- A hearing in Steve Bannon's contempt-of-Congress case could make or break the criminal prosecution.
- Bannon and the Justice Department have clashed over a key defense strategy.
- Prosecutors want a judge to ask Bannon whether he improperly leaked information to a reporter.
For weeks, Steve Bannon has worked to make his contempt-of-Congress prosecution a "misdemeanor from hell" for the Biden administration.
Bannon's effort has largely played out in testy court filings between his defense team and federal prosecutors handling the case against the onetime chief strategist for former President Donald Trump.
But on Wednesday, the arguments will spill out in court before Judge Carl Nichols — and Bannon will be there for a hearing that carries the potential for fireworks.
Nichols, a 2019 appointee to the federal trial court in Washington, DC, set Bannon's trial to begin July 18, although Bannon's defense lawyers are seeking to have the charges thrown out.
In court filings, Bannon's defense lawyers have demanded records from the Justice Department's investigation and tangled with prosecutors over what arguments should be on the table.
Bannon has also asserted that he was following his lawyer's advice in stonewalling a US House committee investigating the January 6 attack on the US Capitol by a pro-Trump mob. But prosecutors have pushed to block that strategy, arguing that it is "a settled question" that legal advice provides no defense for deliberately defying a congressional subpoena.
"Having chosen to ignore a congressional subpoena that required him to produce documents and appear for testimony, the Defendant, Stephen K. Bannon, cannot change binding law now that he is facing the consequences of his decision," federal prosecutors wrote in a court filing last week.
The availability of that defense is just one of several issues that Judge Carl Nichols will weigh in court Wednesday.
Nichols, a 2019 Trump appointee to the federal trial court in Washington, DC, convened the hearing to also address Bannon's request for government records — and for disclosure of the Justice Department's efforts to obtain the email and phone records of a defense lawyer involved in the case.
In a 10-page court filing late Monday, federal prosecutors acknowledged that their attempts to obtain the email and phone records of Bannon's lawyer, Robert Costello, resulted in them inadvertently collecting similar information about other people named "Robert Costello."
Bannon's defense lawyers seized on the error. They argued in a court filing last week that investigators were "beyond reckless" in their zeal to obtain Costello's records.
But prosecutors defended the record search as intended to establish Bannon's awareness of the congressional subpoena and the timing — but not the content — of his communications with Costello. Bannon's team was overblowing the missteps, prosecutors said, in an attempt to "twist relatively common investigative steps and evidentiary dead ends into something that they are not."
Prosecutors added that Bannon's lawyers had, in their court filing last week, needlessly included identifying information about others with the last name Costello whose records were obtained in the investigation.
To prevent "further public harassment of individuals unrelated to this case," the Justice Department proposed that Nichols prohibit Bannon and his lawyers from making any further use of information about the other Robert Costellos.
The prosecutors also suggested that Bannon might have leaked information about the other Robert Costellos to a Daily Beast reporter. They asked Nichols to ask Bannon whether he had provided the information to the reporter, in a potential violation of a court order that placed restrictions on the sharing of evidence and other materials in the case.
"All that [Bannon's] hyperbolic allegations achieve," prosecutors said, is to demonstrate that his demand for more records related to Costello should be denied.
Bannon's indictment in November bolstered the House select committee's aggressive pursuit of records as it delves into the events of January 6 and the buildup to the Capitol attack. The charges came just weeks after the House referred Bannon to the Justice Department for a contempt prosecution.
A grand jury indicted Bannon in November on charges that he illegally defied Congress by refusing to comply with a subpoena from the House committee investigating the January 6, 2021, attack on the Capitol. Through his lawyer, Bannon said he was abiding by Trump's directive for former aides to claim immunity from congressional subpoenas and not turn over records that could be covered by executive privilege.
Legal experts have noted that, by the time of the subpoena, Bannon was years removed from his role in the Trump administration. And, even if he had a valid privilege to invoke, legal experts said he would have still needed to appear before the House committee.
"Generally, even if you're going to assert privilege, you need to show up and do it," said Randall Eliason, a George Washington University law professor and former public corruption prosecutor.
"Legally, I don't think he has much of a leg to stand on if you cut through all this noise," Eliason said.
A month after Bannon's indictment, the House voted to recommend that the Justice Department bring a similar prosecution against former White House chief of staff Mark Meadows over his refusal to sit for a deposition with the House committee investigating January 6. But, three months later, Meadows has not been indicted.