Stephen K. Bannon has filed a motion for a new trial after being found guilty of contempt of Congress last month for failing to comply with a subpoena from the House Jan. 6 committee.
The former Trump adviser’s legal team says the court violated their client’s constitutional rights by granting a motion by the prosecution that they say precluded Bannon from defending himself.
Bannon had hoped to convey to the jury that his hands were tied by former President Donald Trump’s claims of executive privilege and that he was following the advice of his counsel by not handing over documents and appearing for a deposition before the committee.
“The effect of the Court’s Order was to bar Mr. Bannon from putting on any evidence or argument whatsoever as to the true reasons he responded to the subpoena as he did,” lawyers Evan Corcoran and David Schoen wrote in the motion filed Friday.
“Mr. Bannon was barred from putting on any evidence or argument that he never believed he was doing anything unlawful; and indeed, understood and believed that he responded to the subpoena in the only way the law permitted, once executive privilege was invoked,” the attorneys wrote.
Upon receiving the subpoena from the committee last fall, Bannon’s attorney at the time, Robert Costello, argued in a series of letters to the Jan. 6 committee that the requested documents and testimony were protected under Mr. Trump’s claims of executive privilege, which were then the subject of a court battle.
Mr. Costello argued that Bannon could not unilaterally waive Mr. Trump’s privilege claims to appear before the committee.
Those arguments were rejected by the committee, and in a motion before Bannon’s trial began the prosecution argued that his “erroneous reliance on privileges and purported advice of counsel is no defense to contempt.”
“The deliberate failure to comply with a congressional subpoena – regardless of motivation – constitutes the crime of contempt,” the prosecution argued.
U.S. District Judge Carl Nichols granted the prosecution’s motion to bar Bannon from arguing that he was following the advice of counsel since it was outside the scope of what the government was required to prove in finding Bannon in contempt.
Bannon’s lawyers said that ruling was effectively a double standard.
“Mr. Bannon was barred from telling the jury why he responded to the subpoena as he did because, according to the government, any reason was legally irrelevant,” Mr. Schoen said in an email to The Washington Times. “Yet the government was permitted to argue that the reason Mr. Bannon responded as he did is because he thought he was above the law etc.”
“How can it possibly be acceptable to bar Bannon from explaining his reason and prohibiting the jury from considering any reason, while letting the Government argue a reason – and one it well knew was not true,” he added.
The government called just two witnesses in the weeklong trial to lay out what it called a straightforward case of Bannon willfully refusing to comply with the committee’s subpoena demanding that he turn over documents last fall.
The prosecution argued that Bannon acted as if he were “above the law” in refusing to comply with the committee’s subpoena.
“The defense wants to make this hard, difficult, confusing,” Assistant U.S. Attorney Amanda Vaugh told the jury during her closing remarks. “This is not difficult. He chose not to comply. He made a deliberate decision not to comply because he didn’t want to.”
Mr. Schoen dismissed the claim that Bannon acted as if he were above the law, and said his client attempted to work with the committee on reaching an agreement to hand over documents and testify.
“From the first interaction his lawyer had with the committee in response to the subpoena he made clear Bannon would fully comply if they worked out executive privilege or went before a judge in a civil enforcement proceeding and the judge determined privilege didn’t apply or wasn’t so broad etc,” he said. “Bannon understood from the lawyer that he was responding in the only way the law permitted. That is the complete opposite of believing he was above the law.”
Bannon declined to testify in his defense during the trial, citing his inability to tell “the true facts” to the jury.
Mr. Schoen said during the proceedings that Bannon “understands that he has the right to testify on his own behalf,” and said his client has “very much wanted to since the day he was indicted.”
“Even though he was prohibited from letting the jury know his innocent state of mind and the reasons he responded as he did – purportedly because the reasons for ‘noncompliance’ were irrelevant as a matter of law, the Court nevertheless permitted the Government to argue its false, concocted reasons for Mr. Bannon’s failure to comply,” the defense argued in its motion for a new trial.
In addition to the defense’s hands being tied by the judge’s ruling, the defense team argued during the trial that their client’s legal defense had been “badly stymied” by members of the House committee’s refusal to testify during the trial.
Bannon’s lawyers subpoenaed members of the committee last month to testify in his case, but the court ruled before the trial that it could not compel the lawmakers to testify.
In a separate motion Friday, the defense team called for the indictment to be dismissed or for the Congressional evidence to be excluded given the lawmakers’ refusal to appear.
“The subpoena recipients’ invocation of privilege and the Court’s Order quashing the subpoenas denied Mr. Bannon his constitutional rights under the Fifth and Sixth Amendments, including his right to due process of law, his right to compulsory process, his right of confrontation, his right to effective assistance of counsel and to a fair jury trial,” Mr. Schoen and Mr. Corcoran argued.
The week-long trial ended last month with the jury returning its guilty verdict after less than three hours of deliberation.
Mr. Schoen told reporters after the verdict was handed down that he was preparing to file a “bulletproof appeal” to the ruling.
“That is not how our criminal justice system ever is intended to work,” he said Monday.
Criminal contempt of Congress is a misdemeanor. Bannon faces a minimum of 30 days in prison and a maximum of two years. A sentencing hearing is scheduled for Oct. 21.