The Justice Department on Sunday night accused Steve Bannon’s defense team of lodging “frivolous” legal complaints in order to cause a public dust-up with prosecutors as he battles criminal charges for attempting to thwart the House’s Jan. 6 select committee.
In a 10-page filing, prosecutors said an attorney for Bannon, Evan Corcoran, had repeatedly rebuffed their efforts to negotiate an evidence-sharing agreement, a standard part of the process in criminal trials. Instead, the prosecution said, Bannon’s defense used a public court filing Wednesday — and a statement to the Washington Post — to complain about the case.
“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,” Assistant U.S. Attorney Amanda Vaughn wrote.
DOJ’s salvo comes as Bannon is attempting to dramatically slow the criminal proceedings against him. Bannon used a court appearance earlier this month to foreshadow efforts to delay the case for months. Judge Carl Nichols pushed back on that effort and set a Dec. 7 hearing to revisit the schedule.
Bannon’s case is a crucial marker for congressional investigators seeking to force recalcitrant witnesses to the Jan. 6 insurrection at the Capitol to come before them and provide documents and testimony. The Justice Department brought charges against Bannon after a referral from the panel in October, a decision that lawmakers say has already helped coax other resistant witnesses to engage in talks.
But Bannon has made clear he intends to use his court proceedings as a forum to cause upheaval for Democratic leaders and DOJ.
“I’m telling you right now, this is going to be the misdemeanor from hell for Merrick Garland, Nancy Pelosi and Joe Biden,” Bannon told journalists just outside a courthouse entrance after his initial court hearing earlier this month.
“Joe Biden ordered Merrick Garland to prosecute me from the White House lawn when he got off Marine One, and we’re going to go on the offense. We’re tired of playing defense. We’re going to go on the offense on this,” Bannon declared.
Prosecutors pointed to Bannon’s combative statements as evidence that he intends to create a public spectacle around his trial rather than defend himself on the merits.
“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 trial through the press,” Vaughn wrote.
At the heart of the issue is Bannon’s claim that the DOJ is trying to prevent him from publicly disclosing or discussing documents that are already part of the public record — namely letters between his attorneys and the Jan. 6 committee explaining his refusal to testify.
“Mr. Bannon is entitled to a public trial,” Corcoran wrote in a Wednesday filing. “One aspect of a fair trial is ensuring public access to judicial proceedings and records.”
But DOJ said that Bannon’s attorney never engaged with them to discuss modifying the agreement to permit public disclosure of documents that had already been in the public domain — an accommodation they said they would have readily accepted.
Other files, Vaughn added, should remain secret pending trial. Those documents include “grand jury testimony and exhibits, law enforcement reports of witness interviews, and internal Select Committee communications between committee staff, none of whom regularly carry out their communications or duties in a public forum.”
The summary is a window into the evidence prosecutors intend to deploy against Bannon as they seek a conviction on a charge that has rarely held up over the last 50 years.
“Specific harms will result if circulation of these materials is not limited to the individuals identified in the proposed protective order,” Vaughn wrote.
And DOJ added that permitting Bannon to get his way with the evidence in the case — such as publicizing witness statements — would amount to witness-tampering because it would subject witnesses to public attacks before they testify and also let other witnesses know what testimony to expect.
The federal District Court in Washington has rules limiting public statements by lawyers about criminal cases and allowing judges to impose gag orders on attorneys and defendants in “widely publicized or sensational cases.”
During a court hearing earlier this month following Bannon’s initial broadside toward the prosecution, the judge made no mention of the fiery remarks.