Steve Bannon’s appeal of his contempt of Congress conviction has been rejected by a federal court.
A U.S. Court of Appeals for the D.C. Circuit panel on May 10 said that Mr. Bannon’s claim that he was wrongly convicted of being in contempt of Congress because he was relying on advice from counsel when he defied a subpoena ran against prior rulings.
The law in question prohibits people from “willfully” defying subpoenas from Congress.
Robert Costello, one of his lawyers, advised him that he would not be convicted if he didn’t comply with the subpoena, which came from the since-disbanded House of Representatives panel investigating the Jan. 6, 2021, breach of the U.S. Capitol. That means Mr. Bannon did not act willfully, according to briefs to the appeals court.
Judges on the panel said that wasn’t true.
“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. Because we have no basis to depart from that binding precedent, and because none of Bannon’s other challenges to his convictions have merit, we affirm” the conviction, he added.
The ruling upheld a similar ruling from U.S. District Judge Carl Nichols, who concluded that the law in question only requires a person deliberately and intentionally not respond to a subpoena.
“Effectively enforcing congressional subpoenas would be exceedingly difficult if contempt charges required showing that a failure to appear or refusal to answer questions was not just deliberate and intentional, but also done in bad faith,” according to the new ruling. “Otherwise, any subpoenaed witness could decline to respond and claim they had a good-faith belief that they need not comply, regardless of how idiosyncratic or misguided that belief may be.”
U.S. Circuit Judges Cornelia Pillard, an appointee of former President Barack Obama, and Justin Walker, an appointee of former President Donald Trump, joined the unanimous ruling.
David Schoen, a lawyer representing Mr. Bannon, told The Epoch Times in an email that Mr. Bannon will seek redress before the full circuit court, or request an en banc session.
“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. President Trump expressly confirmed to the trial court in writing that he had indeed invoked Executive Privilege with respect to the subpoena Mr. Bannon received,” Mr. Schoen said.
The government did not respond to a request for comment.
The circuit court gave Mr. Bannon seven days to file a petition for rehearing en banc.
Mr. Bannon was convicted by a jury and sentenced in 2022 by Judge Nichols, an appointee of President Trump, to four months in prison. Judge Nichols stayed the sentence pending the outcome of Mr. Bannon’s appeal.
Executive Privilege
Both Mr. Bannon and Mr. Navarro have cited executive privilege in explaining why they did not comply with subpoenas from the House Select Committee to Investigate the January 6th Attack on the United States Capitol.Mr. Costello based his advice to Mr. Bannon on President Trump invoking executive privilege in response to the subpoena, or invoking the authority of a president to withhold confidential information, according to court filings.
“Costello told Bannon that because executive privilege had been invoked, Bannon’s hands were tied and he could not lawfully comply with the subpoena, unless or until the executive privilege issue was resolved between the House and the former President or a court ordered him to comply. Costello told Bannon that he based his advice and directives to Bannon on his review of relevant caselaw and binding authoritative legal opinions from the Department of Justice’s Office of Legal Counsel,” one brief from Mr. Bannon’s lawyers stated.
That included an opinion that says congressional subpoenas requiring government employees to appear without government lawyers are invalid. Mr. Bannon’s attorneys said that applied to Mr. Bannon because the House would not let President Trump’s lawyers attend his requested deposition.
The appeals court ruling said that argument was misapplied because President Trump never asserted executive privilege and Mr. Bannon did not raise the matter before the lower court.
That means the case “provides no occasion to address any questions regarding the scope of executive privilege or whether it could have excused Bannon’s noncompliance in these circumstances,” Judge Garcia wrote.
Judges also said that communications from a former lawyer of President Trump nor opinions from the Department of Justice authorized Mr. Bannon’s refusal to comply at all with the subpoena, which sought testimony and documents. Such defenses “require the defendant to show (in addition to other elements we need not address) that the government affirmatively authorized the defendant’s conduct,” the ruling stated.
