Steve Bannon is entering his criminal-contempt-of-Congress trial on Monday virtually defenseless — and already eyeing an appeal of a guilty verdict

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Steve Bannon court sign
Steve Bannon goes on trial starting Monday in a Washington, DC, federal court.Kevin Dietsch/Getty Images
  • A series of court rulings have severely limited Steve Bannon's defense arguments at trial.

  • Bannon unsuccessfully pushed to delay the trial and to call House members as witnesses.

  • Prosecutors see their case as straightforward: Bannon illegally snubbed the House January 6 panel.

Within weeks of charging Steve Bannon with contempt of Congress, federal prosecutors made clear that they saw the case as a relatively simple one.

In a December court filing, prosecutors said they anticipated needing just "one day of testimony" at trial to prove that Bannon criminally defied the House committee investigating the January 6, 2021, attack on the Capitol. It read as a bold claim then, but with the trial set to begin Monday with jury selection, the case against Bannon is shaping up to be devastatingly straightforward.

A series of pretrial rulings has left Bannon virtually defenseless, precluding him from presenting a number of arguments his defense lawyers hoped to raise. At a hearing in Washington, DC, last week that eviscerated many of Bannon's planned defenses, US District Court Judge Carl Nichols ruled that his lawyers could not argue that executive privilege excused his refusal to sit for questioning or turn over records to the House January 6 committee.

Video: Scenes from Jan. 6 committee hearings

Nichols, a Trump appointee confirmed in 2019, similarly prevented Bannon's defense team from arguing that his past role as former President Donald Trump's chief White House strategist justified his defiance. The judge also forbade Bannon's lawyers from pointing to internal Justice Department memos describing limits on congressional subpoenas, and he extinguished the onetime Trump advisor's hope of calling House Speaker Nancy Pelosi and other lawmakers to testify.

Months earlier, Nichols ruled that Bannon could not argue he decided not to comply with the House committee's subpoena based on the advice of his lawyer.

The combined effect of the rulings prompted Bannon's defense lawyer David Schoen to ask a question in open court Monday: "What's the point of going to trial here if there are no defenses?"

Bannon's trial prospects appear grim indeed, legal experts told Insider.

Any chances of skirting conviction likely rested in legal arguments that could have muddied the case for jurors. But, in response to the Justice Department's objections, Nichols has taken those defenses off the table.

"What we used to call this in my day was a slow-motion guilty plea," said Barb McQuade, a University of Michigan law professor and former US attorney in Detroit. "We all know how this is going to end, which is a conviction."

Former White House strategist Steve Bannon, center, and attorney David Schoen, right, pause to speak with reporters after departing federal court, Monday, Nov. 15, 2021, in Washington
Bannon's lawyer David Schoen, right, during a court hearing recently asked the judge: "What's the point of going to trial here if there are no defenses?"AP Photo/Alex Brandon

Why, then, go to trial?

Bannon pledged to make his prosecution the "misdemeanor from hell" for the Biden administration, but his continued desire to stand trial has potential benefits aside from the ability to hold himself out as a MAGA martyr.

"Based on everything we know about Steve Bannon, it will be a circus, because that's how Steve Bannon rolls," McQuade said.

By proceeding with the trial, Bannon preserves the ability to appeal any guilty verdict, said Jeffrey Bellin, a professor at the William & Mary Law School and former federal prosecutor.

"Even though the judge ruled out the bulk of the defenses, Bannon still has the right to compel the government to prove its case against him at trial. And since there is more going on here than just legal strategy, that is what I would expect," Bellin told Insider.

"By going to trial," he added, "Bannon gets a public platform to fight the charges, and preserves the legal issues, like the applicability of executive privilege, for appeal. The alternative is that he might plead guilty. One problem with that is that guilty pleas often require defendants to agree not to appeal."

Bannon's defense team is already looking ahead to that next step.

Ahead of the scheduled July 18 start of jury selection, his lawyers twice asked for a delay of the trial in light of the publicity surrounding the House January 6 committee's recent string of closely watched hearings. Bannon's lawyers also pointed to his recent offer to testify before the committee, a reversal they attributed to a recent letter from Trump waiving a purported claim of executive privilege.

But prosecutors dismissed the offer as a "last-ditch attempt to avoid accountability," and Nichols declined to push the trial back to at least October. On Thursday, Schoen asked Nichols if he could continue documenting instances of publicity to preserve the issue of the trial's timing for a potential appeal.

Nichols invited that further documentation but said, "I think it's very well-preserved."

Any challenge to a guilty verdict would likely address Nichols's decision to foreclose the argument that Bannon relied in good faith on his lawyer's advice in defying the House committee. Nichols appeared to make the decision reluctantly, writing that he was bound by decades-old precedent from the US Court of Appeals for the DC Circuit.

"If this were a matter of first impression, the Court might be inclined to agree with [Bannon] and allow this evidence in," Nichols wrote.

An appeal from Bannon could present the DC Circuit with an opportunity to revisit that precedent.

Bannon's defense

It is unclear what strategy Bannon's lawyers will wring out of the many rulings that have limited their defense. But Nichols has indicated that one argument remains on the table: Bannon believed that his deadline to respond to the House January 6 committee's subpoena was not firm but "malleable" — or flexible — and "not as hard-and-fast as the government says."

Nichols said Bannon's recent offer to testify, after months of stonewalling the House January 6 committee, could be relevant to that argument. He left open the possibility of Bannon raising his recent discussions about testifying before the committee, in spite of federal prosecutors' arguments that his last-minute offer was irrelevant to the case.

'The crime of default is complete at the time," said assistant US attorney Amanda Vaughn. A defense argument that Bannon saw the deadline as moveable and always intended to comply with the subpoena would be "no different," Vaughn added, from a fraud defendant saying, 'I always intended to pay back the money.'"

"I'm not saying it's a strong argument," Nichols said.

Ahead of trial, defense lawyers said they plan to call as a witness Robert Costello, an attorney who represented Bannon in his dealings with the House January 6 committee. They also said Bannon "will testify," but as with any criminal case, the decision of whether to call the defendant to the stand is likely to come down to the last minute.

Prosecutors, meanwhile, plan to call just two witnesses — an FBI agent and Kristin Amerling, the House January 6 panel's general counsel — with the possibility of calling another committee lawyer to address communications with Bannon about his deposition. FBI agent Stephen Hart is set to testify about statements Bannon and Costello made "regarding the subpoena and the Defendant's default."

Amerling will testify about the House January 6 committee's investigation, its subpoena, and Bannon's decision to not turn over records or sit for questioning last year.

For prosecutors, it is a case as quick and simple as they envisioned last year.

As Vaughn said in court last Monday, "It's about whether he got a subpoena, whether he knew about it, and whether he showed up when he knew he was supposed to be there."


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