WASHINGTON – Former Trump adviser Steve Bannon’s contempt-of-Congress trial will stretch into a second day after lawyers labored through a long Monday session trying to select a jury without preconceived opinions. Bannon is facing criminal charges after refusing for months to cooperate with the House committee investigating the Jan. 6, 2021, Capitol insurrection.
Bannon, an unofficial adviser to President Donald Trump at the time of the Capitol attack is charged in federal court with defying a subpoena from the Jan. 6 committee that sought his records and testimony. He was indicted in November on two counts of criminal contempt of Congress, one month after the Justice Department received a congressional referral. Each count carries a minimum of 30 days of jail and as long as a year behind bars.
Monday's session before U.S. District Judge Carl Nichols was entirely focused on jury selection in a slow-moving process known as voir dire. By the end of the day, 22 prospective jurors had been identified. The trial will resume Tuesday morning as lawyers for Bannon and the government whittle the list down to 14 — with 12 jurors and two alternates.
Much of Monday's questioning of potential jurors by Bannon’s lawyer, Evan Corcoran, centered on how much of the wide coverage of the Jan. 6 hearings they've watched and whether they have opinions about the committee and its work.
In one case, a prospective juror told Nichols that remaining impartial would be “a challenge” for him since “I do believe (Bannon) is guilty.”
That admission, in addition to disqualifying the potential juror, prompted additional questioning of others who had sat next to the man to determine how widely he had shared his opinion.
The high-profile and divisive nature of the case hung over Monday's session, with Corcoran seeking to block jurors who expressed strong opinions about Bannon or Trump, or who had any sort of personal connection to Jan. 6 or the Capitol.
At one point, Judge Nichols agreed to disqualify a woman whose mother is a staffer for Democratic Florida Rep. Lois Frankel. In another case Corcoran argued successfully to disqualify a man who said the Jan. 6 committee's work was “important” and he was closely tracking its developments.
“He comes into it with a frame of mind where he's highly focused on Jan. 6,” Corcoran said. “I just don't think he can be fair.”
Bannon attended the entire session, but never spoke.
The trial follows a flurry of activity in the case since July 9. Over a week ago, the former White House strategist notified the committee that he is now willing to testify. His former lawyer, Robert Costello, said the change was because Trump had waived his executive privilege claim preventing the testimony.
Bannon, 68, had been one of the most prominent of the Trump-allied holdouts refusing to testify before the committee. He had argued that his testimony was protected by Trump’s claim of executive privilege, which allows presidents to withhold confidential information from the courts and the legislative branch.
Trump has repeatedly asserted executive privilege — even though he's a former, not current president — to try to block witness testimony and the release of White House documents. The Supreme Court in January ruled against Trump’s efforts to stop the National Archives from cooperating with the committee after a lower court judge — Ketanji Brown Jackson, now on the Supreme Court — noted, in part, “Presidents are not kings.”
The committee has also noted that Trump fired Bannon from the White House in 2017 and Bannon was thus a private citizen when he was consulting with the president in the run-up to the riot.
Judge Nichols declined motions to delay the contempt trial in separate hearings last week, including Thursday when Bannon's lawyers raised concerns about an upcoming CNN report that has since aired about their client and what they said were prejudicial comments made during a hearing last week held by the House committee.
“I am cognizant of current concerns about publicity and bias and whether we can seat a jury that is going to be appropriate and fair, but as I said before, I believe the appropriate course is to go through the voir dire process," Nichols said Thursday. The judge said he intended to get a jury that "is going to be appropriate, fair and unbiased.”
While the judge allowed the trial to move forward, Nichols left open the possibility that letters about Trump waiving his privilege and Bannon's offer to cooperate with the committee could be referenced at trial, saying the information was “at least potentially relevant” to Bannon’s defense.
Roscoe Howard Jr., the former U.S. attorney in Washington, said the best case for Bannon was if the information on his cooperation offer gets to the jury. Even if it does, however, a claim that executive privilege stopped him from cooperating earlier will be a hard argument to make because Bannon refused to even answer the subpoena, Howard said.
“You have to show up to invoke the privilege claim. You can't phone it in," he said.
This story has been corrected to make the next-to-last word “legislative” rather than “executive,” in the 12th paragraph, which begins "Bannon, 68