United States v. Stephen Bannon (ORDER IN SLIP OPINION FORMAT)
101 F.4th 16
D.C. Cir.2024Background
- In September 2021, the House Select Committee investigating the January 6th attack on the U.S. Capitol subpoenaed Stephen Bannon for documents and testimony.
- Bannon did not comply with the subpoena, citing communications from former President Trump’s counsel about executive privilege and relying on advice from his own counsel.
- The Select Committee informed Bannon that there was no valid legal basis or formal assertion of executive privilege excusing total noncompliance and warned him of potential prosecution.
- Bannon was indicted for contempt of Congress under 2 U.S.C. § 192 for willfully failing to appear and provide documents.
- At trial, Bannon was found guilty on two counts and sentenced to concurrent four-month incarcerations and a fine, with his sentence stayed pending appeal.
- On appeal, Bannon raised challenges regarding the statute’s mental state requirement, purported government authorization, the validity of the subpoena, and exclusion of evidence/subpoenas by the trial court.
Issues
| Issue | Bannon's Argument | Government's Argument | Held |
|---|---|---|---|
| Definition of "willfully" in § 192 | Must require bad faith; good-faith reliance on counsel negates guilt | Only requires deliberate and intentional noncompliance | "Willfully" means deliberate, intentional; good-faith advice is not a defense |
| Government Authorization Defenses | Actions authorized by Trump’s counsel/OLC opinions or apparent authority | No affirmative authorization by Trump or OLC; at most, advice of counsel | No government authorization shown; OLC/Trump’s lawyer did not approve total noncompliance |
| Validity of Select Committee Subpoena | Lacked legislative purpose; issued for improper motives; procedural defects | Committee had valid legislative purpose; procedural defects were forfeited | Subpoena valid; improper motive not grounds for challenge; procedural issues forfeited |
| Exclusion of Evidence and Trial Subpoenas | Quashing denied relevant defense evidence, violating rights | Sought irrelevant information not material to case/defenses | No error; information sought not material to any viable defense |
Key Cases Cited
- Licavoli v. United States, 294 F.2d 207 (D.C. Cir. 1961) ("Willfully" in § 192 means deliberate and intentional, not bad faith; advice of counsel is no defense)
- Sinclair v. United States, 279 U.S. 263 (1929) (Section 192 violation requires only intentional violation; good faith not a defense)
- Quinn v. United States, 349 U.S. 155 (1955) (Congressional contempt statutes require deliberate refusal, not bad faith)
- Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975) (Court does not examine Congress’s motives for legislative acts)
- Helen Bryan v. United States, 339 U.S. 323 (1950) (Failure to raise procedural defects with committee is a forfeiture and bars later defense)