The rapid pace of the prosecution, which began Tuesday afternoon and ended a day later, speaks to the relatively simple factual and legal issues at the heart of the high-profile, politically charged trial: whether Bannon rejected a congressional subpoena and therefore the rarely charged crime.
Prosecutors called Kristin Amerling, the chief counsel to the Jan. 6 commission, as their first witness, who described in detail how Bannon dealt with the commission only after he missed the initial response deadline. In the weeks and months that followed, Bannon still refused to provide the information requested by subpoena, Amerling said.
Bannon’s legal team responded Wednesday by asking about a series of letters, some as recent as a week ago, between Bannon’s attorney and the committee still discussing the prospect of his testimony. The defense is trying to show that he didn’t refuse to cooperate, he was just negotiating.
Prosecutor: Bannon Puckered His Nose At Congress, The Law
M. Evan Corcoran, one of Bannon’s attorneys, also suggested that Bannon had been told by Donald Trump that the former president had invoked executive privilege — a legal claim intended to shield some of the president’s conversations from congressional investigations. .
In rejecting the commission’s subpoenas in late 2021, attorney Robert Costello — who represented Bannon in his dealings with the House’s selected committee — claimed in a letter that Trump had invoked the privilege of covering Bannon. However, earlier this month, when Bannon wanted to postpone his trial, Trump told Bannon he no longer claimed such a privilege.
But Amerling said both claims were misleading, based on a misrepresentation of what executive privilege is and how it works. “The president had not formally or informally invoked the privilege, even if you accept the premise that the privilege applied,” she testified.
U.S. District Court Judge Carl J. Nichols has previously said it is unclear whether Trump has ever invoked executive privilege. Also uncertain is whether a former president could lay claim to such a privilege, let alone whether it would cover conversations with a non-government employee 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 subpoena’s October 2021 compliance deadlines.
Bannon’s defense strategy became clearer on Wednesday, as his lawyers repeatedly suggested that he and the commission were negotiating information he could provide in late 2021 and continued to do so just a week ago. The defense team also tried to show that Democratic committee chairman Bennie G. Thompson (Miss.), played a key — and political role in Bannon’s pursuit.
The day before, Bannon told reporters outside the courthouse that Thompson didn’t have the “guts” to testify against him and sent Amerling instead.
Prosecutors repeatedly objected to the defense strategy, saying it was a legal fiction designed to fool the jury into thinking Bannon had acted correctly. Nichols said he would not allow the high-profile trial to become a “political circus,” and warned that he would allow Bannon’s team to ask political questions, but also monitor the issue.
On at least 15 occasions, Trump’s choices escalated tensions that culminated in the Capitol riots
While defense attorneys tried to argue the case over political affiliations and alliances, prosecutors tried to narrow the focus to a more straightforward series of letters between Bannon’s attorney and the commission, including one from Thompson warning that Bannon’s “rebellion could lead to a criminal referral for contempt of Congress. Bannon was charged in November.
Corcoran roasted Amerling about the process by which the subpoenas were served and the letters that were created, asking specifically which parts of the letters were written by Thompson. Amerling said she couldn’t recall that level of detail and that such letters were generally drafted by staff before being reviewed and signed by lawmakers.
Corcoran then tried a very different line of attack, suggesting that Amerling’s past work history and book club membership with a prosecutor may have compromised the case.
Amerling acknowledged that about 15 years ago she worked for then-Congressman Henry Waxman, a California Democrat, alongside Molly Gaston, who is now an assistant US attorney handling the Jan. 6 charges against Bannon and other cases.
Amerling also said she’s in a book club with Gaston, which is mostly made up of people who used to work for Waxman.
“So you’re in a book club with the prosecutor on this case?” Corcoran asked. “We are,” Amerling replied, though she said she hadn’t been to one of the meetings in over a year and that she thought she hadn’t seen Gaston at a book club meeting in years.
When asked if the book club talked 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 said under prosecution by prosecutors that she had never discussed Bannon’s case with Gaston and that their knowledge had no bearing on the commission’s action or the US prosecution.
Prosecutors also called FBI Special Agent Stephen Hart to the booth to discuss his November 2021 conversation with Costello, the attorney who represented Bannon in his dealings with the commission, who may testify as a defense witness.
In that conversation, Hart testified, Costello said Bannon was “fully involved” in the discussions about the subpoena. The attorney at no point suggested there was any confusion about the commission’s subpoena deadlines, Hart said.
Bannon, a bombastic media figure, has been restrained in court this week, often sitting with his hands clasped in front of him. But once the FBI agent took the stand, Bannon became more animated, laughed at one answer, then shook his head in apparent annoyance at the testimony about Hart’s conversation with Costello.