Steve Bannon’s lawyer presented D.C. Circuit judges with a cornucopia of defenses Thursday as the former Trump White House advisor attempts to get his contempt of Congress conviction and accompanying prison sentence overturned.
The conviction stems from Bannon’s refusal to comply with a Jan. 6 committee subpoena for communication records and his testimony, despite warnings from Chair Bennie Thompson (D-MS) that noncompliance would result in contempt charges.
Bannon lawyer David Schoen — who first attracted national attention by defending Donald Trump during his second impeachment trial — has taken a kitchen sink approach to the defense, contesting everything from the size of the committee to its lack of a minority ranking member.
But Thursdays’ oral arguments focused primarily on two prongs: Bannon’s assertion that he was somehow covered by executive privilege — he served in the White House for just the first seven months of Trump’s term — and that he was only doing what his former lawyer, Robert Costello, told him to do.
The three-judge panel — composed of Biden, Obama and Trump appointees — seemed particularly skeptical of the executive privilege argument.
“Even at its broadest where [the Office of Legal Counsel] has written, for example, that a former senior official can assert absolute testimonial immunity — it only covers communications within the scope of that former senior official’s service in the White House,” Judge Cornelia Pillard, the Obama appointee, said emphatically.
“None of the conduct at issue here was during Mr. Bannon’s service in White House,” she continued. “Do you have any authority that suggests — any authority at all — that suggests that some kind of executive privilege or immunity would apply to conduct that postdates the person’s service?”
The executive privilege defense only gets harder for Bannon to prove given that Trump never even made a claim of it in the first place. Judge Bradley Garcia, the Biden appointee, pointed out that Trump’s lawyer at the time explicitly told Bannon’s lawyer that they didn’t believe Bannon had immunity from testifying.
Pillard also chimed in that only a few topics on the list of subjects the committee was attempting to subpoena Bannon for related to communications with Trump at all.
The panel was at least less outwardly dubious about Bannon’s defense that Costello told him that he didn’t need to comply with the subpoena because it was unconstitutional.
“His lawyer tells him there’s absolute testimonial privilege here, and in any event, it’s flexible, there’s an accommodation process — and in fact, this lay person has testified before Congress in the past and maybe that adds credibility to the notion that there’s going to be some kind of accommodation process,” Pillard said, summarizing Schoen’s argument. “So the only recourse for this defendant is a malpractice claim against the former lawyer?”
Department of Justice lawyer Elizabeth Danello countered throughout both with Supreme Court precedent and Licavoli v. United States, a DC Circuit case which held that ignoring a subpoena based on advice of counsel is not a defense — a big component of Bannon’s loss at the district court.
While Pillard was willing to play devil’s advocate, Garcia cut right to the heart of Bannon’s precedent problem with his first question of the day: “Could you focus on our 1961 decision Licavoli and what your best argument is that that case simply doesn’t tie our hands?” he asked.
Bannon was sentenced by the district court judge to a four-month prison term in October 2022, which has been postponed in light of his appeal. Prosecutions of contempt of Congress charges are rare, though the Trump administration produced one other for former administration official Peter Navarro. He too was found to be guilty after a jury trial, and is awaiting sentencing.
“These members of the committee, evidenced, in my view at least, in their press releases and press statements, [made] a decision to get Bannon rather than accommodate him,” Schoen argued.
