Steve Bannon, host of War Room, closes out the final day of CPAC on Feb. 24, 2024. (Photo by Zach D Roberts/NurPhoto via AP)
There is nothing Steve Bannon has to say that is relevant to his efforts in order to avoid a fast-approaching stay in federal prison, prosecutors argued in a Wednesday filing with the U.S. Supreme Court.
In the government’s response in opposition to the defendant’s application for release pending appeal, Solicitor General Elizabeth Prelogar argues the defendant has not met and cannot meet the “demanding” legal standard required for such “extraordinary relief.”
Last week, Bannon filed an emergency motion asking the nation’s high court to keep him out of prison after he was denied the same in a 2-1 ruling by the U.S. Court of Appeals for the District of Columbia.
In response, the government says there’s simply no matter of real dispute in the case that would result in the defendant’s victory.
“Applicant’s principal contention is that he is likely to obtain reversal of his convictions or an order for a new trial from this Court because the lower courts misinterpreted the mental state required to convict him of the charged offenses,” Prelogar says. “That contention lacks merit.”
Bannon was convicted by a jury in July 2022 on two counts of contempt of Congress for defying a subpoena for documents and a deposition. The jury took less than three hours to deliberate. Before trial, U.S. District Judge Carl Nichols barred Bannon’s anticipated defenses at trial, largely finding them irrelevant to the charges.
The inability to mount his defense as he saw fit is how Bannon has framed the factual heart of his emergency petition.
“The government moved in limine to preclude Mr. Bannon from arguing, even as a defense, that he had relied in good faith on his counsel and that this reliance undercut the government’s claim that he had ‘willfully’ defaulted on the subpoena,” Bannon argued.
Bannon has long maintained that his defiance of the subpoenas issued by the since-defunct House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol was on advice of counsel.
The defendant says he was instructed by his lawyer to wait for a higher court’s ruling on executive privilege issues because the information requested by the committee concerned his work as “a former executive branch official” serving under the 45th president.
More Law&Crime coverage: Trump-appointed judge orders Steve Bannon to surrender to prison for sentence that could run right up against 2024 election
In arguing his case, Bannon says his reliance on his lawyer’s advice negated the required mental state necessary to have “willfully” flouted Congress under the relevant federal contempt statute.
To hear Bannon tell it, “willfully” in the statute must be interpreted as “bad faith.” Or, in other words, requires a prosecutor to show “the defendant must know that his conduct violated the law.”
While the contempt statute itself does not define the required mental state, the D.C. Circuit has done so in the past, defining “willfully” as “deliberate and intentional.” Bannon argued that prior interpretation, however, is both not binding on the Supreme Court and “contrary to” the high court’s “precedent and canons of construction.”
Prelogar seeks to rubbish that line of argument.
“The court of appeals correctly recognized that a defendant has the requisite mental state under Section 192 if he deliberately and intentionally refuses to comply with a congressional subpoena,” the government argues. “As a result, proof that a defendant knew that his conduct was unlawful is not required for a conviction, and reliance on the advice of counsel is not a defense. Uniform precedent from this Court supports the decision below.”
Prelogar says the case cited by D.C. courts relies on Supreme Court cases that held a person who “deliberately and intentionally” ignores a subpoena “willfully makes default” under the statute.
The government concedes the Supreme Court has defined a “willful” criminal act as one with a “bad purpose.” But, Prelogar also notes, the court has described “willfully” as “a word of many meanings’ whose construction is often dependent on the context in which it appears.”
To that end, the government trots out a quote from the late, conservative Justice Antonin Scalia to prove its point.
In a concurrence to a tax law opinion, Scalia wrote: “One may say, as the law does in many contexts, that ‘willfully’ refers to consciousness of the act but not to consciousness that the act is unlawful.”
Aside from the “willful” debate, the government says Bannon is unlikely to prevail anyway — characterizing the trial court’s rescission of his advice-of-counsel defense as “harmless error” because it likely would not have had any bearing on the outcome if it had been raised.
The government says that theoretical defense would have likely failed because the 45th president “never invoked any privilege before the committee,” and Trump’s own lawyer “disclaimed” the idea that Bannon had been directed “not to produce documents or testify until the issue of executive privilege was resolved.”
“[E]ven if applicant were entitled to assume both a grant of certiorari and acceptance of his construction of Section 192, he still has not shown a likelihood of reversal or a new trial,” Prelogar’s motion goes on. “Instead, any evidentiary or instructional error his appeal has identified, even if accepted, would be harmless, such that reversal or a new trial would not be warranted.”
Bannon, in his petition, also takes note that his four-month sentence would likely run right up against the forthcoming 2024 election.
Prelogar dismisses that point by saying it is “not a relevant factor at all under the Bail Reform Act.”
Since Bannon cannot seriously count on a court win over the merits, the government says, keeping him out of prison makes no sense — and is not in line with any federal release standard.
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