- Judge Carl Nichols, a Trump appointee, rejected Bannon's challenge to the House January 6 committee.
- Nichols said he had "serious issues" with prosecutors obtaining a Bannon lawyer's phone records.
- Bannon is set to go to stand trial on July 18.
A federal judge on Wednesday refused to throw out criminal contempt of Congress charges against Steve Bannon, greenlighting the July jury trial to proceed against the onetime Trump advisor over his defiance of the House committee investigating the January 6, 2021 attack on the Capitol.
During a three-hour court hearing, Judge Carl Nichols rejected Bannon's arguments challenging the validity of the House committee. Bannon centered his argument, in part, on the structure of the nine-member House committee, noting that the resolution forming the congressional panel called for it to include a total of 13 lawmakers.
But Nichols, a Trump appointee confirmed in 2019, said it was "not a basis by which the court can or will dismiss the indictment."
With that ruling, Nichols joined with another Trump appointee, Judge Tim Kelly, who had previously found that the House January 6 committee was validly constituted in spite of not having 13 members. Nichols acknowledged Wednesday that, in the resolution creating the January 6 committee, the House said it "shall" include 13 lawmakers, including five appointed after consultation with the minority leader.
But, citing Supreme Court precedent, Nichols said "shall" could also be construed to mean "should," "will," or "may."
Federal prosecutors secured an indictment against Bannon in November charging him with two counts of contempt of Congress over his refusal to sit for a sworn deposition or turn over records to the House panel investigating January 6. The indictment came within weeks of the House referring Bannon to the Justice Department for prosecution.
In his decision Wednesday, Nichols said he was giving "great weight" to the House's interpretation of its own rules concerning the January 6 committee. Nichols said the House effectively ratified its view of the January 6 committee's validity with three subsequent referrals recommending that former White House chief of staff Mark Meadows, along with onetime Trump advisors Dan Scavino and Peter Navarro, face criminal prosecution over their own decisions to defy the congressional investigation into the Capitol attack.
The Justice Department declined to bring criminal charges against Meadows and Scavino, who served as Trump's deputy White House chief of staff. But federal prosecutors in Washington, DC, charged Navarro in early June with two counts of contempt of Congress.
Navarro is set to appear in federal court Friday for an arraignment where he is expected to formally plead not guilty.
In the months since Bannon's indictment, his defense lawyers have argued that the House committee investigating January 6 sought to make an example of him at a time when several Trump allies were snubbing their noses at the congressional inquiry. Bannon threatened to make his criminal case the "misdemeanor from hell" for the Biden administration and, in the course of his defense, has pushed for access to documents and made claims of prosecutorial misconduct.
During the court hearing Wednesday, his lawyer Evan Corcoran said the Justice Department resorted to an "outrageous investigative technique" by obtaining the phone records of another lawyer, Robert Costello, who represented Bannon in talks with the House January 6 committee. The Justice Department did not obtain the content of Costello's communications with Bannon but instead received access to the so-called toll records, such as the date and duration of calls.
But, with that move, Schoen said a "wedge was driven between Mr. Bannon and his lawyer."
"If they're allowed to do it here, they'll do it in every case," Corcoran said.
Nichols declined to dismiss the case on those grounds but said he had "serious issues" with the move. The Justice Department previously said that the phone records were needed to show Bannon was aware of his subpoena from the House January 6 committee, but Nichols said Wednesday that he was also troubled by how prosecutors did not seem to see any issue with that investigative step.
The hearing played out just days after the House January 6 committee held its first public hearings to air the findings of its months-long investigation. In the first two hearings, the House panel has underscored how Trump pushed to overturn the 2020 election results even after close aides and advisors — including former Attorney General William Barr — told him his claims of widespread election fraud were utterly baseless.
In recent days, members of the House committee have publicly split over whether to recommend criminal charges against Trump or anyone else based off the panel's investigation. Rep. Bennie Thompson, the Democratic chair of the House committee, said that's "not our job."
But Rep. Adam Schiff, a California Democrat, said he would "like to see the Justice Department investigate any credible allegation of criminal activity on the part of Donald Trump."
Bannon's defense attorney David Schoen on Wednesday indicated that he might seek to delay the July 18 trial based on the recent talk of criminal charges linked to the January 6 attack and efforts to overturn the election.