A federal judge ruled Wednesday that former Trump adviser Steve Bannon cannot argue not guilty in his contempt of Congress trial because he was following the advice of his attorney.
U.S. District Judge Karl Nichols said such defense is not available in the congressional contempt case, representing a major setback for Bannon’s defense. He faces trial in July.
“It’s a serious blow, because he has no other good defense,” said Joyce Vance, a former federal prosecutor. “He will now have to make a decision about whether to go ahead with the trial or try to strike some kind of deal.”
Bannon was indicted in November by a federal grand jury on two counts of contempt of Congress for refusing to answer questions from the House committee investigating the January 6 riots. One of the two counts accused him of refusing to appear for the statement, and the other of refusing to submit documents requested by the commission.
If convicted, Bannon, 68, could be sentenced to one year in prison and a fine of up to $100,000.
Robert Costello, one of Bannon’s attorneys, told the Jan. 6 commission last fall that his client would not comply with the subpoena. In a letter, he said, former President Donald Trump chose to confirm the executive privilege and encourage his former aides not to disclose anything the franchise might include.
On the day Bannon was charged, another of his attorneys, David Schoen, said the attorney’s advice would be important. “Mr. Bannon acted as his lawyer advised him not to appear and not turn over documents in this case. He did not refuse to comply, he made it very clear that if ordered by the court to comply, he would.
“The average person should, in my view at least, follow the advice of his attorney when faced with a subpoena – he knows nothing of the legal process otherwise. He relies on a lawyer and the lawyer has given the advice,” Schwinn said.
Obtaining a conviction for any crime requires proof of improper intent, and some federal courts have ruled that a good faith reliance on an attorney’s advice is a full defense in a criminal contempt action. But Nichols said the US Court of Appeals for the District of Columbia has ruled otherwise.
In the 1961 case, the Court of Appeals said, “Reliance on counsel’s advice is not a defense of a charge of refusing to answer a question…. all that is required… is a deliberate intent to perform the act. Counsel’s advice does not fortify this simple intent.”
Bannon’s attorney argued that his case was different because it also involved the issue of executive privilege, but Nichols said that made no difference to the question of Bannon’s intent.
In a statement on Wednesday, Schwinn said the Supreme Court ruled in 2020 that executive privilege applies in response to a legislative subpoena, and that the 1961 decision on which the Court of Appeals relied is impossible to reconcile with that principle.
Applying this standard to Bannon’s case, Schoen said, “in effect gives Congress a veto against the executive branch’s invocation of executive privilege, and that creates a very serious separation of powers problem.”
He said Bannon’s lawyers will argue at trial that contempt of the Congressional Act is unconstitutional.
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