WASHINGTON (CN) — A D.C. Circuit appeals panel rejected late Thursday night Steve Bannon’s emergency motion for release pending an appeal of his four-month contempt of Congress sentence slated to begin July 1.
The three-judge panel, made up of U.S. Circuit Judges Cornelia Pillard, Bradley Garcia and Justin Walker ruled 2-1 against Bannon, finding that he had failed to raise a substantial question of law regarding his conviction that would likely result in a new trial.
Pillard and Garcia, a Barack Obama appointee and Joe Biden appointee, respectively, ruled against Bannon, while Walker, a Donald Trump appointee, dissented.
The Trump appointee wrote in his dissent that Bannon should be allowed to remain out of prison until the U.S. Supreme Court considers a forthcoming petition for certiorari regarding his case.
Bannon, former chief strategist to Trump and co-founder of the far-right website Breitbart News, was convicted in July 2022 for refusing to comply with a subpoena from the House Select Committee on the Jan. 6, 2021, U.S. Capitol attack.
He had remained free pending a previous appeal of his conviction that was denied by the same panel on May 10, in which Garcia wrote in the opinion that Bannon’s failure to comply with the subpoena was willful.
Bannon’s case has followed a similar path to fellow Trump adviser Peter Navarro, who also received a four-month prison term on contempt of Congress charges, which he unsuccessfully appealed to the Supreme Court and began serving March 19.
Following the panel’s decision, Bannon could still appeal his conviction to the full bench of the court. However, as U.S. District Judge Carl Nichols noted at a hearing earlier this month, Bannon would have to “run the table” of the remaining six judges who were not involved in either Bannon or Navarro’s cases.
Bannon is expected to take his case to the Supreme Court, but he faces a major hurdle after Chief Justice John Roberts handily rejected Navarro’s emergency application without referring it to the full court.
The panel explained in the per curium order issued Thursday, citing its unanimous prior opinion, that Bannon had failed to show that a 1961 D.C. Circuit case, Licavoli v. United States, would likely be overturned by the full bench or the Supreme Court.
In Licavoli, the D.C. Circuit determined that an “advice of counsel” defense could not stand when a defendant willfully defied a congressional subpoena. Garcia wrote in the May 10 opinion that Bannon’s advice of counsel argument ran “headlong into settled law” and was “no defense at all.”
However, Walker wrote a dissenting statement to highlight the fact that the Supreme Court is not bound by Licavoli, and thus may view the proper interpretation of “willfully” as a close question or one that could be decided differently.
He noted that Nichols, also a Trump appointee, had highlighted Licavoli as a case on which many of his trial determinations about Bannon’s state of mind had hinged.
“Because the Supreme Court is not bound by Licavoli, because Licavoli’s interpretation of ‘willfully’ is a close question, and because that question may well be material, Bannon should not go to prison before the Supreme Court considers his forthcoming petition for certiorari,” Walker said.
Nonetheless, the panel said that Licavoli was not the only reason it rejected Bannon’s request to stave off his prison term, the panel said, finding that “much more stands between Bannon and the requested stay,” like additional Supreme Court precedent.
In several cases — United States v. Helen Bryan and Flaxer v. United States — the high court had found that a defendant need only be found to have acted “deliberately and intentionally” to be guilty of willful default on a subpoena.
“Bannon’s proposal — that to prove willful default the government must establish that the witness knew that his conduct was unlawful — cannot be reconciled with the Supreme Court’s approach to the statute,” the panel wrote. “If an assertion of good-faith reliance on advice of counsel excused a witness’s wholesale noncompliance, even as it is plainly unavailable to a more cooperative witness who appears but refuses to answer certain questions, Congress’s power of inquiry would be ‘nullified[fied].’”
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.
