Steve Bannon Loses Bid to Overturn Contempt of Congress Conviction

Sabrina Willmer
·3 min read
  • Oops!
    Something went wrong.
    Please try again later.
  • Oops!
    Something went wrong.
    Please try again later.

(Bloomberg) -- Steve Bannon, a longtime adviser to former President Donald Trump, failed to persuade a federal appellate panel in Washington to toss his conviction for contempt of Congress.

Most Read from Bloomberg

Bannon deliberately refused to comply with a subpoena requiring him to testify before a congressional committee investigating the Jan. 6, 2021, Capitol riot, a three-judge panel for the District of Columbia Circuit Court ruled Friday. Bannon’s failure to appear “was no accident” and there was no basis for him to claim he’d relied on his attorney’s advice, the panel wrote.

A jury convicted Bannon in 2022 for refusing to testify and hand over documents to the committee. The 70-year-old’s four-month jail sentence had been stayed pending his appeal of the conviction.

“Today’s decision is wrong as a matter of law and it reflects a very dangerous view of the threshold for criminal liability for any defendant in our country and for future political abuses of the congressional hearing process,” Bannon attorney David Schoen said in an emailed statement. Bannon will ask that his case be heard by the full appellate court, Schoen said.

Bannon argued on appeal that his constitutional rights were infringed because he wasn’t allowed to explain to a jury why he didn’t respond to the subpoena. Bannon said he’d been advised by his then-attorney Robert Costello that he was bound by executive privilege, and that he relied on previous Justice Department opinions that shielded presidential advisers.

“Mr. Bannon knows only what Mr. Costello told him,” Schoen argued at a November hearing before the three-judge appellate panel. “He did what a lay person should do. He hired a lawyer.”

US District Judge Carl Nichols, who presided at the contempt trial, cited a longstanding court decision called Licavoli in restricting Bannon from using an “advice of counsel” defense. But the conviction, the judge said Bannon’s appeal “raises a substantial question of law that is likely to result in a reversal or an order for a new trial.”

However, the appellate panel concluded “that this exact ‘advice of counsel’ defense is no defense at all.” Bannon’s request to depart from Licavoli “must clear a high bar,” which it failed to do, the court said.

The panel reasoned that under Bannon’s interpretation of the law, “effectively enforcing congressional subpoenas would be exceedingly difficult” because there would be an additional requirement to prove that failing to respond was done in bad faith. “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,” the panel wrote.

Prosecutors have characterized Bannon as acting above the law in his refusal to cooperate with the congressional committee. The government also pointed out that Trump didn’t invoke executive privilege and most of the information sought from Bannon wasn’t covered by that protection.

Bannon, a prominent right-wing media personality who is credited with helping Trump win the presidency, is one of the only members of the former president’s inner circle to face charges for refusing to cooperate with the Jan. 6 committee. In September, former White House trade adviser Peter Navarro was convicted on the same charges.

The appellate case is US v. Bannon, 22-3086, US Court of Appeals, District of Columbia Circuit.

(Adds comment from Bannon’s attorney in fourth paragraph)

Most Read from Bloomberg Businessweek

©2024 Bloomberg L.P.