Federal prosecutors on Friday filed a 15-page memorandum to oppose Steve Bannon‘s attempts to dismiss an indictment which ultimately led to his conviction for dodging subpoenas issued by the Jan. 6 Committee.
A Washington, D.C. federal jury on July 22 found the former Donald Trump adviser and strategist guilty of contempt of Congress. Bannon defied attempts by the Jan. 6 Committee to seek testimony and documents pertaining to the breach of the U.S. Capitol Complex in the wake of the 2020 election.
After his conviction, Bannon asked U.S. District Judge Carl Nichols, a Trump appointee, for a judgment of acquittal; Nichols refused to grant that request. Bannon also renewed a motion which asked Nichols to dismiss the case. Nichols asked Bannon’s lawyers and prosecutors to brief the matter.
Bannon’s attorneys argued that Congressional witnesses refused to comply with subpoenas to provide documents and testimony that they believe would have been helpful to Bannon’s defense.
“[T]he Court’s Order quashing the subpoenas resulted in a trial that violated Mr. Bannon’s Fifth and Sixth Amendment rights,” Bannon’s lawyers wrote on Aug. 5.
Federal prosecutors responded in due course on Friday. They said Bannon’s post-conviction motion to rubbish his indictment — a move even Bannon’s team admitted contained an “unusual procedural posture” — was nothing but a third attempt by Bannon to explain the “various issues that he would explore through questioning of Members of Congress if he were able to compel them to testify at his trial.”
“And for the third time, the Defendant fails to articulate any materially favorable, relevant, and non-cumulative information any such witness would provide,” prosecutors wrote on Friday. “[I]ndeed, the Defendant does not even proffer what information his desired congressional witnesses would supply, because he does not know and can only speculate.”
“Mere speculation, and a desire to conduct an irrelevant fishing expedition through these witnesses’ testimony, does not amount to the showing the Defendant has to make to establish a compulsory process violation of his Fifth and Sixth Amendment rights,” the government continued. “There is a reason that the legal section of the Defendant’s Supplemental Brief fails to engage with relevant and applicable legal precedent: there is no legal support for the extraordinary relief he seeks of dismissal of the indictment against him.”
Prosecutors asked the judge to deny Bannon’s request to dismiss his case.
One of the issues, they noted, were competing constitutional claims.
“[I]t is not settled law that the Court could or should undertake a balancing between the Defendant’s Fifth and Sixth Amendment rights and Congress’s Speech or Debate Clause privilege,” the government reminded Nichols. “The Ninth Circuit, for instance, has held that courts cannot do so.”
The prosecutors noted that they had fewer tools at their disposal than usual to persuade Bannon’s preferred Congressional witnesses to cooperate — not, they say, that the cooperation would even matter:
Here, unlike in a circumstance in which the Government could immunize a witness and remove an obstacle to his testimony, the Government has no ability to override Congress’s decision to assert the Speech or Debate Clause privilege or secure congressional witnesses’ testimony in spite of that assertion. Accordingly, where, as here, there has been no Government misconduct regarding the congressional witnesses, and the Defendant has not established any testimony the witnesses can provide that is materially exculpatory, non-cumulative, and unavailable from the witnesses who were offered by Congress, dismissal is not an appropriate result.
The Court need not reach the question regarding whether or how to engage in balancing in such a circumstance, because the Defendant here has not made the threshold showing necessary to allow the Court to do so. The D.C. Circuit has repeatedly determined that other defendants making the same argument as the Defendant failed to establish a compulsory process violation based on an assertion of the Speech or Debate Clause privilege.
“To be successful, a defendant’s proffer regarding the materiality of the information he seeks to introduce through an unavailable witness cannot be speculative,” prosecutors further elucidated — all while arguing Bannon had not passed the relevant threshold.
According to the DOJ, Bannon made an “unavailing claim” that that Kristin Amerling, the Jan. 6 Committee’s Chief Counsel and Deputy Staff Director, “did not have the ‘knowledge or authority possessed by other congressional subpoena recipients’ the Defendant sought to call.”
That Bannon assertion, the DOJ said, was spurious.
“Ms. Amerling demonstrated her competence at trial through her extensive testimony, based on personal knowledge, of the subpoena issued to the Defendant and his default upon it,” the prosecutors wrote. “The Defendant’s speculative contention that Ms. Amerling did not provide the testimony he wishes other congressional witnesses might have is simply a complaint that he did not like her truthful answers to his questions.”
Bannon also complained about whether or not the subpoenas issued to him were “flexible” as to their “dates and times.”
“The testimony at trial established that the Committee’s position was that the dates and times were not flexible — they were exactly what were stated clearly and firmly on the subpoena to the Defendant,” prosecutors rebutted.
[S]uch questions about what Committee members thought are irrelevant . . . to the Defendant’s state of mind. Instead, the relevant question is what the Defendant thought. The record is quite clear that there were no communications between the Defendant and the Committee outside of the written letters that the jury received in evidence . . . [a]ccordingly, the Committee members, by definition, lack any information that would be relevant to Defendant’s state of mind.
In other words, Bannon is attacking issues that aren’t even relevant, the prosecutors suggested.
“It is clear that this desired area of inquiry is nothing more than a fishing expedition,” they asserted.
The DOJ concluded as follows:
In sum, the Defendant does not proffer a single line of questioning that he would ask of Committee witnesses that is relevant, material to his defense, and non-cumulative; indeed, for the most part, the Defendant does not even explain what the desired witnesses’ testimony would be — because he does not know and is merely speculating that their testimony might have been helpful. But speculation and proffers of immaterial testimony do not establish a compulsory process violation, and the Defendant’s Motion to Dismiss because he was not permitted to call congressional witnesses to testify should be denied.
Judge Nichols has not yet ruled on the dueling filings.
Read the full DOJ response here:
Have a tip we should know? [email protected]