Lawyers are preparing to give opening statements Tuesday afternoon in the federal trial of former Trump adviser Stephen K. Bannon, who is charged with two counts of contempt of Congress after refusing to cooperate with the House committee investigating the attack on the U.S. Capitol on Jan. 6, 2021.
Tuesday’s proceedings got off to a bumpy start as the judge, defense lawyers, and prosecutors seemed to not be in agreement on what evidence could or couldn’t be presented to the jury.
But shortly after 1 p.m., jury selection was completed.
In the morning courtroom session, Bannon lawyer M. Evan Corcoran asked for a one-month delay in the trial so the defense team could recalibrate its strategy based on recent rulings by U.S. District Judge Carl J. Nichols of Washington.
Nichols rejected that request, but briefly weighed pushing the start of the trial back one more day while lawyers on both sides wrestle with how much, if at all, to redact correspondence between Bannon and the Jan. 6 legislative committee.
As arguments stretched over an hour, Bannon sat impassively at the defense table in the federal courthouse, wearing his trademark two black button-down shirts, one layered over the other, a black suit jacket, and — to comport with courthouse covid protocols — a black face mask.
Bannon’s lawyers said they had understood Nichols’ prior rulings to greatly limit what evidence they could offer, while the judge insisted he had always left open the possibility they could argue that Bannon did not intend to flout the committee’s subpoena.
The judge said his prior rulings allowed Bannon to offer a rationale for why he may have thought the committee’s deadlines for him to respond were not fixed. “I don’t think it could have been clearer,” said Nichols.
Bannon’s defense lawyers insisted that was not their understanding, and said they might have to craft an entirely different defense strategy. Corcoran called the judge’s parameters “a seismic shift.”
"There are a lot of moving pieces,” he said. “We simply have not done the type of defense preparation we would have.”
It was the latest of many instances in which Bannon’s legal team unsuccessfully sought a lengthy delay to the trial.
On Monday, a pool of 60 D.C. residents was whittled down to 22 prospective jurors — 12 men and 10 women.
Eighteen prospective jurors were ruled out during day-long vetting by the judge, federal prosecutors and the defense, including several who said under oath that they had formed opinions they were not certain they could set aside regarding the conduct of Trump’s former chief White House strategist, who is alleged to have ignored a committee subpoena for records and testimony last October.
“I would try to [set aside my opinions], but can’t guarantee it 100 percent,” said one prospective juror, who identified herself as a social media manager for a Washington museum and who was dropped from the case at the government’s request.
“It would seem cut and dried, the same way I received a notice to come here” to court for jury duty, said another man, who handles contracts for a small private company, and who was excluded from jury service after Bannon’s lawyers objected.
The House committee issued a subpoena to Bannon in September 2021 saying it wanted to question him about activities at the Willard Hotel the night before the riot, when supporters of President Donald Trump sought to persuade Republican lawmakers to overturn the 2020 election results. The committee said Bannon spoke with Trump by telephone on the morning and evening of Jan. 5, the last time after Bannon predicted that “hell is going to break loose” on Jan. 6. 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 testify and turn over records, Bannon claimed executive privilege, and his lawyer said he was contacted by Trump lawyer Justin Clark and instructed not to respond. During a pretrial hearing this month, Nichols rejected several of Bannon’s defenses, including the executive-privilege claim, and narrowed Bannon’s defenses at trial mainly to whether he understood the deadlines for answering lawmakers’ demands or believed they were open-ended.
Nichols agreed with prosecutors’ argument that under binding legal precedent, Bannon’s reasons for not complying with the House panel subpoenas were irrelevant if he willfully disregarded them. The judge also disputed that Trump had asserted executive privilege for Bannon, or that it would cover the conversations in question because the latter had left the White House in 2017 and was a private citizen at the time.
A former media executive who boasted of creating a “platform for the alt-right” before chairing Trump’s 2016 campaign and who has championed a global, “populist-nationalist” movement afterward, Bannon has continued to advise Trump, considering himself an ideological architect of the efforts to overturn the election and the Jan. 6 rally, while denying responsibility for the riot.
Bannon, who after his indictment last November promised to turn his case “into the misdemeanor from hell” for Biden administration officials, and to “go medieval” on his enemies last week, struck a more upbeat note after Monday’s proceedings, telling a large gathering of news media outside the courthouse, “I’ll see you here tomorrow morning, I want to thank the judge, I want to thank everyone.”
“I think it would have been more productive … if we’d been on Capitol Hill in front of open mics addressing the nation with exactly all this nonsense, this show trial they’ve been putting up on Capitol Hill,” Bannon said. “It’s time they [the House Jan. 6 committee] start having other witnesses, that give other testimony other than what they’ve been putting up.”
In court, Corcoran argued that it was Bannon’s initial refusal to cooperate with the committee that would be “the very issue that’s going to be decided,” asking the judge to drop one man who Corcoran said had “a manic focus on the select committee and Jan. 6 and trying to help the committee” do its work.
Assistant U.S. Attorney Molly Gaston shot back, “We shouldn’t be disqualifying people just because they believe the work of the committee or the functioning of government is important,” and said that rather than a “manic focus” the man in question simply said he followed news about Jan. 6 on his Apple News feed.
Some of those excluded included the daughter of one of the District’s elected but nonvoting “shadow senators”; the daughter of a senior aide to Rep. Lois Frankel (D-Fla.); an employee of the Hirshhorn Museum on the National Mall; a woman who has plans to care for her grandmother in New Jersey next Tuesday; and a man who bluntly told the parties that he held an opinion, and “the opinion is that Bannon is guilty.”
The misdemeanor contempt charges are each punishable by at least 30 days or up to one year in prison upon conviction.
Tom Jackman contributed to this report.