Prosecutors ask judge to keep Steve Bannon evidence away from public over potential ‘witness tampering’

Mr Bannon has asked the judge overseeing the criminal case against him to give him largely unfettered access to information identifying witnesses

Andrew Feinberg
Washington, DC
Monday 29 November 2021 17:03
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Federal prosecutors have petitioned the judge overseeing the criminal contempt of Congress case against ex-Trump adviser Steve Bannon to reject his request to make most of the evidence against him public because granting it would allow him to engage in witness tampering.

On 17 November, attorneys with the Washington DC US attorney’s office asked US District Judge Carl Nichols to issue an order which would allow Mr Bannon and his attorneys to receive transcripts of the grand jury proceedings which led to his indictment to allow them to prepare for a future trial. Prosecutors also asked Judge Nichols to issue a protective order barring Mr Bannon or his attorneys from disclosing any material provided in the “discovery” process — during which the prosecution must show the defence the evidence it intends to use at trial — and barring Mr Bannon’s attorneys from providing him copies of “sensitive” materials which would contain information about the identity of witnesses against him and other persons involved in the case.

Such protective orders are standard in most criminal cases and are usually agreed upon by both prosecution and defence without incident, but Mr Bannon’s attorneys filed a motion opposing the issuance of one, calling the proposed rules “burdensome and restrictive” and alleging that they give the government too much power by allowing them to designate materials as “sensitive”.

But in a response filed with the court on Sunday, prosecutors say the order barring disclosure of evidence to the public is necessary to prevent Mr Bannon and his allies from using the materials “to make extrajudicial arguments about the merits of the case pending against him and the validity of the Government’s decision to seek an indictment”.

They also argue that allowing Mr Bannon and his attorneys the freedom to disseminate the evidence against him — including witness statements — to the public before his trial would have “the collateral effect of witness tampering” because it would expose witnesses to the possibility of harassment by the ex-Trump adviser’s supporters, as well as allow witnesses to review testimony of other witnesses.

The possibility that witnesses against Mr Bannon would be subject to harassment and threats from his supporters is a real one. Witnesses in the proceedings which led to the first impeachment of Mr Bannon’s former boss, ex-president Donald Trump, routinely received death threats and other harassment once their names became public.

Prosecutors cited statements Mr Bannon made after his initial court appearance as evidence of his intent to attack witnesses against him.

“The defendant’s threat of ‘going on offense’ and making this case ‘hell’ cannot be ignored when considering these witnesses’ privacy interests in their personal background information,” they wrote, adding later that the “misleading and frivolous nature of the defendant’s claims of prejudice” show that his true intent in opposing a protective order is to give himself the opportunity to have a “trial through the press”.

A District of Columbia grand jury indicted Mr Bannon on two counts of criminal contempt of congress on 12 November, roughly a month after the House of Representatives voted 229-202 to hold him in contempt for defying a subpoena ordering him to give evidence before the select committee investigating the 6 January insurrection.

Mr Bannon has claimed that he acted properly, citing a claim of executive privilege over his potential testimony by Mr Trump, but prosecutors content that Mr Trump’s privilege claim is invalid because Mr Bannon’s tenure as a White House staffer ended more than three years before the events under investigation took place.

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