The judge had previously dealt multiple blows to Bannon’s defense, closing off several avenues his lawyers had hoped to use to defend his failure to appear before the committee last year and produce the documents it requested. At a hearing earlier this week, his attorney David Schoen even wondered aloud, “What’s the point of going to trial here if there’s no defense?” Thursday’s proceeding — the last before Bannon’s trial begins Monday — may give his defense team a glimmer of hope in a case the Justice Department has tried to keep as simple and concise as possible, limiting up to now largely blames Bannon’s ability to try to change his lawyer or the advice of Donald Trump’s lawyer. While Bannon has tried to complicate the trial with claims of privilege and arguments that members of Congress are needed as witnesses, prosecutors say they only need two or three government witnesses and a few days to make their case. On Thursday, Nichols said he will decide whether the jury can hear about the offer to cooperate during the trial. Bannon’s lawyers will have a chance to argue why the evidence is relevant before they cross-examine one of the government’s witnesses. The Justice Department hopes to exclude both a letter from former President Trump claiming Trump waived executive privilege over Bannon’s testimony and the letter Bannon’s lawyer subsequently sent to the committee offering Bannon’s testimony. A key issue is whether the evidence would tell if the deadlines on the subpoenas had been set, or if Bannon didn’t appear because he had reason to believe those deadlines were no longer applicable — meaning Bannon could potentially be negotiating his own his cooperation even now. Nichols said Thursday that the evidence was “at least potentially relevant” to that issue.
The judge again rejects Bannon’s bid to delay the trial
Judge Nicholls said the trial would begin with jury selection on Monday as he rejected a second Bannon request to postpone the opening date. In his latest efforts to delay the trial, filed in court Wednesday, Bannon cited Tuesday’s Jan. 6 committee hearing and a CNN documentary about him that will premiere Sunday. Bannon claimed the hearings and the documentary would bias the jury pool against him. But the judge on Thursday agreed with the Justice Department that 14 jurors who have not attended the hearings, read coverage of them or seen media about Bannon could be in D.C. next week. “Mr. Bannon, in my view, has shown no further delay” he would need to empanel an impartial jury, federal judge Nichols said Thursday morning. Bannon is accused of failing to testify and provide documents to the House Select Committee in its Jan. 6 inquiry. He has pleaded not guilty. He was not in the courtroom Thursday. The defense team said they are likely to call Bannon to testify in his own defense at trial. Asked Thursday if he would testify, Schoen told the media, “It’s too early to make that kind of decision.”
Debate over whether the deadline for Bannon to comply with the subpoena was firm
During most of Thursday’s hearing, the parties discussed what kind of evidence could be presented to show that the subpoena return dates were not actually fixed deadlines but part of the negotiation process. Bannon’s team hopes to present to the jury his most recent offer to cooperate with the committee, which argued that Bannon was motivated by a new willingness by Trump to drop claims of executive privilege against Bannon’s testimony. The Justice Department pointed out that the criminal prosecution is not intended to induce his testimony, but rather to punish him for failing to meet subpoena deadlines. Amanda Vaughn, a lawyer for the Justice Department, said Thursday that evidence before the subpoena’s return date showing the negotiation would be fair game for a jury. But he said any evidence after the subpoena return dates — Oct. 7 for documents and Oct. 14 for deposition — was not relevant and should not have been presented to the jury, including Bannon’s recent motions. Specifically, Bannon’s team sought to point to committee chairman Benny Thompson’s comments after the return date, in which the Mississippi Democrat urged Bannon to “choose to change his attitude” and comply with the subpoenas. And they could try to argue, possibly during possible later appeals, that Bannon did not default on the subpoena because the date he had to comply was not fixed, according to Thursday’s arguments. “Any evidence” before or after the return date, “that shows it was not a fixed date…is relevant to the jury,” Schoen said. Vaughan argued that such an approach “creates a perverse incentive where people can refuse to comply with government orders” until they reach “the brink” and then offer cooperation. “The fact that the commission is then still trying to get information to which it is entitled … provides no evidence of what the clear choice was at the time it was charged,” he said. CNN’s Sara Murray contributed reporting.
