade Commission as part of the agency’s investigation of Cambridge Analytica, a federal judge ruled Tuesday, rejecting the former Trump adviser’s bid to stave off an interview aimed at determining whether he could be personally liable for allegedly deceptive conduct by the data analytics firm.

Ruling from the bench, U.S. District Judge Christopher Cooper dispensed with Bannon’s argument that any testimony provided to the FTC could impair his opportunity to receive a fair trial in New York, where he was charged in August with defrauding donors to a private fundraising effort purporting to bolster President Donald Trump’s effort to build a wall along the Mexican border.

Cooper said delaying Bannon’s testimony indefinitely, or “even six months under the optimistic assumption that he will be tried in May” in Manhattan federal court, would prevent the FTC from completing its investigation into Cambridge Analytica’s harvesting of tens of millions of Facebook users’ personal information during the 2016 election. The judge, noting that the FTC’s investigation began in March 2019, said the agency’s investigative demand for Bannon’s testimony was not overly burdensome.

“Hopefully, you folks won’t need my help in coming up with a date soon after the holidays to schedule this,” Cooper said, referring to the planned investigational hearing. “I will leave it to you all to do this. If you need my help, you know where to find me.”

At two moments in the half-hour hearing, Cooper appeared to bristle at the absence of Bannon’s lawyer, Quinn Emanuel Urquhart & Sullivan partner William Burck, who withdrew from the former Trump adviser’s criminal defense team in early November after Bannon suggested that Dr. Anthony Fauci and FBI Director Christopher Wray should be beheaded. Bannon has retained Davidoff Hutcher & Citron partner Robert Costello to represent him in the criminal case in New York.

Burck has made no similar effort to withdraw from Bannon’s defense in the FTC case. In early December, weeks after seeking to drop off Bannon’s defense team in Manhattan federal court, he signed a brief arguing that the FTC’s subpoena for his testimony should be quashed.

At the outset of Tuesday’s hearing, Cooper said that “for some unstated reason,” Burck was unavailable to argue against the FTC’s petition to compel Bannon’s testimony.

When a Quinn Emanuel associate, Allison McGuire, prepared to begin her arguments for Bannon, Cooper inquired about the absence of the prominent white-collar defense lawyer, whose clients in recent years have included former White House counsel Donald McGahn and New England Patriots owner Robert Kraft.

“Mr. Burck was not able to fit us into his busy schedule this afternoon?” the judge asked.

“Unfortunately, he had a conflict, your honor,” McGuire replied.

Cooper found there was no “substantive overlap” between the FTC’s investigation and Bannon’s criminal case, in which he is accused of using funds raised for an initiative called We Build the Wall for personal expenditures. The judge noted that Bannon could assert his Fifth Amendment right to avoid self-incrimination.

“As Mr. Burck surely knows, requiring a deponent to assert [the Fifth] on a question-by-question basis is a common practice in government investigations,” Cooper said.