Steve Bannon’s Contempt Defense ‘Strains the Imagination’—Attorney
Former White House Chief Strategist Steve Bannon looks likely to lose an appeal over his contempt of Congress conviction, a legal expert told Newsweek, but Bannon’s lawyer explained why he believes Bannon’s appeal should be upheld.
Oral arguments will be heard on Thursday at an appeals court in Washington, D.C., as to whether the top Trump ally can have his conviction quashed for failing to comply with a congressional subpoena issued to him by the House Select Committee investigating the January 6 attack.
Bannon was sentenced to four months in jail in October 2022 after he was found guilty of two counts of contempt of Congress but has not spent any time in prison pending the result of his appeal. Bannon and his legal team argued that the jury did not allow him to explain his reasons for defying the subpoena, which related to former president Trump invoking executive privilege in October 2021 in an attempt to prevent Bannon from complying.
Bannon, who left the White House in 2017, also states that he was told by his then-attorney, Robert Costello, that he could not waive the privilege from Trump.
Former Trump White House senior advisor Steve Bannon speaks to the media as he arrives at federal court to be sentenced on October 21, 2022, in Washington, D.C. Bannon’s appeal over his contempt conviction will hear oral arguments on November 9.
Kevin Dietsch/Getty Images
During the November 9 hearing, the three-judge panel at the U.S. Court of Appeals for the District of Columbia will hear arguments from both sides for 10 minutes regarding Bannon’s appeal.
Ahead of the oral arguments, trial attorney Bernard Alexander, a partner at the Los Angeles-based firm of Alexander Morrison + Fehr LLP, said that there is a “very high probability” of Bannon’s contempt conviction being upheld while dismissing the executive privilege defense.
“The subpoena was issued to him in his private capacity as a citizen. He had departed the White House approximately four years before, in 2017,” Alexander told Newsweek.
“It strains the imagination that President Trump can assert executive privilege over documents subpoenaed from a private citizen outside his administration. That expansive view of executive privilege would undermine congresses’ ability to obtain access to critical relevant documents for purposes of criminal prosecution,” he added.
“It would allow the President to extend blanket protections to private citizens acting on his behalf, and place these actions outside the purview of any review.”
Bannon’s lawyer, David Schoen, argued that Bannon should not go to prison for relying on the advice of his lawyer, telling Newsweek it is a “dangerous proposition to hold someone criminally culpable and send them to prison without a finding that he or she ever acted in any way that he or she believed was against the law or wrong.”
“In truth, when Mr Bannon got the subpoena his lawyer, after being advised executive privilege had been invoked, told Mr. Bannon he was not permitted as a matter of law to comply and he immediately wrote to the committee telling them that Mr. Bannon’s hands were tied,” Schoen added. “But if the committee could work out the privilege issue with Trump or would agree to go to court to have a judge determine if executive privilege applies and, if so, what its parameters were, Bannon would fully comply with whatever the judge said. Bannon never got to tell the jury what actually happened.”
Alexander also rejected this line of defense and suggested believing the prosecution must prove a person found resisting a congressional subpoena did so believing they were breaking the law creates an “illusive standard that would gut the effectiveness” of a congressional subpoena.
“Individuals defying a congressional subpoena would uniformly claim a good faith belief that their actions were not ‘against the law’ or ‘wrong,'” Alexander said.
After a jury found Bannon guilty of two counts of contempt in July 2022, Matthew M. Graves, U.S. attorney for the District of Columbia, said that the subpoena issued to him by the January 6 House panel in September 2021 was “not an invitation that could be rejected or ignored.
“Mr. Bannon had an obligation to appear before the House Select Committee to give testimony and provide documents. His refusal to do so was deliberate and now a jury has found that he must pay the consequences,” Graves said.
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
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