Bannon trial: Judge fails to delay proceedings and blocks executive privilege claim

A federal judge on Monday refused to delay the trial of Stephen K. Bannon next week after the Justice Department called a The former Trump aide’s offer to testify before the House committee investigating the Jan. 6, 2021, uprising, a “last ditch attempt to avoid accountability” for criminal contempt of Congress.

“I see no reason to prolong this case any longer,” U.S. District Judge Carl J. Nichols said after a hearing in which he dismissed a host of Bannon’s defenses. including claims that Bannon thought his appearance was covered by executive privilege. The judge limited Bannon’s defenses at trial primarily to whether he understood the timelines for responding to House requests to appear and produce documents.

“While I am certainly aware of Mr. Bannon’s concerns about publicity, in my view the appropriate mechanism at this time to address this concern is to [jury selection] process,” Nichols said, adding that he found it “unlikely” that the court would not be able to find impartial jurors.

Bannon, 68, Trump’s former chief strategist, was charged in November with two counts of contempt of Congress after he refused to comply with a subpoena issued two months earlier for his testimony and tapes of his actions leading to the Capitol riot by a pro-Trump Mob on January 6, 2021. Misdemeanor charges carry at least 30 days or up to a year in prison if convicted.

Bannon’s attorneys have sought to postpone his trial until October, saying ongoing House committee hearings on the Capitol siege and statements from lawmakers have fueled a “media blitz,” tainting the pool of potential jurors.

Steve Bannon charged after refusing to comply with January 6 subpoena

“The members of the select committee are trying to send a message to the public – that President Donald J. Trump and his close advisers bear responsibility for the attack” and “that President Trump’s close advisers did not cooperate with the select committee,” Bannon’s attorneys said. David I. Schoen and Mr. Evan Corcoran argued, the very circumstances raised by his case.

In an overnight filing, US prosecutors urged Nichols to keep Bannon’s trial on track for July 18 and to conceal from jurors Bannon’s “sudden desire to testify”, which they called an eleventh-hour ploy to airbrush out the conduct that spurred his prosecution.

“It is important to justify the status and authority of Congress in these matters to expeditiously dispose of the criminal case,” Assistant U.S. Attorney Molly P. Gaston told Nichols in court.

It would set ‘a bad precedent’ and reward another kind of ‘disregard and obstruction’ for allowing Bannon to defy the committee, initiate a criminal prosecution at the Justice Department and fill the docket of a federal court. to say on the eve of trial, “Actually, I’m going to comply now” in hopes of dismissing his criminal case, Gaston said.

Bannon, pending possible testimony, brings new focus to Jan. 6 role

Gaston and Assistant U.S. Attorney Amanda R. Vaughn added in a written document, “The defendant’s alleged desire to testify now does not erase his past contempt.”

Nichols, a 2019 Trump appointee who served in George W. Bush’s Justice Department from 2005 to 2009, appeared to accept that argument. In addition to denying Bannon’s request to raise claims of executive privilege at trial, Nichols also said Bannon could not state that he believed the Justice Department’s past policy statements on privilege applying to White House aides were covering it or that the House panel was invalid because Republicans largely boycotted.

None of the Justice Department’s past statements “address a situation involving actions by a nongovernmental employee of a president who, at the time of the subpoena, was no longer in office,” Nichols said.

When Bannon’s attorney, David I. Schoen, objected after the ruling, “what’s the point of going to court if there’s no defense?” »

Nichols simply replied, “Okay.”

Monday’s hearing came a day after Bannon’s attorney, Robert J. Costello, wrote to House panel chairman Bennie G. Thompson (D-Miss.), saying, “Mr. Bannon is prepared to testify at your public hearing, and prefers to do so.

Bannon’s offer to appear live and without modification before the House Select Committee investigating the events of Jan. 6 came days before the panel set a hearing for Tuesday on Trump’s White House ties to domestic extremist groups.

This followed Trump’s combative letter on Saturday offering to waive his contested claim for executive privilege to have Bannon testify after all on the condition that the committee accept his former White House strategist’s choice of “a moment and a while.” a place “.

“I have seen how unfairly you and others have been treated,” Trump said in the letter. “Therefore, if you come to an agreement on a time and place for your testimony, I will waive executive privilege for you, which allows you to come in and testify honestly and fairly, as requested by the Screening Committee. political thugs and Hacks, who allowed no due process, no cross-examination, and no genuine Republican members or witnesses.

Bannon, who pleaded not guilty, argued he refused to respond to a Sept. 23 subpoena by the committee in part on the advice of Costello, who said Trump asserted executive privilege. on the appearances of his former assistants.

“This is not an eleventh-hour move by Mr. Bannon,” Schoen said. said. “His principled position was that his hands were tied…because of his understanding of executive privilege, his respect for executive privilege invoked by a former president. And now his hands have been untied for the first time.

Bannon’s trial lawyers urged Nichols to allow them to argue before a jury that he was selectively prosecuted for political reasons, noting that the Justice Department declined to prosecute two other high-ranking aides to Bannon. Trump whom the committee had fired for contempt – former White House chief of staff Mark Meadows and communications chief Daniel Scavino Jr.

Bannon’s defense claimed that the department’s Office of Legal Counsel (OLC) has issued opinions that if the president claims executive privilege, his senior aides cannot be brought to testify.

Nichols was unconvinced. None of Bannon’s defenses were relevant to what the government must do to prove guilt, the judge said — that Bannon’s failure or refusal to appear was willful and intentional, not that he knew or would have must have known that his conduct was unlawful, nor that he supposedly relied on his attorney’s advice or on Trump’s invocation of privilege.

“Thinking one is legally barred or thinking a subpoena is invalid is not the same as thinking an answer date has been suspended,” said Nichols, the only valid type of “ misunderstanding” allowed by the binding precedent of the Court of Appeal.

In fact, Nichols disputed that Trump ever claimed privilege for Bannon.

During Bannon’s cogent appearance, the House committee wrote it wanted information about his activities at the Willard Hotel before the riot, when Trump supporters discussed ways to overturn the election results of 2020. The committee alleged that Bannon was there during an “effort to persuade members of Congress to block certification the next day,” and sought his deposition on this and other Jan. 6-related activities.

The subpoena noted that Bannon predicted “all hell would break loose” on Jan. 6, and the committee’s report recommending he be found in contempt said the comments indicated he “had a certain foreknowledge of extreme events that would occur the next day.”

Costello – who withdrew from Bannon’s criminal case because he said he could be called as a witness – refused to cooperate with the committee in October, writing that he had been contacted by the lawyer of Trump Justin Clark and instructed not to respond. Costello says Bannon would not cooperate without a court order or committee agreement with Trump.

In the government’s filing overnight, prosecutors revealed they interviewed Clark and said the former president’s attorney never asked or was invited to attend Bannon’s House deposition, which Costello had misrepresented at committee what Clark had told him and that Clark “made it clear to counsel for the defendant that the letter provided no basis for total non-compliance.”

Prosecutors argued that executive privilege provided no basis for Bannon’s outright refusal to appear, and that even if so, he was required to appear before lawmakers and invoke it in response to specific matters. Bannon left the White House in 2017 and was subpoenaed for testimony and documents relating to events that occurred while he was a private citizen, they said.

“How are [Bannon’s] comments on his podcast covered by executive privilege? Vaughn asked rhetorically in court, or his conversations with GOP lawmakers.

Nichols agreed. In fact, Nichols disputed that Trump ever claimed privilege for Bannon. Clark asked Bannon only “if necessary” to invoke any immunity and privilege he might have from compelled testimony or production of privileged documents, the judge said.

Clark added in a follow-up that his initial letter “did not indicate that we believe there is testimonial immunity for your client. As I indicated to you the other day, we do not believe there is have any.

Prosecutors also cited reports that one of Bannon’s lawyers, Corcoran, works for Trump and his law firm was paid $50,000 by Trump’s “Save America” ​​political committee.


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