(WASHINGTON) — Jury selection is set to begin Monday in the trial of former President Donald Trump’s ally Steve Bannon over his defiance of a subpoena from the House select committee investigating the Jan. 6 attack on the U.S. Capitol.
Bannon, who previously served as Trump’s White House chief strategist but departed in August of 2017, was first subpoenaed by the Jan. 6 committee for records and testimony in September of last year. The committee told Bannon at the time it had “reason to believe that you have information relevant to understanding activities that led to and informed the events at the Capitol on January 6, 2021.”
Last week, the committee revealed that it had obtained records showing Bannon twice spoke with Trump over the phone on the day before Capitol attack, with one call taking place before Bannon made comments on his podcast predicting “all hell is going to break loose tomorrow.”
At the time of the Capitol riot, Bannon was already facing federal charges related to an alleged conspiracy to commit wire fraud and money laundering over his involvement in a crowdfunding effort to build a wall along the U.S.-Mexico border, to which he had pleaded not guilty. Trump pardoned Bannon on his final night in office, but declined to pardon two other men Bannon was initially charged with, both of whom recently pleaded guilty. A judge declared a mistrial in the case of another defendant after one juror refused to join in deliberations. The Justice Department has said it will seek to retry that case.
The Justice Department indicted Bannon last November on two counts of criminal contempt of Congress, roughly 20 days after the full House of Representatives voted to hold him in contempt over his defiance of the Jan. 6 subpoena.
Bannon’s attorneys have repeatedly claimed that Trump had invoked executive privilege over Bannon’s testimony, which prevented him from cooperating — despite Trump’s status as a former president and the fact that Bannon was not a White House adviser at the time of their alleged communications about Jan. 6.
But the Justice Department revealed last week that in a recent interview with federal investigators, former President Trump’s current lawyer, Justin Clark, said that at no point did Trump actually invoke executive privilege over Bannon’s testimony.
Clark also told investigators that he had made clear to Bannon’s attorney Robert Costello, prior to Bannon’s indictment, that Trump was not instructing Bannon to refuse cooperation with the committee altogether.
As his trial date was nearing, Bannon signaled to the committee last week that he was prepared to testify before the committee in a “public hearing,” and provided a letter from Trump in which Trump claimed to have previously invoked executive privilege and said he would now waive it. However, members of the committee have said they won’t consider Bannon’s offer to testify until he first complies with their subpoena’s demand for documents.
Prosecutors questioned the timing of Bannon’s last-minute offer and suggested in a filing that his efforts in conjunction with Trump to offer to finally testify before the committee were no more than a stunt to try and make him more a sympathetic figure to the jury.
“[Bannon’s] continued failure to comply with the subpoena’s document demand while claiming he now will testify suggests his actions are little more than an attempt to change the optics of his contempt on the eve of trial, not an actual effort at compliance,” investigators said in the filing. “[Bannon’s] timing suggests that the only thing that has really changed since he refused to comply with the subpoena in October 2021 is that he is finally about to face the consequences of his decision to default.”
Ahead of the trial, Bannon unloaded on the committee during an episode of his “War Room” podcast last week, vowing to go “medieval on these people.”
“Pray for our enemies, OK? Because we’re going medieval on these people. We’re going to savage our enemies,” Bannon said. “So pray for them. Who needs prayers? Not MAGA, not War Room, and certainly not Stephen K Bannon.”
It’s unclear whether Bannon’s actions leading up to Jan. 6 will factor into his trial, as prosecutors focus on proving their relatively narrow case involving his defiance of the committee’s subpoena.
In a pretrial hearing last week, the judge overseeing Bannon’s case, Carl Nichols, entered a series of rulings that will significantly limit the lines of defense Bannon’s attorneys will be able to present to the jury.
Nichols said Bannon won’t be able to claim he defied the subpoena because Trump asserted executive privilege over his testimony, nor can Bannon claim he relied on the advice of his lawyer, or that he was “tricked” into believing he could ignore the subpoena due to internal DOJ opinions from previous administrations about executive branch officials’ immunity from complying with congressional subpoenas.
Nichols also rejected Bannon’s defense that prosecutors would need to show that he knew his conduct was unlawful, saying that prosecutors only need to prove that Bannon acted “deliberately” and “intentionally” to defy the Jan. 6 panel.
Bannon’s attorney, David Schoen, questioned the judge’s rulings, asking the judge at one point, “What’s the point in going to trial here if there are no defenses?”
In a separate hearing on Thursday, Nichols left open the possibility that Bannon’s recent offer to testify before the committee could be presented at trial, noting that it could be relevant to a line of defense regarding whether Bannon believed the deadline for his compliance with the subpoena was flexible. But Nichols also publicly questioned the strength of putting forward such a defense.
Bannon’s attorneys are likely to fight vigorously to ensure that nobody seated on the jury has leanings that would make them critical or even aware of Bannon’s political activities.
Bannon’s attorneys have argued that widespread negative media coverage of Bannon, including the mention of him at last week’s Jan. 6 committee hearing, will effectively taint any jury pool — though assistant U.S. attorney Molly Gaston expressed confidence last week that they could seat a full jury that would potentially have no idea who Bannon is.
If convicted, Bannon would face a maximum sentence of up to two years in prison plus fines — though such sentences are rare and Bannon would likely appeal any conviction.
Prior to Bannon, the last time a criminal contempt case was brought by the Justice Department was in 1983 during the Reagan administration, against an EPA official who was eventually found not guilty by a jury at trial.
Last month, the Justice Department indicted former Trump White House adviser Peter Navarro on two counts of contempt of Congress, over his similar defiance of a subpoena from the Jan.6. committee. Navarro has pleaded not guilty and is scheduled to go to trial in November.
The same day Navarro was taken into custody, the DOJ informed the Jan. 6 committee it was declining to prosecute former White House chief of staff Mark Meadows and former top Trump adviser Dan Scavino, both of whom had provided some cooperation with the committee but were held in contempt by the full House over their refusal to testify.
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