Supreme Court rejects Steve Bannon's bid to remain out of prison on appeal

Washington — The Supreme Court on Friday denied a bid by conservative commentator Steve Bannon to remain out of prison while he appeals his conviction on two counts of contempt of Congress.

The order clears the way for Bannon to report to prison by July 1 to begin serving a four-month sentence. Bannon sought emergency relief from the Supreme Court after the federal appeals court in Washington, D.C., rejected his request to remain free during his appeals process.

Bannon, a close ally of former President Donald Trump, was convicted nearly two years ago after he refused to comply with a subpoena from the House select committee that investigated the Jan. 6, 2021, attack on the U.S. Capitol. Lawmakers had sought documents and testimony from Bannon related to his communications with Trump about efforts to reverse the outcome of the 2020 presidential election.

Bannon, who served as White House chief strategist, rebuffed the subpoena, arguing a lawyer for the former president had indicated that Trump had invoked executive privilege over the information sought by House investigators, which prevented Bannon from turning it over.

Steven Hirsch/New York Post via AP, Pool, File
Steve Bannon appears in court in New York on Jan. 12, 2023. 

Steven Hirsch / AP

Bannon was fired from his White House post in 2017 and was a private citizen at the time of the 2020 election.

After he declined to produce the information to the select committee, the House voted to find Bannon in contempt of Congress. He was charged weeks later with two counts of criminal contempt. 

Before the trial began, U.S. District Judge Carl Nichols, who presided over the proceedings, barred Bannon’s lawyer from arguing or presenting evidence that he relied in good faith on his one-time lawyer when he said he couldn’t respond to the subpoena. A jury later found him guilty on both counts, and Bannon was sentenced to four months in prison. Nichols allowed Bannon to remain free while he appealed his conviction.

A panel of three judges on the U.S. Court of Appeals for the District of Columbia Circuit upheld Bannon’s conviction, after which Nichols agreed to revoke Bannon’s bail and ordered him to surrender to the Bureau of Prisons by July 1 to begin serving his sentence.

Bannon sought emergency relief from the D.C. Circuit pending further appeals of his conviction, including to the Supreme Court, and his request was denied 2-1. 

In seeking the high court’s intervention, lawyers for Bannon argued that he should not have to serve his entire prison term before the justices have the opportunity to consider whether to review his case. The Supreme Court is nearing the end of its term and is set to begin its summer recess in early July.

They said in a filing that the stakes of Bannon’s challenge “could not be higher,” because under earlier rulings by the D.C. Circuit, “future disagreements about subpoena compliance will not be met with negotiation — but with indictments.”

Bannon’s lawyers noted over the past few decades, high-ranking Executive Branch officials have been held in contempt of Congress for defying subpoenas, including attorneys general from both parties, the White House counsel and the administrator of the Environmental Protection Agency, Anne Gorsuch, the mother of Justice Neil Gorsuch.

“In the future, when the House or Senate and the Executive Branch are controlled by the same party, there is every reason to fear that former Executive Branch officials will face prison after declining to provide privileged materials to a committee, even where the position taken was based upon the advice of counsel in good faith and requested further negotiations,” they said.

The Justice Department urged the justices to deny Bannon’s effort, telling the court in a filing that his contention that he will have his convictions reversed or win a new trial because the lower courts misinterpreted what was required to convict him of contempt “lacks merit.”

Solicitor General Elizabeth Prelogar rejected Bannon’s attempt to compare his situation to Justice Department lawyers who declined to turn over documents regarding Hunter Biden, President Biden’s son. 

His “total noncompliance even though he had been told by the former President’s counsel that he was not immune from testifying and could not simply disregard the subpoena, is not analogous to internal instructions to current government employees about providing testimony regarding their official responsibilities,” she wrote.

She said that Bannon failed to identify any authority that supports absolute testimonial immunity for the former advisers of former presidents, and didn’t raise such a constitutional defense to his prosecution based on that purported immunity.

Bannon is not the only former official from the Trump White House who has turned to the Supreme Court while fighting a contempt of Congress conviction. Peter Navarro, who served as a top trade adviser to Trump, is serving a four-month prison sentence at a correctional facility in Miami after he was convicted on two counts of criminal contempt last year for defying a subpoena from the House select committee.

Navarro asked the Supreme Court to allow him to remain free during his appeal. His bid was rejected first by Chief Justice John Roberts and then by the full court.

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