Steve Bannon stood outside of a Washington courthouse eight months ago and declared that charging him for failing to cooperate with the Jan. 6 committee would be “the misdemeanor from hell” for top Democrats.
On Monday, the long-time Donald Trump adviser will find out if the tables have turned.
Bannon, 68, finally goes on trial on criminal contempt charges relating to the congressional 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. Bannon 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. But the Justice Department was unmoved.
“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 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.
Judge Carl J. Nichols, a Trump appointee, 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 Chairman Bennie 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.”
