Prosecutors had argued throughout a two-hour listening to that the Justice Division’s authorized steering, mirrored in opinions issued by its Workplace of Authorized Counsel, weren’t related as to whether Bannon truly dedicated the contempt-of-Congress crimes he’s charged with. However Bannon’s attorneys have emphasised that they suggested him repeatedly to not adjust to the congressional subpoena as a result of the division’s coverage rendered the subpoena invalid.
Nichols raised a hypothetical state of affairs during which Congress subpoenaed Ron Klain, the chief of employees to President Joe Biden. Klain, he mentioned, may refuse to look, citing printed OLC opinions that say senior presidential advisers are “completely immune” from compelled congressional testimony. However beneath the Justice Division’s argument within the Bannon case he famous, Klain may very well be prosecuted anyway — making a battle between the division’s inner insurance policies and its prosecution choices.
“These two positions can be held on the identical time,” mentioned Nichols, an appointee of President Donald Trump.
The paperwork the Justice Division gives may make clear the way it tried to sq. that inherent battle, or whether or not it has issued subsequent, nonpublic authorized steering that will allow prosecuting Bannon for defying the choose committee.
OLC opinions limiting Congress’ skill to demand testimony from government department officers have been essential roadblocks to lawmakers for many years, despite the fact that they carry no formal authorized weight. Trump deployed them repeatedly to derail investigations into his effort to press Ukraine for investigations of his political rivals, in addition to his dealing with of the particular counsel investigation of Russian interference within the 2016 election. These opinions stay on the books, although superseding opinions may need been issued beneath Biden that haven’t been publicly disclosed. Nichols’ order requires the Justice Division to supply these paperwork to Bannon, “public or not.”
Nichols has a protracted historical past on this concern: He was a Justice Division lawyer throughout the George W. Bush administration and argued in assist of sweeping immunity for presidential advisers, even those that had left the administration, from being compelled to speak to Congress about their official work for the president — a choice rejected by a federal decide in 2008. When Assistant U.S. Legal professional Amanda Vaughn, the lead Bannon prosecutor, famous that courts had at instances rejected the reasoning of OLC opinions, Nichols quipped, “I do know of 1 case very properly.”
The choose committee held Bannon in contempt in October, claiming he uniquely defied the committee’s request for paperwork and testimony. The Justice Division charged him with two counts of contempt three weeks later. The choose committee subpoenaed Bannon in September, saying they believed he performed a task in occasions that preceded the Jan. 6, 2021, assault on the Capitol. Bannon was a part of a “conflict room” of Trump allies searching for to strain Congress to reject Joe Biden’s electors, and he foreshadowed chaos on his podcast within the days main as much as Jan. 6
Exterior the courthouse on Wednesday, Bannon assailed the case in opposition to him, calling the prosecution — and the complete Jan. 6 choose committee course of — a sideshow.
“All of that is noise,” he mentioned, flanked by attorneys Evan Corcoran, Robert Costello and David Schoen. Bannon mentioned he thought-about the Biden administration “illegitimate” and that he’s working to “destroy” the Democratic Celebration as a political establishment throughout the midterm elections.
Nichols appeared poised to offer prosecutors their very own pre-trial victory: denying Bannon’s effort to argue throughout trial that his choice to blow off the subpoena was a results of Costello’s authorized recommendation. However he determined to desk the matter, as an alternative asking for added briefings from either side about whether or not the position of government privilege on this case makes present case legislation on the matter irrelevant.
Nichols additionally tabled different essential questions hanging over the case, together with a judgment concerning the techniques the Justice Division used to research Bannon. His protection crew has protested after discovering that grand jury subpoenas had been issued for Costello’s cellphone and e-mail logs in October, simply after Bannon was held in contempt by the Home.
However Nichols rejected a number of different Bannon requests, together with for proof the Justice Division obtained from different individuals named “Robert Costello” who had been inadvertently swept up within the division’s probe. Nichols additionally rejected a request by the protection for assist acquiring inner choose committee paperwork associated to its choice to carry Bannon in contempt, triggering the prosecution.
However Nichols famous that the protection crew would possibly find yourself acquiring extra data if prosecutors determined to name any choose committee members or officers as witnesses.
Josh Gerstein contributed to this report.