WASHINGTON (CN) — A federal judge ordered Steve Bannon report to prison on July 1, pending appeal, to begin serving a four-month sentence for contempt of Congress on Thursday, after the D.C. Circuit upheld his conviction last month.
Bannon, former chief strategist to Donald 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.
U.S. District Judge Carl Nichols, a Trump appointee, ruled that unless the D.C. Circuit Court of Appeals grants Bannon’s request for an en banc hearing between June 24 — the deadline for Bannon to make such a request — and July 1, Bannon will have to surrender.
Bannon remained free following an appeal of his conviction on the grounds that the guilty verdict raised significant constitutional issues.
Fellow Trump adviser Peter Navarro made a similar challenge against a content of Congress sentence that was ultimately rejected by the D.C. Circuit and the Supreme Court. Navarro began serving his four-month sentence March 19.
Navarro was the first member of Trump's inner circle to be incarcerated for actions related to his attempt to overturn the 2020 election. With Bannon, Navarro helped devise a scheme known as the "Green Bay Sweep," meant to use Trump loyalists in the House and Senate to decertify swing states' 2020 election results to hand Trump the election.
Speaking to reporters outside the E. Barrett Prettyman Courthouse, Bannon indicated he would appeal Nichols’s decision to the Supreme Court if the D.C. Circuit denies his en banc petition. He decried the conviction and Navarro’s case as attempts to silence the political right.
“All of this is about one thing: shutting down the MAGA movement, shutting down Trump,” Bannon said. “There’s not a prison or jail built that will ever shut me up.”
Bannon argued to a three-judge panel in November that his conviction should be overturned because he was acting on his attorney’s advice: that he was protected by executive privilege, a legal doctrine meant to protect some of the president’s communications with his advisers.
In a May 10 opinion, U.S. Circuit Court judges Cornelia Pillard, Justin Walker and Bradley Garcia rejected Bannon’s argument. Garcia, a Joe Biden appointee, wrote in the opinion that Bannon’s failure to comply was willful.
Garcia said that Bannon’s advice of counsel argument “runs headlong into settled law,” which maintains that defense “is no defense at all” when answering a subpoena.
Nichols scheduled Thursday’s hearing to determine whether he had jurisdiction to lift his previous stay of Bannon’s sentence, considering he could still appeal his case to the full bench of the D.C. Circuit.
But after taking into consideration the panels’ decisions regarding Bannon and Navarro, it seemed clear that Bannon had failed to make the argument that his case raised significant questions that could lead to a reversal, Nichols found.
“Were I sentencing Bannon today, I would not be able to conclude that his appeal would raise substantial questions of law for me to stay the sentence,” Nichols said.
He pointed out that five of the D.C. Circuit’s 11 total judges were part of the panels who ruled against Bannon and Navarro — Millett sat on both — meaning Bannon would have to “run the table” of the remaining six judges to receive an en banc hearing.
Bannon may face similar hurdles in convincing the Supreme Court to consider his case, as Chief Justice John Roberts refused to refer an emergency application to delay his sentence to the full court. Roberts noted that he saw no reason to diverge from the D.C. Circuit’s ruling.
David Schoen, Bannon’s attorney, argued that the two cases were factually different, and all the reasons that Nichols had allowed Bannon remain free pending his appeal still applied today. He urged Nichols to allow the appeal to be fully resolved before making his decision.
A key point of contention Thursday was whether the D.C. Circuit should have overturned the 1961 case, Licavoli v. United States, a D.C. Circuit case that determined an “advice of counsel” defense could not stand when a defendant willfully defied a congressional subpoena.
Speaking outside the courthouse, Schoen argued that Nichols had gone against his previous statements during trial that Licavoli was wrong.
He called on House Speaker Mike Johnson to declare that the House Jan. 6 Committee’s composition and conduct violated House rules, arguing that it did not have a ranking minority member — despite former Republican Representative Liz Cheney serving as vice chair of the committee.
Schoen urged Johnson to declare that the subpoenas issued by the committee were unlawful, although it is unclear what effect that would have for Bannon and Navarro.
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.
Additional Reads
-
North Carolina Senate passes budget in ongoing stalemate June 25, 2024 -
