In a blow to Steve Bannon‘s legal defense against the contempt of Congress charges levied against him last fall, a federal judge ruled he cannot use an “advice of counsel” defense to justify bucking a congressional subpoena from the House committee investigating the Capitol riot.
U.S. District Judge Carl Nichols determined that a precedent set in Licavoli v. United States precludes Bannon’s attempt to argue he is shielded from criminal culpability for failing to comply with the subpoena because he was following a lawyer’s advice.
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“Licavoli remains binding, and Bannon has failed to demonstrate that it is inapplicable here. After all, Licavoli involved a prosecution under the exact statute that Bannon is charged with violating,” Nichols wrote. “The Court of Appeals expressly held that an advice-of-counsel defense is unavailable for that charge.”
Nichols green-lit federal prosecutors’ motion to exclude evidence in favor of “advice of counsel” from the trial. Bannon attempted to argue Licavoli was not binding because his situation involved the invocation of executive privilege and an interbranch dispute, while the original Licavoli case did not. He claims he was advised by his lawyer at the time, Robert Costello, not to comply with the subpoena due to the executive privilege claim.
But Nichols ultimately sided with the federal prosecutors who argued mens rea, or knowledge of wrongdoing, that took place in the Licavoli case was not situation-dependent. In other words, the circumstances in Bannon’s case did change the fact that he knew he was wrongly defying the congressional subpoena request.
“Reliance upon advice of counsel is no defense to a charge of refusing to answer a question, such reliance is not a defense to a charge of failure to respond [to a Congressional subpoena],” the Court of Appeals ruled in the Licavoli case. “Advice of counsel does not immunize that simple intention. It might immunize if evil motive or purpose were an element of the offense.”
Congress voted to hold Bannon in contempt of Congress last October for failing to appear for a deposition before the House select committee investigating the Jan. 6 riot on Capitol Hill. The contempt charge was forwarded to the Justice Department, which then proceeded to pursue criminal charges on two counts of contempt of Congress. Each charge carries between 30 days and a year in prison, as well as up to a $100,000 fine if convicted.
Bannon pleaded not guilty to both charges and insisted that former President Donald Trump’s executive privilege claim precluded him from cooperation with the committee’s requests. Prosecutors have highlighted the fact that Bannon was not a member of the Trump administration during the time period in which the committee is interested, and therefore, executive privilege did not apply to Bannon. President Joe Biden also waived Trump’s own executive privilege claims last year.
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Nichols was appointed by Trump. The case is set to head to trial on July 18 in the U.S. District Court for the District of Columbia.
Bannon is not the only Trump ally in the committee’s crosshairs. Last year, Congress voted to hold Mark Meadows, who was White House chief of staff during the time in question, in contempt for failing to comply with the committee’s subpoenas. Congress is also poised to hold Dan Scavino and Peter Navarro in contempt Wednesday night.
