A federal judge has ordered the U.S. Department of Justice (DOJ) to hand over records to Steve Bannon, a former adviser to former President Donald Trump.
U.S. District Court Judge Carl Nichols, a Trump appointee, questioned why prosecutors are pursuing the charge against Bannon when the DOJ’s Office of Legal Counsel has previously found that current and former executive branch officials were immune from congressional subpoenas.
Those legal opinions have never been withdrawn.
“How are those consistent positions?” Nichols asked during a roughly two-hour hearing on March 16. “In other words, how can the department ... simultaneously say someone in that position has absolute immunity from showing up and can be prosecuted for failing to show up?”
Amanda Vaughan, one of the prosecutors in the case, said the prior legal opinions weren’t relevant to the case.
She failed to sway the judge, who ordered prosecutors to produce “statements or writings reflecting official DOJ policy,” including nonpublic opinions, that relate to “the department’s policy on prosecuting or not prosecuting government or former government officials raising executive privilege claims or defenses of immunity.”
However, the judge also said he would deny requests from Bannon’s team for access to sensitive materials, such as testimony that the government provided to the grand jury.
Releasing such records would be a “serious step,” Nichols said, and he didn’t think Bannon’s attorneys made a strong argument for why it would be material to their defense.
Bannon’s attorneys had sought the records for preparation for motions to dismiss the case. Bannon also said in a recent filing that the previous guidance “is clear” in showing that he should be immune from prosecution.
“This has nothing to do with Jan. 6,” Bannon told reporters after the hearing. “All of this is noise. By the way, the judge is very fair.”
Robert Costello, one of Bannon’s attorneys, had told the House Select Committee on the January 6, 2021, Capitol breach that Bannon wouldn’t cooperate with the panel because he had been told not to by Trump.
Bannon told the court previously that he was advised that the subpoena for testimony from the panel was invalid because the committee wouldn’t allow Trump’s counsel to be present in order to protect executive privilege. His legal counsel also said he couldn’t waive the privilege.
Rep. Bennie Thompson (D-Miss.), chairman of the panel, has said that the privilege doesn’t cover the documents and testimony sought from Bannon.
President Joe Biden’s administration had declined to assert the privilege for documents and witnesses sought as part of the Jan. 6, 2021, probe, but the administration later said that it would examine each matter on a case-by-case basis.
