Joint Status Report For Bannon Ahead of Discovery Hearing On Dec 7
Joint Status Report For Bannon Ahead of Discovery Hearing On Dec 7
Joint Status Report For Bannon Ahead of Discovery Hearing On Dec 7
Pursuant to the Court’s November 18, 2021 Order, the parties respectfully submit this joint
status report. Specifically, the Court has requested the parties’ positions regarding the scope of
discovery each party intends to seek pre-trial, the anticipated length of trial, and anything else
relevant to consideration of the trial date. The parties conferred by telephone and email on
I. Length of Trial
Government’s Position
The Government anticipates that its case-in-chief will consist of one day of testimony.
The Government would be amenable to using a jury questionnaire to shorten the time jury selection
will take and to allow the Court and the parties to make some cause determinations in advance.
Defendant’s Position
Although it is too early in the case to estimate with any degree of precision the length of
time it will take to cross-examine Government witnesses, or the number of witnesses that would
be called in the defense case, our best estimate is that a trial in this matter would take approximately
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10 trial days. The defense expects that jury selection will take three days.
Government’s Position
further below, is denied, and the defendant intends to raise such a defense, the Government
anticipates seeking discovery regarding the defendant’s communications and records relating to
The Government requests that the Court impose a deadline of December 13, 2021, for the
defendant to make further discovery demands of the prosecution team. The Government will
respond to the defendant by December 17, 2021. The Government’s position is that the additional
materials the Defendant has identified that he intends to request are not discoverable or are not in
the possession, custody, or control, of the prosecution team. The Government does not anticipate
using or calling any expert witnesses in the preparation or presentation of its case.
Defendant’s Position
The Defendant plans to seek discovery from the sources listed below. The list is not
intended to serve as a complete list, or to specify exactly what documents we plan to pursue at this
stage. Again, it is too early in the process to provide specifics. Often it is only after an investigation
of available facts that new avenues are identified. The D.C. Circuit has held that the threshold for
showing that documents must be disclosed by the Government under Rule 16 as “material to the
preparation of the defendant’s defense” is not a heavy burden. See United States v. Lloyd, 992 F.2d
348, 351 (D.C. Cir. 1993). The list below is intended to give the Court an idea of the scope of
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discovery at a macro level, for purposes of setting a trial date. With that as a backdrop, we state as
follows. We expect to seek discovery materials from the following sources: (1) the U.S. Attorney’s
Office (grand jury materials, including the charge given to the grand jury, and documents reflecting
the decision to charge Mr. Bannon); (2) the main U.S. Department of Justice (documents reflecting
the decision to charge Mr. Bannon); (3) other Executive Branch components, including the White
House (documents reflecting the decision to charge Mr. Bannon); and (4) the U.S. House of
Representatives (documents reflecting the authorization of the subpoena and the steps taken to
seek a criminal referral of Mr. Bannon, and the consideration of alternatives). In addition, we
The Government has asked for a date by which the defense should provide a letter
identifying what discovery is requested. We agree to provide a discovery request letter by January
13, 2022. We respectfully request that the Court set a deadline of January 27, 2022, when the
Government must respond. The Government response will allow the defense to be in a better
position to determine whether we will need to pursue discoverable material through subpoena or
other means.
A. Motions to Dismiss
Government’s Position
The Government’s position is that, because motions to dismiss generally are limited to the
four corners of the indictment, the defendant should file any motions to compel discovery related
to grounds for dismissal with his motions to dismiss. It is the Government’s position that none of
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the issues the defendant raises as potential bases for his motions to dismiss are novel, and that
therefore it is not necessary or in the interests of justice to allow an eight-month delay between
Defendant’s Position
It is too early in the case to identify with specificity what motions the defense will file in
this case. Naturally, motions to dismiss the indictment will be determined by what facts are
identified during discovery. Based on the information obtained to date, we anticipate filing motions
to dismiss the indictment. To our knowledge, no citizen has been criminally charged under 2
U.S.C. Section 192 in many years. In addition, Mr. Bannon’s communications with the U.S. House
Select Committee included the invocation of executive privilege. This case raises complex
constitutional issues of first impression. Some of these issues involve inter-branch relationships
and on the operations of the U.S. government at its highest levels. There is no basis for having
By deciding to proceed with a criminal referral rather than initiating a civil enforcement
action, the impact was at least three-fold. First, it cut short the accommodation process that would
have led to the disclosure of non-privileged information. Second, it triggered a variety of Fifth and
Sixth Amendment constitutional rights for Mr. Bannon that otherwise would not have been
implicated and which must be assiduously honored. Third, it gave rise to a variety of individual
constitutional rights-based defenses which must all be explored as well as constitutional issues of
The Government has stated that it may file a motion in limine to exclude the defense of
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advice of counsel. The defense believes that such a motion is best considered after full briefing,
along with other motions in limine that may be filed by the parties.
In terms of timing, the more discovery that we are able to obtain in advance of filing
motions, the better the record on which these important issues can be resolved. We suggest a
motions deadline of July 15, 2022 – which is in line with the motions date set in other cases which
will be tried in October 2022. We also suggest 30 days for oppositions, given the complexity of
B. Motions in Limine
Both parties anticipate filing motions in limine in advance of trial and believe that a
motions deadline should be set for such motions that allows the Court time to first resolve any
motions to dismiss, with the exception of the Government’s anticipated motion in limine to exclude
Government’s Position
Based on the defense’s public statements, the Government anticipates filing a motion in
limine to exclude evidence and argument relating to any advice of counsel on the basis that it is
not a defense to the pending charges. Should the Court deny any motion in limine the
Government may file and allow the defendant to raise this defense, however, the Government
believes it will be entitled to discovery of all communications and records involving any
attorney(s) on whose advice the defendant claims he relied. The Government is willing to file
this motion in limine at the time the defendant files his motions to dismiss so that any discovery
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Defendant’s Position
Government’s Position
The Government requests a trial date on or before April 15, 2022—six months from the
indictment. The Government’s position is that there is not a basis to exclude time under the
Speedy Trial Act in this case pursuant to 18 U.S.C. § 3161(h)(7) (an ends of justice exclusion).
At this time, the only exclusions the Government believes would be potentially applicable are
3161(h)(1D) and (h)(1H) (exclusions for pretrial motions and proceedings under advisement by
the Court). Given the public right to a speedy trial in this and all criminal cases, the Government
requests a scheduling order in accordance with the 70-day speedy trial requirement and this Court’s
COVID-19 procedures that, along with any additional scheduling requirements the Court finds
appropriate, includes:
1) a deadline for the defendant to make a discovery demand of the prosecution team, if he
has one, and a deadline for the prosecution team to respond;
2) a deadline for any motions to dismiss, motions to compel discovery, and the
Government’s motion in limine to exclude advice-of-counsel, as well as deadlines for
any oppositions, replies, and, if needed, argument relating to these motions;
3) a deadline for any motions in limine, as well as deadlines for any oppositions, replies,
and, if needed, argument relating to these motions; and
4) a trial date.
Defendant’s Position
The discovery process will take time and effort. We will need adequate time to prepare a
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defense. It will also take time to fully brief and argue the motions in this case. As stated above,
there are constitutional issues of first impression involved. It will be important first to develop an
adequate factual record on which those issues can be decided, and second to draft the briefs. In the
normal course of things, the Government would not seek an early trial date for a defendant who is
not incarcerated. The average life of a criminal case in the U.S. District Court for the District of
Columbia is about a year. See U.S. District Court Judicial Caseload Profile (available at
https://www.uscourts.gov/statistics/table/na/federal-court-management-statistics/2021/06/30-1)
(last viewed on December 6, 2021). In our view, this is not the average criminal case on the docket
– because it will take more time to obtain discovery, and more time to fully brief the issues.
Accordingly, we respectfully request that the Court consider these issues as it sets a pre-
trial and trial schedule. See Attachment A (Defendant’s proposed pretrial order). The Defendant
respectfully requests a trial date of October 17, 2022, if that is convenient for the Court and
counsel.
V. Scheduling Conflicts
Government’s Position
The Government is ready for trial and will be available for any trial date the Court
schedules.
Defendant’s Position
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Respectfully submitted,
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ATTACHMENT A
(Defendant’s Proposed
Pretrial Order)
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PRETRIAL ORDER
Trial is set to commence in this matter on October 17, 2022, at 9:00 a.m., in Courtroom
19. Jury selection will begin on October 14, 2022, at 9:00 a.m. in the Ceremonial Courtroom.
1. The Parties shall exchange any written requests for discovery on or before January 14,
2022, with written responses due on or before January 28, 2022. The parties shall file expert
disclosures by June 15, 2022. The Parties shall file their pretrial motions (including motions in
limine), if any, on or before July 15, 2022; oppositions shall be filed on or before August 15,
2. The United States shall notify Defendant of its intention to introduce any Rule 404(b)
3. The United States should endeavor to make grand jury and Jencks Act disclosures
as to each witness it expects to call in its case-in-chief on or before September 22, 2022. Any
Brady material not already disclosed also must be disclosed by this date.
a. A neutral statement of the case. The parties shall include a neutral statement of the
b. Proposed voir dire questions. The Parties shall indicate the voir dire questions on
which they agree; and the voir dire questions on which they disagree with specific objections
c. Proposed jury instructions. The Parties shall submit a list of all standard jury
instructions from the “Red Book” (Criminal Jury Instructions for D.C. (Barbara A. Bergman ed.,
May 2016 ed.)) that they wish to include in the final instructions. The Parties need not submit
the full text of any standard jury instruction but should provide the full text of (1) any modified
standard jury instruction, with the proposed modification(s) redlined, and (2) any non-standard
jury instruction they wish to have the court include. As to each non-standard jury instruction, the
sponsoring party should cite legal authority for the proposed instruction, and the non-sponsoring
party should state any objection to the instruction, including any proposed modifications.
d. List of witnesses. The Parties shall identify the witnesses that each side anticipates it
may call in its case-in-chief. Only upon leave of court and a showing of good cause will a party
e. Exhibit lists. The Parties shall include an exhibit list that each side anticipates it may
introduce in its case-in-chief. The Parties need not list any exhibit that might be used for
purposes of impeachment. The Parties should confer with the Courtroom Deputy regarding the
form of the exhibit list. The Parties should not provide a copy of the exhibits to the Court but
must exchange pre-marked exhibits. The Parties must be prepared to raise objections to any
proposed exhibit at the Pretrial Conference. The objecting party shall bring three copies of
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g. Proposed verdict form. The Parties shall include a draft verdict form, including any
special interrogatories. The draft verdict form should include a date and signature line for the
jury foreperson.
5. In addition to filing the Joint Pretrial Statement, on _________, 2022, the Parties shall
transmit, in Word format, an electronic copy of (a) any proposed modification to a standard jury
instruction, (b) any non-standard jury instruction, and (c) the verdict form by email to the
Courtroom Deputy.
6. Counsel shall appear on __________, 2022, at 10:00 a.m., for a hearing on the
7. In addition, counsel shall appear on ___________, 2022, at 10:00 a.m., for a Pretrial
____________________________________
Hon. Carl J. Nichols
United States District Judge