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Appeals court to hear arguments over Bannon contempt of Congress conviction

The former Trump adviser has attacked the legitimacy of subpoenas from a now-disbanded House select committee on the Capitol attack

Steve Bannon addresses the media in October 2022 outside federal court in Washington after being sentenced to four months in prison and a $6,500 fine for defying a congressional subpoena.
Steve Bannon addresses the media in October 2022 outside federal court in Washington after being sentenced to four months in prison and a $6,500 fine for defying a congressional subpoena. (Tom Williams/CQ Roll Call)

A federal appeals court in Washington will hear arguments Thursday over the contempt of Congress conviction of Steve Bannon, a former White House official and Donald Trump ally who did not comply with a congressional subpoena related to the Jan. 6, 2021, attack on the Capitol.

Bannon has sought to overturn the two contempt convictions from July 2022, attacking the legitimacy of the subpoena from a House select panel investigating the Jan. 6 attack and arguing he should have been allowed to assert executive privilege and other defenses at trial.

“The lower court erred by prohibiting Mr. Bannon from putting his defenses before the jury in this case, in violation of his rights under the 5th and 6th Amendments to the United States Constitution,” Bannon’s attorney David Schoen wrote in a brief to the court.

The arguments before the U.S. Court of Appeals for the District of Columbia Circuit will be the first in over a decade over a contempt of Congress conviction.

In court papers, Schoen argued that Bannon relied on the advice of his prior lawyer, Robert Costello, when he chose not to comply with the subpoena seeking his testimony and documents about the events leading up to the Jan. 6 attack.

Bannon also has claimed he could not comply with the subpoena because Trump as a former president had invoked executive privilege to block Bannon’s testimony.

U.S. District Judge Carl Nichols ruled against Bannon’s effort to assert that as a defense at trial, as well as several other issues before he was convicted on two counts of contempt of Congress following a jury trial.

Nichols also sentenced Bannon to a four-month prison term, which has been delayed due to Bannon’s appeal.

Bannon appealed the conviction on several issues. He argues that he should have been able to dismiss the case because the select committee was not legitimate, and that he should have been able to subpoena members of Congress and their staffs.

He also argues that he should have been able to assert at trial two additional defenses: that he relied on the advice of his attorneys and that he had been entrapped by the case.

Prosecutors in a brief pointed out that Bannon left the White House years before the time the committee was investigating and that Trump asserting executive privilege would not have prevented him from testifying.

“The subpoena focused on Bannon’s activities as a private citizen and addressed many topics for which executive privilege could not possibly apply,” the brief said.

The government defended the legitimacy of the select panel’s subpoena, as well as Nichols’ decision not to let Bannon subpoena members of Congress to testify at trial.

The brief also pointed out that Bannon had multiple opportunities to comply with the subpoena and was repeatedly warned that the legal reasons he had cited were not enough to excuse him from appearing to testify.

Bannon is the former executive chairman of Breitbart News and worked as CEO of Trump’s election campaign in 2016. Following that, he served as a senior adviser in the Trump White House before leaving in August 2017.

Prosecutions for contempt of Congress are rare and the executive branch has pressed charges in only one other case in the last decade — fellow Trump ally Peter Navarro. He also defied a subpoena from the select panel and was similarly charged with contempt of Congress.

A federal jury also found Navarro guilty, following a trial in September. Navarro has said he will also appeal, and the case is currently awaiting sentencing.

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