U.S. officials on May 14 asked a federal judge to order Steve Bannon, an ex-adviser to former President Donald Trump, to prison.
Mr. Bannon was convicted of contempt of Congress in 2022 and sentenced to four months in prison, but his sentence has been on hold due to his appeal of the conviction.
A U.S. Court of Appeals for the D.C. Circuit panel on Friday upheld the conviction, ruling against Mr. Bannon.
A lawyer representing Mr. Bannon said that he would be asking the full appeals court to consider the case, but U.S. Department of Justice (DOJ) lawyers said Tuesday that “there is no legal basis” to keep Mr. Bannon’s sentence on pause.
The request was submitted to U.S. District Judge Carl Nichols, who stayed the sentence in 2022 because he found that Mr. Bannon was raising “a substantial question of law that is likely to result in a reversal or an order for a new trial.”
The substantial question centers on how to determine if a defendant intentionally defies a congressional subpoena and what evidence the defendant should be able to introduce, Judge Nichols, an appointee of President Trump, said at sentencing. “This case also raises substantial questions about the effect of the congressional subpoena recipients, invocation of the Speech or Debate Clause, and questions regarding whether and to what extent the Committee was formed and operate[s] in compliance with its rules,” he said at the time.
Mr. Bannon was subpoenaed by the since-disbanded U.S. House of Representatives panel investigating the Jan. 6, 2021, breach of the U.S. Capitol but declined to provide documents or testimony because he was directed by his lawyer not to comply. The lawyer said that President Trump invoked executive privilege, and the matter of privilege would have to be worked out before Mr. Bannon cooperated.
“Long-standing constitutional principles, exhaustively recognized and identified by the Department of Justice for decades in binding opinions, make clear that any such definition when executive privilege has been invoked, violates the fundamental doctrine of separation of powers. It is the president’s or a former president’s prerogative to determine when and over what to invoke executive privilege and only a court, not a committee issuing the subpoena, can be the arbiter of whether executive privilege applies and how far its breadth extends,” David Schoen, who is representing Mr. Bannon, told The Epoch Times in an email.
“It is unconscionable to hold a private citizen criminally liable for responding to a subpoena in the manner his lawyer told him is the only manner the law permits and especially when a constitutional principle like executive privilege is involved,” Mr. Schoen added.
The appeals court panel said that the defense of citing legal counsel “is no defense at all.”
“As both this court and the Supreme Court have repeatedly explained, a contrary rule would contravene the text of the contempt statute and hamstring Congress’s investigatory authority. Because we have no basis to depart from that binding precedent, and because none of Bannon’s other challenges to his convictions have merit, we affirm” the conviction, U.S. Circuit Judge Bradley Garcia, an appointee of President Joe Biden, wrote for the unanimous panel.
There are two steps that Mr. Bannon can take following the rejection. He can ask the full appeals court to consider the case or hold an en banc session. He can also take the matter to the U.S. Supreme Court.
Mr. Schoen said that Mr. Bannon and his representatives planned to ask the full appeals court to consider the case.
The DOJ officials said that, regardless of which steps Mr. Bannon takes, he should be ordered to report to prison.
They noted that federal law requires a person found guilty and sentenced to a term of imprisonment to be detained as an appeal is considered unless “the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal.”
Officials did not challenge Judge Nichols’ initial finding that Mr. Bannon raised “a substantial question of law,” but stated that, in light of the new ruling, there is no longer such a question.
“The D.C. Circuit rejected defendant’s appeal on all grounds, including the primary argument on appeal: the requisite mental state required for a contempt of Congress violation,” DOJ lawyers wrote. “Consequently, there is no longer a ’substantial question of law that is likely to result in a reversal or an order for a new trial.‘ Under these circumstances, the court ’shall order’ defendant ‘be detained,’ so the stay of sentence must be lifted.”
Judge Nichols has not yet reacted to the request.
The appeals court panel stayed the issuance of its mandate until seven days after the disposition of a petition for rehearing or for rehearing by the full court. The DOJ acknowledged that stay but said it “does not divest” Judge Nichols of his authority to lift the stay of the sentence.
Peter Navarro, another former adviser to President Trump, started serving his contempt of Congress sentence in March after U.S. District Judge Amit Mehta, an appointee of former President Barack Obama, denied his request to postpone the sentence pending appeal.
The decision was upheld by the District of Columbia Court of Appeals and the Supreme Court.
