GOP leaders back Steve Bannon’s fight against conviction for defying Jan. 6 panel

Speaker Mike Johnson and other House GOP leaders voted Tuesday to reject the previous Congress’ handling of the Jan. 6 select committee, a last-minute effort to boost Steve Bannon’s appeal from his 2022 conviction for defying a subpoena from the panel.

The Republican leaders voted to make their determination the formal position of the House, allowing them to file a legal brief on behalf of the chamber, according to three people familiar with a party-line, secret vote that was first reported by POLITICO. They were granted anonymity to discuss that vote of the House’s bipartisan leadership group that sets its formal legal positions.

The move comes as the Supreme Court nears a decision on whether to allow Bannon to go to jail on July 1 or remain free while he appeals his conviction. The Justice Department is due to file a brief with the high court Wednesday urging Bannon’s immediate jailing. Chief Justice John Roberts may decide the matter as soon as Wednesday afternoon or may refer it to the full court for further consideration.

Johnson, Majority Leader Steve Scalise and Majority Whip Tom Emmer confirmed the closed-door vote in a statement Wednesday morning. The House brief will be filed with the D.C. Circuit Court of Appeals, which is considering Bannon’s larger fight to overturn his conviction.

"It will withdraw certain arguments made by the House earlier in the litigation about the organization of the Select Committee to Investigate the January 6 Attack on the U.S. Capitol during the prior Congress," the three GOP leaders said in a statement.

It also remains to be seen what legal effect the position of House GOP leaders will have on Bannon’s fight. Several federal judges — including the Trump-appointed jurist who oversaw Bannon’s trial — found the Jan. 6 committee’s subpoenas were valid. The House voted to hold Bannon in contempt of Congress in October 2021 after he refused to appear for a deposition or turn over subpoenaed documents. The Justice Department indicted him weeks later and a jury convicted him in July 2022.

Republicans have focused their criticisms of the Jan. 6 committee on two purported defects: Its lack of a GOP-appointed ranking minority member and then-Speaker Nancy Pelosi’s decision not to fill several vacancies on the panel after then-GOP Leader Kevin McCarthy boycotted the panel because Pelosi refused to seat two of his initial picks.

The committee faced numerous challenges along these lines in court battles against resistant witnesses, arguing in court that the House has never explicitly defined “ranking member,” which allowed the committee to elevate then-Rep. Liz Cheney, an anti-Trump Republican, to the role. And they also argued that vacancies cannot derail the operation of a valid committee even if it was initially required to operate with a larger number of members. Several federal judges who ruled on the matter uniformly sided with the committee.

House GOP leaders’ decision came via a vote of the so-called Bipartisan Legal Advisory Group – a five-member panel of House Republican and Democratic leaders tasked with setting the chamber’s positions in court.

This group consists of Johnson, Scalise, Emmer, Democratic Leader Hakeem Jeffries and Minority Whip Katherine Clark. It formally directs the House General Counsel on legal issues that are key to Congress as an institution. Its Democratic members voted against backing Bannon’s position.

Georgia Rep. Barry Loudermilk, as chair of a House Administration Committee’s subcommittee on oversight, also plans to file an amicus brief Wednesday morning with the Supreme Court supporting Bannon and arguing that the Jan. 6 select committee did not have the authority to conduct depositions under the House resolution that authorized it, according to a Republican aide granted anonymity to discuss a legal filing that is not yet public.

Loudermilk’s brief will cite the requirement for consultation with a minority-appointed ranking member before holding a deposition, and argue this requirement was not met. It will focus solely on the deposition issue, and will remain silent on the lawfulness of the subpoena that the select committee issued to Bannon.

Bannon quickly appealed after his 2022 conviction and has been allowed to remain out of prison for the ensuing two years. But U.S. District Judge Carl Nichols, who presided over Bannon’s trial, rescinded that decision after a three-judge panel of the D.C. Circuit Court of Appeals resoundingly rejected Bannon’s appeal.

Johnson signaled sympathy earlier this month with Bannon, as well as ex-Trump White House aide Peter Navarro, who is currently serving a four-month jail sentence in Miami for similarly defying the Jan. 6 committee. Earlier this year, Roberts rejected Navarro’s bid to stave off jail while he too fights his conviction.

The Louisiana Republican pointed to their prosecutions by the Justice Department as an example of a “two-tiered system of justice,” lobbing one of the House GOP’s most frequent attacks at the court. However, the Justice Department declined to prosecute two Trump aides — Mark Meadows and Dan Scavino — who were also held in contempt by the House for declining to appear for Jan. 6 committee depositions.

Johnson has also been under growing pressure from his own right flank who want to use their slim majority to undercut the work of the Jan. 6 committee. Rep. Matt Gaetz (R-Fla.) had publicly floated, and privately lobbied, for holding a vote within the bipartisan legal group. And Rep. Eric Burlison (R-Mo.) also filed a resolution last week to rescind the previous Jan. 6 committee subpoenas and try to withdraw the previous Democratic-controlled House’s recommendation that they be held in contempt. A vote of the House’s legal group, unlike Burlison’s resolution, shields moderate Republicans from facing a politically painful vote.