Steven Bannon's lawyers tried on 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 negotiating terms. But the committee's chief counsel said Bannon was uncooperative so there was no leeway.
Bannon, who was an unofficial adviser to the then-president at the time of 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 said to have been cooperating in any meaningful way. He was sent a subpoena on Sept. 23, 2021, that ordering 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 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 attack on the subpoena timeline and its validity 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 the trial was politically motivated 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 about various contacts he had with Trump and other people in his orbit, including lawyer Rudy Giuliani and extremist groups such as the Proud Boys and Oath Keepers. She said Bannon ignored multiple notices that he was in danger of facing criminal prosecution by ignoring the committee's requests.
During cross-examination, Corcoran raised questions about Amerling’s ties to a prosecutor in the case and her political affiliation. 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 told the jury that the charges were politically motivated and that Bannon was engaged in good-faith negotiations with the committee when he was charged.
Nichols reiterated Wednesday that Bannon's defense could not address any witnesses in a way that would point to politics as the reasons for his prosecution. Nichols did allow Bannon’s lawyers to ask witnesses about their own biases.
Bannon, 68, was one of the most prominent of the Trump-allied holdouts refusing to testify before the committee. He had argued that his testimony was protected by Trump’s claim of executive privilege, which allows presidents to withhold confidential information from the courts and the legislative branch.
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