The administration on Wednesday suspended its contempt for the congressional case against former Trump aide Stephen K. Bannon after calling just two witnesses — a congressional staffer and an FBI agent — to describe the hard-line podcaster’s alleged refusal to give the testimony House Inquiry Committee to produce documents or testimony into the January 6, 2021 attack.
The rapid pace of the indictment, which began Tuesday afternoon and ended a day later, speaks to the relatively simple factual and legal questions at the heart of the high-profile, politically charged trial: whether Bannon spurned a congressional subpoena and therefore complied with it rarely charged crimes.
Prosecutors called Kristin Amerling, the Jan. 6 committee chief counsel, as their first witness, who detailed how Bannon did not deal with the committee until he missed the first response deadline. In the weeks and months that followed, Bannon still refused to provide the information requested by the subpoena, Amerling said.
Bannon’s legal team countered Wednesday by asking about a series of letters, some as recently as a week ago, between Bannon’s attorney and the committee, where the prospect of his testimony was still being discussed. The defense is trying to show that he did not refuse to cooperate, he only negotiated.
Prosecutor: Bannon turned up his nose at Congress, at the law
M. Evan Corcoran, one of Bannon’s attorneys, also suggested that Bannon was told by Donald Trump that the former president had invoked executive privilege — a legal right designed to protect some of the president’s talks from congressional inquiries.
When he denied the committee’s subpoenas in late 2021, attorney Robert Costello — who represented Bannon in his dealings with the House selection committee — claimed in a letter that Trump invoked the privilege of reporting on Bannon. However, earlier this month when Bannon tried to delay his trial, Trump told Bannon he no longer claims such a privilege.
But Amerling said both claims are flimsy, based on a mischaracterization of what executive privileges are and how they work. “The President had not invoked the privilege, formally or informally, even if you accept the premise that the privilege was valid,” she testified.
US District Court Judge Carl J. Nichols previously said it was unclear whether Trump ever invoked executive privileges. It is also uncertain whether a former president can claim such a privilege, let alone whether it would cover talks with a non-government official like Bannon.
In any event, Nichols has ruled that the privilege is not a valid defense for Bannon unless he can show that it caused him to misunderstand the compliance deadlines of the October 2021 subpoena.
Bannon’s defense strategy became clearer on Wednesday when his attorneys repeatedly suggested that he and the committee would negotiate in late 2021 over any information he might provide, and only continued to do so a week ago. The defense team also attempted to show that the committee’s Democratic chairman, Bennie G. Thompson (Miss.), played a key — and political — role in the prosecution of Bannon.
A day earlier, Bannon had told reporters outside the courthouse that Thompson didn’t have the “guts” to testify against him and instead sent Amerling.
Prosecutors have repeatedly challenged the defense strategy, saying it was legal fiction designed to lead jurors to believe Bannon acted appropriately. Nichols said he would not allow the high-profile trial to become a “political circus” and warned he would allow Bannon’s team to raise some political issues but would also oversee the matter.
Former Trump aide Stephen K. Bannon described the Jan. 6 committee hearing as a “show trial” after exiting jury selection on July 18. (Video: Reuters)
On at least 15 occasions, Trump’s decisions escalated tensions, culminating in a riot in the Capitol
While defense attorneys tried to argue political leanings and alliances, prosecutors tried to narrow the focus to a simpler series of letters between Bannon’s attorney and the committee, including one from Thompson warning that Bannon’s “defiance” could lead to a criminal offense Referral could result for contempt of Congress. Bannon was charged in November.
Corcoran questioned Amerling about the process by which the subpoenas were served and the letters created, and asked specifically which parts of the letters Thompson wrote. Amerling said she couldn’t recall that level of detail and that such letters were generally written by employees before being reviewed and signed by lawmakers.
Corcoran then attempted a very different line of attack, suggesting that Amerling’s previous work history and book club membership with a prosecutor may have tainted the case.
Amerling admitted that about 15 years ago she worked for then-Congressman Henry Waxman, a California Democrat, along with Molly Gaston, who is now an assistant US attorney handling the Bannon indictment and other January 6 cases.
Amerling also said she’s with Gaston at a book club made up mostly of people who used to work for Waxman.
“So you’re in a book club with the DA in this case?” Corcoran asked. “We are,” Amerling replied, although she said she hadn’t attended any of the gatherings in over a year and didn’t think she had seen Gaston at a book club gathering in years.
When asked if the book club spoke about politics, Amerling replied, “The talks cover a whole range of topics. … It’s not uncommon for us to talk about politics in one way or another.”
Amerling, under renewed scrutiny by prosecutors, said she never discussed Bannon’s case with Gaston and their acquaintance did not affect the committee’s actions or the US prosecution.
Prosecutors also called FBI Special Agent Stephen Hart to the witness stand to discuss his November 2021 conversation with Costello, the attorney representing Bannon in his dealings with the committee, who could testify as a defense witness.
In that conversation, Hart testified, Costello said Bannon was “fully involved in the subpoena discussions.” The attorney never indicated that there was any confusion about the committee’s subpoena timelines, Hart said.
Bannon, a bombastic media figure, was held in court this week, often sitting with his hands folded in front of him. But as soon as the FBI agent took the stand, Bannon perked up, laughing at an answer and then shaking his head in apparent desperation at the statement about Hart’s conversation with Costello.