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A federal judge on Monday refused to delay Stephen K. Bannon’s trial next week after the Justice Department called an offer by the former Trump aide to testify before a House committee investigating the Jan. 6, 2021, riot, “a last-ditch effort to avoid accountability” on charges of criminal contempt of Congress.
“I see no reason to prolong this case any longer,” said U.S. District Judge Carl J. Nichols after a hearing in which he rejected many of Bannon’s defenses — including claims that Bannon believed his appearance was covered by executive privilege. The judge narrowed Bannon’s defense during the trial mainly to whether he understood the deadlines for responding to the House’s requests to appear and produce documents.
“While I am certainly aware of Mr. Bannon’s concerns about publicity, in my view the proper mechanism at this time to address that concern is through [jury selection] trial,” Nichols said, adding that he thought it was “unlikely” the court would not be able to find impartial jurors.
Bannon, 68, Trump’s former chief strategist, was indicted in November on two counts of contempt of Congress after he refused to comply with a committee subpoena issued two months earlier for his testimony and records of his actions. led to the Capitol riot by a pro-Trump mob on January 6, 2021. Felony charges are punishable by at least 30 days or up to a year in jail upon conviction.
Bannon’s lawyers sought to delay his trial until October, saying ongoing House committee hearings on the Capitol siege and statements from lawmakers had fueled a “media blitz” tainting the pool of potential jurors.
Steve Bannon has been indicted after refusing to comply with a January 6 subpoena from the committee
“The members of the Special Committee are trying to get the public to send a message — that President Donald J. Trump and his close advisers are responsible for the attack” and “that close advisers to President Trump did not cooperate with the Special Committee,” Bannon’s lawyers David I. Schoen and M. Evan Corcoran argued about the very circumstances raised by his case.
In a document filed overnight, US prosecutors urged Nichols to continue Bannon’s trial to July 18. and to hide from jurors Bannon’s “sudden willingness to testify,” which they called an 11th-hour ploy to eliminate the conduct that spurred his prosecution.
“It is important to protect the statute and the authority of Congress in these matters to rule quickly on the criminal matter,” Assistant US Attorney Molly P. Gaston told Nichols in court.
It would set a “bad precedent” and reward another kind of “contempt and obstruction” to allow Bannon to defy the committee, trigger a Justice Department prosecution, and take the case to federal court only to say on the eve of the trial: “Actually, Sega will comply with the hope of dismissing his criminal case, Gaston said.
Bannon, who is counting on possible testimony, is putting a new focus on the role on Jan. 6
Gaston and Assistant U.S. Attorney Amanda R. Vaughn added in written filings, “The defendant’s alleged willingness to testify now does not erase his past contempt.”
Nichols, a 2019 Trump appointee who served in George W. Bush’s Justice Department from 2005 to 2009, appeared to buy into that argument. In addition to denying Bannon’s request to raise claims of executive privilege during the trial, Nichols also said Bannon could not claim he believed the Justice Department’s past policy statements about privilege applied to White House aides. , are covering it up, or that the House panel is invalid because Republicans have largely boycotted it.
None of the Justice Department’s past statements “refer to a situation involving actions taken by a non-government employee of a president who was not on duty at the time of the subpoena,” Nichols said.
As Bannon’s lawyer, David I. Schoen, argued after the ruling, “What’s the point of going to court if there’s no defense?”
Nichols simply replied, “Agreed.”
Monday’s hearing came a day after Bannon’s lawyer, Robert J. Costello wrote to House panel chairman Benny G. Thompson (D-Miss.), saying, “Mr. Bannon is ready and indeed prefers to testify at your public hearing.
Bannon’s offer to appear live and unedited before a special House committee investigating the events of Jan. 6 came days before the group scheduled a hearing for Tuesday on the Trump White House’s ties to domestic extremist groups.
It followed Trump’s hostile letter on Saturday offering to drop his disputed request for Bannon’s executive privilege to testify anyway, provided the committee agreed to the selection of his former White House strategist for a “time and place.”
“I have watched how unfairly you and others have been treated,” Trump said in the letter. “Therefore, if you agree to the time and place for your testimony, I will waive executive privilege for you to come in and testify truthfully and honestly as requested by the Unselect Committee on Political Thugs and Hacks that are not allowed due process, cross-examination, and no real Republican members or witnesses.
Bannon, who has pleaded not guilty, said he refused to respond to the committee’s Sept. 23 subpoena in part at the advice of Costello, who said Trump asserted executive privilege over appearances by his former aides.
“This is not an 11th hour move by Mr. Bannon,” Schoen said. “His principled position was that his hands were tied … because of his understanding of executive privilege, his respect for executive privilege, which a former president refers to. And now his hands are untied for the first time.”
Bannon’s lawyers urged Nichols to allow them to argue to jurors that he was selectively prosecuted for political reasons, noting that the Justice Department has declined to prosecute two other top Trump aides the committee has named in contempt — former chief of White House staff Mark Meadows and communications chief Daniel Scavino Jr.
Bannon’s defense has argued that the department’s Office of Legal Counsel (OLC) has issued opinions that say if the president invokes executive privilege, his senior aides cannot be compelled to testify.
Nichols was not convinced. None of Bannon’s defenses are relevant to what the government must do to prove guilt, the judge said — that Bannon’s failure or refusal to appear was willful and willful, not that he knew or should have to know that his conduct was illegal, nor that he allegedly relied on the advice of his attorney or Trump’s invocation of privilege.
“To think that someone is legally excluded or to think that the subpoena is invalid is not the same as to think that the answer date is delayed,” Nichols said, the only valid type of “misunderstanding” that binding appellate precedent allows.
In fact, Nichols disputed that Trump ever invoked the Bannon privilege.
In Bannon’s compelling appearance, the House committee wrote that it wanted information about his activities at the Willard Hotel before the riot, when Trump supporters were discussing ways to overturn the results of the 2020 election. The committee said Bannon was there during of “an effort to persuade members of Congress to block certification the next day” and has sought his testimony about that and other activities related to Jan. 6.
The subpoena noted that Bannon had predicted that “hell would break loose” on Jan. 6, and the panel’s report, which recommended he be held in contempt, said the comments showed he “had some premonition of extreme events that will happen the next day. “
Costello, who recused himself from Bannon’s criminal case because he said he could be called as a witness, refused to cooperate with the committee in October, writing that he had been contacted by Trump lawyer Justin Clark and instructed not to respond. . Costello said Bannon will not cooperate without a court order or committee agreement with Trump.
In government filings overnight Monday, prosecutors revealed they interviewed Clark and said the former president’s lawyer never asked or was asked to attend Bannon’s testimony that Costello misrepresented to the committee what Clarke told him, and that Clarke “made it clear to the defendant’s attorney that the letter did not provide grounds for a total default.”
Prosecutors argued that executive privilege did not provide a basis for Bannon’s blanket refusal to appear, and that even if it did apply, he was required to appear before lawmakers and plead for answers on specific topics. Bannon left the White House in 2017 and has been subpoenaed for testimony and documents about events that occurred while he was a private citizen, they said.
“How are [Bannon’s] comments on his podcast covered by executive privilege?” Vaughan asked rhetorically in court or in conversations with GOP lawmakers.
Nichols agreed. In fact, Nichols disputed that Trump ever invoked the Bannon privilege. Clark instructed Bannon only “where appropriate” to invoke any immunity and privilege he may have from compelled testimony or from producing privileged material, the judge said.
Clark went on to add that his initial letter “does not indicate that we believe there is immunity from testifying for your client. As I pointed out to you the other day, we don’t believe there is.
Prosecutors also cited reports that one of Bannon’s lawyers, Corcoran, worked for Trump and his law firm received $50,000 from Trump’s Save America political committee.
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