WASHINGTON – Steve Bannon's lawyers tried Wednesday to establish at his criminal contempt trial that the deadline for the onetime strategist for Donald Trump to appear before the House committee investigating the Capitol riot was flexible as long as the two sides were on negotiating terms. But the committee's chief counsel said Bannon was uncooperative from the start, so there was no such leeway.
Bannon, who was an unofficial adviser to the then-president at the time of the insurrection on Jan. 6, 2021, is charged with defying a congressional subpoena that sought his records and testimony.
Bannon lawyer Evan Corcoran asked Kristin Amerling, the committee's chief counsel, whether it was common for witnesses to appear before a congressional committee several weeks after the deadline date on a subpoena. Amerling answered “yes,” but added only “when witnesses are cooperating with the committee.”
In Bannon's case, she said he could not be viewed as cooperating in any meaningful way. He was sent a subpoena on Sept. 23, 2021, that ordered him to produce requested documents by Oct. 7 and appear in person before the committee on Oct. 14.
The committee heard nothing from Bannon until after the first deadline had passed, at which point his lawyer sent a letter to the committee stating that Bannon was protected by Trump's claim of executive privilege and would not be providing documents or appearing. The committee responded in writing that Trump's claim was invalid and that Bannon faced a hard deadline of Oct. 14 to come before the committee.
When that deadline passed, the committee chairman, Rep. Bennie Thompson, D-Miss., wrote Bannon's lawyer on Oct. 15 threatening criminal prosecution.
Bannon was indicted in November on two counts of criminal contempt of Congress, one month after the Justice Department received the referral. Each count carries a minimum of 30 days of jail and as long as a year behind bars.
The emphasis on the subpoena timeline is one of the few avenues of defense that U.S. District Judge Carl Nichols left Bannon's legal team after a hearing last week. Nichols ruled that major elements of Bannon’s planned defense were irrelevant and could not be introduced in court. The judge said Bannon could not claim he believed he was covered by executive privilege, which allows presidents to withhold confidential information from the courts and the legislative branch, or that he was acting on the advice of his lawyers.
Amerling said the committee sought Bannon's testimony and documents because it had information that Bannon was actively involved in planning, logistics and fundraising for Trump's efforts to overturn the results of the 2020 election and stop Congress from certifying Joe Biden's victory. The subpoena demanded any documents or communications relating to Trump and other people in his orbit, including lawyer Rudy Giuliani and extremist groups such as the Proud Boys and Oath Keepers.
During cross-examination, Corcoran raised questions about Amerling’s own political affiliations and her ties to a prosecutor in the case. Amerling acknowledged she is a lifelong Democrat and had known one of the prosecutors for years since they both worked in the office of now-retired Rep. Henry Waxman, a longtime California Democrat. The two also belong to the same book club, mostly made up of former Waxman staffers, Amerling said.
In opening statements this week, Corcoran hinted that the charges were politically motivated and told the jury Bannon was engaged in good-faith negotiations with the committee when he was charged. Amerling testified that Bannon ignored multiple notices that he was in danger of facing criminal prosecution.
A second witness, FBI Agent Stephen Hart, testified Wednesday about Bannon's social media posts that seemed to celebrate his defiance of the subpoena after the first deadline had passed.
Bannon, 68, is one of the most prominent of the Trump-allied holdouts who refused to testify before the committee. He had argued that his testimony was protected by Trump’s claim of executive privilege.
The prosecution rested its case Wednesday afternoon. The trial resumes on Thursday.
On his way out of the courthouse Wednesday afternoon, Bannon continued his now-daily routine of addressing reporters and harshly criticizing the Jan. 6 committee and particularly Thompson, its chairman. But he has been careful not to criticize his own trial or Judge Nichols.
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