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Judge rejects Bannon’s bid to toss contempt charges

The former Trump adviser had claimed executive privilege should bar his prosecution for failing to appear before House panel investigating the Jan. 6 riot at the Capitol

Stephen K. Bannon speaks to the media as a protester stands behind him outside of the E. Barrett Prettyman Courthouse in June. (Kevin Dietsch/Getty Images)
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A federal judge on Wednesday denied Stephen K. Bannon’s motion to dismiss his criminal contempt case, rejecting arguments that he was legally protected from having to appear before a House select committee investigating the Jan. 6 Capitol attack.

Bannon, 68, the former chief strategist to President Donald Trump, was charged in November with two counts of contempt of Congress after refusing to comply with a committee subpoena issued two months earlier for his testimony and records about his actions leading up to the Capitol riot.

Bannon had asked U.S. District Judge Carl J. Nichols to toss out the charges, arguing that he relied on the Justice Department’s long-standing advice about congressional subpoenas to White House aides when he did not respond to the committee’s demand. Bannon asserted that he was not given fair notice by the Justice Department that his actions could be criminal, given the department’s prior opinions on separation-of-powers grounds that Congress cannot compel presidents’ close aides to testify. Their having to do so, officials have previously argued, might dissuade them from giving unvarnished advice to the commander in chief.

At a three-hour court hearing in Washington, Nichols, a 2019 Trump appointee, repeatedly challenged Bannon’s claims and ultimately decided in the Justice Department’s favor.

Bannon’s defense, Nichols said, relies on two prongs: that the Justice Department’s legal opinions and statements apply to people like Bannon, who was a private citizen during events leading up to Jan. 6, and that Trump had “unequivocally invoked executive privilege over Mr. Bannon’s testimony and records.”

“Neither predicate can be established in my view, at least not at this stage,” Nichols said.

The decision allowing Bannon’s scheduled July 18 trial to go forward was a critical victory for a U.S. prosecution that Attorney General Merrick Garland said was brought to “show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law and pursues equal justice under the law.” It also provided a moral victory to the House committee, even though a conviction would not force Bannon to cooperate. Nichols also is presiding over civil lawsuits by a half-dozen witnesses challenging subpoenas from the Jan. 6 committee.

Throughout the hearing, the judge was skeptical whether Bannon was covered by the opinions of the Justice Department’s Office of Legal Counsel (OLC), which has asserted that, if the president invokes executive privilege, his senior aides cannot be made to testify. He said Bannon, who left the White House in 2017, did not seem to be a precise “fit” for the legal guidance.

“Has the OLC ever said a person in that circumstance would not be prosecuted for failing to show up?” Nichols asked Wednesday.

Nichols also rejected Bannon’s claim that the composition of the House investigative committee violated congressional rules and rendered it illegitimate.

“The court cannot conclude that the committee was invalidly constituted such that the indictment should be dismissed,” Nichols said, becoming the latest federal judge to reject such arguments raised by Trump supporters.

Bannon is one of two former Trump advisers the Justice Department is prosecuting for refusing to comply with subpoenas from the Jan. 6 committee. Earlier this month, Trump’s White House trade adviser Peter Navarro was indicted on the same contempt charges that Bannon faces. But the Justice Department at the same time revealed it would not prosecute two other high-ranking Trump aides who the committee had referred for contempt — former White House chief of staff Mark Meadows and communications chief Daniel Scavino Jr.

The misdemeanor contempt charges each carry a maximum sentence of one year in jail.

Bannon, who has pleaded not guilty, argued that he refused to respond to a Sept. 23 subpoena by the committee in part on the advice of his counsel, Robert J. Costello, who said Trump asserted executive privilege over appearances by his former aides.

Though Nichols rejected Bannon’s bid to throw out the case, the judge said he would decide later whether Bannon could raise the Justice Department opinions as a defense in his trial. The judge said he might permit Bannon to argue to a jury that former presidential aides can point to executive privilege to avoid testifying, or that because Bannon believed he could do so, his violation of the law was not “willful.”

Nichols also warned U.S. prosecutor Amanda Vaughn that he was “highly disinclined” to allow the government to introduce evidence at the trial related to Costello’s phone and email records that the government had obtained in its investigation of Bannon.

Bannon’s attorneys had decried prosecutors’ collection of Costello’s toll records, saying that turning a person’s attorney into a potential witness against him breached norms and would have a “chilling effect” on all defendants if allowed to stand. Nichols said he would consider whether to take action against the prosecution over their collection of the records after trial.

In compelling Bannon’s appearance, the House committee wrote that it wanted information about his activities at the Willard hotel before the riot, when Trump supporters discussed ways to overturn the 2020 election results. The committee alleged Bannon was there during an “effort to persuade members of Congress to block the certification the next day,” and sought his deposition about that and other activities related to Jan. 6.

The subpoena noted that Bannon predicted that “hell is going to break loose” on Jan. 6, and the committee’s report recommending that he be found in contempt said the comments indicated he “had some foreknowledge about extreme events that would occur the next day.”

In declining to cooperate, Bannon’s lawyer wrote to the committee in October, saying he was contacted by Trump lawyer Justin Clark and instructed not to respond, and would not cooperate without a court order or a committee agreement with Trump.

David Schoen, Bannon’s defense attorney, said Bannon would seek to delay his trial, alleging that the House committee’s ongoing hearings about the Jan. 6 riot and lawmakers’ statements are tainting the pool of potential jurors.

Rachel Weiner contributed to this report.