Judge to decide if Steve Bannon should go to prison during appeal

Washington — Trump ally Steve Bannon is set to appear in a Washington, D.C. federal courtroom on Thursday as a judge weighs whether to clear the way for Bannon to serve out a four-month prison sentence. 

Prosecutors pushed last month for the former White House chief strategist to be sent to prison after an appeals court denied a request to overturn his criminal conviction. Bannon is fighting the move and argues the judge who oversaw his criminal trial does not yet have the legal authority to impose the sentence as his defense team pursues other avenues for appeal. 

A jury found Bannon guilty of two counts of contempt of Congress in 2022 after he refused to comply with a subpoena from the House Select Committee that investigated the Jan. 6, 2021, Capitol attack. The congressional investigators were interested in Bannon’s conduct in over a dozen key areas, including his communications with former President Donald Trump as he resisted the results of the 2020 presidential election. 

At the time, Bannon contended he did not comply because of executive privilege concerns raised by Trump and said that his former attorney had advised him not to respond to the subpoena because of the potential privilege. 

Judge Carl Nichols ordered before trial that Bannon could not tell the jury about the advice of counsel defense because of binding legal precedent. After his conviction, the judge, Carl Nichols, sentenced Bannon to four months in prison but held off on actually imposing the ruling, ruling it was “likely” the conviction would be overturned. 

Steve Bannon Attends Court Hearing In New York For Fundraising Fraud Charges
Steve Bannon, former advisor to President Donald Trump, appears in Manhattan Supreme Court to set his trial date on May 25, 2023 in New York City.  Curtis Means / Getty Images

Bannon’s defense subsequently appealed the conviction.

Last month, an appeals court disagreed with his arguments and ruled Bannon’s “‘advice of counsel’ defense is no defense at all.” The three-judge panel in the D.C. Circuit Court of Appeals unanimously upheld the jury’s conviction and wrote the defense he sought was “unavailable under this statute.”

“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 judges wrote last month in their opinion. 

Still, the panel ordered its ruling would not go into effect until seven days after Bannon pursued a further appeal, leaving an opportunity for another court to again push off the prison sentence. 

But the Justice Department took the case back to Nichols’ court and asked the judge to lift the stay on Bannon’s four-month prison sentence. Prosecutors argued there was no longer a “substantial question of law” because the conviction was upheld. 

In a previous order, Judge Nichols indicated his main focus at Thursday’s hearing will be whether he has the legal authority to move forward. 

“The defendant’s argument that the Court lacks jurisdiction to lift the stay of sentence pending issuance of the mandate is unavailing. He all but concedes there is not a single case in support of his position,” prosecutors wrote. 

Bannon’s defense team, however, pushed back, writing Nichols “lacks the authority” to send Bannon to prison as the appeals court panel opted to without the mandate of its ruling. And even if the judge decided he did have the authority, Bannon’s team wrote, Nichols should still hold off in sending Bannon to prison because, “The harm caused truly would be irreparable and unjust if the judgment, already fully executed, is then reversed on further review.” 

“There is no basis for considering the removal of the stay of the sentence pending appeal until the appeals process has fully run its course,” wrote attorney David Schoen. 

Schoen contended in a statement to CBS News that, “This case raises vitally important constitutional issues directly implicating the separation of powers” that should be considered by the full D.C. Court of Appeals and “ultimately the Supreme Court.” He also alleged the appeals court “ignored a half-century of jurisprudence” in issuing a ruling that he will push to be reversed. 

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, but the judge overseeing his case opted not to delay the imposition of the prison term, a decision that has been upheld by higher courts. 

Bannon was not in the White House during the final months of the Trump administration that were of interest to the Jan. 6 committee, but he has continued to exert influence within the former president’s political base. Following Trump’s conviction on New York State charges last week, Bannon had advocated for retribution should Trump, the presumptive Republican nominee for president, retake the White House. 

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