Federal judge undercuts Steve Bannon's defense for not complying with House subpoena

Judge Carl Nichols said Bannon's trial would proceed next week as scheduled.

July 11, 2022, 8:11 PM

A federal judge on Monday rejected a series of explanations by former Trump White House adviser Steve Bannon as to why he failed to comply with a subpoena issued by the House committee investigating the Jan. 6 attack on the U.S. Capitol, reinforcing the legal challenges that Bannon is currently facing.

Bannon was charged last year with two counts of criminal contempt of Congress after defying the panel's subpoena, and Judge Carl Nichols said in Monday's pretrial hearing that he would not delay Bannon's trial, which is set to begin next Monday.

"I see no reason for extending this case any further," said Nichols.

On the eve of the Monday's pretrial hearing, Bannon -- who for months had refused to comply with the subpoena by claiming absolute "immunity" from congressional subpoenas due to his previous role within the Trump White House -- suddenly offered to testify before the Jan. 6 committee, a move that prosecutors in a court filing have described as a "last-ditch effort to avoid accountability."

The hearing also followed a revelation by the Justice Department that federal investigators interviewed former Trump attorney Justin Clark two weeks ago in connection with Bannon's case.

Among the overarching arguments that Nichols rejected was Bannon's claim that he defied the subpoena because former President Donald Trump had asserted executive privilege over his testimony, an argument Bannon's lawyers said was based on DOJ Office of Legal Counsel opinions. Judge Nichols noted that the opinions referenced do not apply in Bannon's case because they do not pertain to someone in Bannon's position as a former White House official to a former president. Bannon has not worked in the White House since 2017.

In a blow to Bannon's defense, Nichols ruled that Bannon cannot present to the jury evidence that he relied on those internal Justice Department opinions -- or on his counsel's advice -- as the reason for declining to appear, saying those factors don't serve as appropriate reasons for Bannon's decision not to comply.

PHOTO: Steve Bannon, talk show host and former White House advisor to former President Donald Trump, arrives to U.S. District Court in Washington, June 15, 2022.
Steve Bannon, talk show host and former White House advisor to former President Donald Trump, arrives to U.S. District Court in Washington, June 15, 2022.
Elizabeth Frantz/Reuters, FILE

Nichols also rejected Bannon's "entrapped by estoppel" defense, which argued that he was "tricked" into believing he was entitled to ignore the subpoenas due to the DOJ opinions, on the grounds that the DOJ opinions do not specifically deal with Bannon's situation.

In addition, the judge ruled that Bannon cannot present a "public authority" defense, because Trump was no longer a federal official by the time Bannon was subpoenaed.

"The former president, in his civilian capacity, is by definition not a federal official" and "never instructed Mr. Bannon not to show up altogether," the judge ruled.

The judge 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.

"What's the point in going to trial here if there are no defenses?" Schoen said before the judge.

In a win for Bannon, Nichols said he will allow his defense team to present evidence about prior subpoenas regarding whether Bannon thought the date was flexible, allowing Bannon to argue that he misunderstood the subpoena's due date or believed in good faith that the deadline could be extended.

The judge also ruled that he would allow Bannon's defense team to cross examine certain witnesses to introduce evidence of "political bias."

However, Nichols granted a motion from the House committee to quash 16 trial subpoenas that Bannon's attorneys had sent to 12 members of Congress and four staffers, and he rejected the defense's assertion that the Jan 6. Committee is not "properly composed," saying "the entire House has on multiple occasions ratified that the committee is validly constituted."

Following the hearing, Schoen suggested to reporters that he might appeal Nichols' rulings.

"That's why they have a court of appeals," said Schoen when asked how he felt about the judge's decisions.

In their filing overnight, prosecutors said the timing of Bannon's sudden offer to testify 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."

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