On Wednesday, the government dropped its contempt of Congress case against former Trump adviser Stephen K. Bannon after calling only two witnesses — a congressional staffer and an FBI agent — to describe the talkative podcaster’s alleged refusal to provide documents or testimony to the House Committee investigating the January 6, 2021 attack.
The fast pace of the prosecution, which began Tuesday afternoon and ended a day later, speaks to the relatively simple factual and legal questions at the heart of the high-profile, politically charged trial: whether Bannon refused a congressional subpoena and therefore committed the rarely charged crime.
Prosecutors called as their first witness Christine Amerling, the committee’s general counsel, since Jan. 6, who detailed how Bannon did not engage with the committee until he missed the first deadline to respond. In the weeks and months that followed, Bannon still refused to provide the subpoenaed information, Amerling said.
Bannon’s legal team countered Wednesday by asking about a series of letters, some as recently as a week ago, between Bannon’s lawyer and the committee still discussing the prospect of his testimony. The defense is trying to show that he did not refuse to cooperate, but simply negotiated.
Prosecutor: Bannon thumbed his nose at Congress, the law
M. Evan Corcoran, one of Bannon’s lawyers, also suggested that Bannon had told Donald Trump that the former president had invoked executive privilege, a legal claim intended to shield some of the president’s conversations from congressional investigations. .
Rejecting the committee’s subpoenas in late 2021, attorney Robert Costello — who represented Bannon in his dealings with the House select committee — claimed in a letter that Trump invoked the privilege to cover Bannon. Earlier this month, however, as Bannon sought to delay his trial, Trump told Bannon that he no longer claimed such a privilege.
But Amerling said both claims are fraudulent, based on a mischaracterization of what executive privilege is and how it works. “The president has not formally or informally invoked the privilege, even if you accept the premise that the privilege applies,” she testified.
U.S. District Court Judge Carl J. Nichols previously said it was unclear whether Trump had ever invoked executive privilege. It’s also unclear whether a former president can claim such a privilege, let alone whether it would cover conversations with a non-government official like Bannon.
In any event, Nichols ruled that the privilege was not a valid defense for Bannon unless he could prove that it caused him to misunderstand the October 2021 subpoena deadlines.
Bannon’s defense strategy became clearer Wednesday as his lawyers repeatedly hinted that he and the committee had been negotiating in late 2021 about what information he might provide, and continued to do so until a week ago. The defense team also tried to show that the committee’s Democratic chairman, Benny G. Thompson (Miss.), played a key role — and political — a role in the pursuit of Bannon.
A day earlier, Bannon told reporters outside the courthouse that Thompson did not have the “guts” to come testify against him and sent Amerling instead.
Prosecutors repeatedly objected to the defense’s strategy, saying it was a legal contrivance designed to fool jurors into thinking Bannon had acted properly. Nichols said he would not allow the high-profile trial to become a “political circus,” warning that he would allow Bannon’s team to raise some political issues but also control the issue.
Former Trump adviser Stephen K. Bannon denounced the committee’s Jan. 6 hearing as a “show trial” after he walked out of July 18 jury selection. (Video: Reuters)
In at least 15 cases, Trump’s election escalated tensions that culminated in the Capitol riot
As defense lawyers tried to make the case about political bias and alliances, prosecutors tried to narrow the focus to a clearer set of letters between Bannon’s lawyer and the committee, including one from Thompson that warned Bannon’s “insubordination” could to result in criminal contempt of Congress. Bannon was indicted in November.
Corcoran grilled Amerling about the process by which the subpoenas were served and the letters were created, asking which parts of the letters were written by Thompson. Amerling said he could not recall that level of detail and that such letters are typically drafted by staff before being reviewed and signed off on by lawmakers.
Corcoran then tried an entirely different line of attack, suggesting that Amerling’s past and membership in a book club with a prosecutor may have tainted the case.
Amerling acknowledged that about 15 years ago she worked for then-Congressman Henry Waxman, D-Calif., along with Molly Gaston, who is now an assistant U.S. attorney handling the Bannon impeachment and other cases since Jan. 6.
Amerling also said he was in a book club with Gaston, made up mostly of people who had worked for Waxman.
“So you’re in a book club with the DA on this case?” Corcoran asked. “We are,” Amerling replied, though she said she hadn’t attended any of the gatherings in over a year and didn’t think she’d seen Gaston at a book club meeting in years.
Asked if the book club talks about politics, Amerling said, “The conversations cover a wide variety of topics. … It’s not unusual to talk about politics in one way or another.”
Amerling said under repeated questioning by prosecutors that she never discussed the Bannon case with Gaston and their acquaintance had no bearing on the actions of the commission or the U.S. attorney’s office.
Prosecutors also called FBI Special Agent Stephen Hart to the stand to discuss his November 2021 conversation with Costello, the lawyer representing Bannon in his dealings with the committee, who could testify as a protected witness.
In that conversation, Hart testified, Costello said Bannon was “fully engaged” in discussions about the subpoena. At no time did counsel suggest there was confusion about the deadlines for subpoenaing the committee, Hart said.
Bannon, a bombastic media figure, has been restrained in court this week, often sitting with his hands folded in front of him. But after the FBI agent took the stand, Bannon became more animated, laughing at one response, then shaking his head in apparent exasperation at the testimony about Hart’s conversation with Costello.
The January 6 Uprising
The House Special Committee investigating the January 6, 2021 riot held a series of high-level hearings over the summer. Read the final summary of the hearing.
Congressional Hearings: The House Committee investigating the attack on the US Capitol held a series of hearings to share its findings with the US public. The sixth hearing included explosive testimony from Cassidy Hutchinson, a former White House aide.
Will there be a fee? The committee could press charges against former President Donald Trump for his role in the attack, Rep. Liz Cheney (R-Wyo.) said in an interview.
What we know about what Trump did on January 6: New details emerged when Hutchinson testified before the commission and shared what she saw and heard on January 6.
The Rebellion: On January 6, 2021, a pro-Trump mob stormed the US Capitol in an attempt to stop the certification of the 2020 election results. Five people died that day or shortly thereafter, and 140 police officers were attacked.
Inside the siege: During the riot, rioters came dangerously close to breaking into the building’s inner sanctums while lawmakers were still inside, including former Vice President Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on January 6.
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