By Aaron Miller-
A federal criminal trial is set to begin on Monday to determine whether Steve Bannon, the former adviser to Donald Trump, broke the law by refusing to comply with a subpoena for documents and testimony by the panel investigating the January 6 attack on the Capitol.
The Trump appointed judge presiding over Bannon’s trial in U.S. District Court in Washington, D.C. rejected most of Bannon’s proposed defense strategies in hearings last week.
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Bannon refused to comply with a subpoena by the congressional committee investigating the deadly Capitol riots for him to sit for a deposition, and to provide a wide range of documents related to the events of January 6. Bannon refused to comply. With charges of contempt levied against him, he was referred to the US justice department for prosecution in October of last year.
The justice department pursued the referral, and a federal grand jury indicted Bannon on two counts of contempt of Congress, both misdemeanors, in November.
Bannon was first subpoenaed by the Jan. 6 committee for records and testimony in September 2021. The committee told Bannon at the time it had “reason to believe that you have information relevant to understanding activities that led to and informed the events at the Capitol on January 6, 2021.”
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However, Bannon- a strong Trump ally- defiantly ignored the subpoena, acting like one immune from such judicial orders.
In a December court filing, prosecutors said they envisaged just one day of testimony needed at trial, to prove that Bannon criminally defied the House committee investigating the January 6, 2021, attack on the Capitol. It read as a bold claim then, but with the trial set to begin Monday with jury selection, the case against Bannon is shaping up to be devastatingly straightforward.
Bannon’s attorneys have claimed that Trump had invoked executive privilege over Bannon’s testimony, which prevented him from cooperating
However, in a pre-trial ruling last week, US District Court Judge Carl Nichols said that his lawyers could not argue that executive privilege excused his refusal to sit for questioning or turn over records to the House January 6 committee.
Former President Trump’s current lawyer, Justin Clark, also poured water on Bannon’s claims of executive privilege by stating that at no point did Trump actually invoke executive privilege over Bannon’s testimony. Clark also told investigators that he had made clear to Bannon’s attorney Robert Costello, prior to Bannon’s indictment, that Trump was not instructing Bannon to refuse cooperation with the committee altogether.
Records
Last week, the committee revealed that it had obtained records showing Bannon twice spoke with Trump over the phone on the day before Capitol attack, with one call taking place before Bannon made comments on his podcast predicting “all hell is going to break loose tomorrow.”
At the time of the Capitol riot, Bannon was already facing federal charges related to an alleged conspiracy to commit wire fraud and money laundering over his involvement in a crowdfunding effort to build a wall along the U.S.-Mexico border, to which he had pleaded not guilty. Trump pardoned Bannon on his final night in office, but declined to pardon two other men Bannon was initially charged with, both of whom recently pleaded guilty.
“[Bannon’s] continued failure to comply with the subpoena’s document demand while claiming he now will testify suggests his actions are little more than an attempt to change the optics of his contempt on the eve of trial, not an actual effort at compliance,” investigators said in the filing. “[Bannon’s] timing suggests that the only thing that has really changed since he refused to comply with the subpoena in October 2021 is that he is finally about to face the consequences of his decision to default.”
Ahead of the trial, Bannon unloaded on the committee during an episode of his “War Room” podcast last week, vowing to go “medieval on these people.”
“Pray for our enemies, OK? Because we’re going medieval on these people. We’re going to savage our enemies,” Bannon said. “So pray for them. Who needs prayers? Not MAGA, not War Room, and certainly not Stephen K Bannon.”
It’s unclear whether Bannon’s actions leading up to Jan. 6 will factor into his trial, as prosecutors focus on proving their relatively narrow case involving his defiance of the committee’s subpoena.
In a pretrial hearing last week, the judge overseeing Bannon’s case, Carl Nichols, entered a series of rulings that will significantly limit the lines of defense Bannon’s attorneys will be able to present to the jury.
Nichols said Bannon won’t be able to claim he defied the subpoena because Trump asserted executive privilege over his testimony, nor can Bannon claim he relied on the advice of his lawyer, or that he was “tricked” into believing he could ignore the subpoena due to internal DOJ opinions from previous administrations about executive branch officials’ immunity from complying with congressional subpoenas.
Nichols also rejected Bannon’s defense that prosecutors would need to show that he knew his conduct was unlawful, saying that prosecutors only need to prove that Bannon acted “deliberately” and “intentionally” to defy the Jan. 6 panel.
Bannon’s attorney, David Schoen, questioned the judge’s rulings, asking the judge at one point, “What’s the point in going to trial here if there are no defenses?”
Offer To Testify
Bannon’s attorneys have argued that widespread negative media coverage of Bannon, including the mention of him at last week’s Jan. 6 committee hearing, will effectively taint any jury pool — though assistant U.S. attorney Molly Gaston expressed confidence last week that they could seat a full jury that would potentially have no idea who Bannon is.
If convicted, Bannon would face a maximum sentence of up to two years in prison plus fines — though such sentences are rare and Bannon would likely appeal any conviction.
Prior to Bannon, the last time a criminal contempt case was brought by the Justice Department was in 1983 during the Reagan administration, against an EPA official who was eventually found not guilty by a jury at trial.
“What’s the point of going to trial if there are no defenses?” Bannon lawyer David Schoen asked after Nichols threw out Bannon’s proposed motions to delay the trial, put prominent Democrats on the stand for questioning, and take shelter under what Bannon claimed was Trump’s invocation of executive privilege. “Agreed,” Nichols replied.
“Obviously everyone’s entitled to a trial, but usually if you go to trial there’s some kind of legal or factual dispute that needs to be resolved,” he explained. “The judge’s point is, there aren’t really any here. … In those instances, going to trial becomes what prosecutors sometimes call a long guilty plea.”
Each count Bannon faces carries a minimum 30-day sentence and maximum one year in prison, but prosecuting contempt of Congress is exceedingly rare, and Bannon’s case is unusual in other ways.
Bannon has made clear he will not plead guilty. “Pray for our enemies, because we’re going medieval on these people,” he said in a recent podcast about his upcoming trial. “We’re going to savage our enemies.”
Last fall, the congressional committee investigating the deadly Capitol riots subpoenaed Bannon to sit for a deposition and to provide a wide range of documents related to the events of January 6. Bannon refused to comply. The committee cited him for contempt and referred him to the US justice department for prosecution in October of last year.
Powerful Conservative Voice
Bannon has become a powerful conservative voice since leaving the White House through his podcast, War Room-one he has used to circulate conspiracy theories about the 2020 election and began outlining how Trump could try to overturn the elections starting in September 2020.
Just days ahead of the January 6 insurrection, Bannon predicted that Trump would declare himself the winner on election night and take advantage of confusion that would result as Democrats picked up votes because of mail-in ballots that were counted after in person votes. Trump did precisely that.
The committee said in its contempt report that Bannon appeared to have “some foreknowledge” of what would happen on 6 January. It has also said that Bannon and Trump spoke twice on 5 January. “All hell is going to break loose tomorrow,” Bannon said on a podcast after the first call. “It’s all converging and now we’re on the point of attack tomorrow.”
In the leadup to the attack, Bannon was also was present at the Willard hotel, the nucleus of Trump’s legal efforts to overturn the 2020 election.
Bannon is the first former Trump administration official to face a criminal trial for refusing to participate in the January 6 probe.
Bannon has pledged to fight the charges, saying on his podcast recently he was going “medieval” and would “savage his enemies”. But Bannon has suffered a number of defeats in the leadup to the trial as US district court Judge Carl J Nichols, a Trump appointee, has blocked many of Bannon’s main defences.
“What’s the point of going to trial if we don’t have any defences?” David Schoen, one of Bannon’s lawyers, said at a recent hearing. Nichols replied by simply by saying “agreed”.
Nichols’s ruling stripped Bannon of some of his key defenses, including that he had been relying on the advice of his lawyer when he defied the subpoena. Bannon’s lawyers have also claimed that Trump invoked executive privilege to shield Bannon from compliance, but it’s not clear that Trump did so and whether or not a former president has the power to grant such protection to someone not serving in government.
The Trump lawyer Justin Clark told Bannon’s attorney in a letter that he didn’t believe Bannon was immune from testimony.
Federal prosecutors are also pursuing contempt charges against Peter Navarro, another ex-Trump administration official. Like Bannon, Navarro has pleaded not guilty.
Bannon faces 30 days to a year in prison, if found guilty of the charges.
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