Steve Bannon's lawyers argue his contempt of Congress conviction should be overturned
Washington — Attorneys for former Trump chief White House strategist Steve Bannon appeared in a Washington, D.C., court before a three-judge panel Thursday to argue his contempt-of-Congress conviction last year should be overturned.
The political strategist was found guilty in July 2022 of two counts of criminal contempt of Congress for defying a subpoena from the House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol. Bannon maintained that he could not testify because of executive privilege concerns raised by former President Donald Trump and added that his attorney had advised him not to comply with the subpoena because of the potential consequences.
Defense attorney David Schoen told the panel that whether executive privilege was invoked does not matter to Bannon's defense because he acted based on legal advice about the potential consequences of breaking that privilege. Rather, Schoen argued Bannon acted in the only way he thought the law permitted at the time and did not outright ignore the congressional request, an assertion prosecutors opposed.
Bannon was originally sentenced to months in prison, but Judge Carl Nichols agreed to suspend the sentence — which also included $6,500 in financial penalties — to allow Bannon to appeal the conviction, due to what the judge said were unresolved constitutional questions.
Bannon, a private citizen at the time of the Jan. 6 committee's work, was charged after he rejected demands that he sit for a deposition and hand over records relevant to the congressional probe. The congressional investigators were interested in Bannon's work in over a dozen key areas, ranging from his communications with Trump to his knowledge of coordination between right-wing extremist groups in carrying out the assault on the U.S. Capitol.
During the trial, prosecutors told the jury that Bannon thought he was "above the law" and "thumbed his nose" at congressional demands. Bannon himself did not testify and his legal team called no witnesses.
The judge said binding legal precedent barred Bannon from telling the jury that he had refused the committee's demands on the advice of his counsel. Prosecutors successfully argued it was irrelevant to his legal defense based on the case law.
In appealing the conviction, Bannon's attorneys wrote that he "was barred from putting on any evidence or argument that he believed he responded to the subpoena in the only way the law permitted, once executive privilege was invoked and that he acted in the manner his experienced lawyer directed him that he had to act as a matter of law."
The question of whether the defendant willfully broke the law or was relying on his lawyer's advice and views of executive privilege, Bannon's lawyers argued, was key to his defense, and he "was entitled to have the jury consider his defenses. "
The judges appeared skeptical Thursday that they could overrule the lower court's ruling based on arguments over Bannon's state of mind. Judge Cornelia Pillard questioned whether it was up to Bannon himself to seek accommodations from the Jan. 6 committee to avoid being held in contempt.
Prosecutors pushed back on Schoen's arguments, telling the court Bannon "deliberately and intentionally" ignored the subpoena, and the law he is accused of breaking does not allow for the reason behind the decision to be considered.
"Bannon had a choice," prosecutor Alizabeth Danello said, and he was aware he might be held in contempt.
In their response to the appeal, prosecutors had written that the facts of the case were simply laid out for the jury — Bannon refused to respond to the subpoena "despite the Committee's repeated warnings that he needed to comply."
"A defendant's motive for failing to comply with a subpoena — including the claim that he relied on advice of counsel — is irrelevant to his guilt," the Justice Department argued, writing that Nichols was correct in barring Bannon from presenting evidence that he acted in "good faith."
Prosecutors argued that federal law establishes a process to resolve subpoena disputes, including executive privilege claims and other legal arguments. "What the statute and case law do not allow, however, is for someone like Bannon to avoid compliance with a congressional subpoena and a later contempt conviction simply by claiming that he believed he did not need to comply."
Bannon's legal team also asked the appeals court to consider his argument that the Jan. 6 committee was not validly composed and the subpoenas, as a result, did not carry legal heft, a contention the judge rejected in pretrial litigation and that prosecutors opposed in court filings.
Schoen indicated after Thursday's hearing he is prepared to take the matter to the Supreme Court.
A second Trump White House adviser, Peter Navarro, was convicted earlier on similar counts of contempt of Congress after he, too, did not comply with subpoenas from the Jan. 6 House panel. The trade official's attorneys asked for a new trial and have indicated they will appeal his guilty verdict after sentencing, which is set for January.
