Speaker Nancy Pelosi and the House Select Committee on January 6 have been subpoenaed to testify in court in connection with the criminal contempt case against Donald Trump's one-time chief strategist Steve Bannon, according to top House Democrats.
A source familiar with the matter said that the subpoenas that were accepted by the House counsel, Doug Letter, required the handover of documents and testimony about internal decision-making that led to Bannon's contempt case.
How Judge Carl Nichols rules at a hearing next week, where he will examine pre-trial motions, will determine whether the subpoenas stand. 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 looking for cooperation from top Democrats, including Pelosi, the House majority leader Steny Hoyer, 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 show 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 change his/her response to the trial subpoenas. A spokesman for the select committee could not be reached for comment.
A letter could be written to reach an arrangement with David Schoen, the lead lawyer who defends 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.
Subpoenas are asking for materials that belong to the American people. It would be ironic for the committee to dismantle 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 him from being convicted of criminal contempt of Congress after he was sent 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 can't be held in wilful contempt because he could reasonably believe that 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 is based on a 2019 Justice Department office of legal counsel opinion that states congressional subpoenas that prevent executive branch counsel from accompanying executive branch employees to depositions are legally invalid and not enforceable.
Bannon's lawyers are arguing that the committee in violation of House rules did not give a one-week extension to reply to the subpoena after his attorney asked for time to review Trump's lawsuit against the panel.
The defense that Bannon is advancing is that it highlights the complexities facing federal prosecutors in pursuing the case, based on broad readings of parts of the justice department's own positions.
Jonathan Shaub, a University of Kentucky law professor and former OLC attorney-adviser, previously told the Guardian that Bannon was 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 proof of criminal intent.