From his criminal charge, Steve Bannon is seeing how a judge can influence a case in federal court

He is charged with refusing to produce documents and with refusing to appear to answer questions for a select committee of Congress that is to look into the disturbance at the Capitol on 6 January 2020. The offense is a federal misdemeanor [1].

The judge presiding is Carl J. Nichols, who graduated from law school in 1996 and was in the Bush jr Justice Department Civil Division from 2005-2009, as deputy assistant attorney general and principal deputy associate attorney general. He was first nominated to a federal district court in June 2018 but did not get a Senate vote. He was nominated again in Janaury 2019 and was confirmed by the Senate in May 2019 to that position as a federal trial court judge in Washington DC.

Bannon’s lawyers filed several pretrial motions on some issues, but Nichols denied the requests to the extent that one of the attorneys was reported to have said words like, “what is the use of having a trial if all our defenses are blocked”. For hearings on 11 and 14 July, the judge did not make written orders, and only gave the reasons for his rulings orally at that time. The only way to evaluate the rulings would be to get transcripts of the hearings from the court reporter.

The trial began on Monday, 18 July, and the 12-person jury was selected by Tuesday. The federal prosecutors began on Wednesday and put on only two witnesses — a staff lawyer from the January 6 committee and an FBI agent. They then “rested” their case, meaning they had finished putting on their evidence at that point. After quite a bit of discussion in court on Thursday, Bannon decided not to present any evidence or testify himself, and so the evidentiary part of the trial was concluded and closed.

The written instructions to the jury will be finalized on Friday, 22 July, and the closing arguments by the attorneys to the jury are expected the same day. The jury may begin to deliberate about their verdict on Friday as well.

Although rarely the subject of news reports, the “jury charge”, which consists of the written instructions to the jury, is one of the most important parts of a trial. In a criminal case, it is supposed to correctly state the parts of the law that apply to the case and the definitions of various terms in the wording of the criminal offense with which the defendant is charged. It will also include other instructions and their meaning that the jury is supposed to follow when deciding the case. If the jury instructions are not written correctly, a case can be reversed on appeal for an error in the jury charge alone.

The last entry in the court clerk’s docket sheet for Thursday, 21 July is kind of amusing and normal at the same time. It says–

“07/21/2022 Minute Order as to Stephen K. Bannon. Pending before the Court is Defendant’s Motion to Exclude Congressional Evidence or Dismiss the Indictment Based on Granting the Motion to Quash, ECF No. 116 . The Court has determined that good cause exists for deferring a decision on Defendant’s 116 Motion, see Fed. R. Crim. P. 12(d), until after the jury returns a verdict or is discharged. The Court intends to decide Defendant’s 116 Motion together with Defendant’s Motion for Judgement of Acquittal Pursuant to Rule 29, ECF No. 125 . Signed by Judge Carl J. Nichols on July 21, 2022. (lccjn3) (Entered: 07/21/2022)”.

The judge is ducking having to decide a motion Bannon filed on 15 July based on the fact that he (Nichols) quashed subpoenas Bannon had served on nine of the January 6 committee members for them to testify at the trial. Congress, through the committee members, is the complainant. A person has the right to confront and cross examine in court the witnesses against him in a criminal case. Part of Bannon’s argument is that by quashing his trial subpoenas (cancelling their enforcement), Nichols has deprived him of the rights guaranteed in the Sixth Amendment to the U.S. Constitution, which says–

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”.

There are other parts to Bannon’s argument that the case should be dismissed or the evidence from the committee should be excluded, but the motion remains pending because if the jury returns a verdict of not guilty, it would be moot.

Also pending is Bannon’s request for a judgment of acquittal. In federal court, a defendant can make a motion for a judgment of acquittal or a judge can do it on his or her own initiative. Surprisingly, a wide time frame exists in which a ruling can be made on the request, from right after the government closes its evidence to after the jury “returns a verdict of guilty or is discharged without having returned a verdict”. Thus, even if a jury finds the defendant guilty, the judge can set aside the verdict and enter a judgment of acquittal, and can also do so if there is a “hung jury”, which occurs when a jury cannot reach a unanimous decision [2].

It is obvious now that Judge Nichols is going to send the case to the jury, at which time what happens is anybody’s guess.


[1] Title 2, United States Code, section 192. Refusal of witness to testify or produce papers.

http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section192&num=0&edition=prelim

[2] Federal Rule of Criminal Procedure 29. Motion for a Judgment of Acquittal.

http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18a-node35-node77-rule29&num=0&edition=prelim

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11 Responses to From his criminal charge, Steve Bannon is seeing how a judge can influence a case in federal court

  1. Whitewall says:

    And people thought the January 6 spectacle was an attempt to over throw ‘our democracy’. Our courts have been used to criminalize political differences, even sitting by when presidents weaponize Federal agencies against political opponents. Using our legal system as a weapon, in this case against Bannon and previously against General Flynn, are examples of democracy done badly. It is no longer political warfare but ‘lawfare’.

  2. Fred says:

    The cowardice of the judiciary on display; or more accurately the victory of AOC and the leftists in their campaign of judicial intimidation.

  3. JK/AR says:

    “It is obvious now that Judge Nichols is going to send the case to the jury,

    at which time what happens is anybody’s guess.”

    So far as the last part after the comma, No; guessing is unnecessary. The jury after all has been picked from the DC jury pool. That fact by itself provides us all we need to know where the “what happens” part is concerned. When the jury is sequestered for deliberations it’ll take them longer to order lunch than it will have had to decide Bannon’s guilt – and guilt it will be.

    Linking to a Viva Frei podcast – oh, about the first nine or ten minutes is spent establishing Julie Kelly’s bona fides then from there to about the 59 minute mark being mostly given over to discussing, generally, “the participants” roles in the Insurrection. From the point of Mrs. Kelly’s departure there begins the meat of Bannon’s “due process” kabuki-kangaroo:

    https://www.youtube.com/watch?v=cmAGcxx_Tjg

  4. SRW says:

    What am I missing here. He willfully ignored a subpoena from the House panel investigating the Jan. 6 attack on the Capitol. What could be more cut and dried. If he felt he could be charged with any offense he could take the 5th like Flynn. I guess he felt he had to obey only the laws he wanted to. Sounds something like his former boss.

    • PeterHug says:

      I’m not a lawyer, but it appears to me that you’re allowed to use the Fifth Amendment to avoid answering questions if you think you might incriminate yourself, and you might be able to try to use and Executive Privilege excuse (except he wasn’t employed by the Executive Branch, Trump is no longer President and therefore can’t invoke it, and in any cast Trump has waived that) – but you’re not allowed to ignore the subpoena entirely and just blow the whole thing off. I certainly wouldn’t expect to have much success with that approach…

      • JK/AR says:

        PeterHug,

        You do recall Eric Holder’s being convicted of “Contempt for Congress” and what happened after never?

        “Lying to Congress”? Fast and Furious ring any bells? Lying to the Government? (Heck that’s called April 15th).

        The USA’s been around only a relatively little while but still you’d think wouldn’t you PeterHug that Somebody/Anybody already would have got likewise found guilty of the same thing at least once before?!!!

        My God just think of the many times so so recently SIGAR came in and reported to Congress.

  5. Deap says:

    Jury verdict in: guilty on both counts.

  6. I’m glad you’re covering this; it’s an important case for its implications re us all.

  7. LeaNder says:

    JK/AR , don’t you feel that Bannon’s lawyers and supporters hired an expert in jury selection? There must be quite a few people in DC too that firmly believe the election was stolen. Concidering how many US citizen believe that was the case. Or has the percentage gone down not up?

    But I found Robert Willman’s article interesting.

    • JK/AR says:

      Just my personal opinion LeaNder but where the DC jury pool is concerned, an ‘selection expert’ most likely would not have mattered.

      So far as that “quite a few in DC believe” I think that’s a given – actually were one to divide up each square mile of the US into its separate parcels the highest percentage anywhere is likely DC itself – and not merely “believe” rather know it. (I read a couple of the suspected states’ constitutions and in each case only the legislatures were “lawfully” granted the power to make changes to the elections process. But for whatever reason both of the in question states because of Covid Emergency My Lawd! accepted officers of the Executive [Governor, Secretary of State etc] to make changes bereft of The People’s elected representative’s input – that too pesky ‘advise and consent’ bit.) So much for that ‘Consent of the Governed’ crap that, we *know since the Patriot Act’s passage is now so passe. “Outlived its original intent’ in other words.

      (Bearing in mind as we must always – our current state of affairs we owe to bi-partisanship. History LeaNder records Senator Wyden’s so many objections and hearings right up until the point his *party got control of DHS.)

      https://warontherocks.com/2014/09/congress-can-fix-dhs-but-needs-to-fix-itself-first/

      Just my opinion but I think Mrs. Powell and the kite flying Doctor who met on the steps in 1787 would be today, pessimistic at best.

      Willman’s posts are always of interest to me.

  8. JK/AR says:

    Okay now where was I?

    Oh yeah. I’d been waiting for the post conviction real “lawyer analysis” of the foregone conclusion of Guilty On All Counts DC *impartial jury that Bannon received.

    Push this up to the forty-four minute timestamp and proceed from there:

    https://www.youtube.com/watch?v=Dc0X7ivncdk

    Amazing! Justice in America. … Well in Washington DC anyway.

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