Steve Bannon at CPAC on February 24, 2024. (Zach D Roberts/NurPhoto via AP).
Former Donald Trump White House senior strategist Steve Bannon would really like to get out of federal prison, and soon, according to a bail motion filed in federal court on Thursday afternoon.
In a 12-page filing with the U.S. District Court for the District of Columbia, Bannon’s newest attorney, R. Trent McCotter, who just joined the case on Thursday, asked the court to reimpose bail pending appeal — citing new “developments” and “significant events.”
The latest bid to keep his prison stay short-lived comes roughly two months into a four-month prison sentence for contempt of Congress. Bannon reported to federal prison in Danbury, Connecticut, on July 1 and is slated to be released just before Election Day in November.
In the alternative, Bannon’s new motion asks the court to allow him to serve the remainder of his sentence via supervised release.
The defendant has tried and failed, on numerous occasions, to remain out of prison and/or cut down his time behind bars.
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; he was subsequently sentenced to four months in prison that same October. At first, Trump-appointed U.S. District Judge Carl Nichols allowed Bannon a substantial amount of latitude — allowing him to remain free as he appealed his sentence and conviction.
Eventually, all relevant levers of the judicial system were pulled and tried — from the D.C. Court of Appeals to the U.S. Supreme Court in the form of an emergency request — and, in the end, Bannon’s appeal was finally and fully rejected.
Between the appellate and high court’s rejection, Nichols pointedly mused that Bannon was simply not likely to succeed, and the judge obliged the government’s request to revoke his bail on June 6.
The heart of Bannon’s efforts to stay out of prison has long rested on the idea that bad precedent was used in his case. This precedent, the 1961 Supreme Court case of Licavoli v. United States, stands for the proposition that on the advice of counsel, defense is simply not available to a defendant facing a contempt of Congress charge.
Bannon claims his defiance of subpoenas issued by the since-defunct House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol was not simply to frustrate investigators but because the requests implicated executive privilege.
The defendant says he was instructed by his lawyer to wait for a higher court’s ruling on those privilege issues because the information requested by the committee concerned his work as “a former executive branch official” serving under the 45th president.
“He could not inform the jury about what actually happened — i.e., that he relied in good faith on his lawyer’s advice and believed his actions were in compliance with the law — even though this allowed the government to argue with impunity to the jury that Mr. Bannon had ‘ignore[d]’ the subpoena and ‘thumb[ed] his nose’ at the Select Committee,” an earlier defense motion argued.
In other words, Bannon has consistently maintained he lacked the mens rea — or mental state — to actually commit a crime.
Notably, this line of attack essentially reprises arguments that have squarely and repeatedly found no favor in the court system so far.
In denying the defendant his preferred defense, Nichols, a Trump appointee, said he was bound by precedent that defined the term “willfully” in the contempt of Congress statute as “intentionally.”
In early May, a three-judge panel on the D.C. Court of Appeals endorsed Nichols’ understanding of the “willfully” precedent.
But Bannon has since asked the full D.C. Court of Appeals for an en banc hearing — a hearing in which the entirety of the judges on the bench review the panel’s earlier order.
And since then, the new bail motion says, one of the three appellate court panel judges has changed his mind about Licavoli.
“A member of the May 10 D.C. Circuit panel decision — Judge Walker — has now written separately and articulated that he indeed does have concerns with Licavoli and that he had joined the panel opinion, at least in part, simply because he concluded Licavoli was binding, not because he thought it was correct or that the Supreme Court would agree with it,” the new motion reads.
Bannon’s filing explains the apparent volte-face at length:
Judge Walker’s June 20, 2024, dissent from the denial of release pending appeal stated that “the panel felt obliged to disregard the Supreme Court’s ‘general rule’ [regarding the meaning of ‘willfully’ in criminal statutes] because Licavoli remained binding in this Circuit.” “For a court unbound by Licavoli, like the Supreme Court, the proper interpretation of ‘willfully’ in [the federal contempt law] is ‘a close question or one that very well could be decided the other way.””
Judge Walker’s dissent concluded: “Because the Supreme Court is not bound by Licavoli, because Licavoli’s interpretation of ‘willfully’ is a close question, and because that question may well be material, Bannon should not go to prison before the Supreme Court considers his forthcoming petition for certiorari.”
Bannon also argues another recent development supports his bail request. In late July, the D.C. Court of Appeals asked the Department of Justice to offer their opinion on the meaning of ‘willfully’ in 2 U.S.C. §192 and whether we should revisit Licavoli v. United States.”
“Calling for a response is rare — the D.C. Circuit has done so in only seven other cases (two of which are related) during the entirety of 2024,” Bannon’s new filing argues. “This alone signals the substantiality of the mens rea issue.”
All of this newfound confusion about the statute and the precedent is enough to grant the defendant his liberty as the appeals process moves forward, the new motion argues. This conclusion hinges on some language the district court used about how well Licavoli might fare in the months and years to come.
The filing cites the following comments by Nichols:
For example, this Court said, “Well, the one thing we know is that no one wrote separately to say, Hey, I’m bound by Licavoli, but I’m not so sure about it.” And the Court later stated, “[N]o one wrote separately to say something like, I am bound by Licavoli, but I have concerns about it.” And in announcing its decision, the Court referenced the fact that it was tying Mr. Bannon’s surrender date to “a week after the en banc petition is due.”
“Accordingly, these significant developments, which post-date the revocation of bail, demonstrate that circumstances have changed and that bail should be reimposed,” the new motion continues. “As indicated at the June 6, 2024, hearing, the statutory inquiry is whether there is a substantial question, and it is sufficient that a judge of the original panel has now expressed concerns.”
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