Court of Appeals denies Steve Bannon's emergency bid to avoid prison

Written by Zachary Stieber via The Epoch Times,

On June 20, a federal appeals court denied Steve Bannon's emergency request to delay his prison sentence.

In a split decision, a panel of the United States Court of Appeals for the District of Columbia Circuit said this The request of Mr. Bannon “does not justify a departure from the general rule that a defendant 'must be detained' after conviction and imposition of a prison term.”

Mr Bannon, 70, who was an adviser to President Donald Trump, was convicted of contempt of Congress and sentenced to four months in prison.

He was allowed to remain free pending an appeal, but after the appeals court in May rejected his appealthe judge recently ordered him report to jail July 1.

Defendants can remain free if they raise a “substantial question of law or fact that could give rise to reversal.” [or] an order for a new trial” and Mr. Bannon had done so, U.S. District Judge Carl Nichols previously said. However, in light of the appeals court decision, that was no longer the case, Judge Nichols said on June 6.

It gave Mr Bannon permission to seek a stay of his order, which, if granted, would delay the jail term.

Bannon has said he trusted a lawyer when he refused to cooperate with congressional subpoenas. In an emergency motion to the appeals court, his lawyers said there is a substantial question whether people who rely on the advice of a lawyer can be prosecuted under a law that prohibits failing to “voluntarily” comply with subpoenas from the US House of Representatives or Senate.

In Licavoli v. United States, a 1961 ruling, the appeals court concluded that deliberately refusing to comply with congressional subpoenas was a violation of the law. That a defendant did so “on the advice of counsel is no defense,” the court said at the time.

Although both Judge Nichols and an appeals court cited Licavoli to reject Mr. Bannon, lawyers for Mr. Bannon said the Supreme Court would likely reject the precedent if it came up with the case.

“As the court recognized, the Supreme Court has since emphasized the “general'' rule that “willfully'' means that a defendant must act with “knowledge that his conduct was unlawful,'' an interpretation that favors strongly Mr. Bannon.” they wrote

“But the court felt compelled to ignore the Supreme Court's 'general' rule because of the sixty-year-old Licavoli decision. The Supreme Court is not so bound, however, and there is at least a good chance that the court adheres to its general rule—and adopts Mr. Bannon's interpretation of § 192—which necessarily makes the issue “substantial.”

Prosecutors, on the other hand, urged the court to deny Mr. Bannon, asserting that he has not shown that he has raised a substantial question of law or fact as required.

U.S. Circuit Judges Cornelia Pillard, an appointee under President Barack Obama, and Bradley Garcia, an appointee of President Joe Biden, sided with the government.

Mr. Bannon “argues that the Supreme Court, or this full court, is likely to overturn our fully applicable decision in Licavoli v. United States,” they said. But the justices said the nation's highest court “has treated the will requirement of the contempt of Congress statute in a way that “strongly supports … the Licavoli decision.''

They later added: “Bannon's proposition, that to prove willful misconduct, the government must establish that the witness knew his conduct was unlawful, cannot be reconciled with the approach of the statute of Supreme Court.Whether an assertion of good faith reliance on counsel's advice would excuse a witness's complete failure to comply, even if he is clearly unavailable to a more cooperative witness who appears but refuses to answer certain questions, the investigative power of Congress would be “void.”[fied].'”

In a dissent, US Circuit Judge Justin Walker, an appointee of President Trump, wrote that the Supreme Court could end up ruling in favor of Mr Bannon.

“For a court not bound by Licavoli, such as the Supreme Court, the proper interpretation of “voluntarily'' in Article 192 is “a close question'' or one that might very well be decided differently,” he said. Because of this, “Bannon should not go to jail before the Supreme Court considers his next petition for certiorari,” the judge added.