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Appeals court upholds Bannon contempt of Congress convictions

Former Trump adviser did not comply with subpoena from House select panel on Jan. 6 attack

Steve Bannon, former adviser to President Donald Trump, addresses the media outside a federal court in Washington on Oct. 21, 2022, after being sentenced to four months in prison for defying a congressional subpoena.
Steve Bannon, former adviser to President Donald Trump, addresses the media outside a federal court in Washington on Oct. 21, 2022, after being sentenced to four months in prison for defying a congressional subpoena. (Tom Williams/CQ Roll Call)

A federal appeals court on Friday upheld the conviction of former Trump adviser Steve Bannon on contempt of Congress charges, rejecting his arguments that he did not need to comply with subpoenas from the House select committee investigating the Jan. 6, 2021, attack on the Capitol.

Bannon, who was convicted on two contempt charges in 2022, had argued in his appeal that his attorney advised him to not comply with the panel because executive privilege, which allows a president to keep secret conversations with close advisers, would apply to the congressional subpoena.

In a unanimous decision, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit wrote that allowing Bannon to jettison the conviction because he relied on the advice of his attorney “would undermine the statute’s function,” which is meant to allow Congress to enforce its investigative powers.

“Otherwise, any subpoenaed witness could decline to respond and claim they had a good-faith belief that they need not comply, regardless of how idiosyncratic or misguided that belief may be,” the decision states.

The appeals court also wrote that accepting Bannon’s “good faith” reliance on his attorney’s advice would raise the bar for contempt convictions and make it “exceedingly difficult” to prosecute contempt of Congress charges.

The D.C. Circuit also ruled that many of the topics covered by the subpoena were “not even arguably subject to executive privilege” because they covered Bannon’s communications with other private citizens.

Bannon could not rely on a letter he received from former President Donald Trump’s attorney noting that some of the subjects covered by the subpoena could involve executive privilege, the court found. Instead of ignoring the subpoena on that basis, Bannon should have appeared for his deposition and asserted executive privilege when the committee discussed sensitive topics.

Friday’s opinion also rejected Bannon’s argument that the panel had singled him out for political purposes, or to send a message to other witnesses.

“What matters is whether the subpoena is objectively related to a valid legislative purpose. This one was,” the decision states.

The court also rejected Bannon’s procedural challenges to the committee, including the fact that it had less than its maximum of 13 members, because he only raised them after he was charged.

A federal jury found Bannon guilty on two counts of contempt of Congress charges in 2022 after a weeklong trial. The trial judge in the case, U.S. District Judge Carl Nichols, had paused Bannon’s four-month prison sentence during the appeal.

Separate from Friday’s opinion, the appellate judges gave Bannon a week to petition for a rehearing from the three-judge panel or ask the full D.C. Circuit to weigh in.

Contempt of Congress convictions are rare, and the case came after months of legal wrangling over the investigation into the attack on the Capitol.

Bannon, a co-founder of Breitbart News and CEO of Trump’s 2016 election campaign, served as a senior counselor in the White House for several months in 2017. He left the White House and has continued to back Trump and other conservatives from outside the administration.

The select panel had sought testimony and documents from Bannon about Trump and the former president’s actions leading up to Jan. 6. Bannon refused to cooperate with the investigation and later claimed the information was subject to executive privilege protections.

The committee then issued a subpoena and later the House voted to hold Bannon in criminal contempt of Congress, one of a handful of recalcitrant witnesses who faced contempt referrals. A federal grand jury returned an indictment in November 2021.

Another recalcitrant witness from the panel, former Trump trade adviser Peter Navarro, is currently serving a four-month prison sentence on similar charges. The trial judge in Navarro’s case did not allow him to remain free while he appealed his conviction.

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