An attorney for Steve Bannon argued in federal appeals court Thursday that Bannon should not have to serve jail time for contempt of Congress because he was merely following legal advice.
The onetime senior aide to former President Trump was convicted of two counts of contempt for defying a subpoena from the House Jan. 6 committee. He was sentenced to four months in jail, but he has not served the sentence pending appeal.
Bannon’s appeal argument centers on the claim that Bannon never communicated with the Jan. 6 Committee directly, instead only through his attorney Robert Costello. Costello told Bannon at the time that he didn’t have to comply because of presidential privilege, so he chose not to.
Citing D.C. Appeals Court precedent, attorney David Schoen said Bannon should not be responsible for just following legal advice “honestly and in good faith.”
“Even if such advice by the lawyer was an inaccurate construction of the law,” Schoen said, citing the precedent.
Schoen also argued that Trump asserted executive privilege over what Bannon was asked to testify about — the time surrounding the Jan. 6 Capitol riots — and therefore Bannon had a right to a trial to argue those merits.
“Advice of counsel is the defense,” Schoen said, adding that presidential privilege is “presumptively valid.”
But the panel of three appeals court judges pushed back on the privilege argument, noting that the fact of whether privilege was asserted is not directly relevant to the appeal and that privilege does not necessarily excuse ignoring a subpoena without other legal action.
“I ask the court to consider in the broader picture: How should a lay person respond when a lay person gets a subpoena from a committee and have all communications through the lawyer and the lawyer tells him or her, in definitive terms, they may not comply, their hands are tied?” Schoen questioned. “At least let a jury decide whether that was reasonable or appropriate advice, whether the lawyer had all of the facts, but let the jury decide.”
“We don’t treat a person who believes he or she is acting in full compliance with the law … the same as a wrongdoer … a mobster who just didn’t show up,” he concluded.
But the prosecuting attorney Elizabeth Danello arguing against the appeal countered, saying Bannon had full knowledge and intent to break the law by not following the subpoena.
“Bannon deliberately chose not to comply in any way with a lawful congressional subpoena,” Danello argued. “Not to provide a single document, not even to show up for his deposition. That was contempt of Congress, and he was properly convicted.”
The District Court previously ruled that Bannon’s “good faith” arguments were invalid, and Danello reinforced this point.
“The Supreme Court and this court have held that the mens rea element for contempt of Congress requires only that the defendant acted deliberately and intentionally,” she said, referring to criminal intent. “Good faith, including advice of counsel, is not a defense.”
“Intentional violation is sufficient to constitute guilt,” she added, citing additional Supreme Court precedent.
The House voted to hold four people in contempt in connection with the Jan. 6 committee’s investigation: Bannon, former White House chief of staff Mark Meadows, former White House deputy chief of staff Dan Scavino and former Trump adviser Peter Navarro.
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 has requested a new trial.
If the appellate court sides with the district court decision, Bannon will be forced to serve his four-month sentence unless he attempts to appeal the case to the Supreme Court.
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