A Trump-appointed judge said he's inclined to block a key part of Steve Bannon's contempt-of-Congress defense

• A federal judge hinted that he might block Steve Bannon's central defense strategy against contempt charges.
• But the judge also grilled prosecutors on why they sought phone records for Bannon's lawyer.

Former Trump White House chief strategist Steve Bannon may lose a key pillar of his defense against misdemeanor contempt-of-Congress charges.

During a more than 2-hour court hearing Wednesday, a federal judge appointed by former President Donald Trump said he's inclined — at the request of federal prosecutors — to block Bannon's contention that his defiance of a US House committee investigating the January 6, 2021, attack on the Capitol resulted from his lawyer's advice.

Bannon's defense team had hoped to make that argument to undercut the Justice Department's ability to prove the Trump ally "willfully" — or knowingly — violated the law by refusing to comply with the House committee's demand for records and testimony.

Prosecutors pointed to a decades-old precedent — rooted in a 1961 appeals court ruling — that took the so-called "advice of counsel" defense is off the table for people charged with contempt of Congress.

"The summoned witness doesn't get to decide if Congress can make them show up," said assistant US attorney Amanda Vaughn, adding that the contempt charge hinges on "whether or not you showed up."

"If a defendant makes a deliberate and intentional decision not to appear, he has the requisite intent for contempt," Vaughn said.

US District Judge Carl Nichols, who was confirmed in 2019 to the federal trial court in Washington, DC, appeared skeptical of the past ruling and said he might rule differently "if this were a matter of first impression."

"But there is binding precedent from the Court of Appeals [for the DC Circuit] … that is directly on point," he said.

Nichols stopped short of definitively denying Bannon the advice of counsel defense. He asked for an additional briefing later this month.

Bannon is set to stand trial on July 18.

If convicted, Bannon faces up to a year in jail and a fine of up to $100,000.

Judge questions prosecutors' investigative steps in Bannon probe

Bannon notched a victory Wednesday when Nichols ordered the Justice Department to turn over "statements or writings reflecting official DOJ policy" — whether public or not — for approaching cases involving current or former government officials who claim executive privilege or immunity in the face of congressional subpoenas.

Any documents turned over to Bannon's defense team could offer insight into how the Justice Department approached Bannon's prosecution and how it sees his dealings with the House committee as different from other current or former government officials who've refused to comply with congressional subpoenas.

Vaughn argued that legal guidance from the Justice Department's Office of Legal Counsel was not relevant to whether Bannon illegally defied Congress.

"They're internal department advice, and I don't think they'd be controlling in any way," Vaughn said of Office of Legal Counsel memos.

Bannon's lawyers countered that the Justice Department's legal opinions advise that close presidential advisors are largely immune from congressional subpoenas.

Nichols denied a number of the Bannon defense team's other document requests.

The judge also grilled Vaughn over the Justice Department's efforts to obtain the phone and email records of one of Bannon's lawyers, Robert Costello, who represented him before the House committee investigating January 6.

Bannon's defense team cried foul over the move, with Costello saying such conduct drives a "wedge between a lawyer and his client."

Vaughn defended the move as necessary to show that Bannon was aware of House subpoena demanding records and testimony. But Nichols said the "world knew about the contempt proceeding" and questioned whether there could have been any doubt about Bannon's awareness of the subpoena.

Nichols said the phone and email records were not just "regular old records" but those belonging to a lawyer for Bannon.

"Why is that an appropriate first move for a source of information?" Nichols asked.

Vaughn stressed that the Justice Department never sought the contents of the communications.

Ahead of the hearing, the Justice Department acknowledged that it inadvertently obtained records of Robert Costellos who were not Bannon's lawyer. Prosecutors said the misstep — rooted in part on failing to notice the middle name of one of the Costellos — had no bearing on the prosecution. By highlighting it, prosecutors said, Bannon was trying to "twist relatively common investigative steps and evidentiary dead ends into something that they are not."

In court Wednesday, Costello introduced himself to Nichols as the "actual Robert Costello they were looking for."

Costello accused the Justice Department of a "terrible abuse of the grand jury process."

Bannon's indictment came within weeks of the House recommending that the Justice Department prosecute the Trump ally over his defiance of the congressional investigation into the January 6, 2021, attack on the Capitol.

Shortly after the November indictment, Bannon pledged to make the prosecution the "misdemeanor from hell" for the Justice Department.

Bannon is among multiple Trump allies who have cited executive or attorney-client privilege when refusing to cooperate with the House select committee. Others include former chief of staff Mark Meadows, the conservative lawyer John Eastman, and the former White House aides Kash Patel and Dan Scavino.

But legal experts have been skeptical that Bannon has a legitimate executive privilege claim, given that he was forced to resign from the Trump White House in the summer of 2017, more than three years before the Capitol siege took place.

President Joe Biden also waived executive privilege over the documents and testimony the House select committee, saying it was not in the US's best interest to shield them from the public. Trump subsequently filed a lawsuit to block the committee from obtaining the documents.

But the Supreme Court cleared the way for their release last month when it denied Trump's request to review the committee's bid for the records.