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Judge deals blow to Steve Bannon’s legal defense in upcoming trial

WASHINGTON — Former Trump adviser Steve Bannon can’t argue at trial that he’s not in contempt of Congress because he was following his attorney’s advice, a federal judge ruled Wednesday. .

U.S. District Judge Carl Nichols said such a defense was not available in a contempt of Congress case, inflicting a major setback on Bannon’s defense. He is likely to be tried in July.

“It’s a serious blow, because he has no other good defense,” said Joyce Vance, a former federal prosecutor. “He will now have to make a decision as to whether to go to trial or try to reach some sort of deal.”

A federal grand jury indicted Bannon in November on two counts of contempt of Congress for refusing to answer questions from the House committee investigating the Jan. 6, 2021 Capitol riot. One count accused him of refusing to appear for a deposition, and the other for refusing to produce the documents requested by the committee.

If convicted, Bannon, who is 68, could face a year behind bars and a fine of up to $100,000.

Last fall, one of Bannon’s attorneys, Robert Costello, told the Jan. 6 committee that Bannon would not comply with the subpoena. In a letter, he said former President Donald Trump chooses to assert executive privilege and encourages his former aides not to reveal anything that might be covered by the privilege.

On the day Bannon was charged, another of his lawyers, David Schoen, said the issue of legal advice would be important. “Mr. Bannon acted as his attorney advised him not to appear and hand over documents in this case. He did not refuse to comply. He made it very clear that if a court ordered him to comply, he would.

“A layman should take the advice of his lawyer, in my view at least, when faced with a subpoena – he knows nothing of the legal process otherwise. He relies on a lawyer, and the lawyer gave advice,” Schoen said.

Securing a conviction for any crime requires proof of having acted with improper intent, and some federal courts have ruled that seeking good faith advice from an attorney is a complete defense in a criminal contempt action. . But Nichols said the US Circuit Court of Appeals in Washington, DC, decided otherwise.

In a 1961 case, the Court of Appeal said that “recourse to counsel is no defense to a charge of refusing to answer a question”.

“All that’s needed…is a deliberate intention to do the deed,” he said. “The opinion of a lawyer does not immunize this simple intention.”

Bannon’s attorney argued that his case was different because it also involved the issue of executive privilege, but Nichols said that made no difference on the issue of Bannon’s intent.

In a statement Wednesday, Schoen said the Supreme Court had ruled in 2020 that executive privilege applied in response to legislative subpoenas and that the 1961 ruling relied on by the appeals court was impossible. to be reconciled with this principle.

Applying that standard to the Bannon case “effectively gives Congress a veto over the executive’s invocation of executive privilege, and it creates a very serious separation of powers problem,” Schoen said.

He said Bannon’s lawyers would argue at trial that the contempt of Congress law is unconstitutional.


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