Donald Trump’s former top strategist, Steve Bannon, suffered heavy setbacks in his contempt of Congress case on Monday after a federal judge dismissed his motion to delay his trial, scheduled for next week, and ruled he could not make two of his principal defences to a jury.
The flurry of adverse rulings from District of Columbia district judge Carl Nichols – a Trump appointee – marked a significant knock back for Bannon, who was charged with criminal contempt after he ignored a subpoena last year from the House January 6 select committee investigating the attack on the US Capitol by extremist Trump supporters in 2021.
Nichols refused in federal court in Washington DC to delay Bannon’s trial date, set for next Monday, saying that he saw no reason to push back proceedings after he severely limited the defences that the former Trump aide’s lawyers could present to a jury.
The defeats for Bannon stunned his lead lawyer, David Schoen, who asked, aghast: “What’s the point of going to trial if we don’t have any defences?”
Nichols stripped Bannon of two of his main defences for defying the select committee’s subpoena, ruling he could not present evidence to the jury that he had relied on the advice of counsel, and could not rely on entrapment by estoppel, the argument that a defendant was advised erroneously by an official that certain conduct was legal.
The decision, Nichols said, came in large part because he was bound by the controlling case law at the DC circuit level, which ruled in Licavoli v United States 1961, that advice of counsel was no defence against contempt of Congress charges.
Nichols also rejected Bannon’s claims that he thought his non-compliance was excused by executive privilege, and narrowed the arguments Bannon could present mainly to whether he was aware of the deadlines for testimony and producing documents established by the select committee.
The decision not to allow Bannon to pursue executive privilege arguments came after the US prosecutors said in a filing that Trump’s own attorney, Justin Clark, told the FBI last month that Trump never invoked privilege for specific materials compelled in the subpoena.
But Nichols went further and said Bannon could not make an executive privilege claim because none of the justice department’s internal guidelines he supposedly relied on to determine he was immune from the congressional inquiry applied to non-White House officials, such as Bannon was at that time.
The judge, in refusing to delay the trial date, ruled in favour of prosecutors, who urged him to look past Bannon’s “sudden wish to testify” to the House select committee – a development first reported by the Guardian – as nothing more than a last-ditch move to avoid trial.
It was not clear whether Bannon still intended to testify and produce documents to the select committee after Nichols’ rulings.
Nichols handed down additional defeats for Bannon, rejecting the interpretation by Bannon’s lawyers of “willful non-compliance”, which they took to include an element of intent. Nichols said prosecutors needed only to show his default was deliberate and intentional.
He quashed Bannon’s motion to subpoena top Democrats – including House Speaker Nancy Pelosi – and select committee members, and denied a motion to introduce evidence about the justice department’s decision not to charge other Trump White House officials referred for contempt.
The judge, who served in George W Bush’s justice department, also reaffirmed that the select committee was properly constituted and served a legitimate legislative function, in a significant signal undercutting claims by some House Republicans.
While some Republican congress members have complained that the panel was illegitimate, Nichols said the House voting on contempt referrals from the panel meant it had been repeatedly ratified, and he would defer to the House to interpret its own rules.
