To present their evidence that Bannon, the ex-adviser to former President Donald Trump, was in contempt of Congress for not complying with a subpoena in the House January 6 investigation, the Justice Department put only two witnesses on the stand.
Through their questioning of House committee staffer Kristin Amerling, prosecutors walked the jury through the paper trail of documents communicating to Bannon that the October deadlines for him to produce documents and sit for testimony. Bannon’s team meanwhile grasped at what they could — including his recent offer to testify before the committee — to try to suggest that Bannon had reason to believe that the deadline wasn’t firm, while also hinting at supposed bias against him.
The pace of Wednesday’s testimony largely relied on the letters between the House select committee investigating the January 6 insurrection and Bannon.
Several defenses that Bannon might try to put forward were undermined by the paper trail of documents the committee sent him regarding his subpoena and the prosecution was able to put those documents on display through its questioning of Amerling.
The documents showed that Bannon was warned that his noncompliance with the subpoena risked a criminal referral. They showed that the committee rejected his claims that Trump assertions of executive privilege precluded him from cooperated. And they showed that the committee reaffirmed the subpoena deadlines and lawmakers’ expectations that he comply by then.
Amerling was also questioned about the responses the committee received from Bannon’s attorney. She testified that Bannon never asked for the deadlines to be moved, nor did he give the committee reasons that in the committee’s view would help justify his lack of compliance, such as that he didn’t understand the directions of the subpoena.
This testimony was important to the Justice Department’s case because it pokes holes in the key category of defense Bannon is allowed to put on: challenging the firmness of the subpoena deadlines.
Through the paper trail, the prosecution wanted the jury to see that he had the opportunity to explain such an issue, and never did so — particularly in the face of repeated confirmations from the committee that it expected him to comply by the deadline. And the committee, at least according to the documents offered during Amerling’s testimony, never gave Bannon a signal that the deadlines for compliance were softening.
Bannon’s team says committee gave him flexibility
After a series of rulings limiting his defenses, Bannon finally got a holding in his favor, with District Judge Carl Nichols on Wednesday giving his team the OK to admit his lawyer’s and Trump’s recent letters for the committee clearing him to testify. With the ruling, they also admitted a previously unreported letter committee Chairman Bennie Thompson sent last week responding to Bannon’s offer to testify for the committee.
The Bannon team has had very little to work with at this trial. So the ability to use the letters in their questioning of Amerling was a rare opportunity for them to expand Bannon’s defense — and allowed the topic of executive privilege to hang over the case more than the Justice Department had intended. Bannon’s team was seeking to use the correspondences to bolster the case that Bannon had reason to believe that the October return dates were not hard deadline but rather flexible inflection points in the process of negotiating over Bannon’s cooperation.
In his question of Amerling, Corcoran pointed her specifically to Thompson’s indication that it would still host Bannon for testimony.
The Bannon team hopes that the jury sees that as evidence that, even when subpoenas have return dates, the process was an open ended one and that Bannon had reason to believe that when he blew past the October deadlines, that his cooperation at later date would be an acceptable one to the committee. (The judge has instructed jurors that any future compliance by Bannon with the subpoena was not relevant to whether he was in default last year.)
Trial could conceivably sit with the jury Thursday
The Justice Department wrapped its case quickly on Wednesday with a short set of questions for its second witness, FBI agent Stephen Hart, who read public statements from Bannon that said he would stand with Donald Trump and links on his social media accounts to stories describing him as not complying with the committee, even after one subpoena deadline passed.
Now the question will be how many witnesses, if any, the defense team calls to help Bannon’s cause. If they call none — and Bannon doesn’t testify, the case could conceivably head to jury deliberations by the afternoon.
Thursday night, the House select committee investigation will hold its primetime hearing about Trump in the White House on January 6. So far, Bannon has been a peripheral figure in what the House hearings have presented, and could continue to be mentioned minimally, given he was not an administration official on January 6, 2021. But a conviction in the case could be a gust in the sails of the House’s work before the highly anticipated public event.
Throughout the proceedings on Wednesday, Amerling explained why the committee subpoenaed Bannon so early in its probe. The committee believed that whatever Bannon shared could lead them to other witnesses or documents, or perhaps help them know what they shouldn’t pursue, she testified.
After court, Bannon didn’t respond to questions about whether he’ll take the stand in his own defense.
One defense strategy: Call out the Democrats
Wednesday’s proceedings kicked off with a discussion between the attorneys and judge about whether the case would be a political circus.
Nichols said he would not let it become one.
Yet during defense attorney Evan Corcoran’s hours of questioning Amerling, he repeatedly probed her politics. The questions attempted to show the Washington, DC, jury she and the Democratic-leaning committee may have unfairly singled out Bannon among their thousands of witnesses.
Corcoran was able to ask Amerling, a two-decade Hill veteran, the parties of the lawmakers she worked for and about her political contributions. Her past attendance at a book club alongside a prosecutor on the case spun into a lively set of questions. But when Bannon’s attorneys shifted to questions about the larger political dynamics of the House and the committee’s actions, the judge largely blocked them from going there.
Some of Amerling’s answers also derailed Corcoran’s questioning. At one point, he tried to nail down when she started work on a multi-page draft contempt report for the committee, insinuating it could have been before Bannon’s deadlines passed. But Amerling said she believed it was not, though she couldn’t name an exact date.
