Before Steve Bannon’s trial, where he was convicted on two counts of contempt of Congress, he tried to use an “advice of counsel” defense, arguing that his lawyer had advised him that he could essentially blow off the House Jan. 6 committee’s subpoenas because Donald Trump would invoke executive privilege.
That lawyer was Robert Costello, who has become better known lately as the only real defense witness at Trump’s hush money trial.
Yet Bannon’s reliance on Costello’s advice was never what most of us would consider reasonably placed. For one, Trump lawyer Justin Clark advised Costello in writing that Trump was not, in fact, invoking executive privilege for Bannon, who left the White House in 2017, with respect to his testimony. Clark also insisted that Trump had never advised Bannon to withhold his testimony or documents until executive privilege issues were resolved.
Yet Bannon’s reliance on Costello’s advice was never what most of us would consider reasonably placed.
U.S. District Judge Carl Nichols, a Trump nominee who presided over the case, initially agreed to stay Bannon’s four-month sentence because he believed the case presented serious appellate issues. In particular, as Bannon recounted in a recent brief, Nichols noted his disagreement with a 1961 opinion by the U.S. Court of Appeals for the D.C. Circuit.
Under that opinion, Licavoli v. United States, reliance on the advice of counsel cannot negate the defendant’s willfulness where contempt charges are concerned. Nichols therefore explained, on the record, that while he had “serious reservations” that Licavoli is “not consistent with modern case law surrounding the use” of “willfully,” he was bound by that 1961 ruling. But in its opinion upholding Bannon’s conviction last month, the D.C. Circuit reaffirmed its precedent and rejected Bannon’s other challenges to his contempt convictions: Bannon insists that ‘willfully’ should be interpreted to require bad faith and argues that his noncompliance does not qualify because his lawyer advised him not to respond to the subpoena. This court, however, has squarely held that ‘willfully’ in Section 192 means only that the defendant deliberately and intentionally refused to comply with a congressional subpoena, and that this exact ‘advice of counsel’ defense is no defense at all. … As both this court and the Supreme Court have repeatedly explained, a contrary rule would contravene the text of the contempt statute and hamstring Congress’s investigatory authority. Because we have no basis to depart from that binding precedent, and because none of Bannon’s other challenges to his convictions have merit, we affirm.
It was that opinion that led Justice Department prosecutors to move to lift the stay on Bannon’s sentence, which, in turn, led Nichols to order Bannon to report to prison by July 1.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
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