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.

Like this post? Click here to join the Sidebars mailing list.