Steve Bannon is trying to game the justice system and have his criminal contempt of Congress case tried in the media instead of in court, a manipulation that prosecutors say will lead to an “absurd” carnival-type atmosphere that could jeopardize potential witness testimony against Bannon later.
Just before Thanksgiving, the former strategist to ex-President Donald Trump filed a request in federal court in Washington, D.C. asking for permission to publicly share a variety of court records tied to his impending trial. Bannon was indicted by a federal grand jury earlier this month after he spent weeks evading a subpoena from a congressional select committee investigating the Jan. 6 attack on the U.S. Capitol. He pleaded not guilty.
Bannon claims the prosecution’s attempt to keep some discovery materials private is akin to the Department of Justice denying him a fair or speedy trial. During a recent motion hearing, the former Trump strategist said prosecutors did not have legal standing to pursue a protective order over the records. He complained that by labeling certain documents “sensitive,” his defense would not be able to amply build its case.
But prosecutors aren’t buying what Bannon is selling. Instead in their Sunday response to his motion, Department of Justice attorneys said that some records must remain under wraps for now because the information they contain includes things like internal correspondence between congressional staff on the Jan. 6 committee, law enforcement reports of witness interviews, and grand jury testimony and exhibits.
Bannon has already made clear that he intends to publicly disseminate materials for the purpose of making “extrajudicial arguments about the merits of the case pending against him and the validity of the government’s decision to seek an indictment,” the government’s 10-page motion states.
“Contrary to what the defendant told The Washington Post, allowing unfettered public access to discovery materials, regardless of their use or relevance to public judicial proceedings, is not the ‘normal process.’ It is the opposite of normal,” prosecutors argued.
In a statement on Nov. 25, Bannon said it was “members of the public” who should make their own “independent judgment” as to whether his case was being handled fairly by the Department of Justice.
“The defense’s misleading claims, failure to confer, unexplained wholesale opposition, and extrajudicial statements make clear the defense’s real purpose: to abuse criminal discovery to try this case in the media rather than in court,” Amanda Vaughn, the assistant U.S. attorney, wrote on Nov. 28.
Restraining some of the records before they are all made part of the public record in fact bolsters the integrity of the trial process, the Department of Justice attorneys argue. They cited the Supreme Court’s emphasis that courts must “avoid the carnival atmosphere that might accompany a case receiving substantial public attention,” like, they lamented, “this one has already.”
Indeed, Bannon forced the spotlight on himself after surrendering to the FBI on Nov. 15.
In a series of defiant proclamations made from just outside of the courthouse, Bannon vowed that “we’re taking down the Biden regime.”
His surrender was live streamed to Gettr, a social media platform launched in July by Trump’s former spokesman Jason Miller, and Bannon told press gathered at the courthouse: “I’m telling you right now, this is going to be the misdemeanor from hell for Merrick Garland, Nancy Pelosi and Joe Biden.
“We’re tired of playing defense. We’re going to go on the offense on this,” Bannon said.
It was these comments in particular that set prosecutors aflame in their request that the presiding judge keep discovery materials private for now.
“Allowing the defendant to publicly disseminate reports of witness statements will have the collateral effect of witness tampering because it will expose witnesses to public commentary on their potential testimony before trial and allow a witness to review summaries of other witnesses’ statements recounting the same event or events,” prosecutors said. “Moreover, the reports of interviews including personal background information about the witnesses that is unrelated to the pending charges. The defendant’s threat of ‘going on offense’ and making this case ‘hell’ cannot be ignored when considering these witnesses’ privacy interest in their personal background information.”
Further, Bannon’s claims are meritless because a protective order allows both the defendant and crucially, a defendant’s lawyer, to make “full use” of materials in advance of trial, including by showing the materials to potential witnesses.
“The defendant’s claim of prejudice establishes no prejudice at all. He makes the conclusory assertion that having to seek court authorization to share grand jury material and personal identifying information beyond those individuals outlined will somehow reveal a ‘roadmap’ of the defense case to the government,” the Department of Justice argues. “But the defendant does not explain why revealing to whom he shows materials to the government and court would ‘diminish the defense counsel’s ability to assist … to obtain witnesses in his favor and to develop cross examination,’ the rights he claims are infringed. To the contrary, the proposed order provides a clear mechanism for defense counsel to assist, obtain witnesses, and develop cross examination with materials designated as ‘sensitive.’”
Bannon’s allegations that his right to a fair trial is being impeded were also dismissed as “absurd” by prosecutors.
“The misleading and frivolous nature of the defendant’s claims of prejudice demonstrate that they are just a cover for the real reason the defendant opposes a protective order in this case and which he and his counsel have expressed in their extrajudicial statements—that the defendant wishes to have a trial through the process,” Vaughn wrote.
Judge Carl Nichols is slated to hear from both sides on the matter on Dec. 7.
Meanwhile, over at the nearby D.C. Circuit Court of Appeals, a hearing is slated for Tuesday regarding Trump’s fight to keep documents sought by the Jan. 6 Committee hidden. The former twice-impeached president has claimed executive privilege over a bevy of records that congressional investigators say are integral to unpacking exactly what happened before and during the Capitol riot.