A federal judge on Wednesday declined to dismiss contempt of Congress charges against former Trump White House adviser Steve Bannon over his refusal to cooperate with the House committee investigating the Jan. 6 riot at the Capitol.
U.S. District Court Judge Carl Nichols issued his ruling immediately after hearing courtroom argument from federal prosecutors and Bannon’s lawyers. The move clears the way for Bannon’s trial to start July 18, but one member of Bannon’s team said he might seek to have it delayed.
Bannon was indicted last November by a federal grand jury, charged with two counts of contempt of Congress for refusing to answer questions from the House committee investigating the riot. One count accused him of refusing to appear for a deposition and the other was for declining to produce documents requested by the committee.
The committee said it wanted to explore a comment he made on his radio program on Jan. 5, when he predicted that “all hell is going to break loose tomorrow.” That could indicate that “he had some foreknowledge about extreme events that would occur the next day,” the committee said.
Bannon was present at a meeting in a Washington, D.C., hotel the day before the riot, where Trump supporters discussed how they could try to overturn the election results, the panel said. Committee investigators said they wanted to ask about that and about a Dec. 30 phone conversation in which Bannon urged Trump to focus his efforts on Jan. 6.
If convicted, Bannon, 68, could face up to a year behind bars and a fine of up to $100,000. A conviction would result in punishment, but it would not require him to comply with the subpoena.
David Schoen, a member of Bannon’s defense team, said after the hearing that he has subpoenaed every member of the Jan. 6 committee as well as House Speaker Nancy Pelosi, D-Calif., to testify at the trial. “We want to hear exactly what went on here," Schoen said. "Why is it that Mr. Bannon was singled out and targeted for criminal prosecution?”
Bannon’s lawyers had argued that under Justice Department policies, former White House officials have no legal obligation to comply with a congressional subpoena when the president has asserted executive privilege. Bannon relied on these positions “in reasonably believing that the subpoena was not valid and that compliance was not, therefore, either appropriate or required as a matter of fact and law,” his lawyers told the judge in legal papers submitted before the hearing.
That defense is not available to Bannon, the government contended, because the subpoena dealt only with his actions as a private citizen long after he left government service and because he was never directed by Trump to ignore it.
Nichols rejected Bannon’s argument about immunity. It was “at best ambiguous” whether Trump’s assertions of executive privilege covered the issues involved in Bannon’s subpoena, he said.
The judge also rejected a claim by Bannon’s lawyers that the subpoena wasn’t valid because the House committee was not properly constituted under congressional rules. Another federal judge, Nichols noted, rejected that same argument in a case challenging the committee’s subpoena authority.
Nichols also dealt Bannon a blow in April, ruling that he cannot argue at his trial that he is not guilty because he was following the advice of his lawyer. Under previous appeals court rulings, such a defense is not available in a contempt of Congress case, the judge said.