With jury selection nearly complete, opening arguments are expected to take place on Tuesday in the federal trial against Steve Bannon, the top former Trump strategist charged with contempt of Congress after he failed to comply with a subpoena from the House January 6 committee.
Bannon appeared in federal court on Monday as his trial formally opened in Washington. The far-right provocateur – one of the principal architects of Trump’s attempts to overturn the 2020 election – is attempting to argue that he did not willfully fail to comply with the subpoena, which sought documents and testimony.
DC district court judge Carl Nichols is expected to proceed to opening arguments in the contempt trial once the final 12-person jury, with two alternates, is seated from a group of 22 prospective jurors, which was whittled down from an initial pool of 60 DC residents on Monday.
The judge, the defense and the government excluded eighteen potential jurors in the arduous daylong session, including one who declared that Bannon was “guilty” and others who had opinions about Bannon they thought could not be set aside once the trial formally got under way.
Bannon is charged with two counts of criminal contempt of Congress after he was referred to the justice department by the House of Representatives after his failure to testify and turn over documents as demanded by a subpoena from the select committee late last year.
The panel had sought Bannon’s cooperation from the very start of the investigation, noting he spoke to Trump the day before the Capitol attack and helped the Trump “war room” at the Willard hotel strategize how to stop the congressional certification of Joe Biden’s election win.
In opening arguments, Bannon’s lawyers could attempt at least two defenses left open by Nichols: that Bannon somehow did not know the subpoena deadline, or that Bannon and his then-lawyer did not think they were in default of the subpoena since the select committee said in a letter they hoped Bannon would one day cooperate.
The circumstances around Bannon’s noncompliance are important because the government must prove that the subpoena default was “willful” beyond a reasonable doubt – with Nichols expected to instruct the jury to interpret that as deliberate and intentional.
Evan Corcoran, Bannon’s defense attorney who did the voir dire jury selection process on behalf of the former Trump strategist, also suggested to one prospective juror that Bannon’s legal team might argue he didn’t believe the so-called return dates on the subpoena were final.
The defenses available to Bannon, however, have been drastically limited by Nichols, who said in pre-trial conferences that he was bound by Licavoli v United States 1961, the controlling case law at the DC circuit court level that meant he had to exclude many of Bannon’s proposed arguments.
Bannon may be able to present evidence that he recently offered to cooperate with the select committee – first reported by the Guardian – Nichols had said. He also left open Bannon raising the fact that the justice department prosecuted him, but not other Trump aides who ignored subpoenas.
But Nichols had denied motions to delay the trial from Bannon’s legal team, which argued that the select committee’s public hearings, the most recent of which played a clip of Bannon saying the day before the Capitol attack on his streaming show “all hell is going to break loose tomorrow”, would taint the jury pool.
The general standard to qualify a person for the 22-person group of prospective jurors ultimately appeared to be whether they had knowledge of Bannon’s case specifically, after Nichols agreed with the government that knowledge of January 6 itself was not sufficient for exclusion.
During questioning in the voir dire process, at least two prospective jurors said they had watched some of the select committee’s hearings in their entirety, while another woman, who qualified for the jury, said she recalled the clip of Bannon from 5 January 2021 but nothing more.
Some of the excluded jurors were people with unfavorable opinions about Bannon or his conduct. One man said he did not agree with Bannon both on his viewpoints as well as a person, while at least three others said Bannon’s refusal to cooperate reflected poorly and might not mean they could remain impartial.
The jury selection process found a number of people who had no knowledge of Bannon, the select committee or the hearings whatsoever. At least two people deemed qualified testified that they knew nothing about anything in the case – not indicating yes to any of the voir dire questions.
Speaking outside the courthouse after the opening day in his trial, Bannon, wearing a dark crew-neck shirt under two dark grey collared shirts under a black jacket in sweltering DC summer heat, told reporters he thought the jury could be fair, but only after lashing out at the select committee for staging a “show trial”.
