WASHINGTON (CN) — Former Trump adviser Steve Bannon filed an emergency motion at the Supreme Court on Friday in an effort stave off his looming four-month prison sentence, which is set to begin July 1.
Bannon, a former chief strategist to 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 investigating the Jan. 6, 2021, U.S. Capitol attack.
Bannon's latest motion comes hours after a D.C. Circuit panel rejected 2-1 a similar request late Thursday night, finding that Bannon had failed to raise a substantial question of law that would entitle him to a new trial.
U.S. Circuit Judges Cornelia Pillard and Bradley Garcia, both Joe Biden appointees, wrote the majority. U.S. Circuit Judge Justin Walker, a Trump appointee, dissented, arguing that Bannon should remain free until the Supreme Court could consider his request.
In Friday’s motion, Bannon cited Walker’s dissent to support his argument that the nation's highest court should hear the case. His argued there was a split between how the D.C. Circuit and the Supreme Court interpreted the word “willfully” with regards to the failure of a defendant like him to comply with a congressional subpoena.
“Absent relief Mr. Bannon will be forced to serve his entire term before this Court has the opportunity to review that issue,” Bannon said. “This case therefore easily satisfies the requirements for continued bail pending certiorari.”
Bannon argued he is not a flight risk, does not post a danger to others and has not committed another crime.
He noted he had remained free pending a previous appeal of his conviction, which was denied by the same panel on May 10. In that incidence, Garcia wrote in the opinion that Bannon’s failure to comply with the subpoena was willful.
Bannon’s case has followed a similar trajectory to fellow former Trump adviser Peter Navarro, who also received a four-month prison term on contempt of Congress charges.
Navarro unsuccessfully appealed to the Supreme Court and began serving March 19. He has less than a month remaining in his sentence and will likely be released in July.
Bannon argued that his case raises two substantial questions of law that warrant a Supreme Court review.
First, he argued there was legal disagreement over what qualifies as “mens rea” or state of mind when it comes to willfully defying a congressional subpoena. Second, he pointed to the appellate circuit split over what governs the release of a defendant pending an appeal.
On the first point, Bannon said he was simply acting on his attorney’s advice not to respond to the subpoena until supposed executive privilege issues were resolved. He noted he'd previously appeared before Congress on three occasions after former President Trump’s legal counsel had exerted executive privilege.
Executive privilege is a legal doctrine intended to protect some of the president’s communications with his closest advisers — but it must be exerted by the sitting president. At the time of the Committee’s subpoenas, that was Joe Biden, who did not exert the privilege for either Bannon or Navarro.
Still, rather than resolving the privilege issue swiftly or in a civil suit, Bannon argued, the House “swiftly voted” to hold him in contempt and “quickly indicted him.”
U.S. District Judge Carl Nichols, a Trump appointee, previously barred Bannon from presenting evidence on this advice-of-counsel defense. He cited precedent set in the 1961 D.C. Circuit case Licavoli v. United States, which held that such a defense could not stand when a defendant willfully defied a congressional subpoena.
Bannon also challenged that decision on Friday, arguing that Licavoli merely interpreted willful to mean intentional — not by mistake.
“Because the Supreme Court is not bound by Licavoli, because Licavoli’s interpretation of ‘willfully’ is a close question, and because that question may well be material, Bannon should not go to prison before the Supreme Court considers his forthcoming petition for certiorari,” Walker had written.
Bannon argued the Supreme Court had granted review in 19 similar cases. Those reviews, he said, happened even when the appellate courts were unanimous, unlike in his case.
He warned that if the high court were to leave the D.C. Circuit’s ruling in place, there could be serious ramifications for future recipients of congressional subpoenas.
“The stakes could not be higher. Under the D.C. Circuit’s caselaw, future disagreements about subpoena compliance will be met not with negotiation — but with indictments,” Bannon said.
The Supreme Court has asked government prosecutors to respond by 4 p.m. Wednesday.
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