US District Judge Carl Nichols said at pretrial hearing Thursday that he is not deciding yet whether to let that evidence be admitted. But by not immediately shutting down Bannon’s efforts to present that evidence, Nichols kept the possibility open that Bannon might have an additional defense to put forward at next week’s trial.
The judge had previously dealt multiple blows to Bannon’s defense, shutting down several avenues his attorney hoped to use to defend his failure to appear for a testimony before the committee last year and produce the documents it demanded. At a hearing earlier this week, his attorney David Schoen even wondered aloud: “What’s the point of going to trial here if there is no defense?”
Thursday’s proceedings — the last before Bannon’s trial begins Monday — may give his defense team a glimmer of hope in a case that the Justice Department has tried to keep as straightforward and succinct as possible, so far largely curtailing Bannon’s ability to try to shift blame to his attorney or to advisors from Donald Trump’s lawyer. While Bannon has tried to complicate the trial with claims of privilege and arguments of needing members of Congress as witnesses, prosecutors say they only need two or three government witnesses and a few days to prove their case.
On Thursday, Nichols said he will decide whether the jury can hear about the offer of cooperation during the trial. Bannon’s attorneys will have the chance to argue why the evidence is relevant before they cross-examine one of the government’s witnesses. The Justice Department is hoping to exclude both a letter from President Trump that claimed Trump was waiving privilege over Bannon’s testimony and the letter that Bannon’s attorney then sent the commission offering Bannon’s testimony.
A key issue is whether the evidence will get it at whether the deadlines in the subpoenas were set in stone or whether Bannon did not show up because he had reason to that those deadlines were no longer operable — meaning Bannon could possibly be negotiating his cooperation even now.
Nichols said Thursday that the evidence in question was “at least potentially relevant” to that issue.
Judge again rejects Bannon bid to delay trial
Judge Nichols said the trial would begin with jury selection on Monday, as he rejected a second Bannon request to push back the start date.
In his latest efforts to delay the trial, filed with the court on Wednesday, Bannon cited Tuesday’s January 6 committee hearing and a CNN documentary film about him set to premiere on Sunday. Bannon claimed the hearings and the documentary will prejudice the jury pool against him.
But the judge on Thursday agreed with the Justice Department that 14 jurors who have not watched the hearings, read coverage about them, or viewed media about Bannon could be found in DC next week.
“Mr. Bannon still in my view has not shown further delay” would be needed to seat an unbiased jury, federal Judge Nichols said Thursday morning.
Bannon is accused of failing to testify and turn over documents to the House select committee in their January 6 investigation. He has pleaded not guilty. He was not in the courtroom Thursday.
The defense team has said it’s possible they call Bannon to testify in his own defense at the trial.
When asked on Thursday about whether he’ll testify, Schoen told the media, “It’s too early to make a decision like that.”
Debate over whether the deadline for Bannon to comply with the subpoena was firm
During much of Thursday’s hearing, the parties debated what kind of evidence could be introduced to show that the subpoena’s return dates were not in fact firm deadlines but part of the process of negotiation. Bannon’s team is hoping to present to the jury his very recent offer to cooperate with a committee, which Bannon argued was motivated by a new willingness by Trump to waive assertions of executive privilege over Bannon’s testimony.
The DOJ has pointed out that the criminal prosecution is not intended to prompt his testimony, but rather punish him for not complying with the subpoena deadlines.
Amanda Vaughn, an attorney for the Justice Department, said on Thursday that evidence from before the subpoena’s return date showing negotiation would be fair game for a jury to consider.
But she said any evidence from after the subpoena’s return dates — October 7 for documents and October 14 for testimony — was not relevant and should not be presented to the jury, including Bannon’s recent overtures.
In particular, Bannon’s team sought to highlight comments made by committee Chairman Bennie Thompson after the return date, in which the Mississippi Democrat urged Bannon to “choose to change his posture” and comply with subpoenas. And they could try to argue, potentially during possible later appeals, that Bannon didn’t default on the subpoena because the date he needed to comply by wasn’t firm, according to the arguments on Thursday.
“Any evidence” before or after the return date, “that shows that wasn’t firm a date … is relevant to the jury,” Schoen said.
Vaughn argued such an approach “creates a perverse incentive where people can refuse to comply with government orders” until they arrive at “the brink” and then offer cooperation.
“The fact that the committee afterwards is still trying to get information that it’s entitled to … it doesn’t provide any evidence of what the clear-cut choice was at the charged time,” she said.
CNN’s Sara Murray contributed reporting.