His proceedings begin Monday with jury selection at the federal courthouse in Washington, DC.
The polarizing long-time Trump ally has always been at the top of the January 6 witness list for House investigators. But Justice Department prosecutors say the trial is intended to punish Bannon for noncompliance with the subpoenas, rather than coerce him into sharing information.
The case is a major test of what leverage Congress has when a witness evades a House subpoena. Bannon’s is the first of two similar House select committee subpoena cases to head to trial; a contempt case against former White House trade adviser Peter Navarro is still in its early stages.
Bannon’s trial also carries special relevance for the House panel as it continues to negotiate bringing in additional witnesses, and as it prepares for a major primetime hearing Thursday night intended to spotlight what committee members have called former President Donald Trump’s “dereliction of duty” on January 6.
Prosecutors pledge that their case against Bannon will be presented succinctly, over just a few days, with only two or three prosecution witnesses. That list includes House committee investigators.
It’s unknown how extensive Bannon’s defense will be, or if he will want to take the stand in his own defense. He will not be able to force House members to testify, the judge has said.
Early in the case, Bannon vowed to make the proceedings the “misdemeanor from hell for (Attorney General) Merrick Garland, (House Speaker) Nancy Pelosi and (President) Joe Biden.” But at a recent court hearing, his defense attorney David Schoen complained, “What’s the point of going to trial here if there is no defense?”
Bannon – who accepted an 11th-hour pardon from Trump in 2021 as he was facing conspiracy wire fraud and money laundering charges in Manhattan’s federal court related to a border wall fundraising scheme – has made a series of attempts in court in recent days to stop the trial, to fashion more of a defense, or to prepare for possible appeals.
So far, US District Judge Carl Nichols has overwhelmingly sided with the Justice Department on what evidence the jury can hear, cutting off Bannon’s ability to try to defer to advice his attorney gave him or to use internal DOJ policies on presidential advisers that he hoped might protect him.
In recent weeks, Trump indicated he wanted to waive any executive privilege that might have applied to Bannon, and Bannon suggested he may be interested in speaking with the House committee – a series of events that Bannon’s team now wants to try to show to the jury. But his ability to bring up arguments about executive privilege will be, at best, severely limited. Bannon was not a government official during the period the committee is probing.
A federal grand jury indicted the right-wing figure in November on two counts of criminal contempt – one for his failure to provide testimony demanded by the House select committee’s subpoena in the fall and the other for his failure to produce documents. A key issue at trial will be whether the jury agrees with prosecutors and the House that Bannon’s October subpoena deadlines were final, and that he deliberately disregarded them.
Both charges he faces are misdemeanors. But if he is found guilty, each carries a mandatory minimum of 30 days in jail.
Bannon was one of the first potential January 6 witnesses the House committee subpoenaed – and he is one of a handful of people the committee has held in contempt. The committee said it wanted to obtain his documents and ask him questions because Bannon had contact with Trump, was in the so-called war room of Trump allies at the Willard hotel in Washington as the riot unfolded, and made a prediction on his podcast before the riot that “all hell” was “going to break loose.”
“In short, Mr. Bannon appears to have played a multi-faceted role in the events of January 6th, and the American people are entitled to hear his first-hand testimony regarding his actions,” the House committee said in its report putting forward a contempt resolution against Bannon.
When Bannon was facing deadlines in October, his attorney Robert Costello told the committee Bannon would not be cooperating with the investigation because of instructions from Trump that said he should, “where appropriate, invoke any immunities and privileges he may have.”
Since then, criminal investigators have interviewed Costello, as well as a Trump lawyer, Justin Clark, in building their case. According to their description of Clark’s statements, he told Costello Trump couldn’t shield Bannon from total noncompliance with the subpoenas.
Ahead of Bannon’s trial, the House committee has featured details about him in some of its public presentations. At a hearing last Tuesday, the committee revealed White House phone logs indicating Bannon and Trump spoke twice on January 5, 2021, including once before Bannon made his predictions about the next day on the podcast.
The committee has another hearing planned for primetime Thursday evening. Depending on the pace of the proceedings at DC’s federal courthouse, and the length of his defense presentation and jury deliberations, Bannon’s trial could be over by then.