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Bannon Fails to Push Back Criminal Contempt Trial for Refusing Jan. 6 Subpoena

·5 min read

(Bloomberg) -- Longtime Donald Trump adviser Steve Bannon must go on trial next Monday in his criminal contempt case for refusing to cooperate with the congressional committee investigating the Capitol riot, even after he offered to publicly testify.

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Bannon had argued that the trial should be delayed by three months because jurors would be influenced by the televised US House hearings on the January 2021 insurrection. Then, over the weekend, he said he would appear before the committee.

But at a federal court hearing Monday in Washington, US District Judge Carl J. Nichols declined to postpone the July 18 trial and ruled that any bias can be established and dealt with during jury selection.

Bannon’s defense wants to use his new cooperation to argue at trial that he wasn’t remiss in defying a subpoena from the House committee in the first place. During Monday’s court hearing, defense attorney David Schoen cited an Oct. 19 letter from committee chairman Bennie Thompson asking Bannon to notify staff if he changed his position.

Rulings Against Bannon

“There is a reasonable basis for the jury to find there is no default” on the subpoena, Schoen told the judge.

The government and attorneys for the House said Bannon’s reversal doesn’t change the fact that he was in criminal contempt for refusing to comply nine months ago.

Nichols said he would decide later whether Bannon can use his agreement to testify before the committee in his defense. More broadly, he said the trial could be suspended if there are insurmountable challenges to picking a jury.

Read More: Bannon Is a Wild Card in Jan. 6 Panel Investigating Trump

The judge also ruled on several other motions, eliminating many defenses. Two important ones were Bannon’s stance that the subpoena he defied was invalid because the House committee was improperly constituted and that he was led to believe he was protected from prosecution because of past Justice Department opinions that shielded presidential advisers.

“What’s the point of going to trial if there are no defenses?” Schoen said at one point in the hearing.

Central Question

Bannon was indicted in November on two counts of contempt of Congress for refusing to comply with the panel’s requests for his testimony and for documents. The subpoena pointed to news media reports of his involvement in “war room” meetings at Washington’s Willard hotel with Rudy Giuliani and others discussing how to keep Trump in office. As misdemeanors, each of the charges carries a maximum sentence of one year in prison.

In explaining his rulings at Monday’s hearing, Nichols said he had relied on precedent. The only question, he said, was whether Bannon deliberately flouted the subpoena.

“If evidence is irrelevant to that question, then it is inadmissible,” he said.

Read More: Trump’s Jan. 6 Rage Gets Vivid Retelling in Ex-Aide’s Star Turn

For example, Bannon can’t introduce at trial an argument that the subpoena was invalid because it wasn’t in compliance with House rules. The rules are “at minimum ambiguous,” and the House must interpret its own rules to avoid separation-of-powers issues, Nichols explained.

‘Political Circus’

In another blow to the defense, Bannon won’t be allowed to argue that Justice Department opinions led him to believe someone in his position wouldn’t be prosecuted for ignoring the subpoena. Nichols said those documents don’t speak to Bannon’s situation since he was a private citizen when advising Trump.

Nichols also ruled that Bannon can’t rely on a public authority defense that he was following instructions from Trump when he snubbed the subpoena. Trump was serving in a civilian capacity at the time himself, and the former president never explicitly told Bannon not to show up, Nichols found.

Over the weekend, Bannon’s lawyer Robert Costello released a letter from Trump to Bannon saying if an agreement can be reached with the Jan. 6 panel for Bannon’s testimony, “I will waive executive privilege for you.”

Read More: Bannon Lawyer Seeks to Exit Jan. 6 Contempt Case Before Trial

And the judge quashed Bannon’s attempt to subpoena senior members of the House, including Speaker Nancy Pelosi. He said most of the testimony Bannon would seek, such as the motivation or personal views of committee members, is barred by the “speech and debate” clause of the US Constitution that prohibits questioning of members of Congress in court.

Douglas Letter, a lawyer for the House, argued during the hearing that Bannon’s reversal on testifying before the committee was an attempt to turn the case into a “sort of political circus.”

Win for Bannon

The defense did score at least one notable ruling: Bannon may present evidence to show that his failure to comply with the subpoena wasn’t intentional -- for example, if he was unclear on the deadline for his response.

Some other highlights from the judge’s rulings:

  • Nichols rejected Bannon’s attempt to seek material from the government to explain why it didn’t pursue criminal charges against former Trump chief of staff Mark Meadows and former deputy chief of staff Dan Scavino.

  • The judge won’t prevent Bannon from cross-examining witnesses to show bias. In another boost to the defense, Nichols ruled that it would be “inappropriate” to read the indictment in front of the jury.

  • Discussions of the events of Jan. 6 themselves will be excluded, though the government can mention Jan. 6 in certain circumstances, such as when it needs to describe the committee’s attempt to seek documents.

  • Questions about government conduct around the subpoena will be handled separately. Costello had accused the government in a filing of interfering in his attorney-client relationship with Bannon by attempting to access his phone records.

The case is US v. Bannon, 21-cr-00670, US District Court, District of Columbia (Washington).

(Updates with Costello’s argument in final bullet point)

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