The jury unanimously agreed that Bannon failed to comply with a Sept. 23, 2021, subpoena to provide documents and to testify before the House Jan. 6 Committee last fall.
The jury had little choice, Bannon acknowledged after the verdict was rendered and before leaving the E. Barrett Prettyman U.S. District Courthouse in Washington on pre-sentencing probation.
During a July 11 pretrial hearing, Trump-appointed U.S. District Judge Carl Nichols said he would strictly adhere to a 61-year-old precedent that precludes “advice from counsel” as a defense in contempt-of-Congress charges.
“What’s the point of going to trial here, if there is no defense?” exasperated Bannon attorney David Schoen asked Nichols a week before the trial began.
“Exactly,” the judge responded.
Defense attorneys wanted to argue that Bannon was following then-attorney Robert Costello’s advice in claiming his client was prohibited from complying with the subpoena because his interactions with Trump were shielded by executive privilege.
That argument proved to be wrong, as ensuring court rulings determined, but Bannon—and Costello—maintained he wouldn’t comply last fall until those then-pending cases were resolved.
Defense attorneys wanted to argue that Bannon shouldn’t be punished for “listening to his lawyer,” who held a legal opinion that was later rejected in court. But they couldn’t say that, not in front of the jury, anyway.
With that restriction on Bannon’s defense, the outcome appeared predestined. Most expected the trial to be over within three days—a swift proceeding planted with tripwires for a certain appeal.
Many believed jury selection would consume more time than testimony. Prosecutors had only two witnesses. The defense didn’t have a defense; its subpoena to call House Jan. 6 Committee Chair Rep. Bennie Thompson (D-Miss.) to the stand was quashed by Nichols.
And when it became apparent that Bannon wouldn’t testify in the case, many were deflated—there would be no elephant at this circus.
In the end, the trial unfolded exactly as expected—with guilty verdicts on both counts. It also, however, went longer and featured unanticipated twists and ploys, inducing sustained objections and extensive sidebar discussions, all setting what appears to be a well-built stage for the promised appeal to the U.S. Court of Appeals for the District of Columbia.
While Bannon never took the stand before the jury, he held court outside chambers on the sidewalk on Constitution Avenue each afternoon—the elephant was making noise at the circus, just not under the Big Top.
Under the pretrial rulings, Bannon’s only defense was that he didn’t understand the subpoena deadlines or thought they were “malleable” because he believed, as with other witnesses called by the Jan. 6 committee and other congressional panels, there often are negotiations, an “accommodation process,” in responding to subpoena demands.
There was no such “accommodation process” in Bannon’s case, prosecutors proved.
Defense attorneys pointed to several alleged technical errors in the process for serving subpoenas and said Thompson’s signature on the indictment is “not the same” as on the subpoena and letters between Costello and the panel, implying it might have been forged.
They were thin gambits in a “no-defense defense,” grasping straws not as real claims, but as conduits to backdoor introductions of executive privilege and advice-from-attorney arguments, which Nichols allowed, to a point.
When prosecutors requested to enter redacted versions of letters between Costello and the Jan. 6 committee as evidence, Nichols agreed, but required that the letters be shown to the jury in their entirety.
Those letters raise the executive privilege discussion and could indicate that Bannon may have believed his attorney and the committee were negotiating terms of his compliance.
Licavoli appealed, claiming he was relying on advice from counsel when he didn’t appear. A decade later, a three-judge panel of the D.C. Circuit Court of Appeals—including courthouse namesake E. Barrett Prettyman—upheld his contempt of Congress conviction, ruling that “listening to your lawyer” may be a legal defense in virtually any crime, but not for contempt of Congress.
Despite abiding by that 61-year-old precedent, Nichols allowed Bannon’s attorneys on several occasions to oh-by-the-way refer to their planned defenses before he shut them down at specific junctures that are certain to be pinpointed in transcripts on appeal.
Nichols himself expressed doubt about the Licavoli ruling surviving on appeal.
“I was bound by D.C. Circuit precedent that I’m not even sure is right,” he said on the trial’s next-to-last day when the jury’s only appearance was to be dismissed for the day.
Prosecutors raised objections to Bannon’s allegedly orchestrating a “political circus” outside the courtroom and his attorneys’ muffled references to partisan motivations of Jan. 6 committee members.
Nichols implored jurors to forget those references and to focus exclusively on whether Bannon did or didn’t comply with deadlines in the subpoena.
Jurors in essence were asked to forget this wasn’t happening in Washington, that this subpoena wasn’t from a special congressional committee that more than 200 members of Congress say is illegitimate, that this wasn’t Steve Bannon, and that they weren’t told—at defense attorney Evan Corcoran’s suggestion—to “put January 6 out of your heads.”
Leaving the courthouse following his conviction, Bannon said, “We may have lost this battle here today, but we didn’t lose the war.”
He pointed to a statement by the prosecution in its closing that he chose to stand with Trump rather than comply with the committee’s subpoena. He said he’d say so again today.
And he did.
“I stand with President Trump and the Constitution, and I always will,” he said.
Schoen said he will file “a bulletproof appeal” that, among the “advice from attorney” component, will also focus on the interpretation of “willful” that jurors had to use while deliberating.
Schoen said the ruling could have significant ramifications for those accused of crimes “without knowing or believing they did anything wrong” and relying on an attorney’s counsel to defend themselves.
“They won the case in closing today,” he said, “and lost the appeal in closing today.”
Bannon is free until his Oct. 21 sentencing hearing. On each count, he faces maximum fines of up to $100,000 and a maximum of 12 months in prison.
Another former Trump aide, Peter Navarro, faces two similar contempt of Congress charges for failing to comply with a Jan. 6 Committee subpoena. His trial is scheduled for Nov. 17 before U.S. District Judge Amit Mehta in the same courthouse in which Bannon was convicted.