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Steve Bannon asks district court to release him from jail

Vaseline August 30, 2024

War Room host Steve Bannon will close out the final day of CPAC on February 24, 2024.

Steve Bannon at CPAC on February 24, 2024. (Zach D Roberts/NurPhoto via AP)

Steve Bannon, a former senior White House strategist under Donald Trump, is eager to get out of federal prison as soon as possible, according to a bail request filed in federal court Thursday afternoon.

In a 12-page filing with the U.S. District Court for the District of Columbia, Bannon’s newest attorney, R. Trent McCotter, who only joined the case on Thursday, asked the court to re-impose bail pending the appeal, citing new “developments” and “significant events.”

The latest attempt to shorten his prison stay comes about two months into a four-month sentence for contempt of Congress. Bannon reported to the federal prison in Danbury, Connecticut, on July 1 and is expected to be released just before Election Day in November.

Alternatively, Bannon is asking the court to allow him to serve the remainder of his sentence under supervision.

The suspect has repeatedly attempted to stay out of prison and/or reduce his time behind bars, but has been unsuccessful.

Bannon was convicted by a jury in July 2022 on two counts of contempt of Congress for ignoring a subpoena for documents and testimony; he was subsequently sentenced to four months in prison in October. Initially, Trump-appointed U.S. District Judge Carl Nichols granted Bannon a significant degree of freedom, allowing him to remain free while he appealed his sentence and conviction.

Ultimately, all relevant levers of the legal system were called upon and tested – from the Washington DC Court of Appeals to the US Supreme Court in the form of an emergency motion – and Bannon’s appeal was ultimately and utterly denied.

Between the appeals court and the Supreme Court’s rejections, Nichols continued to insist that Bannon’s chances of success were slim. On June 6, the judge granted the government’s request to revoke his bail.

At the heart of Bannon’s efforts to stay out of prison has long been the idea that his case was based on bad precedent. That precedent, the 1961 Supreme Court case of Licavoli v. United States, stands for the proposition that an attorney-advised defense is simply not available to a defendant facing a charge of contempt of Congress.

Bannon claims he ignored subpoenas from the now-defunct House Select Committee to Investigate the January 6 Attack on the US Capitol not only to frustrate investigators, but also because the requests violated presidential prerogative.

The suspect says his lawyer has instructed him to wait for a higher court to rule on the privilege issues because the information requested by the committee related to his work as a “former executive branch official” under the 45th president.

“He failed to inform the jury of what had actually happened — that is, that he relied in good faith on his attorney’s advice and believed his actions were consistent with the law — even though this gave the government the opportunity to argue with impunity to the jury that Mr. Bannon had ‘ignored’ the subpoena and ‘turned up his nose’ at the Select Committee,” an earlier defense motion argued.

In other words, Bannon has consistently maintained that he did not have the mens rea – or mental state – to actually commit a crime.

It is striking that this line of attack is in fact a repetition of arguments that have so far repeatedly failed to find an echo in the legal system.

In denying Trump’s preferred defense of the defendant, Nichols, a Trump appointee, said he was bound by precedent that defined the term “willful” in the Congressional contempt law as “intentional.”

In early May, a three-judge panel of the Washington, D.C., Court of Appeals endorsed Nichols’ interpretation of the “willful” precedent.

But Bannon has since asked the full D.C. Court of Appeals for an en banc hearing, a hearing in which all the justices will review the panel’s earlier ruling.

And since then, the new bail request says, one of the appeals court’s three judges has changed his mind about Licavoli.

“A member of the May 10 DC Circuit panel decision — Judge Walker — has now written separately and stated that he does indeed have concerns about Licavoli and that he joined the panel’s opinion, at least in part, simply because he concluded that Licavoli was binding, not because he thought it was correct or that the Supreme Court would agree with it,” the new motion states.

Bannon’s document explains the apparent reversal in detail:

In his June 20, 2024, dissenting opinion on the denial of release pending appeal, Judge Walker stated that “the panel felt compelled to disregard the Supreme Court’s ‘general rule’ (regarding the meaning of ‘willful’ in criminal statutes) because Licavoli remained binding in this circuit.” “For a court not bound by Licavoli, such as the Supreme Court, the proper interpretation of ‘willful’ in (the federal contempt of court statute) ‘is a vexed question or one that could well be decided the other way around.”

Justice Walker concluded in the dissent: “Because the Supreme Court is not bound by Licavoli, because Licavoli’s interpretation of ‘willful’ is a narrow question, and because that question may well be relevant, Bannon should not go to prison until the Supreme Court considers his forthcoming appeal.”

Bannon also argues that another recent development supports his request for bail. In late July, the D.C. Court of Appeals asked the Department of Justice to weigh in on the meaning of “willful” in 2 U.S.C. §192 and whether we should revisit Licavoli v. United States.”

“Calling for a response is rare — the DC Circuit has done so in only seven other cases (two of which are related) during the entire year 2024,” Bannon’s new filing argues. “This alone indicates the substance of the mens rea issue.”

All this new confusion about statute and precedent is enough to grant the defendant his freedom while the appeals process proceeds, the new motion argues. That conclusion hinges on some language from the district court about how well Licavoli might do in the months and years ahead.

The document quotes the following comments from Nichols:

For example, this Court said, “Well, all we know is that no one has written separately to say, Hey, I’m bound by Licavoli, but I’m not so sure.” And the Court later stated, “No one has written separately to say anything like, I’m bound by Licavoli, but I have reservations about it.” And in issuing its decision, the Court referred to the fact that it pegged Mr. Bannon’s surrender date as “one week after the en banc petition is due.”

“These significant developments, which postdate the revocation of bail, demonstrate that circumstances have changed and that bail should be reimposed,” the new motion continues. “As stated at the June 6, 2024, hearing, the statutory inquiry is whether there is a substantial question, and it is sufficient that a judge on the original panel has now raised concerns.”

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