Steve Bannon, Contempt, and Advice of Counsel

Former Trump aide and full-time provocateur Steve Bannon is facing trial on two criminal charges of contempt of Congress for defying a subpoena from the House January 6 Committee. The judge in his case just ruled that Bannon cannot defend against the charges by presenting evidence that he relied on the advice of his attorney when he failed to honor the subpoena. That’s clearly the right decision based on existing law. But although it’s impossible to feel sorry for Bannon, I’m not sure the rule against allowing an advice of counsel defense in this situation is really in the interest of justice.

Donald Trump and Steve Bannon

The Facts of Bannon’s Case

Bannon reportedly was deeply involved in the events leading up to the assault on the Capitol. The Committee subpoenaed Bannon on September 23, 2021, ordering him to produce documents on October 7 and appear for a deposition on October 14. He did not comply with either demand. Instead, his lawyer Robert Costello wrote to the Committee that Bannon would not honor the subpoena because former president Trump had claimed executive privilege over the requested information. Costello claimed Bannon therefore was “legally unable to comply” unless the Committee reached an agreement with Trump or obtained a court order on the scope of the privilege.

The Committee Chairman, Rep. Bennie Thompson, wrote back to Costello and rejected those claims. Thompson pointed out that most of the requested information related to Bannon’s activities as a private citizen and that Trump had made no formal assertions of privilege. Thompson warned that if Bannon failed to comply with the subpoena the Committee would consider him to be in contempt.

In additional back-and-forth correspondence, Costello again claimed that Bannon could not comply and Thompson again rejected those claims. Bannon did not produce any documents and did not appear for the deposition. On October 21, the House voted to hold Bannon in contempt and referred the matter to the Department of Justice. On November 12, a grand jury indicted him on two counts of Contempt of Congress.

Contempt of Congress

The contempt of Congress statute, 2 U.S.C. § 192, provides in part:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House . . . willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. (emphasis mine)

If a witness is found in contempt by the full House or Senate, 2 U.S.C. § 194 provides that Congress shall certify the matter to the United States attorney, “whose duty it shall be to bring the matter before the grand jury for its action.”

As I’ve written before, this statute has, shall we say, some issues. For one, it is a completely inadequate tool for enforcing Congressional subpoenas. Prosecution doesn’t compel the witness to testify, it merely punishes the witness for the contempt after the fact. If the goal is to get the relevant information from the witness – which usually should be the goal, at least — this criminal sanction does not accomplish that.

There’s also the interesting wrinkle that, although the statute says the U.S. Attorney has the “duty” to present the case to a grand jury, Justice Departments of both political parties have taken the position that “duty” doesn’t mean “obligation.” When a witness from the executive branch is held in contempt by Congress (usually one controlled by the other political party), the Justice Department routinely declines to prosecute, based on concerns about the separation of powers and executive privilege. As a result, most such referrals from Congress go nowhere.

Bannon was in a different posture because he was not part of the current administration when he was found in contempt, and DOJ was controlled by the other political party. He was the first person in years to be indicted for this offense.

The Advice of Counsel Defense

The primary defense Bannon wanted to raise at trial was, “My lawyer told me it was OK.” Bannon sought to argue the government could not prove he acted “willfully,” as required by the contempt statute, because he was acting in good-faith reliance on the advice of his attorney.

This “advice of counsel” defense can defeat the required proof of criminal intent in a narrow category of cases. Generally the criminal law holds that people are responsible for their own knowing actions and, as the old saying goes, ignorance of the law is no excuse. For most crimes the government need only prove that the defendant intended to do the acts that constitute the offense, not that the defendant knew he was violating the law. To take an extreme example, if I commit a robbery or a burglary I will not be allowed to defend by claiming I didn’t know robbery or burglary were against the law or that my lawyer told me it was OK.

But for some criminal violations, the government is required to prove a higher level of intent. This intent requirement can be expressed in different ways: specific intent, or evil intent, or acting in violation of a known legal duty. In such cases, ignorance of the law can, in fact, be an excuse. If your attorney told you that what you were doing was lawful, that advice could defeat the government’s proof of your intent.

This higher level of intent is sometimes expressed in criminal statutes by the requirement that the defendant acted “willfully.” That was Bannon’s argument when it comes to contempt of Congress: he claimed that because the statute requires that his default was “willful,” the government had to prove he deliberately disregarded a known legal duty. If that were the standard, then Bannon could raise an advice of counsel defense.

The Definition of Willful

The definition of “willful” is a confusing area of criminal law. The Supreme Court has noted that willful has a different meaning in different criminal statutes and its meaning often depends on the context. Sometimes it does mean the government must prove a defendant knew he was violating the law. But for most statutes, it means simply that the defendant’s conduct was knowing and intentional, rather than accidental.

In their court papers, Bannon’s attorneys cited cases such as the Supreme Court’s leading decision in Ratzlaf v. United States to argue that “willful” means the government must prove Bannon knew his defiance of the subpoena was unlawful. Ratzlaf involved violations of the currency structuring laws, which prohibit “willfully” breaking up cash transactions into amounts under $10,000 so the banks won’t file any currency transaction reports.

The Court noted that breaking down financial transactions into smaller amounts is not obviously evil. The average person would not necessarily be on notice that it might be criminal. In the context of the structuring statute, therefore, the Court held it was not enough that the government prove the defendant knew his conduct would result in the reports not being filed. The requirement of “willfulness” meant the government also had to prove the defendant knew that structuring was unlawful.

The same standard applies in tax crimes, where the Court also has interpreted willfully to mean prosecutors must prove the defendant knowingly violated the tax law. Another example is campaign finance violations, such as the one Trump’s former attorney Michael Cohen pleaded guilty to in connection with the Stormy Daniels payoff. Criminal campaign finance violations require proof the defendant acted willfully, which courts have interpreted to mean the defendant must have known his actions violated campaign finance law.

What these crimes have in common is that they are complex and quasi-regulatory. They contain legal prohibitions that are purely creatures of statute, not so-called “Ten Commandment crimes.” The conduct involved is not inherently evil and an ordinary citizen would not necessarily be on notice of the criminal implications. As the Court has noted, they involve “highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct.” Before holding someone criminally responsible for such crimes, therefore, due process requires the government to prove the defendant knew about the relevant legal requirements. 

But this heightened requirement of willfulness remains the exception, not the rule. When interpreting statutes, the general rule is still that “willful” means simply consciousness of the act itself, not consciousness that the act is unlawful. Ignorance of the law usually is still no excuse — which means it’s irrelevant if your lawyer gave you bad advice.

The Licavoli Case

Bannon argued that the requirement of willfulness in the contempt statute should be interpreted to require the known violation of a legal duty, just like tax or campaign crimes. Unfortunately for Bannon, there is an old D.C. Circuit case that squarely rejects his argument. In Licavoli v. United States (1961) the defendant was charged under the same contempt statute for failing to respond to a subpoena from the U.S. Senate. He argued the government could not prove he had acted willfully because he had relied on the advice of his attorney.

The Court of Appeals held that “willful” in the contempt statute does not require proof of an evil intent or knowing violation of the law. Any witness who deliberately and intentionally fails to appear, the court held, “willfully makes default” under the statute. The requirement of willfulness serves only to distinguish deliberate decisions not to appear from failures to appear caused by other reasons, such as illness or travel delays. “All that is needed . . . is a deliberate intention to do the act. Advice of counsel does not immunize that simple intention. It might immunize if evil motive or purpose were an element of the offense. But such motive or purpose is not an element of either of these offenses.”

In other words, the crime of contempt is relatively simple: if you are properly served with a subpoena, you must honor it. You don’t get to ignore it and then claim later that your lawyer said it was OK. The crime is more like a robbery or burglary than like a tax crime or structuring. If you make the deliberate decision to defy the subpoena, you are responsible for the consequences of your actions – just as with most criminal offenses.

Not surprisingly, in light of Licavoli, U.S. District Judge Carl Nichols ruled that Bannon may not present evidence of his attorney’s advice at his trial. Bannon’s attorneys argued that this case was different because of the potential issues of executive privilege involved. But the government successfully countered that the only relevant issue was Bannon’s intent, and the nature of any potential privilege did not affect that question.

Steve Bannon
Steve Bannon

Advice of Counsel, Contempt, and Executive Privilege

Judge Nichols noted that, if he were writing on a clean slate and was not bound by the Licavoli precedent, he might agree with Bannon that the advice of counsel defense should be allowed. I might agree as well.

I understand the reason behind the general rule that advice of counsel is not a defense to contempt – particularly when it comes to not showing up at all in response to a subpoena, as Bannon did. If it were a defense, it would be far too easy for witnesses to ignore subpoenas simply by claiming their lawyer told them they have some kind of privilege. This would severely undermine the subpoena power of Congress – and of the courts, for that matter. Generally, even if you claim a privilege, you need to show up in response to the subpoena and assert that privilege in person.

That being said — the result in this case doesn’t feel right to me. I can’t bring myself to type the words that I sympathize with – well, you-know-who – but I can sympathize with someone in his position. It’s important to consider the general rule here, divorced from the particular context of January 6 and Bannon.

Suppose you received a subpoena from a Congressional committee — what would you likely do? You’d talk to a lawyer. Suppose your lawyer tells you that you don’t need to respond and gives you some facially plausible legal reasons why. Suppose further that lawyers for the former president of the United States say the same thing and ask you not to comply. You’re not a lawyer. If you do what we normally expect people to do, follow your lawyer’s advice, and are prosecuted, is your only remedy to sue your attorney for malpractice from your jail cell?

This entire proceeding involves legal battles, and complicated ones at that. Issues of executive privilege are not well-settled. And there are some opinions from the DOJ Office of Legal Counsel arguing that executive branch officials need not show up at all in response to a Congressional subpoena. Sure, these opinions are controversial, but they do exist. Yes, I know, Bannon was no longer in the executive branch by January 6. But whether and to what extent executive privilege survives once an individual leaves the government is also an unsettled question.

Still, overall, Bannon’s executive privilege claims seem very weak, particularly the claim that he could refuse to show up at all. Many would argue that the advice Bannon received was frivolous, or that his lawyer was incompetent, given that weakness. But if it turns out a lawyer was incompetent, should the client go to jail as a result?

It seems likely that Bannon was primarily interested in trying to stonewall the Committee and would have latched onto any excuse to avoid cooperating. But the reliance on advice of counsel has to be in good faith. If the government could demonstrate that the supposed reliance on legal advice was just an excuse to refuse to cooperate, the jury should reject the defense. But that’s different from saying Bannon should not even get to present the argument to the jury for its consideration.

Legal proceedings in general, and fights over things like executive privilege, have gotten a lot more complex in the sixty years since Licavoli. And as Bannon’s lawyers argued, most of the Supreme Court decisions approving the stricter requirement of “willfulness” were decided well after Licavoli. A battle over a subpoena involving the notoriously murky area of executive privilege seems more like a tax or structuring case to me than a burglary or robbery. I’m not sure the average citizen should be expected to know what the law requires. And I’m not sure we should expect witnesses in such cases to ignore the advice of their attorneys, on penalty of criminal contempt.

Judge Nichols didn’t have any choice but to follow the binding precedent of Licavoli. But if Bannon is convicted, he might have a good shot at convincing the D.C. Circuit to take another look at this issue. I’d feel happier about this prospect if the case involved someone less odious than Bannon – but even the odious are entitled to due process.

What all of this highlights once again is the inadequacy of this contempt procedure as a way to enforce Congressional subpoenas. Congress needs to revive some form of its inherent contempt power so that it can seek to compel compliance by witnesses on its own, rather than relying on the Department of Justice and lengthy court proceedings. And the remedy would be that Congress actually gets the information, rather than a misdemeanor prosecution that might not conclude until well after the Congressional investigation is over.

But for now, the Bannon case will proceed to trial, there will be no advice of counsel defense, and the January 6 committee will almost certainly conclude its work without obtaining Bannon’s information.

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The Steve Bannon Indictment: Charges and Potential Defenses

Former Trump advisor and right-wing provocateur Steve Bannon was indicted last week on two counts of contempt of Congress. The charges arise from his refusal to honor a subpoena from the House committee investigating the January 6 Capitol riot. On the courthouse steps Bannon was defiant, vowing to fight and to make the case the “misdemeanor from hell” for the government.

Despite the tough talk, Bannon is likely headed to jail. That may not mean that he ends up testifying. But the Bannon indictment should make an impression on others who might be similarly inclined to stonewall the investigation. That’s good news for anyone who would like to get to the bottom of what happened on January 6.

Steve Bannon

Steve Bannon

Steve Bannon, a political strategist and media executive, is a well-known and controversial figure from the Trump years. He was formerly the head of Breitbart News, a far-right website. He worked on Trump’s campaign in 2016, where among other things he was involved with Roger Stone in trying to gather information about the Democratic emails stolen by the Russians and released by Wikileaks. He served for about seven months in 2017 as Chief Strategist and Senior Counselor to president Trump. Bannon left the White House in 2017 and has not served in the government since. Currently he hosts a popular right-wing podcast, “The War Room,” which CNN has described as a “dangerous fantasyland of election lies.”

Bannon was involved in the “stop the steal” movement following the 2020 election. He reportedly was present in the Willard Hotel in the days leading up to January 6, as part of the “war room” that included Rudy Giuliani and others plotting how Trump might seek to overturn the election results. The night before the riot, Bannon said on his podcast that “all hell [was] going to break loose” the next day.

The House Committee Subpoena and Bannon’s Response

The U.S. House of Representatives has established a Select Committee to investigate the Capitol riot. That investigation includes exploring the facts and circumstances that led up to the attack and who was involved in helping to organize the events of that day. In recent weeks the Committee has issued a flurry of subpoenas to former Trump officials and allies who were involved in the efforts to overturn the election that culminated in the January 6 riot.

On September 23, the Committee issued a subpoena to Bannon for both testimony and documents. It cited his activities in the days leading up to the riot as evidence that he is likely to have information relevant to the Committee’s investigation. The subpoena required him to produce documents and records of communications in seventeen categories by October 7 and to appear for a deposition on October 14.

Bannon failed to produce the required documents or otherwise respond to the subpoena by the October 7 deadline. Late that day, his attorney sent a letter to the Committee saying that former president Trump was claiming the documents were privileged and had instructed Bannon not to comply. The Committee responded, pointing out that Trump had not formally asserted any privileges, that Bannon was a private citizen at the time of these events, and that in any event Bannon was still required to supply a list of responsive documents that he claimed were privileged and could not simply ignore the subpoena.

On October 13, the night before his scheduled deposition, Bannon’s attorney again wrote to the Committee, stating: “Until such time as you reach an agreement with President Trump or receive a court ruling as to the extent, scope and application of the executive privilege, in order to preserve the claim of executive and other privileges, Mr. Bannon will not be producing documents or testifying.”

Based on Bannon’s defiance of the subpoena, the Committee recommended that the full House vote to find him in contempt of Congress. The House approved a contempt resolution on October 21 and referred that resolution to the Department of Justice. On November 12, the grand jury returned its indictment.

The first page of the Bannon indictment

The Charges in the Steve Bannon Indictment

Bannon was indicted on two counts of Title 2, United States Code, Section 192, which provides:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

A companion statute, section 194, provides that if the House or Senate votes to find a witness in contempt it shall refer the case to the appropriate U.S. Attorney (which ordinarily will be the U.S. Attorney for the District of Columbia), “whose duty it shall be to bring the matter before the grand jury for its action.”

As I’ve written here before, this crime is rarely prosecuted and the statute has been largely toothless. Most cases have involved officials of an administration controlled by one party invoking executive privilege and declining to provide documents or testify before a congressional committee controlled by the other party. When Congress then votes to find the witness in contempt and refers the matter to the Department of Justice, it is essentially asking the administration to prosecute one of its own for following the president’s instructions. Not surprisingly, that doesn’t happen.

Administrations of both parties have taken the position that, despite the statute’s “duty” language, prosecutors still retain the discretion to decide whether to pursue the case. And the Department of Justice Office of Legal Counsel has opined that it would violate the separation of powers for an executive branch official to be charged with contempt for refusing to honor a Congressional subpoena based on a claim of executive privilege.

But Bannon’s case is different: he is not an official within the administration that currently controls the executive branch. And at the time of the events under investigation Bannon was a private citizen, not a member of the Trump administration. The separation of powers issues that have resulted in past cases not being pursued are therefore not present in his case. That’s a big reason why he ended up being the first person in decades to be charged with this crime.

Steve Bannon with former president Trump
Bannon with Donald Trump

Bannon’s Possible Defenses – Or Lack Thereof

There doesn’t appear to be any doubt that the subpoena was lawfully authorized, Bannon received it, and he refused to comply. So his only possible defense is that he had some legal privilege that excused his non-compliance.

An initial problem for any Bannon defense based on privilege is that he completely failed to show up or to produce a privilege log of documents that he was withholding. If you’re subpoenaed and you think you have the right to assert a privilege, that doesn’t mean you simply get to ignore the subpoena. Typically you still need to show up, and then you can assert the privilege — question by question or document by document, if necessary.

Past administration officials who were referred for contempt of Congress, such as former attorney general Eric Holder, generally at least showed up to testify – often voluntarily, without a subpoena. The disputes arose when they asserted executive privilege over particular questions or documents. But they didn’t just entirely blow off the Congress and fail to show up at all.

Although Trump, when president, tried to claim that his senior officials were absolutely immune from testifying before Congress and did not even need to respond to a subpoena, that argument was rejected by the courts. And in any event, at the time of these events Bannon was not a member of the administration.

Regardless of the merits of any potential privilege claims, therefore, Bannon is going to have a tough time arguing that it allowed him to ignore the subpoena completely.

Executive Privilege

It appears Bannon’s primary defense will be that the documents and testimony sought by the subpoena are protected by executive privilege. That was the claim made in the letters from his attorney, who said Trump had instructed Bannon not to comply.

There are several problems with this potential defense. First, executive privilege can only be asserted by the president, and Trump has made no formal assertion of privilege. And because he is not the current president, it’s not clear that he could. That’s an issue currently being tested Trump’s lawsuit over a request from the committee to the White House for records related to January 6, where Trump is trying to assert executive privilege even though president Biden has agreed to release the records.

Second, although the scope of executive privilege is notoriously murky, it exists to encourage free and frank communication between a president and his or her advisors. That generally means those involved in the communications must have been part of the executive branch. But at the time of the events under investigation here, Bannon was a private citizen who had not worked in the White House for three years.

Third, the executive privilege exists to assist the president in the execution of his official duties. The allegation here is that any communications were not in furtherance of legitimate executive actions but were part of an attempt to overturn the lawful election. Just as the attorney-client privilege gives way if the communications are in furtherance of a crime or fraud, any claim of executive privilege should give way if the communications in question were in furtherance of an attempt to undermine democracy.

And finally, even if there were a colorable claim of executive privilege as to some particular questions or documents, there’s no chance that claim could apply to everything sought by the subpoena. A great deal of Bannon’s documents and communications undoubtedly involve his interactions with other private individuals, potentially including organizers and participants in the events of January 6. He can’t just say “executive privilege” and refuse to respond to anything at all – he would need to identify the particular documents or questions allegedly covered by the privilege.

Advice of Counsel and the Definition of Willful

Another key defense Bannon may try to raise is advice of counsel. He was working with an attorney, who communicated to the Committee on his behalf. He may try to defend his failure to honor the subpoena by claiming that his attorney advised him this was the proper way to proceed.

Under some circumstances, advice of counsel can be a defense to a criminal charge. It depends on the state of mind that the charge requires. Generally people are criminally responsible for the consequences of their intentional actions, and as the old saying goes, “ignorance of the law is no excuse.” But some statutes require the government to prove that a criminal defendant acted not just knowingly and intentionally but with an evil intent or in deliberate violation of a known legal duty. For crimes with this heightened intent requirement, a defendant may claim that a good-faith reliance on the advice of counsel demonstrates he lacked that intent.

In the context of the contempt of Congress statute, this will come down to the definition of “willful.” The statute requires the government to prove that the defendant “willfully” failed to comply with the subpoena. “Willful” is a confusing term in criminal law, because courts have held that its meaning varies from statute to statute. In some complex areas such as tax or securities crimes, courts have held that “willful” means the defendant acted in deliberate violation of a known legal duty. But for other crimes, the requirement that the defendant acted “willfully” simply means he acted deliberately and intentionally.

If “willful” in section 192 means the government must prove that Bannon acted in violation of a known legal duty, then he could present a defense that his attorney told him his actions were lawful. But unfortunately for Bannon, that argument is not likely to prevail. Way back in 1961, in a case called Licavoli v. United States, the U.S. Court of Appeals for the D.C. Circuit held that “willful” in this statute means simply that the defendant acted deliberately and intentionally. Violating a known legal duty, or evil motive, is not an element of the offense. The requirement of willfulness, the court held, simply distinguishes a deliberate and intentional failure to comply with a subpoena from a failure that might result from other reasons – for example, the witness has a car accident on the way to the hearing and ends up not appearing.

Other courts have also rejected an advice of counsel defense when it comes to contempt charges. They reason that allowing such a defense would substantially undermine the contempt power because a party in any proceeding could simply disregard court orders and later say “my lawyer told me it was OK.”

Another interesting wrinkle to this potential defense is that if Bannon were to try to claim he acted on the advice of counsel, that would require him to waive his attorney-client privilege concerning any communications with his lawyer regarding the subpoena. That might be interesting – and might not be something Bannon is willing to do.

But it shouldn’t come to that. If Bannon tries to raise an advice of counsel defense, it should be rejected. The judge should not allow him to argue it or allow that defense to go to the jury.

Fifth Amendment

Although he has not formally asserted it yet, it’s entirely possible that Bannon has a 5th Amendment privilege not to testify about the January 6 events because that testimony might incriminate him. That may mean that ultimately he never will end up testifying before the Committee.

But once again, that doesn’t excuse a total failure to comply. Once he was subpoenaed, unless he was excused he was obligated to show up and assert the privilege. So even if he might have been able to “take the Fifth” before the Committee, that will not be a defense to the contempt charges for simply ignoring the subpoena altogether.

The same is true when it comes to the documents. The contents of documents are not shielded by the 5th amendment. Under some limited circumstances a witness may take the 5th when it comes to producing documents if the act of turning them over might itself be incriminating because it means the witness is admitting he has them. But this “act of production” privilege is relatively narrow – and in any event, Bannon did not claim any such privilege. He couldn’t defend against the contempt charge by trying to claim it now.

The Likely Outcome

This criminal prosecution will not result in Bannon being compelled to testify. As I explained in this earlier post, the criminal process is to punish, not compel. If the Committee wants to try to compel his testimony it would need to pursue a civil case (or, less likely, inherent contempt). And since Bannon probably has a 5th amendment privilege anyway, they might decide it’s not worth it.

Bannon doesn’t have much of a leg to stand on in this case. I expect he will be convicted and will do some jail time (the statute requires a minimum of at least one month on each charge). The question is whether he really cares. David Frum in the Atlantic wrote a good piece about how, for Bannon, this is really a political proceeding, not a legal one. It will be a protest trial, like the trial of the Chicago Seven.

Bannon will use this prosecution to build his brand within Trump world and portray himself as a victim and martyr. You can’t buy that kind of publicity. He may not mind doing a few months in prison if it will make him a MAGA hero. And in the process he will do everything possible to make a lot of noise, get a lot of attention, and try to dirty up everyone on the government side.

More hopeful is the deterrent effect that his prosecution might have on others. There are some who have been subpoenaed – including former White House Chief of Staff Mark Meadows and former senior DOJ official Jeffrey Clark – who may be a lot more reluctant to have a criminal conviction on their records, much less to serve jail time. Bannon’s indictment should send a signal to those witnesses that they need to think twice before defying a Congressional subpoena.

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