“In the circumstances presented here, it would be fundamentally unfair and a clear violation of due process to allow this lawsuit to proceed,” Bannon’s attorneys wrote in a court filing Friday night. “It must be rejected.”
Bannon’s legal team repeatedly pointed to indications that Trump was seeking to assert executive privilege on certain records as part of Bannon’s defense.
“Mr. Bannon received real authority in this case for his breach of subpoena directly from former President Trump’s invocation of executive privilege and the corresponding directive to Mr. Bannon that Mr. . Bannon must honor this invocation with respect to the subpoena,” Bannon’s attorneys wrote in the court filing.
Bannon’s Friday night filing comes after he suffered a major setback in his case, which the Justice Department filed in November after he failed to comply with a subpoena issued by the Jan. 6 panel. .
On Friday, the Justice Department sought to further limit the evidence Bannon can present at trial in his defense, asking Bannon’s judge to exclude three new categories of evidence.
The Justice Department also argued that the internal departmental documents Bannon has cited so far deal with separate scenarios from what Bannon faced when he chose not to participate in the investigation.
“Defendant was not subpoenaed in connection with his tenure as an executive branch official and was never ordered by the executive branch or former President Donald Trump to engage in a complete disregard of subpoena of the January 6 select committee (“the committee”) as it chose to do,” the filing reads. “Given the irrelevance of the evidence, the Court should exclude it.”
Bannon served as a White House adviser early in the Trump administration, but had been absent from the federal government for years prior to the period examined by the House committee.
Shortly after the Justice Department submitted its request to have the records excluded, Bannon highlighted the documents in a notice he filed with the court regarding his intentions to assert a defense of “entrapment by estoppel” – that is, an argument that the defendant had been misled by government statements to believe that his conduct was lawful.
In his motion to dismiss, Bannon argued that previous Justice Department guidance is relevant to his case and should offer grounds for dismissal.
“The legal authority that Mr. Bannon has relied on in this case reflects the formal, official, binding and authoritative position of the Department of Justice, the very agency that is pursuing this case in direct violation of its own official policy. official, binding and published,” Bannon’s attorneys wrote.
“Just as the fact that a person did not rob a bank one day is irrelevant in determining whether he robbed a bank another, whether the accused complied with other subpoenas or testimony requests – even those involving communications with the former president – – are 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 Committee’s Jan. 6 subpoena against him was invalid because of alleged procedural flaws plaguing the panel.
Any procedural objections Bannon would seek to raise to the committee’s subpoena come too late, the Justice Department argued in its Friday request to limit that defense.
“It is well-established law in the context of contempt of Congress that a subpoenaed witness who raises no objection or apparent privilege to a subpoena to the issuance committee has waived it as a defense to the ‘contempt,’ the government wrote in the court filing.
Bannon, meanwhile, filed a motion with the court on Friday seeking the exclusion of evidence the government obtained from subpoenas it issued on his attorney’s phone and electronic records, as well as presentations the government obtained. lawyer made to prosecutors before Bannon was charged.
Bannon accused the government of ‘exaggerating the prosecution’ for seeking information about his attorney and said the government misled the grand jury, two grounds for dismissal, Bannon’s attorneys argued in the filing of the court.
Pre-trial disputes over evidence will shape the contours of each party’s case.
Bannon is just one of four recalcitrant witnesses the Jan. 6 Committee referred to the Justice Department for prosecution, but the only one to date to face criminal prosecution for his failure to comply with a subpoena. to appear. The course of his case will reverberate as other potential witnesses weigh whether or not to cooperate with the congressional investigation.
This story and title have been updated.