Jury selection is scheduled to begin Monday in the trial of Stephen K. Bannon, the onetime advisor to former President Trump who faces criminal charges of contempt of Congress after refusing for months to cooperate with the House committee investigating the Jan. 6 Capitol insurrection.
Bannon is charged in Washington federal court with defying a subpoena from the Jan. 6 committee that sought his records and testimony. He was indicted in November on two counts of criminal contempt of Congress, one month after the Justice Department received a congressional referral. Each count carries a minimum sentence of 30 days in jail and as long as a year behind bars.
The trial follows a flurry of activity in the case since July 9. Over a week ago, the former White House strategist notified the committee that he was now willing to testify. His lawyer, Robert Costello, said the change was because Trump had waived his executive privilege claim blocking the testimony.
Bannon, 68, had been one of the most prominent of the Trump-allied holdouts in refusing to testify before the committee. He has argued that his testimony is protected by Trump’s claim of executive privilege.
Trump has repeatedly asserted executive privilege — even as a former president — to try to block witness testimony and the release of White House documents. The Supreme Court in January ruled against Trump’s efforts to stop the National Archives from cooperating with the committee after a lower court judge noted, in part, that “presidents are not kings.”
The committee has also noted that Trump fired Bannon from the White House in 2017 and Bannon was thus a private citizen when he was consulting with the then-president in the run-up to the riot.
U.S. District Judge Carl Nichols declined motions to delay the trial in separate hearings last week, including Thursday, when Bannon’s lawyers raised concerns about a CNN report that has since aired about their client and what they said were prejudicial comments made during a hearing last week by the House committee investigating the riot.
“I am cognizant of current concerns about publicity and bias and whether we can seat a jury that is going to be appropriate and fair, but as I said before, I believe the appropriate course is to go through the voir dire process,” Nichols said Thursday, referring to the questioning of individual jurors before they are selected. The judge said he intended to seat a jury that “is going to be appropriate, fair and unbiased.”
While the judge allowed the trial to move forward, Nichols left open the possibility that the letters about Trump waiving his privilege and Bannon’s offer to cooperate with the committee could be referenced at trial, saying the information was “at least potentially relevant” to Bannon’s defense.
Roscoe Howard Jr., the former U.S. attorney in Washington, said the best case for Bannon was if the information on his cooperation offer gets to the jury. Even if it does, claiming that executive privilege stopped him from cooperating earlier will be a hard argument to make because Bannon refused to answer the subpoena, Howard said.
“You have to show up to invoke the privilege claim. You can’t phone it in,” Howard said.