Steve Bannon Files Emergency Request to Supreme Court to Stay Out of Prison

Former Trump White House senior adviser Steve Bannon speaks to journalists in Washington, on Oct. 21, 2022. (Chip Somodevilla/Getty Images)

Steve Bannon on June 21 asked the U.S. Supreme Court to delay his prison sentence as his appeal of a contempt of Congress conviction works its way through the court system.

“If Mr. Bannon is denied release, he will be forced to serve his prison sentence before this Court has a chance to consider a petition for a writ of certiorari, given the Court’s upcoming summer recess,” lawyers for Mr. Bannon said in the emergency motion.

Mr. Bannon, 70, who was an adviser to President Donald Trump, was convicted in 2022 of contempt of Congress and sentenced to four months in prison.

He had been allowed to remain free pending an appeal, but after the U.S. Court of Appeals for the District of Columbia Circuit in May rejected his appeal, a judge recently ordered him to report to prison on July 1.

Mr. Bannon asked the appeals court to stay the sentence, but a split panel said on June 20 that Mr. Bannon’s request “does not warrant a departure from the general rule that a defendant ’shall ... be detained' following conviction and imposition of a sentence of imprisonment.”

Defendants can remain free if they raise a “substantial question of law or fact likely to result in reversal [or] an order for a new trial” and Mr. Bannon had done that, U.S. District Judge Carl Nichols said previously. However, in light of the appeals court ruling, that was no longer the case, Judge Nichols said on June 6.

He gave Mr. Bannon leave to seek a stay of his order, which, if granted, would delay the prison sentence.

Mr. Bannon has said he was relying on counsel when he declined to cooperate with congressional subpoenas. In an emergency motion to the appeals court, his lawyers said that there is a substantial question surrounding whether people who rely on the advice of counsel can be prosecuted under a law that bars “willfully” not complying with subpoenas from the U.S. House of Representatives or Senate.

In Licavoli v. United States, a 1961 ruling, the appeals court concluded that deliberately refusing to abide by congressional subpoenas was a violation of the law. That a defendant did so “upon the advice of a lawyer is no defense,” the court said at the time.

While both Judge Nichols and an appeals court panel cited Licavoli in denying Mr. Bannon’s arguments, Mr. Bannon’s lawyers said that the Supreme Court would likely reject the precedent if presented with the case.

“Licavoli’s interpretation of ‘willfully’ is contrary to this court’s precedent and canons of construction,” they wrote in the emergency motion.

Prosecutors have said that Mr. Bannon has failed to show that he’s raised a substantial question of law or fact, as is required.

U.S. Circuit Judges Cornelia Pillard and Bradley Garcia on Thursday said that the Supreme Court “has treated the willfulness requirement of the contempt of Congress statute in ways that ‘firmly support ... Licavoli’s holding.’”

They added later: “Bannon’s proposal—that to prove willful default the government must establish that the witness knew that his conduct was unlawful—cannot be reconciled with the Supreme Court’s approach to the statute. If an assertion of good-faith reliance on advice of counsel excused a witness’s wholesale noncompliance, even as it is plainly unavailable to a more cooperative witness who appears but refuses to answer certain questions, Congress’s power of inquiry would be ‘nulli[fied].’”

In a dissent, U.S. Circuit Judge Justin Walker wrote that the Supreme Court could very well end up ruling in favor of Mr. Bannon.

“For a court unbound by Licavoli, like the Supreme Court, the proper interpretation of ‘willfully’ in Section 192” is “a ‘close’ question or one that very well could be decided the other way,” he said. Due to this, “Bannon should not go to prison before the Supreme Court considers his forthcoming petition for certiorari,” or appeal, the judge added.