In September 2021, the House Select Committee to Investigate the January 6th Attack on the United States Capitol issued a subpoena to Stephen Bannon for testimony and documents regarding his communications with President Trump and others in 2020 and 2021. Bannon did not appear or provide any documents, relying instead on advice from his counsel that he was not required to respond due to claims of executive privilege. Although former President Trump's counsel, Justin Clark, later clarified that Trump had not directed Bannon to refuse compliance and that there was no immunity from testimony, Bannon maintained his refusal. The Select Committee referred the matter to the House, which voted to find Bannon in contempt. A grand jury subsequently indicted Bannon on two counts of violating the contempt of Congress statute, 2 U.S.C. § 192. A jury found him guilty on both counts, and the district court sentenced him to four months in prison and a $6,500 fine. Bannon appealed, challenging the legal definition of 'willfully,' asserting affirmative defenses based on government authorization, and arguing the subpoena was invalid.
Circuit Judge Garcia, writing for the panel, addressed four primary challenges raised by Bannon. First, regarding the mental state required for conviction, the court held that the term 'willfully' in 18 U.S.C. § 192 means only that the defendant deliberately and intentionally refused to comply. Relying on binding precedent in Licavoli v. United States, the court rejected Bannon's argument that 'willfully' requires bad faith or that he acted in good faith based on advice of counsel. The court explained that allowing an advice of counsel defense would undermine Congress's investigatory authority, as any witness could claim a good-faith belief to avoid compliance. The court distinguished cases where 'willfully' requires knowledge of unlawfulness in other statutes, noting that the context of the contempt statute demands a broader interpretation to ensure effective enforcement. Second, the court rejected Bannon's affirmative defenses of entrapment by estoppel, public authority, and apparent authority. The record showed that neither President Trump nor his counsel authorized a total refusal to comply; in fact, Trump's counsel explicitly disclaimed any belief in immunity from testimony. Furthermore, the Office of Legal Counsel opinions cited by Bannon did not specifically authorize a private citizen's total noncompliance with a congressional subpoena. Third, the court dismissed Bannon's claim that the subpoena was invalid due to the Committee's motives or procedural flaws. The court reiterated that legislative motive is irrelevant if the subpoena serves a valid legislative purpose, which the January 6 investigation clearly did. Procedural objections regarding the Committee's composition and the delivery of House rules were forfeited because Bannon failed to raise them with the Committee before refusing to comply. Finally, the court upheld the district court's decision to quash trial subpoenas seeking testimony from Committee members, ruling that the information sought was irrelevant to the elements of the offense or any valid defense, as the subjective thoughts of Committee members did not bear on whether Bannon's refusal was deliberate.
Stephen Bannon's conviction for contempt of Congress stands, and he remains subject to the sentence imposed by the district court. The decision reinforces the D.C. Circuit's longstanding interpretation that the contempt statute does not permit witnesses to avoid compliance based on subjective good faith or reliance on legal advice. It clarifies that the government authorization defense requires a specific directive from a government official authorizing the illegal conduct, which was absent here. The ruling leaves open questions regarding the scope of executive privilege in future contexts but confirms that such claims do not justify a categorical refusal to comply with a subpoena without first raising the issue with the Committee.
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