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Judge rejects Bannon’s bid to delay trial, executive-privilege claim

The former Trump adviser offered to testify before Jan. 6 House committee days before his trial on charges of criminal contempt of Congress

Stephen K. Bannon faces two federal charges of contempt of Congress. (Matt McClain/The Washington Post)
9 min

A federal judge on Monday refused to delay Stephen K. Bannon’s trial next week after the Justice Department called an offer by the former Trump aide to testify before the House committee investigating the Jan. 6, 2021, insurrection a “last-ditch attempt to avoid accountability” on charges of criminal contempt of Congress.

“I see no reason for extending this case any longer,” U.S. District Judge Carl J. Nichols said in rejecting a host of Bannon’s defenses after a hearing, including his contention that Donald Trump had claimed executive privilege over his testimony and documents. The judge narrowed Bannon’s defenses at trial mainly to whether he understood the deadlines for answering lawmakers’ demands.

“While I am certainly cognizant of Mr. Bannon’s concerns regarding publicity, in my view the correct mechanism at this time for addressing that concern is through the [jury selection] process,” Nichols said, adding that he found it “unlikely” the court would be unable to find unbiased jurors.

Bannon, 68, the former Trump chief strategist, was indicted in November on two counts of contempt of Congress after refusing to comply with a committee subpoena issued earlier for his testimony and records about his actions leading up to the Capitol riot by a pro-Trump mob on Jan. 6. The misdemeanor charges are punishable by at least 30 days or up to one year in prison upon conviction.

Bannon’s attorneys sought to delay his trial to October, saying the House committee’s ongoing hearings about the Capitol siege and lawmakers’ statements have fueled a “media blitz,” tainting the pool of potential jurors.

Steve Bannon indicted after refusal to comply with Jan. 6 committee subpoena

“Select Committee members are trying to drive home a message to the public — that President Donald J. Trump and his close advisors bear responsibility for the attack” and “that close advisors to President Trump have not cooperated with the Select Committee,” Bannon attorneys David I. Schoen and M. Evan Corcoran argued, the very circumstances raised by his case.

In an overnight filing, U.S. prosecutors urged Nichols to keep Bannon’s trial on track for July 18 and to withhold from jurors Bannon’s “sudden wish to testify,” which they called an 11th-hour ploy to airbrush away the conduct that spurred his prosecution.

“It is important to vindicate the statute and Congress’s authority in these matters to quickly adjudicate the criminal matter,” Assistant U.S. Attorney Molly P. Gaston argued to Nichols in court.

It would set “a bad precedent” and reward another kind of “contempt and obstruction” to allow Bannon to defy the committee, trigger a Justice Department criminal prosecution and occupy a federal court’s docket only to say on the eve of trial that he will comply in hopes of dismissing his criminal case, Gaston said.

On July 10, members of the House committee investigating the Jan. 6, 2021, Capitol attack discussed the impact of testimony on future public hearings. (Video: The Washington Post)

Bannon, dangling possible testimony, brings new focus to Jan. 6 role

Nichols, a 2019 Trump appointee who served in George W. Bush’s Justice Department from 2005 to 2009, said Bannon could argue to a jury whether he thought the window for compliance remained open. But the judge rejected other defenses, saying Bannon could not argue that he thought he was protected by executive privilege, that he believed the Justice Department’s past policy statements on the privilege applying to White House aides covered him or that the House panel was invalid because Republicans had largely boycotted it.

None of the Justice Department’s past statements “concern a situation involving actions committed by a nongovernmental employee of a president who at the time of the subpoena was no long in office,” Nichols said.

In fact, Nichols disputed that Trump ever invoked the privilege for Bannon. The former president’s attorney instructed Bannon only “where appropriate” to invoke any immunity and privilege he may have from compelled testimony, or from producing privileged materials, the judge said.

The judge read a follow-up from Trump attorney Justin Clark, which stated that his initial letter “didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is.”

When Schoen objected after the ruling, “What’s the point of going to trial if there are no defenses?”

Nichols simply answered, “Agreed.”

Monday’s hearing came one day after Bannon attorney Robert J. Costello wrote House panel chairman Bennie G. Thompson (D-Miss.), saying, “Mr. Bannon is willing to, and indeed prefers, to testify at your public hearing.”

Bannon’s offer to appear live and unedited before the House select committee investigating the events of Jan. 6 came days before the panel has set a hearing for Tuesday on the Trump White House’s ties to domestic extremist groups.

It followed Trump’s combative letter Saturday offering to waive his disputed claim of executive privilege for Bannon to testify after all on condition that the committee agree to his former White House strategist’s choice of “a time and place.”

“I watched how unfairly you and others have been treated,” Trump said in the letter. “Therefore, if you reach an agreement on a time and place for your testimony, I will waive Executive Privilege for you, which allows for you to go in and testify truthfully and fairly, as per the request of the Unselect committee of political Thugs and Hacks, who have allowed no Due Process, no Cross-Examination, and no real Republican members or witnesses.”

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 Costello, who said Trump asserted executive privilege over appearances by his former aides.

“This isn’t an 11th-hour move by Mr. Bannon,” Schoen said. “His principled position has been that his hands were tied … because of his understanding of executive privilege, his respect for executive privilege invoked by a former president. And now his hands have been untied for the first time.”

Bannon’s trial attorneys urged Nichols to allow them to argue to a jury that he was selectively prosecuted for political reasons, noting that the Justice Department has declined to 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.

Bannon’s defense has asserted that the department’s Office of Legal Counsel has issued opinions taking the position that if the president invokes executive privilege, his senior aides cannot be made to testify.

Nichols was unconvinced. None of Bannon’s defenses was relevant to what the government has to do to prove guilt, the judge said — that his failure or refusal to appear was deliberate and intentional, not that he knew or should have known his conduct was unlawful, nor that he purportedly relied on advice of his attorney or Trump’s invocation of privilege.

“Thinking one is legally excluded or thinking a subpoena is invalid is not the same as thinking a reply date was put on hold,” Nichols said, the only valid type of “misunderstanding” that binding appeals court precedent allows.

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.”

Costello — who has withdrawn from Bannon’s criminal case because he said he may be called as a witness — declined to cooperate with the committee in October, writing that he was contacted by Trump lawyer Clark and instructed not to respond. Costello said Bannon would not cooperate without a court order or a committee agreement with Trump.

In the government’s overnight filing Monday, prosecutors disclosed that they had interviewed Clark and said that the former president’s counsel never asked or was asked to attend Bannon’s House deposition, that Costello misrepresented to the committee what Clark told him and that Clark “made clear to the Defendant’s attorney that the letter provided no basis for total noncompliance.”

Prosecutors have argued that executive privilege provided no basis for Bannon’s total refusal to appear and that, even if applicable, he was required to appear before lawmakers and invoke responses to specific topics. Bannon left the White House in 2017 and was subpoenaed for testimony and documents about events that took place while he was a private citizen, they said.

“How are [Bannon’s] comments on his podcast covered by executive privilege?” Assistant U.S. Attorney Amanda R. Vaughn asked rhetorically in court, or his conversations with GOP lawmakers.

Nichols acknowledged it might seem “anomalous” that a jury could not hear a defendant’s side of the story. He said he had his personal reservations but that binding court precedent barred most of Bannon’s defenses at trial. Nichols said Bannon could appeal later.

Nichols, who also is presiding over civil lawsuits by a half-dozen witnesses challenging subpoenas from the Jan. 6 committee, rejected arguments echoed by Bannon attacking the legitimacy of the House panel or the legal force of its actions.

“By making contempt referrals and submitting several briefings, the entire House has on multiple occasions ratified that the committee is validly constituted and operated,” Nichols said. He added that any other “ruling allowing me or a jury to second guess the meaning of the House’s own rules or obligations would raise serious separation of powers concerns” and wrest Congress’s constitutional powers to the judiciary.