The fast pace of the prosecution, which began Tuesday afternoon and finished a day later, speaks to the relatively simple factual and legal issues at the heart of the high-profile, politically charged trial: whether Bannon spurned a congressional subpoena and, therefore, committed the rarely charged crime.
Prosecutors called as their first witness Kristin Amerling, the chief counsel for the Jan. 6 committee, who described in detail how Bannon did not engage with the committee until after he had missed the first response deadline. In the weeks and months that followed, Bannon still refused to provide the information sought by subpoena, Amerling said.
Bannon’s legal team countered Wednesday by asking about a series of letters, some as recent as a week ago, between Bannon’s lawyer and the committee in which the prospect of his testimony was still discussed. The defense is trying to show that he didn’t refuse to cooperate, he was just negotiating.
M. Evan Corcoran, one of Bannon’s lawyers, also suggested that Bannon had been told by Donald Trump that the former president had invoked executive privilege — a legal claim meant to shield some of the president’s conversations from congressional inquiries.
In rejecting the committee’s subpoenas in late 2021, lawyer Robert Costello — who represented Bannon in his dealings with the House select committee — claimed in a letter that Trump had invoked the privilege to cover Bannon. Earlier this month, however, as Bannon was seeking to delay his trial, Trump told Bannon he was no longer asserting such a privilege.
But Amerling said both of those claims were specious, based on a mischaracterization 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 that it’s unclear if Trump ever invoked executive privilege. Also uncertain is whether a former president can claim such a privilege, let alone whether it would cover conversations with a non-government employee like Bannon.
In any case, Nichols has ruled that the privilege is not a valid defense for Bannon, unless he can show it caused him to misunderstand the subpoena’s October 2021 compliance deadlines.
Bannon’s defense strategy became clearer Wednesday, as his lawyers repeatedly suggested he and the committee were negotiating in late 2021 about information he might provide and continued to do so as recently as a week ago. The defense team also tried to show that the committee’s Democratic chairman, Bennie G. Thompson (Miss.), played a key — and political — role in the pursuit of Bannon.
A day earlier, Bannon told reporters outside the courthouse that Thompson didn’t have the “guts” to come testify against him, sending 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 appropriately. Nichols said he would not allow the high-profile trial to become “a political circus,” warning that he would allow Bannon’s team to raise some political questions but also would police the issue.
While defense lawyers tried to make the case about political leanings and alliances, prosecutors sought to narrow the focus to a more straightforward set of letters between Bannon’s lawyer and the committee, including one from Thompson warning that Bannon’s “defiance” could result in a criminal referral for contempt of Congress. Bannon was indicted in November.
Corcoran grilled Amerling over the process by which the subpoenas were served and the letters created, asking specifically which parts of the letters were penned by Thompson. Amerling said she couldn’t remember 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 might have tainted 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 U.S. attorney handling the Bannon prosecution and other Jan. 6 cases.
Amerling also said she is in a book club with Gaston, made up primarily of people who used to work for Waxman.
“So you’re in a book club with the prosecutor in this case?” asked Corcoran. “We are,” replied Amerling, though she said she hadn’t attended one of the gatherings in more than a year, and didn’t think she’d seen Gaston at a book club meeting in years.
Asked whether the book club talked about politics, Amerling replied, “The conversations cover a whole variety of topics. … It’s not unusual that we would talk about politics in some way or another.”
Amerling said under reexamination by prosecutors that she had never discussed Bannon’s case with Gaston and their acquaintance had no bearing on the committee’s action or the U.S. prosecution.
Prosecutors also called FBI special agent Stephen Hart to the stand to discuss his conversation in November 2021 with Costello, the lawyer who represented Bannon in his dealings with the committee, who may testify as a defense witness.
In that conversation, Hart testified, Costello said Bannon was “fully engaged” in the discussions about the subpoena. The lawyer at no point suggested there was any confusion about the committee’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, laughing at one answer, then shaking his head in apparent exasperation over testimony about Hart’s conversation with Costello.