WASHINGTON — A judge said Monday that he would not delay Steve Bannon’s contempt of Congress trial, just one week before it is set to begin.
Bannon was indicted last year for refusing to answer questions from the congressional committee investigating the Jan. 6 attack on the U.S. Capitol. Bannon, who had stonewalled the committee since October, had a last-minute change of heart over the weekend, a decision his lawyer attributed to a letter from former President Donald Trump that waived a purported claim of executive privilege. The Justice Department maintains that Bannon's offer to testify was nothing more than a “last-ditch attempt to avoid accountability.”
According to the Justice Department, Trump's own lawyer, Justin Clark, told the FBI that Trump “never invoked executive privilege over any particular information or materials" and offered no basis for Bannon's "total noncompliance" with his subpoena.
U.S. District Judge Carl Nichols issued a series of rulings on motions preparing for the trial that largely did not go Bannon’s way, one of them knocking out several potential defenses he had raised. After Nichols concluded, Bannon lawyer David Schoen said in the courtroom, “What is the point of going to trial here if there are no defenses?”
Nichols agreed, suggesting Bannon’s team consider that.
Nichols, who had previously ruled that Bannon could not argue that he was not guilty because he was relying on the advice of his lawyer, ruled Monday that Bannon cannot present evidence that he relied on old opinions from the Justice Department’s Office of Legal Counsel regarding executive privilege, either.
While expressing frustration with the precedent he is bound by, Nichols emphasized how low the bar was in the Bannon case. The government had only to illustrate that Bannon's decision was deliberate and intentional and not by accident.
Nichols also ruled out two affirmative defenses that he said Bannon could not use.
The fact that Bannon was not a government employee at the time of the subpoena "dooms" any "entrapment by estoppel" defense, Nichols said, meaning Bannon cannot argue that he ignored the subpoena and that he believed his actions were legal because of instruction from a government official.
Because Trump was a former government official, Nichols said, Bannon also could not rely on a "public authority" defense, meaning he thought he was acting on the instructions of a government official and believed unlawful activity was authorized.
Nichols also said that Bannon could not present evidence that the Jan. 6 committee was not properly formed because of the political balance of its members and that he and the jury would have to defer to the House’s interpretation of its own rules. Nichols cited the fact that the entire House had validated the House select committee.
Nichols did grant Bannon's motion to prohibit general evidence about the Jan. 6 attack, although he noted that some references to Jan. 6 would be necessary. "I intend to police this line tightly," Nichols said.
Nichols said he would not prevent Bannon from trying to illustrate the political biases of witnesses at trial.
The judge also said he would not allow evidence about any people who had not been prosecuted for contempt of Congress, such as Mark Meadows and Dan Scavino, Trump's former White House chief of staff and deputy chief of staff, respectively.
And Nichols quashed Bannon's subpoenas for members of Congress to testify, citing the speech and debate clause of the Constitution. Much of the testimony and many of the documents Bannon sought, Nichols said, will be barred.
Bannon was indicted in November. He used the purported executive privilege claim as a reason not to cooperate with the committee, even though he worked at the White House for only seven months in 2017, more than three years before the Jan. 6 attack.