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      Bannon initiates talks with January 6 panel on testifying over Capitol attack

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      Bannon initiates talks with January 6 panel on testifying over Capitol attackCooperation of former Trump strategist could provide unique insight into inner-workings of Trump’s push to overturn election Steve Bannon, the onetime strategist to Donald Trump who was involved in the former president’s efforts to invalidate his defeat in the 2020 election, has opened discussions with the House January 6 select committee about testifying to the inquiry into the Capitol attack.The offer of cooperation could mark a breakthrough for the panel, which has sought Bannon’s testimony for months, believing he could provide unique insight into the inner-workings of Trump’s unlawful push to stop the congressional certification of his loss to Joe Biden from taking place.Bannon signalled in an email to the select committee, first obtained by the Guardian, that he was prepared to initiate discussions about a time and place for an interview, after Trump said in a letter he would waive executive privilege if he reached an agreement to testify.The email broadly reiterated Bannon’s legal defense that he was previously unable to comply with a subpoena from the panel because at the time, in a claim that has been disputed, the former president had asserted executive privilege over his testimony.But with Trump now willing to waive executive privilege if Bannon and the select committee could secure an arrangement, Bannon was in a position to initiate negotiations about a potential interview, the email said, citing the letter from the former president.The situation with Bannon and executive privilege is complex because he has argued that he does not have to have been a White House employee – he was not for January 6 – to be a close presidential adviser dispensing confidential advice and be subject to executive privilege.He has also argued that while the supreme court has ruled that a current president’s waiver for executive privilege overrules a former president’s assertion, Biden never formally waived Trump’s assertion – the select committee didn’t believe Trump asserted it in the first place.Speaking on CNN’s State of the Union on Sunday, January 6 committee member and congresswoman Zoe Lofgren said she anticipated the panel would schedule an interview with Bannon.“I expect that we will be hearing from him,” Lofgren said. “And there are many questions that we have for him.”The email specifically said Bannon was prepared to testify at a public hearing. It did not say whether Bannon would agree to appear at a closed-door interview first, or ever, and whether he would provide documents in addition to providing testimony.Also unclear was the extent of the assistance Bannon might provide in his testimony, though he was a witness to several key moments in the illicit effort to stop the certification of Biden’s election win on 6 January.That would mean Bannon could, in theory, reveal to House investigators about his conversations with Trump ahead of the Capitol attack – Bannon spoke with Trump on the phone the night before – and strategy discussions at the Trump “war room” at the Willard hotel in Washington.The Trump “war room” at the Willard played a major role in the former president’s push to stop the certification. Bannon was based there in the days before the attack, alongside Trump lawyers John Eastman and Rudy Giuliani, widely seen as the architects of that scheme.Bannon’s offer to testify appears to be a strategic move ahead of his trial for criminal contempt of Congress, scheduled to start on 18 July, that comes after justice department prosecutors charged him for refusing to comply with the select committee’s subpoena last year.The move to testify to the panel now would not “cure” his contempt since he faces criminal contempt and the prosecution is for the past failure to comply with the subpoena, according to former US attorney Joyce Vance.But the email offering to testify could have the effect of reinforcing his legal defense that Trump did in fact assert a legitimate executive privilege claim in October 2021, and that he cannot be prosecuted because of that invocation, according to his letter on Saturday.The offer to testify – and an actual agreement where he appears before the select committee – could also serve to defang the prosecution to some extent, making it a less attractive case for the justice department to pursue and one generally less appealing to jurors.Regardless of what Trump now says in his letter, and in referring Bannon for prosecution, the select committee has maintained that Trump did not assert executive privilege – and even if he did, it did not cover Bannon, who was out of the Trump White House by 6 January.The select committee has also said that Bannon was required to respond to the subpoena in some way, for instance by citing executive privilege on a question-by-question basis, and at least responding to questions that had nothing to do with Trump.Bannon became one of two former Trump advisers charged by the justice department for contempt of Congress. Federal prosecutors also charged Peter Navarro but declined to prosecute the former White House chief of staff, Mark Meadows, and the deputy chief, Dan Scavino.TopicsUS politicsSteve BannonDonald TrumpUS Capitol attackReuse this content More

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      Trump considers waiving Bannon’s executive privilege claim, reports say

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      Trump considers waiving Bannon’s executive privilege claim, reports sayDecision from former president would clear way for one-time adviser to testify before committee investigating Capitol attack Donald Trump is considering waiving executive privilege for his longtime political adviser Steve Bannon, which would clear the way for a key ally of the former president to testify before the congressional committee investigating the deadly January 6 attack on the Capitol.Trump is reportedly considering sending a letter to Bannon, his former White House strategist, acknowledging that he granted Bannon executive privilege on 21 September but is now willing to give up the claim if Bannon reaches an agreement to testify before the House committee investigating the Capitol insurrection, the Washington Post first reported, citing sources familiar with the situation.According to the Post, some of Trump’s advisers have warned him not to send the letter, but the ex-president may be bullish on getting a witness who is ostensibly friendlier to him to appear at one of the committee’s televised hearings.Bannon was charged with two counts of criminal contempt of Congress in November after defying a subpoena from the House committee investigating the Capitol riots. Bannon has pleaded not guilty.If convicted, Bannon could face up to a year in prison and a fine of up to $100,000. His trial is expected to start later this month, reported CNN.Bannon has claimed that discussions between Trump and him are protected under the dictum of executive privilege. But prosecutors say Bannon is not protected because he was not working at the White House on the day of the Capitol attack.The committee has also said that Bannon’s executive privilege claims do not mean he can simply ignore the subpoena outright, but he could cite the privilege in response to certain questions.“Even if your client had been a senior aide to [Trump] during the time period covered by the contemplated testimony, which he was most assuredly not, he is not permitted by law to the type of immunity you suggest that Mr. Trump has requested he assert,” committee chair Bennie Thompson wrote to Bannon’s attorney in October.Federal prosecutors have not brought contempt charges against other Trump aides who ignored subpoenas while citing executive privilege, including former White house chief of staff Mark Meadows.Even after leaving his position in the White House, Bannon remained an outspoken proponent of the falsehood that electoral fraudsters stole the 2020 presidential race against Joe Biden from Trump.The committee has staged numerous public hearings airing evidence that the lie helped inspire the attack on the Capitol, to which a bipartisan Senate report linked seven deaths.TopicsSteve BannonUS politicsDonald TrumpJanuary 6 hearingsUS Capitol attacknewsReuse this content More

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      January 6 committee focuses on phone calls among Trump’s children and aides weeks before election

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      January 6 committee focuses on phone calls among Trump’s children and aides weeks before electionFootage captured by documentary film-maker understood to show former president’s children privately discussing election strategies The House select committee investigating the January 6 Capitol attack is closely focused on phone calls and conversations among Donald Trump’s children and top aides captured by a documentary film-maker weeks before the 2020 election, say sources familiar with the matter.The calls among Trump’s children and top aides took place at an invitation-only event at the Trump International hotel in Washington DC that took place the night of the first presidential debate on 29 September 2020, the sources said.The select committee is interested in the calls, the sources said, since the footage is understood to show the former president’s children, including Donald Jr and Eric Trump, privately discussing strategies about the election at a crucial time in the presidential campaign.‘Watergate for streaming era’: how the January 6 panel created gripping hearingsRead moreHouse investigators first learned about the event, hosted by the Trump campaign, and the existence of the footage through British film-maker Alex Holder, who testified about what he and his crew recorded during a two-hour interview last week, the sources said.The film-maker testified that he had recorded around seven hours of one-to-one interviews with Trump, then-vice president Mike Pence, Trump’s adult children and Trump’s son-in-law Jared Kushner, the sources said, as well as around 110 hours of footage from the campaign.But one part of Holder’s testimony that particularly piqued the interest of the members of the select committee and chief investigative counsel Tim Heaphy was when he disclosed that he had managed to record discussions at the 29 September 2020 event.The select committee is closely focused on the footage of the event – in addition to the content of the one-on-one interviews with Trump and Ivanka – because the discussions about strategies mirror similar conversations at that time by top Trump advisors.On the night of the first presidential debate, Trump’s top former strategist Steve Bannon said in an interview with HBO’s The Circus that the outcome of the 2020 election would be decided at the state level and eventually at the congressional certification on January 6.“They’re going to try and overturn this election with uncertified votes,” Bannon said. Asked how he expects the election to end, Bannon said: “Right before noon on the 20th, in a vote in the House, Trump will win the presidency.”The select committee believes that ideas such as Bannon’s were communicated to advisors to Donald Jr and his fiancee, Kimberly Guilfoyle, even before the 2020 election had taken place, the sources said – leading House investigators to want to review the Trump hotel footage.What appears to interest the panel is whether Trump and his children had planned to somehow stop the certification of the election on January 6 – a potential violation of federal law – and to force a contingent election if Trump lost as early as September.The event was not open to the public, Holder is said to have testified, and the documentary film-maker was waved into the Trump hotel by Eric Trump. At some point after Holder caught the calls on tape, he is said to have been asked to leave by Donald Jr.Among the conversations captured on film was Eric Trump on the phone to an unidentified person saying, according to one source familiar: “Hopefully you’re voting in Florida as opposed to the other state you’ve mentioned.”January 6 hearings: if Republicans did nothing wrong, why were pardons sought?Read moreThe phone call – a clip of which was reviewed by the Guardian – was one of several by some of the people closest to Trump that Holder memorialized in his film, titled Unprecedented, which is due to be released in a three-part series later this year on Discovery+.Holder also testified to the select committee, the sources said, about the content of the interviews. Holder interviewed Trump in early December 2020 at the White House, and then twice a few months after the Capitol attack both at Mar-a-Lago and his Bedminster golf club.The select committee found Holder’s testimony and material more explosive than they had expected, the sources said. Holder, for instance, showed the panel a discrepancy between Ivanka Trump’s testimony to the panel and Holder’s camera.In her interview in December 2020, the New York Times earlier reported, Ivanka said her father should “continue to fight until every legal remedy is exhausted” because people were questioning “the sanctity of our elections”.That interview was recorded nine days after former attorney general William Barr told Trump there was no evidence of election fraud. But in her interview with the select committee, Ivanka said she had “accepted” what Barr had said.TopicsJanuary 6 hearingsUS Capitol attackUS politicsDonald TrumpRepublicansDonald Trump JrSteve BannonnewsReuse this content More

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      January 6 committee focuses on phone calls among Trump’s children and aides

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      January 6 committee focuses on phone calls among Trump’s children and aidesFootage captured by documentary film-maker understood to show ex-president’s children privately discussing election strategies The House select committee investigating the January 6 Capitol attack is closely focused on phone calls and conversations among Donald Trump’s children and top aides captured by a documentary film-maker weeks before the 2020 election, say sources familiar with the matter.The calls among Trump’s children and top aides took place at an invitation-only event at the Trump International hotel in Washington that took place the night of the first presidential debate on 29 September 2020, the sources said.The select committee is interested in the calls, the sources said, since the footage is understood to show the former president’s children, including Donald Jr and Eric Trump, privately discussing strategies about the election at a crucial time in the presidential campaign.‘Watergate for streaming era’: how the January 6 panel created gripping hearingsRead moreHouse investigators first learned about the event, hosted by the Trump campaign, and the existence of the footage through British film-maker Alex Holder, who testified about what he and his crew recorded during a two-hour interview last week, the sources said.The film-maker testified that he had recorded around seven hours of one-to-one interviews with Trump, then-vice president Mike Pence, Trump’s adult children and Trump’s son-in-law Jared Kushner, the sources said, as well as around 110 hours of footage from the campaign.But one part of Holder’s testimony that particularly piqued the interest of the members of the select committee and chief investigative counsel Tim Heaphy was when he disclosed that he had managed to record discussions at the 29 September event.The select committee is closely focused on the footage of the event – in addition to the content of the one-on-one interviews with Trump and Ivanka – because the discussions about strategies mirror similar conversations at that time by top Trump advisors.On the night of the first presidential debate, Trump’s top former strategist Steve Bannon said in an interview with The Circus on Showtime that the outcome of the election would be decided at the state level and eventually at the congressional certification on January 6.“They’re going to try and overturn this election with uncertified votes,” Bannon said. Asked how he expects the election to end, Bannon said: “Right before noon on the 20th, in a vote in the House, Trump will win the presidency.”The select committee believes that ideas such as Bannon’s were communicated to advisers to Donald Jr and his fiancee, Kimberly Guilfoyle, even before the 2020 election had taken place, the sources said – leading House investigators to want to review the Trump hotel footage.What appears to interest the panel is whether Trump and his children had planned to somehow stop the certification of the election on January 6 – a potential violation of federal law – and to force a contingent election if Trump lost as early as September.The event was not open to the public, Holder is said to have testified, and the documentary film-maker was waved into the Trump hotel by Eric Trump. At some point after Holder caught the calls on tape, he is said to have been asked to leave by Donald Jr.Among the conversations captured on film was Eric Trump on the phone to an unidentified person saying, according to one source familiar: “Hopefully you’re voting in Florida as opposed to the other state you’ve mentioned.”January 6 hearings: if Republicans did nothing wrong, why were pardons sought?Read moreThe phone call – a clip of which was reviewed by the Guardian – was one of several by some of the people closest to Trump that Holder memorialized in his film, titled Unprecedented, which is due to be released in a three-part series later this year on Discovery+.Holder also testified to the select committee, the sources said, about the content of the interviews. Holder interviewed Trump in early December 2020 at the White House, and then twice a few months after the Capitol attack both at Mar-a-Lago and his Bedminster golf club in New Jersey.The select committee found Holder’s testimony and material more explosive than they had expected, the sources said. Holder, for instance, showed the panel a discrepancy between Ivanka Trump’s testimony to the panel and Holder’s camera.In her interview in December 2020, the New York Times earlier reported, Ivanka said her father should “continue to fight until every legal remedy is exhausted” because people were questioning “the sanctity of our elections”.That interview was recorded nine days after former attorney general William Barr told Trump there was no evidence of election fraud. But in her interview with the select committee, Ivanka said she had “accepted” what Barr had said.TopicsJanuary 6 hearingsUS Capitol attackUS politicsDonald TrumpRepublicansDonald Trump JrSteve BannonnewsReuse this content More

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      Pelosi and other top Democrats subpoenaed over Bannon contempt case

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      Pelosi and other top Democrats subpoenaed over Bannon contempt caseLawyers for ex-Trump adviser request details of Capitol attack panel’s decision-making process that led to contempt ruling Top House Democrats, including speaker Nancy Pelosi, and the members of the House select committee investigating the January 6 Capitol attack, have been subpoenaed to testify in court in connection with the criminal contempt case against Donald Trump’s one-time chief strategist Steve Bannon.The subpoenas – which were accepted by the House counsel, Doug Letter, last Friday, according to a source familiar with the matter – compel the handover of documents and testimony about internal decision-making that led to Bannon’s contempt case.John Kerry commits to look into case of missing British journalist in BrazilRead moreBut whether the subpoenas stand depends on how Judge Carl Nichols rules at a hearing next week, where he will asses pre-trial motions. Nichols could decide the testimony of members of Congress, for instance, is inadmissible because of protections like the so-called speech and debate clause.Bannon’s lawyers are seeking cooperation from top Democrats including Pelosi, the House majority leader Steny Hoyer, the House majority whip Jim Clyburn, all members of the select committee and three select committee counsels, as well as Letter.The subpoenas request materials that Bannon’s lawyers believe will provide evidence that the select committee did not follow House rules in issuing its subpoena to Bannon last year, and that federal prosecutors violated justice department rules in filing charges.It was not clear on Tuesday whether Letter, the House counsel, would move to quash the trial subpoenas. Letter, through a spokesman for the select committee, could not be reached for comment.Letter could also move to reach an arrangement with David Schoen, the lead lawyer defending Bannon in his contempt case. Schoen told the Guardian he would be prepared to discuss the matter in the hope that Letter would not move to dismiss the subpoenas.“The subpoenas are asking for materials that belong to the American people. It would be pretty ironic for the committee to quash the subpoenas when they issued a subpoena demanding materials from Bannon, where Trump asserted executive privilege,” Schoen said.Bannon’s lawyers are making a multi-pronged defense to try and save Bannon from being convicted of criminal contempt of Congress after he was referred to the justice department for prosecution for failing to comply with a subpoena in the congressional January 6 inquiry.The main thrust of Bannon’s argument is that he cannot be held in wilful contempt because he could reasonably believe the subpoena was invalid when the select committee failed to allow a Trump lawyer to attend his deposition, after Trump asserted executive privilege.The argument rests on a 2019 justice department office of legal counsel opinion that says congressional subpoenas that prevent executive branch counsel from accompanying executive branch employees to depositions are “legally invalid” and not enforceable.Bannon’s lawyers are also making the case that the select committee in violation of House rules made no effort to grant a one-week extension to reply to the subpoena after his attorney asked for time to review Trump’s related lawsuit against the panel.The defense that Bannon is advancing – using broad readings of parts of the justice department’s own positions and amalgamating them into a wider argument – is controversial, but it underscores the complexities facing federal prosecutors in pursuing the case.“Bannon’s trying to use the OLC opinions as a shield that doesn’t quite cover him, but gives him enough of a defense to fend off the DoJ’s necessity of proving criminal intent,” Jonathan Shaub, a University of Kentucky law professor and a former OLC attorney-adviser, previously told the Guardian.TopicsSteve BannonUS Capitol attackUS politicsnewsReuse this content More

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      Kellyanne Conway takes aim at Bannon in book but hits Trump in process

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      Kellyanne Conway takes aim at Bannon in book but hits Trump in processFormer senior counselor to Donald Trump says president was ‘too trusting of others who lacked transparency or talent’ In her new memoir, Kellyanne Conway lavishes abuse on Steve Bannon, calling the former White House strategist a “leaking dirigible” and an “unpaternal, paternalistic bore of a boor” more concerned with his own image than serving Donald Trump.The ‘straight, white, Christian, suburban mom’ taking on Republicans at their own gameRead moreBut in doing so, the former senior counselor to the ex-US president criticises Trump himself, otherwise a notable escapee from her book.“One of Trump’s biggest selling points,” Conway writes in one of many takedowns of Bannon, “was his refreshing lack of political experience. But the flip side of that quality was his occasional blind spots when it came to personnel decisions and political endorsements.”Trump’s endorsements are the focus of fierce attention. In Georgia primaries on Tuesday his candidate for governor, David Perdue, seems doomed to defeat while his Senate candidate, Herschel Walker, is widely deemed unsuitable for the role.Conway continues: “[Trump] was often too trusting of others who lacked transparency or talent, and insufficiently skeptical of those who were pushing the wrong people as candidates for office or as colleagues in the administration. I won some of those arguments and lost some.”Conway’s book, Here’s the Deal, has caused arguments since excerpts were reported last week. It is published in the US on Tuesday.The New Jersey Republican operative was both the first woman to manage a winning presidential campaign and a relatively rare senior staffer to last four years in the chaotic Trump White House.Her avoidance of criticising Trump has been widely reported. Her criticism of Jared Kushner, Trump’s son-in-law and chief adviser, and her version of the strain placed on her marriage by her husband George Conway’s open disdain for Trump, have also been widely discussed.She charges that others in the Trump White House leaked to the media consistently.“As a frequent guest in mixed political company,” she writes, “I’d been much more transparent and much more reserved in my dealings than the leaking Bannon dirigible hovering about, and the taxpayer-funded Kushner image-curation machine stationed inside and outside the White House.”Bannon has been a source for multiple tell-alls, but Conway’s protestations of discretion might ring hollow to some.As the Guardian wrote in its review of Team of Vipers, a 2019 memoir by a former Trump aide: “[Cliff] Sims spills the beans on Conway repeatedly trashing Jared Kushner, Reince Priebus, Steve Bannon and Sean Spicer to the mainstream media, while recounting to the press ostensibly private conversations with the president.”Conway says her relationship with Bannon began well, though she found him to be “a strange dude, gruff, unkempt, prone to sweeping historical assertions and bold declarations about the current state of politics”.The two were introduced by Rebekah Mercer, a far-right mega-donor whose ownership of Cambridge Analytica, a Bannon-linked data firm which became enmeshed in scandal, remains unexamined by Conway.“Our arranged marriage got off to a promising start” before the 2016 election, Conway says of Bannon, as the two operatives “tried to shake up some stuck-in-the-mud Republicans and introduce fresh names to the candidate hunt”.‘I made Steve Bannon’s psychological warfare tool’: meet the data war whistleblowerRead moreShe also says Bannon urged her to take a job in Trump’s White House, saying: “Fuck, girl, c’mon: you gotta do this.”But Conway says that in the White House, Bannon’s “main job seemed to be building his own fiefdom”. She also says Ivanka Trump, the president’s daughter, warned her Bannon was on his way out.Bannon left the White House in August 2017, amid uproar over Donald Trump’s courting of far-right activists with whom Bannon remains closely associated.Bannon is the only Trump aide to face a criminal charge related to the January 6 attack on the US Capitol. Charged with contempt of Congress, he has pleaded not guilty.TopicsKellyanne ConwayTrump administrationSteve BannonUS politicsnewsReuse this content More

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      Bannon’s escape plan: how the Trump strategist is trying to dodge prison

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      Bannon’s escape plan: how the Trump strategist is trying to dodge prisonBannon is advancing a high-stakes defense as he battles a case that could mean up to a year in federal prison and thousands of dollars in fines if convicted As the House select committee investigating the January 6 Capitol attack was negotiating with Donald Trump’s former strategist Steve Bannon to cooperate with its inquiry, the panel affirmed one of their rules: no third-party lawyers could attend witness depositions.That meant when Bannon’s then-attorney asked whether a lawyer for Trump could be present for the closed-door interview to decide what issues were covered by the former president’s invocation of executive privilege, the select committee flatly refused.‘Morally bankrupt’: outrage after pro-Israel group backs insurrectionist RepublicansRead moreNow, that refusal appears set to feature as one of Bannon’s central arguments to defend against his contempt of Congress indictment that came after he entirely skipped his deposition last October and refused to produce documents as required by his subpoena.The former Trump aide is advancing a high-stakes – and arcane-sounding – defense as he battles the justice department (DoJ) in a case that could mean up to a year in federal prison and thousands of dollars in fines if convicted – but potentially defang congressional power should he prevail.The all-or-nothing nature of the defense is characteristic of Bannon, a fierce defender and confidante of the former president even after he departed the White House seven months into the Trump administration after a turbulent tenure as his chief strategist.It was precisely because of his contacts with Trump in the days before January 6 that the select committee made Bannon one of the panel’s first subpoena targets as it seeks to uncover whether Trump oversaw a criminal conspiracy that culminated in the Capitol attack.The crux of Bannon’s argument is that he could reasonably believe the subpoena was invalid when the select committee refused to allow a Trump lawyer to attend the deposition, after the former president asserted executive privilege over the materials covered by the subpoena.The argument rests on a 2019 justice department office of legal counsel opinion (OLC) that says congressional subpoenas that prevent executive branch counsel from accompanying executive branch employees to depositions are “legally invalid” and not enforceable.Bannon’s attorneys say the doctrine at issue is protecting the president’s constitutional authority to limit the disclosure of privileged information, which typically involves discussions with close presidential aides who need to be able to offer candid advice. In that sense, the principle extends to Bannon, they argue: the supreme court decided in Nixon v GSA 1977 that former presidents could “assert” executive privilege, while a 2007 OLC opinion found executive privilege could cover discussions with private, non-executive branch employee advisers.And since the select committee issued only one subpoena for both documents and testimony, when the subpoena was invalidated by the panel’s refusal to allow a Trump lawyer to attend, Bannon’s attorneys contend the document request element of the subpoena also became void.“We don’t read OLC opinions in isolation,” David Schoen, one of three attorneys defending Bannon in this case – the others are Evan Corcoran and Bob Costello – told the Guardian in a text message. “They build on each other.”The justice department does not think the OLC opinions protect Bannon, in part because he was not an executive branch employee at the time of January 6, and the select committee contends Trump did not formally assert executive privilege over subpoenaed materials.The assistant US attorney Amanda Vaughn also indicated in recent court filings that Bannon’s argument – that the subpoena was invalid because House deposition rules excluded third-party lawyers – was in bad faith since his then-attorney, Bob Costello, never raised it as an issue at the time.“Costello inquired – but said that he did not need an immediate answer – whether there was a way for a lawyer for President Trump to appear at the defendant’s deposition,” Vaughn said in the justice department’s response to Bannon.But Bannon won an initial victory on the dispute last week after the judge in the case ordered the justice department to turn over OLC “writings” about its position on prosecuting current or former US officials claiming immunity from congressional subpoena over executive privilege.US district judge Carl Nichols granted the request by Bannon’s attorneys, who suggest Costello was relying on the OLC opinions to current and former White House aides when he advised Bannon not to appear for his deposition since the select committee subpoena was invalid.A spokesman for the select committee and a spokesman for the US attorney for the District of Columbia declined to comment.The defense that Bannon is advancing – using broad readings of parts of the justice department’s own positions and amalgamating them into a wider argument – is controversial, but it underscores the complexities facing the justice department in pursuing the case.“Bannon’s trying to use the OLC opinions as a shield that doesn’t quite cover him, but gives him enough of a defense to fend off the DoJ’s necessity of proving criminal intent,” said Jonathan Shaub, a law professor at the University of Kentucky and a former OLC attorney-adviser.To establish criminal contempt of Congress, the justice department has to prove Bannon’s subpoena defiance was “willful” – which Bannon’s attorneys say should be interpreted as meaning whether the former Trump aide knew his conduct was unlawful or wrong.The combined force of Bannon’s arguments, his attorneys say, demonstrate that he did not know his defiance was unlawful, and shifts the burden onto the justice department to prove beyond a reasonable doubt that Bannon did not believe the privilege claims were valid.The former Trump aide is also coupling the argument that the subpoena was invalid with the defenses that he relied on the advice of counsel when he defied the subpoena, and that he cannot be prosecuted because OLC opinions – considered binding on the justice department – forbid it.Bannon’s attorneys say the former Trump aide ignored his subpoena entirely on the advice of Costello, who relied on the OLC opinions about immunity for former presidential aides and was the only point of contact with the select committee during negotiations about his cooperation.It is far from clear whether Bannon will prevail.In a hearing last week, Nichols cast doubt on the advice of counsel argument, noting that the relevant case law, Licavoli v United States 1961, holds that relying on legal advice to defy a subpoena is no defense.The justice department argued in their brief that the interpretation of “willful” should in fact remain the standard established by the Licavoli court: “a deliberate and intentional failure to appear or produce records as required” by a congressional subpoena.But Bannon’s lawyers have noted that the Licavoli case did not involve executive privilege and therefore does not apply to Bannon, not least because the justice department has itself maintained that executive privilege cases are unique because of the constitutional implications.“He’s reaching for all the straws that he can,” Shaub said of Bannon. “It may succeed or it may not. But if Nichols rules against him, he’s certainly going to take it to the DC circuit or even up to the supreme court. He’s definitely playing a longer game here.”TopicsSteve BannonDonald TrumpUS Capitol attackUS politicsfeaturesReuse this content More

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      The Observer view on Joe Biden’s Capitol Hill anniversary speech | Observer editorial

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      The Observer view on Joe Biden’s Capitol Hill anniversary speechObserver editorialThe president is right to rage, but the only real antidote to Donald Trump’s dangerous lies is US law The 6 January insurrection, when supporters of former US president Donald Trump stormed Capitol Hill, is widely viewed as a seminal moment in the history of US democracy. Never before had the modern nation witnessed such an organised, violent attempt to overthrow the elected government. Never before, not even at the height of the Civil War, had the Confederate flag flown over the halls of Congress.Yet last week, as the US marked the first anniversary of the thwarted insurrection, another significant turning point was reached. President Joe Biden, the lawful winner of the 2020 election and Trump’s principal intended victim, dropped what some call his Mr Nice Guy act. With gloves off, Biden came out swinging. It was about time.Since taking office almost exactly one year ago, Biden has deliberately ignored Trump. He has rarely mentioned his predecessor by name. He has refused to engage with Trump’s insults, lies and unceasing propagation of the “big lie” – that Democrats stole the 2020 vote. Instead, Biden sought to reunite a divided, fractious nation, appealing to what he called our “better selves” and looking to the future, not the past.It didn’t work. That is not to say it was not worth trying, nor that the effort should be discontinued: it should not. But in the intervening 12 months, Trump, egged on by cynical, unprincipled Republicans such as House minority leader Kevin McCarthy and far-right disruptors such as Steve Bannon, has not only not faded from view but, rather, he has emerged, strengthened, as Republican king-maker and his party’s leading 2024 presidential contender.Trump’s bottomless mendacity, lacking any factual, legal or moral basis and flying in the face of numerous court judgments, vote recounts and electoral inquiries, has nevertheless persuaded a majority of Republican voters that Biden was not legitimately elected while seeding doubt in the minds of others. His poison corrodes America’s governing institutions and incites civil strife. Trump embodies a clear and present danger to US national security, stability and democracy. He must be stopped.Biden’s 6 January speech appeared to unleash a new strategy to do just that. Trump, he said, was “holding a dagger” at the throat of American democracy. His “web of lies” could no longer be tolerated. Trump “rallied the mob to attack”, then did nothing to stop the ensuing lethal violence, Biden fumed.The president’s sudden switch to direct confrontation entails obvious dangers. It plays to Trump’s agenda and ego, making him the centre of attention. The shift may also be indicative of political weakness. Biden’s approval ratings are low, his legislative agenda has stalled, the Democrats in Congress are split and the party is widely expected to lose Congress in November’s elections.Yet Biden really had no choice but to go on the offensive. Trump and Trumpism’s world of “alternative facts” has had a free run for too long. To be defeated and debunked, it must be publicly and robustly challenged at every turn. Legal remedies, soft-pedalled until now by the justice department, must be pursued with renewed vigour and determination.“The legal path to investigate the leaders of the coup attempt is clear. The criminal code prohibits inciting an insurrection or ‘giving aid or comfort’ to those who do, as well as conspiracy to forcibly ‘prevent, hinder or delay the execution of any law’,” veteran Harvard constitutional law expert Laurence Tribe wrote recently. It’s a widely held opinion.The many documented actions of Trump and his circle in attempting to overturn the 2020 vote provide numerous grounds for criminal investigation and prosecution. Why is Merrick Garland, the attorney general, still dragging his feet? Biden can righteously rage. But the best antidote to toxic Trump’s dangerously lawless spree, and fears of civil war, is the law itself. Take him down – before it’s too late.TopicsUS Capitol attackOpinionUS politicsDonald TrumpJoe BidenSteve BannonRepublicanseditorialsReuse this content More