Trump appointed Federal District Judge Carl Nichols is no liberal. Nichols has shown more sympathy than most federal judges towards Jan. 6th defendants by rejecting charges of Obstruction of Congress against defendants — something other federal Judges have rejected. Bannon must have felt pretty good about his chances to turn his Contempt of Congress (for refusing to testify before the January 6th Select Committee) trial into a pro-Trump circus or having it delayed for several months when he appeared before Judge Nichols today.
That didn’t happen. Judge Nichols ruled against Bannon on virtually every motion made by Bannon’s defense team and the hearing ended with Bannon’s attorney David Schoen saying:
"What's the point in going to trial here if there are no defenses?"
Specifically, Judge Nichols ruled against Bannon on the following motions:
- Prosecutors do not have to prove Bannon knew that refusing to testify was “illegal or wrong.” Prosecutors only have to prove Bannon “deliberately” and “intentionally” defied the subpoena issued by the Jan. 6th Committee. Much lower burden of proof.
- Bannon cannot hide behind internal Department of Justice opinions or assertions of executive privilege because they are not relevant to the decision to not comply with the subpoena. THIS IS THE PRIMARY DEFENSE BANNON HAS ASSERTED IN HIS COURT FILINGS!!! Bannon’s only remaining defense is misunderstanding the date of his required appearance or that he had reason to believe the deadline was extended.
- Nor can Bannon assert entrapment by estoppel or public authority as a defense — in other words, Bannon cannot say he is innocent because he believed Trump had asserted executive privilege.
- Even if Trump had asserted executive privilege — Trump is now a civilian, not a Federal official. But Trump did not instruct Bannon to defy the subpoena anyway.
- The Office of Legal Counsel (OLC) opinions on executive privilege are irrelevant — Bannon is only a former aide to a former president.
- Judge Nichols again affirms that the Jan 6th Committee is legally constituted and Bannon may not claim otherwise as part of his defence.
- Bannon may NOT grill witnesses about their political affiliations.
- Bannon may NOT introduce evidence that Mark Meadows and Dan Scavino defied Jan. 6th Committee subpoenas and were not charged with contempt of Congress. Nor may Bannon introduce evidence related to the DOJ decisions not to charge these two with Contempt of Congress.
- BIG ONE: Bannon REALLY wanted to subpoena Nancy Pelosi and Jan. 6th Committee members to turn the trial into a circus. Judge Nichols ain’t having it — members of congress are protected by the “speech and debate” clause of the Constitution
- And, to top off Bannon’s VERY BAD NO GOOD HORRIBLE DAY, Judge Nichols denied the motion to delay the trial noting that voir dire would remove jurors who had already formed opinions based on the news coverage of the Jan. 6th hearings.
Trial starts July 18th.
DISCLAIMER: I am not a lawyer. Any errors are my own. My sources are as follows:
Liveblog by Jordan Fisher starting here:
Liveblog by Kyle Cheney starting here:
Commentary by the Human Westlaw, Marcy Wheeler (Emptywheel)
