Openings in Bannon trial debate whether skipping subpoena was a crime

Donald Trump confiding Stephen K. Bannon was “thumbing his nose” at Congress and the law when he refused to comply last year with a subpoena about the Jan. 6 attack, a prosecutor told a jury Tuesday at opening statements of the right-wing podcaster’s trial for contempt.

“The defendant decided he was above the law, and he didn’t have to follow the government’s orders like his fellow citizens,” Assistant US Attorney Amanda Vaughn said in federal court. “So this whole case is about a guy who just refused to show up? Yes, it is that simple.”

Lawyers for Bannon dismissed Vaughn’s characterization, saying their client was still negotiating with the House Jan. 6 committee when he was accused of a crime. “No one ignored the subpoena,” said defense lawyer M. Evan Corcoran. “It’s called negotiation, it’s called accommodation.”

Bannon’s trial comes amid intense public focus on the Jan. 6, 2021, attack on Congress by a pro-Trump mob, and lingering questions about who shares responsibility for the violence that sought to negate President Biden’s electoral victory.

The trial is being held in a federal courthouse blocks from Capitol Hill, where for the past month the Jan. 6 legislative committee has convened closely watched hearings showcasing the mayhem of that day and the events leading up to it. The next hearing, scheduled for Thursday evening, will focus on Trump’s actions while the Capitol was breached.

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After Tuesday’s trial testimony ended, Bannon erupted outside the courthouse, blasting the head of the Jan. 6 committee, Rep. Bennie G. Thompson (D-Miss.) and repeating false claims that Trump, not Biden, was the true winner of the 2020 election.

“They’re charging me with a crime?” Bannon smoked. “Have the guts and the courage to show up here and say exactly why it’s a crime.”

It is highly unusual for a defendant to speak publicly outside court in the middle of his own trial, let alone criticize decisions about which witnesses appear. Bannon also predicted that Republicans would win back the House in November and create a new Jan. 6 committee that will function far differently than the existing panel, which he derided as a “show trial.”

In her opening statement, Vaughn told the jury that Bannon’s refusal to answer the committee’s questions, or provide lawmakers with any documents, was a serious violation. The committee had sought to get answers from Bannon about his conversations with Trump and others before and during Jan. 6.

“It wasn’t a request and it wasn’t an invitation. It was mandatory,” she said. By not cooperating, she added, Bannon prevented Congress from getting “the important information it needed from him to understand what happened on January 6, and to ensure it never happens again.”

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Wearing one dark button-down shirt over another, a black suit jacket and a black mask, Bannon, 68, leaned forward at the defense table and listened intently. It’s not the first time the pugilistic media personality has faced federal charges — he was previously accused in New York of participating in a fraudulent fundraising scheme, but Trump pardoned him before he went to trial.

Bannon’s trial on two counts of contempt of Congress is the most high-profile to emerge so far from the various probes surrounding the riot and its aftermath, even though the case is not about the events of Jan. 6 themselves. The facts at issue are quite narrow — whether Bannon’s alleged refusal to cooperate or communicate with the committee amounted to a crime.

One question will be Bannon’s claim he thought the committee would have to negotiate with him and that his deadlines were flexible once he asserted that he couldn’t provide answers or documents to the committee because Trump had invoked executive privilege. That claim that has been met with great skepticism by US District Court Judge Carl J. Nichols.

The judge has previously said it’s not clear that Trump ever invoked such a privilege, let alone if such a claim could be valid, coming from an ex-president toward a podcaster who hadn’t worked at the White House since 2017. But Corcoran suggested to the jury on Tuesday that the executive privilege issue is an important part of understanding whether Bannon intended to break the law.

“He used the word privilege. It’s not an excuse, the evidence will show that’s not an excuse,” Corcoran said in his opening statement.

Bannon’s defense also tried to cast the criminal case in starkly partisan terms. Corcoran noted that last year more than 200 lawmakers voted against holding Bannon in contempt of Congress. The vote was 229-202, mostly along party lines.

Analysis: What two of the witnesses at Thursday night’s Jan. 6 hearing might say

The defense attorney urged jurors to question the motivation behind testimony or evidence presented by prosecutors. “My single request for you is to think about it and ask yourself: Is this piece of evidence affected by politics?” he said.

Those suggestions prompted prosecutors to twice interrupt and object to Corcoran’s opening statement, though the judge ultimately allowed him to make his points.

The trial is expected to last a week or less, with possibly only a handful of witnesses.

The government’s first witness, Kristin Amerling, is a staffer for the Jan. 6 committee. She tested that “there is an urgency” to lawmakers’ examination of “a violent assault on the US Capitol, on law enforcement, and on our democracy, and we have a limited amount of time in which to gather information.”

Amerling told jurors that lawmakers were probing accounts that Bannon played “multiple roles” related to Jan. 6, including persuading the public that the 2020 election was illegitimate; predicting on Jan. 5 that “all hell was going to break loose” the next day, suggesting he might have had advance knowledge of events; and being involved in discussions with people in the White House, including Trump and some of his supporters, “reportedly to discuss strategies around efforts to interfere with the peaceful transfer of power or overturn the election results.”

Asked if Bannon appeared before the committee by the date required by the subpoena, Amerling said simply, “he did not.”

She is expected back on the witness stand Wednesday for more questioning from prosecutors, and cross-examination by Bannon’s lawyers.

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Bannon is one of two former Trump aides to face criminal charges in connection with rebuffing the committee, along with former White House trade adviser Peter K. Navarro. On the same day Navarro was indicted in June, the Justice Department disclosed that he would not charge former Trump White House chief of staff Mark Meadows and communications chief Daniel Scavino Jr.

The two misdemeanor contempt charges Bannon faces are each punishable by at least 30 days and up to one year in jail.

But criminal trials over contempt of Congress are exceedingly rare, and serving time in jail for a conviction is even rarer. It has been about seven decades since someone went to jail for that offense — a seminal case in US political and legal history involving the First Amendment, the Cold War and political efforts to publicly shame suspected communists.

In 1947, 10 movie directors and screenwriters refused to answer questions from the House Un-American Activities Committee about their alleged ties to communists. The Hollywood Ten, as they were known, were ultimately convicted, and the Supreme Court rejected their appeals, sending them to jail in the early 1950s, in what many historians now consider one of the worst instances of red-baiting during the Cold War era .

In 1957, the Supreme Court sought to rein in what it had come to view as the excesses of the red-hunting days, ruling in favor of an Illinois labor official, John Watkins, who agreed to answer some questions about people he knew who were communists, but refused to answer questions about people whose communist associations or activities were in the past.

Through the Watkins case and other decisions, the high court discouraged the Justice Department from pursuing more contempt of Congress cases. In the 1970s, two notable figures from the Watergate era, G. Gordon Liddy and former attorney general Richard Kleindienst, were charged and pleaded guilty to contempt of Congress but did not go to prison for that crime. At the time, Liddy had already been sentenced to prison in a related case.

Retropolis: Bannon’s contempt trial echoes that of Watergate’s G. Gordon Liddy

Bannon’s trial opened Monday with a full day of jury selection, with several potential jurors dismissed because of their familiarity with or opinions of the Jan. 6 riot and subsequent investigations.

More than half of the 12 jurors and two alternates selected work for federal or DC government agencies or contractors, including a lawyer for the Securities and Exchange Commission; an employee with the State Department’s Office of International Religious Freedom; a NASA contract photographer and archivist; and an employee of the International Republican Institute, a democracy and development agency that receives funding from the State Department and the US Agency for International Development.

The DC government employees include a Parks and Recreation maintenance manager; a Transportation Department contract driver for special-needs children; and a supervisor with a Health Department pandemic vaccination contractor.

One juror who works with an appliance company said during jury selection that he watched the first prime-time televised hearing of the Jan. 6 committee. “I understand everyone wants to figure out what was going on, to figure out the truth of what happened,” he said.

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