Former Trump adviser Stephen K. Bannon was rightfully convicted of contempt of Congress for refusing to testify in front of the committee that investigated the Jan. 6, 2021, Capitol attack, an appellate court ruled Friday.
Bannon could also ask the Supreme Court to intervene, but the justices declined a similar request from Trump trade adviser Peter Navarro, who is currently imprisoned for failing to respond to the Jan. 6 committee. Navarro, who said in a memoir that he and Bannon had a plan for Jan. 6 that would keep President Biden from taking office, reported to prison in March for his contempt conviction and identical sentence.
The unanimous decision was written by Brad Garcia, the newest member of the court. Bannon “deliberately refused to comply with the Select Committee’s subpoena in that he knew what the subpoena required and intentionally did not respond” and gave no persuasive argument for doing so, Garcia wrote. “Bannon failed to comply with the subpoena, and his failure to comply was willful.”
Bannon, now a right-wing podcaster who continues to spread false claims about the 2020 election, was sentenced in 2022 to prison for ignoring the congressional subpoena but remains out on bond while challenging that conviction. He maintains that he was following legal advice in refusing to cooperate with the committee.
That argument “runs headlong into settled law,” Garcia wrote, which says that when it comes to answering a subpoena, “this exact ‘advice of counsel’ defense is no defense at all.”
The panel was made up of a Biden appointee, a Trump appointee and an Obama appointee.
“Flouting congressional subpoenas betrays a lack of respect for the legislative branch, which exercises the will of the people of the United States,” U.S. District Judge Carl J. Nichols, a Trump appointee, said at Bannon’s sentencing.
Bannon has repeatedly argued that his lawyer advised him not to answer the subpoena unless and until former president Donald Trump waived any executive privilege over their communications. But the records show that both Trump attorney Justin Clark and the House committee chairman, Bennie G. Thompson (D-Miss.), told Bannon, through his attorney, that he was not protected from testifying by any presidential immunity.
Thompson wrote that “virtually all the documents and testimony sought by the” committee “concern Mr. Bannon’s actions as private citizen,” which would not be covered by executive privilege. Clark said in an email to Bannon’s lawyer that “we don’t believe there is … immunity from testimony for your client.” That correspondence was shared with Bannon himself.
Neither those communications, nor opinions from the Justice Department lawyers who advise the White House, “purported to authorize Bannon’s refusal to produce any documents or appear for his deposition,” Garcia wrote.
Precedent in the D.C. Circuit is that “reliance upon advice of counsel is no defense to a charge of … deliberate, intentional failure to appear pursuant to a lawful subpoena.” That comes from a 1961 case involving a Midwestern mafia don. Given that case law, Bannon was barred at trial from defending himself by blaming his lawyer.
But Schoen argued to the D.C. Circuit during oral argument in November that Bannon, whose lawyer engaged with the committee, should not be treated “the same as … a cavalier mobster who just didn’t show up.” Schoen plans to argue to the full D.C. Circuit that the precedent is outdated and should be overturned.
“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,” he said in a statement Friday.
Schoen also argued in court that the deadline set by the committee of Oct. 18, 2021, for Bannon to hand over documents was not clear, because Thompson continued to urge Bannon to comply after it passed.
“There’s a lot of activities in life where someone might have a deadline and they might be punished for missing it, but then they might still have an obligation,” Judge Cornelia Pillard replied. “I mean, tax returns.”
Bannon worked in the White House in the first six months of Trump’s presidency but was fired amid internal disagreement over how to respond to the deadly white supremacist march in Charlottesville. He remained in contact with some White House staff, and in late 2020 was part of a group seeking to undo the election results led by Trump’s personal lawyer Rudy Giuliani.
Shortly before Bannon’s July 2022 trial, Trump said he was waiving any executive privilege, and Bannon said he would testify at a public hearing. That never happened.
correction
An earlier version of this article incorrectly said that Bannon has seven days to appeal; he has seven days after his appeal is filed before he would be ordered to prison. The article has been corrected.
