Appeals court upholds Steve Bannon’s contempt of Congress conviction

Washington — A three-judge appeals court panel upheld the criminal conviction of former Trump White House chief strategist Steve Bannon in a unanimous decision on Friday, ruling they found “no basis” to depart from binding legal precedent. 

Bannon was found guilty in 2022 of two misdemeanor counts of contempt of Congress for not responding to a subpoena from the now-defunct House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol. At the time, he maintained that he could not testify because of executive privilege concerns raised by former President Donald Trump and said that his one-time attorney, Robert Costello, had advised him not to comply with the subpoena because of the potential privilege. 

A federal judge in Washington, D.C., ordered ahead of the trial that binding legal precedent prevented Bannon from raising the issue of his attorney’s advice as a defense. After his conviction, the judge, Carl Nichols, sentenced Bannon to four months in prison

The political strategist and his legal team launched an appeal of the conviction, contending Bannon did not willfully defy Congress by not responding because he was following the counsel of his attorney. Nichols delayed Bannon’s prison sentence while the appeal was pending after finding it was likely that the legal precedent underpinning the decision to forbid the advice of counsel defense would be overturned.  

But in the ruling issued Friday, Judge Bradley Garcia, who was appointed by President Biden, upheld Nichol’s ruling, writing, “this exact ‘advice of counsel’ defense is no defense at all.” 

“Nothing in the authorities Bannon relies upon calls into question this court’s longstanding interpretation of ‘willfully’ … as requiring a deliberate, intentional failure to respond to a subpoena,” the judge wrote. 

The congressional investigators were interested in Bannon’s work in over a dozen key areas, including his communications with former President Donald Trump. 

Garcia and the two other judges on the panel — Cornelia Pillard, an Obama appointee, and Justin Walker, a Trump appointee — ruled unanimously that Bannon’s decision to disregard the subpoena sufficiently upheld the criminal contempt charges. Legal precedent dictates that the contempt charges do “not require bad faith, evil motive, or unlawful purpose,” they wrote. 

“Bannon does not dispute that he deliberately refused to comply with the Select Committee’s subpoena in that he knew what the subpoena required and intentionally did not respond; his nonresponse, in other words, was no accident,” the appeals court ruled, pointing to standing legal precedent that they wrote makes clear advice of counsel is “unavailable under this statute.” 

The judges also rejected other arguments from Bannon’s defense team, including that the Jan. 6 committee was invalid. 

Bannon’s attorney did not immediately respond to a request for comment, but there are other avenues of appeal that the legal team can pursue, including asking the Supreme Court to look at the matter. 

Bannon is not the only Trump White House official convicted for defying a subpoena from the House Jan. 6 committee. Former trade advisor Peter Navarro is currently serving a four-month prison sentence after a jury in Washington, D.C. found him guilty of contempt. 

Like Bannon, Navarro is appealing his conviction and has asked another federal judge to release him from prison into supervised release, citing allegations that he was “denied the opportunity to speak both with the press as well as a with Member of Congress.” 

It remains unclear what effect Friday’s ruling will have on Bannon’s prison sentence. 

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