Steve Bannon’s Attorney Tells Appeals Court Contempt of Congress Trial Was Unconstitutional

Former White House chief strategist Steve Bannon looks on as his attorney David Schoen speaks to reporters outside the Federal District Court House in Washington, on July 21, 2022. Anna Moneymaker/Getty Images

A three-judge panel in the D.C. Circuit Court of Appeals heard arguments on Nov. 9 as to whether it should overturn former White House adviser Steve Bannon’s conviction for defying subpoenas in Congress’s investigation of the events on Jan. 6, 2021.

Mr. Bannon’s attorney, David Schoen, argued that the court had wrongly excluded evidence surrounding another attorney advising Mr. Bannon that he didn’t have to comply with the subpoenas because former President Donald Trump had invoked executive privilege.

His argument rested on the principle of mens rea, or the idea that a defendant had knowledge they were committing a crime before doing so.

Mr. Bannon, Mr. Schoen argued, shouldn’t be held liable for following instructions from his own attorney when he was subpoenaed.

“At a bare minimum, it’s required that the defendant know or understand that his or her conduct was unlawful or wrong,” Mr. Schoen told the court.

He added that “Mr. Bannon acted in the only way he believed and understood from his lawyer that the law permitted him ... to behave in response to the subpoena.”

The Justice Department contended that Mr. Bannon was properly convicted, President Trump didn’t actually invoke executive privilege, and that the attorney’s advice was irrelevant to mens rea.

Mr. Bannon only needed to deliberately and intentionally defy the subpoena, DOJ attorney Elizabeth Danella argued.

David Schoen, attorney for Steve Bannon, speaks to the press outside the E. Barrett Prettyman federal courthouse in Washington on Nov. 9, 2023. Madalina Vasiliu/The Epoch Times

She also argued that Mr. Bannon had reason to question his attorney’s advice and noted that the Jan. 6 committee’s chair, Rep. Bennie Thompson, had rejected the assertion of privilege.

It’s unclear how the court will rule but one of the judges, Judge Justin Walker, told the government he was inclined to believe its position on whether the lower court should have included certain evidence.

He also asked Ms. Danella whether it was appropriate for a prosecutor in the lower court to argue that Mr. Bannon had no justification for defying the subpoena.

Judge Walker said: “If you’re right, and I think you probably are, the district court properly kept out any of Bannon’s defenses about his kind of subjective state of mind, the reasons why Bannon did what he did—if the district court tells Bannon you’re not allowed to tell the jury your reasons, it’s a little odd for the government to be able to tell the jury he had no reasons.”

Ms. Danella responded by arguing that “given the state of the case law, that was a legally correct argument” on the part of the government.

Mr. Bannon was sentenced on Oct. 21, 2022, to four months in prison and ordered to pay a $6,500 fine.

Prosecutors had asked for a six-month sentence and $200,000 in fines.

U.S. District Judge Carl Nichols allowed Mr. Bannon to defer his sentence pending appeal.

Former Trump White House senior adviser Steve Bannon speaks to the media after being sentenced at federal court in Washington on Oct. 21, 2022, in a still from a video released by NTD. Iris Tao/NTD

While speaking outside the courthouse on Nov. 9, Mr. Schoen said that if Mr. Bannon lost with the three-judge panel, he would ask the court to review en banc or with all the judges from the court.

Judge Nichols had granted the government’s motion to exclude evidence surrounding advice from Mr. Bannon’s counsel in April of 2022.

In his order, he cited the appellate court’s decision in Licavoli v. United States, which ruled that relying on the advice of counsel was “no defense” for not appearing before a congressional committee.

Mr. Schoen had told the appellate court in May that the district court violated Mr. Bannon’s rights under the Fifth and Sixth Amendments to the U.S. Constitution.

He also asked the court to reconsider its ruling in Licavoli, saying the case “cannot be reconciled with subsequent jurisprudence.”

Mr. Bannon hosts “The War Room,” a show on Real America’s Voice. He served in key roles in both President Trump’s White House and 2016 presidential campaign.