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Bannon’s Bid To Stay Out Of Jail Gets Major Side Eye From DC Circuit

(Photo by Stephanie Keith/Getty Images)

Steve Bannon used up another of his nine lives this morning, as the Court of Appeals for the DC Circuit refused to overturn his conviction for contempt of Congress.

In October of 2021, the putrefying podcaster defied a subpoena from the House January 6 Select Committee regarding his scheme to disrupt the certification of President Biden’s electoral win. Bannon and his compatriot Peter Navarro had hardly been secretive about their plan, which they dubbed the Green Bay Sweep. But both men loudly defied the summonses, refusing even to show up and plead the Fifth or assert executive privilege.

This was an especially audacious claim from Bannon, who was fired from his White House job in 2017, and could not possibly have had any executive privilege to assert. Or as the Circuit put it:

Further, none of the opinions addressed communications between a private citizen subpoena recipient and other private citizens. Here, only a small subset of the subpoena topics even referenced communications with President Trump or his staff—the rest concerned Bannon’s communications with individuals outside the White House not even arguably subject to executive privilege.

Navarro comes close, though, with his claim to privilege over topics addressed in detail in his own book.

At trial, Bannon hoped to assert a slew of “permission slip” defenses. Maybe Donald Trump invoked executive privilege. Maybe the Office of Legal Counsel signed his hall pass. Maybe his own lawyer, Robert Costello, was to blame for saying he could just flip the bird to Reps. Thomson and Cheney without consequence.

Or maybe not.

Judge Carl Nichols, a Trump appointee, refused to allow Bannon to argue any of these to the jury, citing the DC Circuit’s 1961 ruling in Licavoli v. US, wherein the court explicitly excluded advice of counsel as a defense to a  contempt of Congress charge. Bannon’s subjective belief that he was allowed to blow off Congress was irrelevant, since the only thing necessary to satisfy the willfulness requirement is “deliberate intention to do the act.” Like Navarro, he was limited to arguing that he’d been confused about the date of the subpoena, or maybe that he’d ruptured his appendix, but not that he just figured he didn’t have to for reasons.

In his appeal, Bannon invited the DC Circuit to “reconsider or modify its decision” in Licavoli, just for funsies. But the panel, including Trump appointee Judge Justin Walker, declined.

“[E]ffectively enforcing congressional subpoenas would be exceedingly difficult if contempt charges required showing that a failure to appear or refusal to answer questions was not just deliberate and intentional, but also done in bad faith,” wrote Judge Brad Garcia. “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 appeals court also noted that the letter from Trump’s attorney Justin Clark contained no blanket assertion of privilege, and indeed “explicitly communicate[d] the opposite of what Bannon asserted to the Committee.”

It doesn’t take a lot of squinting to read that as serious shade on Bannon’s erstwhile lawyer Robert Costello, who recently sued him for non-payment of fees. And the court was distinctly unimpressed by Bannon’s current lawyer David Schoen, who represented Trump at his second impeachment trial.

“We decline to reach Bannon’s wholly undeveloped argument that quashing the trial subpoenas violated his rights to effective assistance of counsel and confrontation,” they wrote in a footnote, observing parenthetically that “even assuming a claim was preserved in district court, ‘perfunctory appellate briefing does not suffice to raise it in this Court.’”

The panel showed similar disdain for the appellant’s claims that the Committee was improperly constituted, and thus its subpoenas were a nullity.

“These objections suffer from a common defect: Bannon did not raise them before the Select Committee and therefore forfeited them,” they wrote acidly.

And so Bannon can join his fellow contemnor Peter Navarro, who is currently residing at a federal facility in Miami, since Judge Amit Mehta was unwilling to stay his four-month custodial sentence pending appeal. Although Bannon has a week to seek en banc review or a stay from the Supreme Court, so maybe his luck won’t run out just yet.

Trump already pardoned Bannon once, disappearing federal charges for scamming the rubes out of cash for his GoGriftMe homebrew border wall. Presumably, Bannon hopes to string this out long enough to get a second pardon if Trump gets back in office. But barring further intervention by the full appeals court or SCOTUS, it looks very much like Ol’ Three Shirts is going to spend the next election day in the pokey. Plus, he’s still under indictment in New York state court for the same border wall grift. Sooner or later — and probably sooner — this grifter is going to find himself a guest of either the federal or state government.

Is that what they mean by making America great again?

US v. Bannon [Circuit Docket, via Court Listener]
US v. Bannon [Docket via Court Listener]


Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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