The Supreme Court last month rejected Steve Bannon’s bid to stay free while he appeals his contempt of Congress conviction. But lawyers for the former Trump White House adviser are still pressing the appeal while Bannon serves his four-month sentence, bringing the merits of his legal challenge a step closer to the justices.
On Monday, Bannon’s lawyers asked the full federal appeals court in Washington, D.C., to rehear his challenge that a three-judge panel of that court rejected in May. Bannon was convicted in 2022 after failing to comply with a House. Jan. 6 committee subpoena under a federal law that criminalizes “willfully” failing to respond to a congressional subpoena.
On appeal, Bannon argued that a conviction under that law requires proving bad faith and that his counsel advised him not to respond. But the federal appeals court panel cited D.C. Circuit precedent from 1961, Licavoli v. United States, to say that “willfully” only requires that the defendant deliberately and intentionally refused to comply with a congressional subpoena and that an advice of counsel defense doesn’t apply.
The circuit panel also cited that precedent in rejecting Bannon’s motion to stay free while he appealed. Notably, one of the panel judges, Trump appointee Justin Walker, dissented from the release denial, saying that, while the circuit panel was bound by its precedent, the Supreme Court might take a different view. The Supreme Court then denied Bannon’s release bid last month and he reported to prison on July 1, but his underlying appeal is still pending.
In his rehearing petition to the full circuit Monday, Bannon’s lawyers said the appeals court “should grant rehearing and eliminate Licavoli’s anomalous mens rea holding” — mens rea being the legal term for criminal intent.
Even if the full circuit rejects Bannon, that could just be the next step on the appeal’s way to the justices. Yet, even if the high court ultimately agrees with Bannon, that wouldn’t likely happen before Bannon is released from prison, though he likely would still want his conviction reversed after he’s released. If the justices wanted to help the Trump ally, they could have granted his motion to stay free while he appealed. Nonetheless, they can still choose to get involved in the merits of the appeal even though they rejected his release bid. If the justices ultimately weigh in on the merits of the issue, the court’s ruling would affect not just Bannon but other congressional contempt cases, too. Another former Trump White House adviser, Peter Navarro, also has a pending contempt of Congress appeal in the D.C. Circuit. The justices similarly rejected his release-pending-appeal bid and he is due to be released from prison on Wednesday, after which he’s reportedly expected to speak at the Republican National Convention this week in Milwaukee. As with so much else, Bannon’s appeal is playing out against the backdrop of November’s presidential election. According to the federal Bureau of Prisons, he’s incarcerated in Danbury, Connecticut, and will be released on Oct. 29. At the end of his previous presidential term, Trump pardoned Bannon for separate federal crimes in the alleged “We Build the Wall” scheme, for which Bannon faces related New York state charges that presidents can’t pardon. Trump can’t be elected in time to spring Bannon from prison in his latest federal criminal case, but just as Trump is poised to get rid of his own federal cases if he returns to the White House, he could upend Bannon’s by pardoning him again. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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