Appeals court upholds Steve Bannon's contempt conviction for defying Jan. 6 committee
WASHINGTON – A federal appeals court upheld on Friday the contempt conviction of Steve Bannon, the political strategist and former White House aide to Donald Trump, for defying a subpoena about the Capitol attack on Jan. 6, 2021.
A three-judge panel of the D.C. Circuit Court of Appeals ? Judges Cornelia Pillard, Justin Walker and Bradley Garcia – ruled that Bannon's arguments had no merit. The decision clears the way for Bannon to serve a four-month prison sentence but Bannon's lawyer David Schoen told USA TODAY they will ask the full D.C. Circuit Court of Appeals to review the decision.
"There are many fundamentally important constitutional issues at stake in this case," Schoen said in a statement. "Today’s decision is wrong as a matter of law and it reflects a very dangerous view of the threshold for criminal liability for any defendant in our country and for future political abuses of the congressional hearing process."
Bannon was one of two people convicted, along with former White House aide Peter Navarro, for defying congressional subpoenas for the Jan. 6 inquiry.
Bannon's case had raised the prospect of setting new rules governing the assertion of executive privilege, but the appeals panel found no reason to depart from previous rulings in the D.C. Circuit and at the Supreme Court that bar "willfully" defying a congressional subpoena.
"As both this court and the Supreme Court have repeatedly explained, a contrary rule would contravene the text of the contempt statute and hamstring Congress’s investigatory authority," Garcia wrote for court.
What was Bannon arguing?
One argument that Bannon made was that he relied on the advice of a previous lawyer that he need not testify.
Schoen argued that when Bannon’s former lawyer, Robert Costello, got the subpoena, he received a direction from Trump that the former president was invoking executive privilege to keep their communications confidential. Costello then advised Bannon not to respond in any way to the subpoena and the lawyer told the committee Bannon would comply if lawmakers resolved the dispute over executive privilege with Trump.
"In America, we do not criminally prosecute, let alone convict and send to prison people who not only don't believe their conduct to be wrongful or in violation of the law, but, as in this case, people who follow the advice of their lawyers who tell them that the law does not permit them to comply with a congressional subpoena when Executive Privilege has been invoked," Schoen said in his statement.
But the appeals court rejected that argument by ruling that Justin Clark, a White House counsel for Trump, "nowhere suggested" a blanket refusal to cooperate with the subpoena in a letter Oct. 6, 2021. Clark pointed out in a letter to Costello on Oct. 16, 2021, that the earlier letter "didn't indicate that we believe there is immunity from testimony for your client." The appeals court ruled that Bannon's "'advice of counsel' defense is no defense at all."
The House committee that investigated the attack by Trump supporters trying to prevent the certification of his defeat sought testimony and documents from Bannon for insight about Trump's strategies after losing the 2020 election.
Trump and his allies have blasted the House inquiry and the prosecutions as partisan attacks aimed at the former president. Navarro is serving his four-month sentence in a federal jail in Florida.
Bannon was convicted at trial in July 2022, sentenced to four months in jail and fined $6,500. But Schoen argued that the trial judge made a mistake in not allowing Bannon to defend himself by saying he relied on his lawyer's advice about executive privilege.
At sentencing, U.S. District Judge Carl Nichols allowed Bannon to remain free because the appeal “raises a substantial question of law that is likely to result in a reversal or an order for a new trial," Schoen wrote.
Bannon has also argued the subpoena was illegitimate because of how the House committee was created. But federal courts have upheld the panel's subpoenas.
Why was Bannon subpoenaed?
The committee sought to question Bannon, a political strategist for Trump, in part because he told associates from China on Oct. 31, 2020, Trump would falsely declare victory even if he lost the election and said it would be a “firestorm.”
In a "War Room: Pandemic" podcast Jan. 2, 2021, Bannon said former Vice President Mike Pence “spit the bit,” meaning he was no longer supporting Trump’s efforts to overturn the 2020 election, which the committee described as amplifying the pressure on Pence.
Bannon called Trump at least twice on Jan. 5, 2021.
What did prosecutors argue?
Prosecutors led by U.S. Attorney Matthew Graves argued Bannon ignored the subpoena’s demands. Bannon refused to appear at all, but prosecutors said he was required to appear and challenge each question under potential executive privilege one at a time.
"In fact, President Trump’s attorney correctly cautioned that Bannon was not immune from testifying," prosecutors wrote. "The subpoena focused on Bannon’s activities as a private citizen and addressed many topics for which executive privilege could not possibly apply." Prosecutors said the subpoena sought information largely unrelated to the White House, such as his "War Room" podcast; financing for people who attended a Trump rally on Jan. 6, 2021; a meeting at the Willard Hotel on Jan. 5, 2021; communications with Congress and communications with groups such as the Proud Boys and Oath Keepers, whose leaders have since been convicted of seditious conspiracy.
Inquiries about communications with Trump dealt with 2020 and 2021, after Bannon left the White House, prosecutors said.
Was anyone else charged?
The House voted to hold four people in contempt and urged the Justice Department to charge them criminally for defying subpoenas. Besides Bannon, the others were:
Mark Meadows, former White House chief of staff, who helped Trump organize his rally on Jan. 6 and coordinated efforts to challenge 2020 election results, wasn’t charged. Meadows has since been charged with Trump in a Georgia election racketeering case and both have pleaded not guilty.
Dan Scavino, former White House deputy chief of staff for communications, who coordinated Trump’s social media, wasn’t charged.
This article originally appeared on USA TODAY: Federal appeals court upholds Steve Bannon's contempt conviction
