WASHINGTON (CN) — A District of Columbia Circuit Court panel heard from Steve Bannon Thursday as the former White House adviser argued to overturn his contempt of Congress conviction, based on his refusal to comply with a subpoena from the House Select Committee on the Jan. 6, 2021 U.S. Capitol attack.
Bannon, the co-founder of the far-right website Breitbart News and a former chief strategist in Donald Trump’s administration, has claimed he was acting on his attorney’s advice: that he was protected by executive privilege, a legal doctrine meant to protect some of the president’s communications with his advisers.
U.S. District Judge Carl Nichols, a Trump appointee, barred Bannon and his lawyer David Schoen from using that argument in their defense during a jury trial in July 2022. The jury then convicted Bannon on two counts of contempt of Congress and Nichols sentenced him to four months in prison and a $6,500 fine.
The sentence has been on hold pending Bannon’s appeal.
A panel of three judges, U.S. Circuit Judges Cornelia Pillard, Justin Walker and Bradley Garcia, seemed skeptical to accept Schoen’s arguments that Bannon was acting in good faith on the advice of his former attorney Robert Costello.
According to Schoen, who represented Trump during his second impeachment trial in the Senate, Costello had indicated to Bannon that he didn't have to provide any documents, nor appear before the committee because Trump had invoked executive privilege.
But Pillard, a Barack Obama appointee, noted that Bannon left the White House well before the Capitol riot — he resigned from his role in August 2017 — and much of the information the committee sought had nothing to do with his interactions with the former presidents and thus would not have been subject to the privilege.
“I don’t see in the record that there was a response other than 'No' from Bannon,” said Pillard, who also noted at one point that even after Bannon initially refused to comply with the subpoena, he could have reversed course and testified.
The committee — which Schoen claimed had a political agenda — wanted documents and Bannon’s testimony regarding his reported discussions with members of Congress about blocking the certification of President Joe Biden’s 2020 electoral victory, and his apparent prediction of violence on Jan. 6 leading up to the riot.
Walker, a Trump appointee, said the case law didn't seem to support Schoen’s argument of good faith, and that the only necessary condition for a contempt of Congress conviction was that the defendant deliberately and intentionally defied the subpoena, as a jury found Bannon had done.
Justice Department attorney Elizabeth Danello echoed Walker and argued that there’s no question Bannon chose to defy the committee, and that the jury was proper in convicting him for it. She pointed to precedent set by the Supreme Court in the 1961 case Sinclair v. United States and a similar case, Licavoli v. United States, that was before the Circuit that same year.
Danello drew a comparison to someone missing the deadline to file their taxes: Because the subpoena was still open even after his refusal, he would both be subjected to the consequences and still required to follow through.
Bannon eventually did offer to testify, days before his 2022 trial was set to begin.
His appeal comes as another senior Trump adviser, Peter Navarro, was also found guilty of refusing to comply with a subpoena from the committee.
Navarro made similar arguments before U.S. District Judge Amit Mehta, with the same amount of success, and has since requested a new trial on the grounds the jury was prejudiced against him during a short outdoor break where protestors — both in support of and against Navarro — were gathered awaiting their result.
Mehta has yet to rule on Navarro’s motion, but recently scheduled a sentencing hearing for Jan. 25, 2024, a likely sign he was not persuaded. Navarro has indicated he will appeal his sentence to the D.C. Circuit and to the Supreme Court, if necessary.
Follow @Ryan_Knappy
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
