“Under the circumstances presented here, it would be fundamentally unfair and a clear due process violation to permit this prosecution to go forward,” Bannon’s attorneys wrote in a late Friday court filing. “It must be dismissed.”
Bannon’s legal team has repeatedly pointed to indications that Trump was looking to assert executive privilege over certain records as an element of Bannon’s defense.
“Mr. Bannon received actual authority in this case for his non-compliance with the subpoena directly from former President Trump’s invocation of executive privilege and corresponding directive to Mr. Bannon, that Mr. Bannon must honor that invocation with respect to the subpoena,” Bannon’s attorneys wrote in the court filing.
Bannon’s late Friday filing comes after he suffered a major setback in his case, which the Justice Department brought in November after he failed to comply with a subpoena issued by the January 6 panel.
On Friday, the Justice Department sought to further limit the evidence Bannon can put up at trial in his defense, asking Bannon’s judge to exclude three new categories of evidence.
The Justice Department also argued that the internal department documents Bannon has cited so far address scenarios distinct from what Bannon was facing when he chose not to participate in the probe.
“The Defendant was not subpoenaed in relation to his time as an Executive Branch official and he was never directed by the Executive Branch or former President Donald Trump to engage in total noncompliance with the January 6th Select Committee’s (‘the Committee’) subpoena as he chose to do,” the filing said. “Given the evidence’s irrelevance, the Court should exclude it.”
Bannon served as a White House adviser at the beginning of the Trump administration but had been out of the federal government for years before the period the House committee is examining.
Shortly after the Justice Department submitted its request to exclude those records, Bannon pointed to the documents in a notice he filed with the court about his intentions to assert an “entrapment by estoppel” defense — meaning an argument that the defendant had been misled by government statements to believe his conduct was legal.
In his motion to dismiss, Bannon argued that prior Justice Department guidance is relevant to his case and should offer grounds for dismissal.
“The legal authority that Mr. Bannon relied upon in this case reflects the formal, official, binding, authoritative position of the Department of Justice, the very agency that is prosecuting this case in direct contravention of its own formal, binding, published official policy,” Bannon’s attorneys wrote.
“Just as the fact that a person did not rob a bank on one day is irrelevant to determining whether he robbed a bank on another, whether the Defendant complied with other subpoenas or requests for testimony — even those involving communications with the former President — is irrelevant to determining whether he unlawfully refused to comply with the Committee’s subpoena here,” the DOJ wrote Friday.
Finally, the government told the court that Bannon should not be able to argue at his trial that the January 6 Committee’s subpoena of him was invalid because of supposed procedural defects plaguing the panel.
Any procedural objections Bannon would seek to raise about the committee’s subpoena are coming too late, the Justice Department argued in its Friday request to limit that defense.
“It is settled law in the contempt of Congress context that a subpoenaed witness who fails to raise an apparent objection or privilege to a subpoena to the issuing committee has waived it as a defense to contempt,” the government wrote in the court filing.
Bannon, meanwhile, filed a request with the court Friday seeking the exclusion of evidence the government obtained from subpoenas it had issued on his lawyer’s phone and email records, as well as from presentations the lawyer gave prosecutors before Bannon was charged.
Bannon accused the government of “prosecutorial over-reaching” for seeking information about his lawyer and said the government misled the grand jury, both grounds for dismissal, Bannon’s attorneys argued in the court filing.
The pre-trial disputes over evidence will shape the contours of each side’s case.
Bannon is just one of four recalcitrant witnesses whom the January 6 Committee referred to the Justice Department for prosecution but the only one so far to face a criminal prosecution for his failure to comply with a committee subpoena. How his case unfolds will reverberate as other potential witnesses weigh whether or not to cooperate with the congressional investigation.
This story and headline have been updated.