- A series of court rulings severely limited Steve Bannon’s defense arguments at trial.
- Bannon unsuccessfully pushed to delay the trial and call members of the House as witnesses.
- Prosecutors say their case is clear: Bannon illegally snubbed the Jan. 6 House panel.
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Weeks after charging Steve Bannon with contempt of Congress, federal prosecutors have made it clear they see the case as relatively simple.
In a December court filing, prosecutors said they expected to need only “one day of testimony” at trial to prove Bannon criminally defied the House committee investigating the Jan. 6, 2021, attack on the Capitol. Then that read like a bold claim, but with the trial set to begin Monday with jury selection, the case against Bannon is shaping up to be a devastatingly straight-forward one.
A series of preliminary rulings left Bannon virtually defenseless, preventing him from making a number of the arguments his defenders had hoped to raise. In a hearing in Washington, D.C., last week that gutted many of Bannon’s planned defenses, U.S. District Court Judge Carl Nichols ruled that his lawyers could not argue that executive privilege excused his refusal to appear for questioning or deliver records to the House of Representatives January 6 committee.
Nichols, appointed by Trump in 2019, similarly blocked Bannon’s defense team from arguing that his previous role as chief strategist for former President Donald Trump’s White House justified his insubordination. The judge also barred Bannon’s lawyers from pointing to internal Justice Department memos detailing congressional subpoena restrictions, and he extinguished the one-time Trump adviser’s hopes of subpoenaing House Speaker Nancy Pelosi and other lawmakers to testify.
Months earlier, Nichols ruled that Bannon could not argue that he had decided not to comply with the House committee’s subpoena based on the advice of his lawyer.
The combined effect of the rulings prompted Bannon’s defense attorney David Schoen to ask a question in open court Monday: “What’s the point of having a trial here if there’s no defense?”
The prospects for a Bannon trial look really bleak, legal experts told Insider.
Any chance of avoiding a conviction likely rests on legal arguments that could taint the case for jurors. But over the Justice Department’s objections, Nichols took those defenses off the table.
“What we called that in my day was a delayed plea,” said Barb McQuaid, a University of Michigan law professor and former U.S. attorney in Detroit. “We all know how that conviction will end.”
Bannon’s lawyer David Schoen (right) during a court hearing recently asked the judge, “What’s the point of having a trial here if there are no defenses?” AP Photo/Alex Brandon
So why go to court?
Bannon has vowed to make his prosecution a “crime from hell” for the Biden administration, but his continued desire to be prosecuted has potential benefits beyond the ability to cast himself as a MAGA martyr.
“Based on everything we know about Steve Bannon, it’s going to be a circus, because that’s how Steve Bannon rolls,” McQuaid said.
Going forward with the trial, Bannon retains the ability to appeal any conviction, said Jeffrey Bellin, a professor at William & Mary Law School and a former federal prosecutor.
“Although the judge has ruled out most of the defenses, Bannon still has the right to force the government to prove its case against him at trial. And since there’s more than legal strategy going on here, that’s what I would expect,” Belin told Insider.
“By going to trial,” he added, “Bannon gets a public platform to fight the charges and preserves legal issues, such as the applicability of executive privilege, for appeal. The alternative is that he could plead guilty. One problem with this is that guilty pleas often require defendants to agree not to appeal.”
Bannon’s defense team is already looking at the next step.
Ahead of the July 18 jury selection, his lawyers twice asked for a delay in the trial in light of the publicity surrounding the recent series of closely watched House committee hearings on January 6. Bannon’s lawyers also pointed to his recent offer to testify before the committee, a reversal they attributed to a recent letter from Trump renouncing an alleged claim to executive secrecy.
But prosecutors rejected the offer as “a last-ditch effort to avoid responsibility, and Nichols refused to delay the trial until at least October. On Thursday, Schoen asked Nichols if he could continue to document cases for publicity to preserve the trial issue in time for a potential appeal.
Nichols invited this additional documentation, but said, “I think it’s very well preserved.”
Any challenge to the conviction will likely affect Nichols’ decision to rule out the argument that Bannon relied in good faith on the advice of his attorney to oppose the House committee. Nichols appeared to make the decision reluctantly, writing that he was bound by decades of precedent from the U.S. Court of Appeals for the D.C. Circuit.
“If it were a matter of first impression, the Court might agree [Bannon] and admit that evidence,” Nichols wrote.
An appeal by Bannon could give the D.C. Circuit an opportunity to revisit that precedent.
Bannon’s defense
It’s unclear what strategy Bannon’s lawyers will wring from the many rulings that limit their defense. But Nichols indicated that one argument remains on the table: Bannon believes his Jan. 6 deadline to respond to the House committee’s subpoena was not firm but “malleable” — or flexible — and “not so firm and as fast as the government says.”
Nichols said Bannon’s recent offer to testify, after months of opposition to the Jan. 6 House committee, may be relevant to that argument. He left open the possibility that Bannon could bring up his recent discussions about testifying before the committee, despite federal prosecutors’ arguments that his last-minute offer was irrelevant to the case.
“The crime of default was complete at that time,” said Assistant U.S. Attorney Amanda Vaughn. The defense’s argument that Bannon saw the deadline as moving and always intended to comply with the subpoena “would have been no different ” Vaughn added, of fraud the defendant says, “I always intended to pay the money back.”
“I’m not saying that’s a strong argument,” Nichols said.
Before the trial, defense attorneys said they planned to call as a witness Robert Costello, a lawyer who has represented Bannon in his dealings with the House committee since Jan. 6. They also said Bannon “will testify,” but as with any criminal case, the decision on whether to call the defendant to the stand will likely come down to the last minute.
Meanwhile, prosecutors plan to call just two witnesses — an FBI agent and Christine Amerling, the chief counsel of the Jan. 6 House panel — with the option of calling another panel lawyer to respond to communications with Bannon about his testimony. FBI agent Stephen Hart is set to testify about statements Bannon and Costello made “regarding the subpoena and defendant’s default.”
Amerling will testify about the House committee’s Jan. 6 investigation, its subpoena and Bannon’s decision not to turn over records or appear for questioning last year.
For prosecutors, this case is as quick and easy as they imagined last year.
As Vaughn said in court last Monday, “It’s about whether he received a subpoena, whether he knew about it and whether he showed up when he knew he was supposed to be there.”
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