The Justice Department plans to try to block a central line of defense for Steve Bannon in his upcoming trial for contempt of Congress: that his decision to stonewall Jan. 6 investigators was the result of his lawyer’s advice.
“The Government anticipates filing a motion… to exclude evidence and argument relating to any advice of counsel on the basis that it is not a defense to the pending charges,” Assistant U.S. Attorney Amanda Vaughn said in a status report filed late Monday.
Prosecutors did not explain in the report why they don’t think relying on his attorney’s advice is a defense for Bannon, who’s charged with “willfully” defying subpoenas for his testimony and records.
The Justice Department and Bannon’s legal team remain deeply at odds over even the basic details of a potential trial — foreshadowing an intense, high-stakes clash that will have to be sorted out by U.S. District Court Judge Carl Nichols in one of the highest-profile cases on the docket. They disagree on timing, the scope of the evidence and even when to set deadlines to discuss those matters.
Nichols has scheduled a hearing in the matter for Tuesday morning.
At the heart of the issue is whether Bannon’s decision to completely ignore a subpoena by the House Jan. 6 select committee was so egregious that it rose to the level of criminal defiance. Prosecutors say Bannon didn’t respond to the committee’s September subpoena until after the deadline to testify — and when he did, he simply refused to honor it.
Bannon, via his attorney Robert Costello, said that he was always willing to cooperate if a court ordered him to do so, but that he would defer to former President Donald Trump’s instruction that his top allies refuse to cooperate with congressional investigators. Trump has claimed his conversations with those aides are protected by executive privilege — a suggestion thrown into doubt by recent federal court proceedings.
Among the disagreements outlined by the Justice Department and Bannon on Monday: The department says its entire case against Bannon could be argued in a single day — and it wants that day to be before April 15. (In the status report, the Justice Department erroneously described the date as “six months” from Bannon’s indictment. It would actually be five.)
But one of Bannon’s attorneys, Evan Corcoran, said in an accompanying status report that he thinks the trial could take 10 days and should begin in October, nearly a year from Bannon’s indictment and just weeks before the midterm congressional elections.
“The average life of a criminal case in the U.S. District Court for the District of Columbia is about a year,” Corcoran wrote. “In our view, this is not the average criminal case on the docket.”
Prosecutors also say the case against Bannon is relatively simple, requiring little more than the correspondence between Bannon, his attorney and the Jan. 6 committee. But Corcoran described a need for a voluminous and complex investigation that includes access to documents from Congress, the White House and the Justice Department related to the decision to charge Bannon.
The House held Bannon in contempt of Congress in October, and the Justice Department indicted him two weeks later. In an initial hearing before Nichols last month, the early contours of the dispute became clear. Prosecutors asked Nichols to set a quick trial date and Bannon’s team pushed back, urging a go-slow approach and describing the issue in more complex terms than the Justice Department.
“I’m not convinced that I have quite enough before me to decide,” Nichols said at the time.