Judge rules for Bannon on access to DOJ deliberations on executive privilege

Judge also to review government steps to obtain phone records of Bannon's lawyer

Steve Bannon addresses the media after a court appearance in Washington in November 2021.  (Tom Williams/CQ Roll Call file photo)
Steve Bannon addresses the media after a court appearance in Washington in November 2021. (Tom Williams/CQ Roll Call file photo)
Posted March 16, 2022 at 6:44pm

The judge overseeing former White House adviser Steve Bannon’s contempt of Congress trial ruled Wednesday that the Department of Justice must turn over writings — public or not — of official agency policy for prosecuting former or current government officials who raise executive privilege claims.

U.S. District Court Judge Carl Nichols also decided he wants to hear from Bannon’s lawyers in a forthcoming brief on why Bannon’s status as a former executive branch employee is distinguishable from case law — Licavoli v. United States — that holds someone who fails to appear for a subpoena on advice of counsel is not a valid defense.

The trial is not scheduled to begin until July.

Bannon did not comply with a subpoena from the Jan. 6 House select committee instructing him to produce documents and testimony, citing executive privilege claimed by former President Donald Trump. He was later indicted in November on two misdemeanor counts of contempt of Congress for failing to comply with that subpoena.

To establish criminal contempt of Congress, prosecutors have to prove Bannon’s default was willful, which is “a deliberate and intentional failure to appear or produce records as required,” prosecutors wrote in a brief citing Licavoli v. United States. That brief goes on to argue, citing the case again, that “a defendant’s good-faith reliance on counsel’s advice that the law excuses compliance does not ‘immunize a deliberate, intentional failure to appear pursuant to a lawful subpoena lawfully served.’”

Lawyers for Bannon said that Department of Justice Office of Legal Counsel opinions noted that close advisers to the president are entitled to immunity from responding to a congressional subpoena and they advised him against doing so. Bannon was not an employee of the executive branch in the time surrounding the Jan. 6 insurrection. 

“If you’re in Mr. Bannon’s shoes, it’s not unlawful to ignore a subpoena even if it’s validly served,” Matthew Corcoran, one of Bannon’s lawyers, said.

Also at issue was whether the government acted appropriately in obtaining phone records of Robert Costello, another lawyer of Bannon’s. Justice Department prosecutor Amanda Vaughn told Nichols the government got Costello’s phone records through a subpoena during the grand jury investigation, but said they didn’t provide insight into confidential communications. 

Vaughn said the government needed to prove Bannon knew about the subpoena. 

“Was there any dispute that Mr. Bannon didn’t know about the subpoena. I mean the world knew about it,” Nichols said.

The judge directed the government to provide him information on the Costello subscriber and phone records obtained by prosecutors and how they got the information as part of his review into the way the government proceeded.

“And the behavior of the FBI, and quite frankly DOJ has been outrageous to my attorney. Right, and the attorney client privilege and everything that they did, and that's going to be worked out in court,” Bannon said after the hearing.

Nichols denied a motion from Bannon to obtain congressional records, including those from the Jan. 6 panel, staffers, and Speaker Nancy Pelosi. He also denied a motion from Bannon to obtain certain grand jury materials. 

Tim Mulvey, a spokesperson for the Jan. 6 committee, did not comment.