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Steve Bannon’s bid to avoid prison heads to a federal appeals court Thursday as the onetime Trump White House strategist attempts to overturn his conviction.
A jury last year found Bannon guilty of two counts of contempt of Congress after he defied a subpoena from the Jan. 6 House select committee.
With his four-month prison sentence on hold, Bannon’s attorney will go before a three-judge panel on the D.C. Circuit Court of Appeals on Thursday to argue his client’s constitutional rights were violated.
The onetime former President Trump aide and “Bannon’s War Room” podcast host is advancing several arguments rejected by a lower court, including that the Jan. 6 committee’s subpoena wasn’t valid in the first place.
Even if it was, Bannon contends he was entitled to present various defenses to the jury to explain his defiance. Bannon insists he is innocent because he relied on his attorney’s advice and legal opinions from within the Department of Justice.
“Bannon 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,” Bannon’s attorney wrote in court filings.
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Weeks after the House voted largely along partisan lines to hold Bannon in contempt of Congress, federal prosecutors indicted him in November 2021.
The House voted to hold four people in contempt in connection with the Jan. 6 committee’s investigation. The list comprised Bannon, former White House chief of staff Mark Meadows, former White House deputy chief of staff for communications Dan Scavino, and Peter Navarro, who served as a trade adviser to Trump.
The Justice Department ultimately declined to charge Meadows and Scavino but did bring charges against both Bannon and Navarro. Navarro was found guilty in September, and he has requested a new trial.
Like Navarro, Bannon’s indictment contained two contempt charges: one for refusing to appear for a deposition and the second for refusing to produce documents.
After Bannon was convicted and sentenced, his trial judge delayed the sentence so Bannon could first appeal.
If unsuccessful, Bannon faces four months in prison and a fine of $6,500, though the losing side could still try to bring the case to the full appeals court or the Supreme Court.
For now, Bannon heads to a three-judge panel on the D.C. Circuit, comprising one appointee from each of the three most recent presidents: Biden, Trump and Obama. Oral argument is scheduled to begin at 2 p.m., with 10 minutes each allotted for Bannon and prosecutors.
David Schoen, who represented Trump in his second impeachment trial, will represent Bannon, court filings show.
Bannon first disputes the lower court’s interpretation of the word “willfully” in the contempt charge, an interpretation that did not require the government to show to the jury that Bannon believed his subpoena defiance was unlawful.
It was based on a D.C. Circuit precedent, but Bannon says the precedent can’t be reconciled with a subsequent line of cases. If the interpretation was indeed correct, Bannon contends it would make the statute unconstitutionally overbroad and violate separation of powers principles.
“Recent decisions from the United States Supreme Court emphatically demonstrate the error and the legally unsupportable idea that ‘willfully’ in the context of any criminal statute, let alone one purporting to have a mandatory minimum incarceration element, can dispense with the fundamental requirement that there be some evidence of a wrongful or criminal purpose,” Schoen wrote in court filings.
Bannon has argued he didn’t comply with the Jan. 6 committee subpoena because another one of his attorneys advised him to not do so. He is citing Justice Department Office of Legal Counsel (OLC) opinions related to executive privilege the attorney believed would preclude Bannon’s prosecution. Bannon argues he should’ve been able to bring up those defenses to the jury.
Prosecutors have long pushed back on that thinking, arguing Bannon was, at minimum, still required to appear before the committee, even if executive privilege did apply to some of the relevant topics.
“The subpoena focused on Bannon’s activities as a private citizen and addressed many topics for which executive privilege could not possibly apply,” prosecutors wrote in court filings.
“If the subpoena did touch on any privileged matters, Bannon was required to explain to the Committee which documents were allegedly subject to a valid privilege claim and, at the deposition, assert any privilege on a question-by-question basis. Bannon ignored those procedures,” their brief continued.
Bannon also contends the judge impermissibly quashed trial subpoenas Bannon issued to then-Speaker Nancy Pelosi (D-Calif.), the lawmakers who sat on the Jan. 6 committee and multiple staffers involved in the committee’s work.
The judge tossed the subpoenas under the Constitution’s Speech and Debate Clause, which protects lawmakers from lawsuits and questioning for things they say and do as part of their legislative work.
Prosecutors assert the privilege was correctly applied and that the information Bannon sought was irrelevant to his charges, anyway.
“They should not have been allowed to retreat behind the Speech or Debate Clause. … Their assertion of privilege had to yield to the due process and liberty interests of Mr. Bannon,” Schoen wrote.