Steve Bannon, a close ally of former President Donald Trump, is asking a federal judge to release him from prison early based on factors he said indicate a likely appeal before the full U.S. Court of Appeals for the D.C. Circuit.
More specifically, he’s requesting bail pending appeal or “a term of supervised release of just a few days.”
“Mr. Bannon’s case presents compelling circumstances because of the subsequent developments ... namely the realistic prospect that the D.C. Circuit will grant en banc or issue dissents from denial on the core issue in this case, either of which would demonstrate this case raises substantial issues and that Mr. Bannon should not have to serve his entire sentence before the en banc D.C. Circuit or Supreme Court can hear his case,” his attorneys said in a filing.
Bannon is serving time in federal prison after a jury convicted him of contempt of Congress for refusing to comply with a subpoena from the House Jan. 6 Committee.
He began his sentence in July after a three-judge panel rejected his appeal claiming that he was following the advice of his attorney in refusing to cooperate with the House committee.
Both the Supreme Court and D.C. Judge Carl Nichols, who presided over Bannon’s trial, denied requests to avoid starting his four month sentence.
During an oral argument in November, Bannon’s attorney emphasized the role of mens rea, or the legal concept that a defendant knew their conduct was wrong.
The panel held in May that Bannon’s argument was “no defense at all” when it came to avoiding liability for “willfully” defying Congress’ subpoena.
He is set to be released from prison at the end of October.
Bannon’s Aug. 29 filing pointed to how his en banc petition had been pending since July 15 while the government’s response had been pending for 29 days.
“Looking at D.C. Circuit cases where the Court ordered a response to an en banc petition in the last 20 months, the longest it then took the Court to summarily deny en banc was 25 days [measured from when the response was filed],” his attorneys said.
“The average such time for summary denial was a mere 16.3 days, and sometimes it was as short as [eight] days.”
They said the delay was consistent with two outcomes: “Either the D.C. Circuit will grant rehearing, or there will be a denial accompanied by a written dissent.”
His attorneys argued that either a grant of the petition or dissent was enough to show that reasonable minds could differ over the mens rea issue—thereby demonstrating a substantial enough development for the court to reconsider its previous decision about bail.
Bannon entered prison just months after Peter Navarro, a former Trump White House adviser, started his four-month sentence for defying the same House committee.
That case focused on Trump’s alleged assertion of executive privilege for Navarro.
D.C. District Judge Amit Mehta ruled that Navarro failed to provide adequate evidence the privilege had been extended.
Both former advisers have unsuccessfully sought emergency relief before the U.S. Supreme Court.
He clarified, however, that the release proceeding was distinct from his pending appeal on the merits.
