Bannon’s defense team says the details of the attack — including testimony, photos, audio and video that could be used as evidence or in arguments — should not become part of the trial because his case is only about compliance with a subpoena, and description of the attack could unfairly sway the jury against him.
Bannon is charged with criminal contempt of Congress for failing to testify or turn over documents in the House select committee investigation — the first case of its kind to result from the landmark congressional investigation. He has pleaded not guilty to the contempt charges.
“Evidence about events that took place eight months earlier (than his subpoena) — namely the January 6, 2021, attack on the U.S. Capitol — have no bearing on whether Mr. Bannon willfully made default in response to the September 23, 2021, subpoena. Thus, any evidence or argument regarding those events should be precluded,” Bannon’s defense team wrote.
The Justice Department sent its own set of table-setting requests for the trial to the judge on Friday. Prosecutors asked to bar Bannon’s team from raising at his trial: his own politics, the legitimacy and political composition of the House select committee, comparisons with others who were not prosecuted for criminal contempt following House subpoenas, accusations he was targeted for prosecution unfairly or that he was excused from complying with his subpoenas because of executive privilege.
“This case is about whether the Defendant was subpoenaed and whether he showed up thereafter. The Court should not allow him to make it about anything else and should grant this motion to exclude irrelevant evidence and argument at trial,” prosecutors wrote. “In his filings, at oral argument, and during press conferences in front of the courthouse, the Defendant has repeatedly sought to inject into this case improper evidence and argument, make incendiary and baseless political attacks, and create a spectacle.”
Prosecutors argued on Friday that they believe Bannon will try to sway jurors to set aside the law, even if he is proven guilty, and acquit him for other reasons — a phenomenon called jury nullification.
Bannon, one of the right wing’s most prominet showmen, has already made a habit of speaking about his case publicly as he walks in and out of court appearances. Just this week, minutes before appearing before a federal judge, he called the House committee derogatory names, saying its public hearings couldn’t compete with the attention his case deserves. The judge denied his attempts to have the case thrown out.
At trial, Justice Department prosecutors, who received a referral from the House to prosecute him, will need to prove a relatively narrow case if they are to secure a conviction — that Bannon willfully refused to respond to the congressional inquiry. He will not be able to argue he relied on the advice of his lawyer, the judge has already ruled.
The Justice Department hasn’t indicated yet how much it plans for its case to focus on Bannon’s relationship to the January 6 investigation itself. Prosecutors will have the opportunity to reply to Bannon’s request in court, as will Bannon to theirs, potentially revealing more about both sides’ tactical approaches to the case. The judge, Carl Nichols of the DC District Court, will be able to ask questions about how such limitations would work.
Separately, Nichols is already weighing whether Bannon can subpoena Democratic congressional leaders and House select committee members for trial testimony. The House is attempting to block those subpoenas in court, saying it is protected by the Constitution, and the Justice Department on Friday said it hopes that if the House members don’t testify, Bannon doesn’t try to leverage that to help his case.
“The Defendant has indicated, in his ceaseless effort to make this case about anything other than the facts and the law, that he should be allowed to use his failure to secure the witnesses’ appearances against the Government in this case,” prosecutors wrote.
Bannon’s team did not go into great detail in its three-page request to keep the trial from revisiting January 6.
“Even were one to assume that any evidence about January 6, 2021, was relevant — and it is not — the evidence and argument must nonetheless be excluded … its probative value would be far outweighed by its prejudicial effect,” his lawyers wrote. “This is especially true given that trial will take place in Washington, DC, where the U.S. Capitol is located, and because images and commentary about the attack, and the subsequent actions of the Select Committee, have saturated the local (and national) media.”