Steve Bannon’s trial on contempt charges for defying a subpoena from the House Jan. 6 panel got underway in federal court with jury selection, and a new defense effort to bar evidence unless committee Chair Bennie Thompson testifies.
Bannon, 68, faces two counts of criminal contempt of Congress relating to the committee probe of the Capitol riot in what promises to be a circus of accusations, brash pronouncements and politics playing out daily in front of the media.
On Monday, attorneys for the prosecution and defense agreed on 22 qualified jurors, from which they will select the 12 jurors and two alternates on Tuesday. Jury selection took a while since many people had heard about the case and the Jan. 6 hearings.
Bannon, a long-time adviser to former President Donald Trump, spent months trying to get his case dismissed or delayed, going as far as making a last-ditch offer a week ago to testify to the committee after all. That continued Monday with an effort to strike three letters Thompson wrote to Bannon’s former attorney, Robert Costello, last year regarding the subpoena, including whether the committee had received any invocation of executive privilege from Trump.
“It surely would be constitutionally unfair to allow the Government to put this letter before the jury under these circumstances and especially without Chairman Thompson present to testify,” according to the motion.
Bannon’s defense team has argued they can’t fully defend him unless Thompson testifies.
Judge Carl J. Nichols, a Trump appointee, earlier quashed Bannon’s attempt to subpoena senior members of the House, including Speaker Nancy Pelosi. He said most of the testimony Bannon would seek, such as the motivation or personal views of committee members, is barred by the “speech and debate” clause of the U.S. Constitution that prohibits questioning of members of Congress in court.
He is expected to address motions before opening arguments begin.
“It’s nothing but a show trial,” Bannon said of the hearings on Capitol Hill after leaving the courthouse. “It is time they start having other witnesses and other testimony other than what they have been putting up,” he said.
The Justice Department has been unmoved by the efforts of Bannon’s team to delay the trial and has fought efforts to exclude evidence.
“It creates a perverse incentive where people can refuse to comply with government orders,” Amanda Vaughn, an attorney for the government, said during a pre-trial hearing.
The stakes are high. If convicted, Bannon could face jail time and fines. He would also be the first one in Trump’s circle to face consequences for refusing to cooperate with a congressional subpoena. It would be a steep fall for an influential voice of the right-wing, who ran Breitbart News, briefly served as Trump’s chief strategist and is credited for helping catapult him into the presidency.
Any outcome will likely draw a polarized response. If he is let off the hook, the government argues that will set a bad precedent. If convicted, Bannon is likely to be viewed as a victim by his supporters since he would face punishment after his offer to comply.
“This committee has never wanted Bannon’s testimony. They fear it won’t jibe with their agenda,” David Schoen, one of Bannon’s lawyers, wrote in an email to Bloomberg. The committee has yet to respond to Bannon’s offer to testify, he noted. Hannah Muldavin, a committee spokesperson, didn’t respond to a request for comment.
Bannon’s defense team has accused the House Jan. 6 committee and Justice Department of trying to make an example of him, arguing that a less punitive course could have been taken such as a civil suit. His defense doubled down on those accusations after the government stood firm on prosecuting Bannon despite his offer to testify.
Nichols is trying to keep politics out of the trial though he will let the defense cross-exam witnesses to show bias.
In the past week, Nichols shredded Bannon’s core arguments and twice rejected requests to delay his trial over concerns the jury pool will be tainted by publicity around Bannon and the committee probe. Nichols said he would be open to putting off the trial if the court struggles on Monday to seat an unbiased jury.
The jury’s task is to simply answer whether Bannon intentionally rejected a congressional subpoena to testify before the committee and turn over documents. The government contends that Bannon was given specific deadlines to comply and he ignored those.
“This is an open and shut case. They told him to show up. He didn’t show up,” said Jeremy Paul, a law professor at Northeastern University who is not involved in the case.
But this past week, Bannon’s lawyers introduced a new defense. His lawyers argued in court papers that he never neglected the subpoena since the deadline for his response was “at best ambiguous.” To back up the argument, they cited an effort by committee Chair Thompson to enforce the subpoena after Bannon failed to turn over documents.
To make its case, the defense needs to be permitted to use recent letters that informed the committee about Bannon’s offer to testify and Trump’s decision to waive executive privilege. Nichols said he would decide at trial if and how those documents could be used.
Nichols earlier ruled that Bannon could use evidence that would go to show that his failure to comply was unintentional, such as if he was unclear of the deadline for his response.
The committee is interested in Bannon’s role leading up to the Capitol riot. The subpoena referenced media reports of his involvement in “war room” meetings at Washington’s Willard hotel with Rudy Giuliani and others discussing how to keep Trump in office after he lost the 2020 presidential election. The committee last week revealed during a televised hearing that Trump held two phone calls with Bannon on the eve of the riot.
After the first call, Bannon declared publicly that “all hell is going to break loose. Tomorrow, it’s all converging,” said panel member Stephanie Murphy, a Florida Democrat.
Bannon, along with other Trump advisers, cited executive privilege in connection with the committee’s request. Nichols earlier questioned whether the protection applied in Bannon’s case since he was acting as a private citizen and it was unclear whether it was invoked by Trump. Bannon was indicted in November on two misdemeanor counts of contempt of Congress, with each carrying a maximum sentence of one year in prison and a fine of as much as $100,000.
The indictment made him the first person to face a criminal contempt of Congress indictment in nearly four decades.
In 2020, Bannon was charged with defrauding people who donated to a nonprofit whose stated goal was to build a wall along the U.S.-Mexico border. But Trump preemptively pardoned Bannon before the case went to trial.
The committee has referred others to the Justice Department for contempt. Peter Navarro, Trump’s former trade adviser, also faces criminal contempt charges. But the government declined to prosecute Dan Scavino, Trump’s former deputy chief of staff, and former Chief of Staff Mark Meadows because they had been cooperating, according to people familiar with the case at the time.
“It is unusual to see the degree of non-compliance that has characterized congressional investigations throughout the former administration, the impeachment proceedings, and the Jan. 6 committee’s work,” said Lisa Griffin, a professor of criminal procedure at Duke University’s law school. “Some very central witnesses have defied lawful subpoenas, and few have faced any consequences for doing so.”
