US District Judge Carl Nichols curtailed Bannon’s efforts to introduce at trial certain evidence regarding supposed assertions of executive privilege from former President Donald Trump and evidence about how the Justice Department, in internal documents, viewed executive privilege claims when deciding whether to prosecute a contempt referral from Congress.
Nichols said that Bannon may be allowed to present that evidence to the jury if he can show it will get at whether he intentionally or deliberately failed to comply with the subpoena. For example, the judge said he may be allowed to present that evidence if it shows that he thought that the deadline for complying of the subpoena was no longer valid.
Nichols stressed he was bound by an appellate court precedent that provided a narrow definition of what the government had to prove about Bannon’s intentions when he did not comply with the subpoenas from the House January 6 committee. The judge rejected Bannon’s arguments that the government would need to prove at trial that Bannon knew his non-compliance was wrong or unlawful. Nichols instead adopted the government’s view that prosecutors need only to prove that Bannon was deliberate and intentional in not deciding to comply with the subpoena.
“What’s the point of going to trial here if there is no defense?” Bannon attorney David Schoen said at the hearing after the judge handed down several rulings limiting the evidence Bannon could present the jury.
The hearing came after it was revealed in court filings overnight that the FBI interviewed Donald Trump’s attorney two weeks ago, a previously unknown development that could significantly shape the Justice Department’s sprawling investigation into the January 6, 2021, Capitol riot.
In his interview on June 29, the attorney, Justin Clark, contradicted former top Trump adviser Steve Bannon’s claim that the former president invoked executive privilege over particular information or materials, which Bannon had cited as an excuse to avoid testifying before the House select committee investigating the insurrection.
Bannon on Saturday told the committee that he is now willing to testify, ideally at a public hearing, according to a letter obtained by CNN. He had previously defied a congressional subpoena and is set to go on trial on criminal contempt charges later this month. The reversal came after he received a letter from Trump waiving executive privilege, although both the House select committee and federal prosecutors contend that privilege claim never gave Bannon carte blanche to ignore a congressional subpoena in the first place.
On Monday, Nichols said he was not deciding yet whether evidence regarding Bannon’s new offer to cooperate would be admissible at trial. But in another loss for Bannon, he granted a request by the House that the judge quash a Bannon trial subpoena for the testimony of several House lawmakers, including House Speaker Nancy Pelosi.
A series of losses for Bannon’s defense at trial
Nichols dealt Bannon several losses on Monday in the disputes over what evidence can be offered at the coming trial.
Nichols said Monday that Bannon could not put forward evidence concerning what is known as a public authority defense, as Bannon had argued that in not cooperating with the subpoena, he was following the instructions from Trump.
Nichols said Bannon’s argument for the inclusion of that evidence failed for two reasons: One, that Trump, as a former president, is no longer a government official. And secondly, Nichols said that Trump never instructed Bannon not to show up all together for the subpoenaed testimony.
Nichols also knocked down a potential defense from Bannon known as entrapment by estoppel, in which a defendant argues he had had been misled by government statements to believe his conduct was legal. Bannon had sought to point to internal Justice Department documents outlining its views on executive privilege to argue that Bannon was under the impression that Trump’s privilege assertions precluded him from testifying. Nichols said that the Justice Department documents Bannon pointed to did not address a witness in his particular circumstance.
Additionally, Nichols hamstrung a defense Bannon had signaled he’d put forward about supposed procedural defects in how the House January 6 committee was assembled. The judge also said that Bannon could not present evidence at trial that it was not in compliance with certain House rules about its constitution.
“I conclude that the rules Mr. Bannon alleges violations of were at minimum ambiguous and the House has indicated its view of those rules,” Nichols said. “I must defer to the House’s interpretation of its rules.”
The January 6 committee was interested in speaking to Bannon about his communications with Trump in December 2020, when Bannon reportedly urged him to focus on the January 6 certification of the presidential election results. Committee members were also interested in Bannon’s comments in the run-up to the Capitol insurrection, including a podcast on January 5, in which he predicted, “All hell is going to break loose tomorrow.”
In a Monday court filing, federal prosecutors called Bannon’s willingness to now testify before the House select committee a “last-minute” effort that doesn’t change the case against him, pointing out that he has not produced subpoenaed records.
“The Defendant’s last-minute efforts to testify almost nine months after his default — he has still made no effort to produce records — are irrelevant to whether he willfully refused to comply in October 2021 with the Select Committee’s subpoena,” prosecutors wrote.
“The criminal contempt statute is not intended to procure compliance; it is intended to punish past noncompliance,” prosecutors said.
This story and headline have been updated with additional developments Monday.