Federal judge denies Steve Bannon’s motion to dismiss contempt indictment

A federal judge on Wednesday denied former Trump White House adviser Steve Bannon's motion to dismiss an indictment charging him with contempt of Congress for failing to respond to a subpoena from the House Jan. 6 committee.

Bannon's lawyers argued that prosecuting Bannon violates longstanding Justice Department policies concerning executive branch officials. They also maintained that the committee had no authority to issue the subpoena and that the law making contempt of Congress a crime is unconstitutional.

Bannon was indicted last November by a federal grand jury, charged with two counts of contempt of Congress for refusing to answer questions from the House Committee investigating the Capitol riot. One count accused him of refusing to appear for a deposition and the other was for declining to produce documents requested by the committee.

The committee said it wanted to explore a comment he made on his radio program on Jan. 5, 2021, when he predicted “all hell is going to break loose tomorrow.” That could indicate that “he had some foreknowledge about extreme events that would occur the next day,” the committee said.

The panel said Bannon was present at a meeting in a Washington hotel the day before the riot, where Trump supporters discussed how they could try to overturn the election results. Committee investigators said they also wanted to ask about that and about a Dec. 30 phone conversation in which Bannon urged Trump to focus his efforts on Jan. 6.

If convicted, Bannon, who is 68, could face up to a year behind bars and a fine of up to $100,000. A conviction would result in a punishment, but it would not require him to comply with the subpoena.

U.S. District Court Judge Carl Nichols dealt Bannon a blow in April, ruling that he cannot argue at his trial that he is not guilty because he was following the advice of his lawyer. Under previous appeals court rulings, such a defense is not available in a contempt of Congress case, the judge said.

Urging the judge to dismiss the charges, Bannon’s legal team said that under Justice Department policies, former White House officials have no legal obligation to comply with a congressional subpoena when the president has asserted executive privilege. Bannon relied on these positions “in reasonably believing that the subpoena was not valid and that compliance was not, therefore, either appropriate or required as a matter of fact and law,” his lawyers told the judge in legal papers submitted before the hearing.

That defense is not available to Bannon, the government contends, because the subpoena dealt only with his actions as a private citizen long after he left government service and also because he was never directed by Trump to ignore the subpoena.

Bannon’s lawyers also said the subpoena wasn’t valid because the House committee was not properly constituted under congressional rules. Other federal judges, however, have rejected that same argument in cases challenging the committee’s subpoenas.

Further, the Bannon team said the contempt statute is unconstitutional because it is vague, overly broad and fails to give adequate notice of what the law requires. The Justice Department responded that federal courts have applied the contempt statute for over 100 years “without difficulty.”

The judge has scheduled Bannon’s trial to begin July 18.