United States v. Stephen Bannon
101 F.4th 16 (2024)
Rule of Law:
Under the contempt of Congress statute (2 U.S.C. § 192), a defendant acts 'willfully' if they deliberately and intentionally refuse to comply with a subpoena; rely upon the advice of counsel is not a valid defense to this charge.
Facts:
- Following the January 6, 2021 attack on the U.S. Capitol, the House of Representatives established a Select Committee to investigate the events.
- Stephen Bannon, a former advisor to President Trump, had predicted on a podcast the day before the attack that 'all hell is going to break loose.'
- Believing Bannon held relevant information, the Select Committee issued a subpoena on September 23, 2021, requiring him to produce documents and appear for a deposition.
- After the first deadline passed, Bannon's lawyer informed the Committee that Bannon would not comply, citing a potential claim of executive privilege by former President Trump.
- The Committee responded that no formal privilege had been asserted and that, regardless, privilege would not justify a total failure to appear or produce non-privileged documents.
- Concurrently, former President Trump's lawyer, Justin Clark, informed Bannon's legal team that Trump did not claim immunity for Bannon regarding testimony.
- Bannon deliberately failed to appear for his deposition or provide any documents by the mandated deadlines.
Procedural Posture:
- The House Select Committee recommended the House find Bannon in contempt.
- A federal grand jury indicted Bannon on two counts of contempt of Congress under 2 U.S.C. § 192.
- Bannon moved to dismiss the indictment in the U.S. District Court for the District of Columbia, arguing he lacked the required mental state due to advice of counsel.
- The District Court denied the motion to dismiss and precluded Bannon from presenting the 'advice of counsel' defense at trial.
- A jury in the District Court found Bannon guilty on both counts.
- The District Court sentenced Bannon to four months of incarceration and a fine, but stayed the sentence pending appeal.
- Bannon appealed the conviction to the U.S. Court of Appeals for the District of Columbia Circuit.
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Issue:
Does the term 'willfully' in 2 U.S.C. § 192 require the government to prove the defendant acted in bad faith with knowledge that his conduct was unlawful, thereby making 'advice of counsel' a valid defense?
Opinions:
Majority - Circuit Judge Garcia
No, the term 'willfully' in the contempt of Congress statute does not require proof of bad faith, nor does it permit a defense based on advice of counsel. The Court affirmed the lower court's ruling, relying heavily on the binding precedent of Licavoli v. United States (1961). The Court explained that 'willfully' in this specific context simply means a deliberate and intentional failure to respond to a subpoena, rather than an act done with an 'evil motive' or specific knowledge of illegality. The Court reasoned that requiring proof of bad faith would undermine Congress's investigatory power, turning a subpoena into a 'game of hare and hounds.' Consequently, Bannon’s argument that he relied on his lawyer’s advice was irrelevant to the question of intent. Furthermore, the Court rejected Bannon's 'public authority' defenses, noting that neither the former President nor the Department of Justice had actually authorized his refusal to comply. Finally, the Court ruled that Bannon forfeited his procedural objections regarding the Committee's composition by failing to raise them directly to the Committee at the time of the subpoena.
Analysis:
This decision reinforces the strength of congressional subpoena power by strictly limiting the available defenses for non-compliance. By reaffirming Licavoli, the D.C. Circuit clarified that the high mens rea (mental state) standard applicable to complex regulatory crimes (like tax or firearms violations) does not apply to contempt of Congress. Practically, this prevents future witnesses from using 'advice of counsel' or vague claims of executive privilege as a shield to delay or avoid congressional inquiries. It establishes a bright-line rule: if a witness knows they have been subpoenaed and deliberately chooses not to show up, they have committed the crime, regardless of their lawyer's legal theories.
