The U.S. Court of Appeals for the District of Columbia Circuit took the case under consideration.
WASHINGTON — Former President Donald Trump’s longtime ally Steve Bannon on Thursday appealed his criminal conviction for defying a subpoena from the House committee investigating the Jan. 6 insurrection at the U.S. Capitol.
Bannon’s attorney argued he didn’t ignore the subpoena, but was trying to avoid running afoul of executive privilege objections Trump had raised.“Mr. Bannon acted in the only way he understood from his lawyer that he was permitted to behave,” attorney David Schoen said, adding that Bannon was wrongly blocked from making that argument at trial.
Prosecutors, though, said Bannon was no longer working at the White House during the runup to Jan. 6 and refused to work with the committee to determine if there were questions he could answer. “Stephen Bannon deliberately chose not so comply in any way with lawful congressional subpoena,” said prosecutor Elizabeth Danello.
Some members of a three-judge panel of the US DC Circuit Court of Appeals appeared skeptical Thursday of arguments advanced by Bannon’s attorney, David Schoen, that the trial court judge who handled the criminal case erred when they declined to let Bannon assert executive privilege as part of his defense, and that the ex-adviser was simply acting on the advice of his then-attorney when he didn’t comply with the subpoena.
On executive privilege, Circuit Judge Cornelia Pillard, an appointee of former President Barack Obama, said:
“That’s so broad to say it’s ‘presumptively valid.’ Even at its broadest, where (the Office of Legal Counsel) has written, for example, that a former senior official can assert absolute testimonial immunity, it only covers communications within the scope of that former senior official’s service in the White House,” she said. “And none of the conduct at issue here was during Mr. Bannon’s service in the White House was it? None of it.”
“Right, judge, it was during the presidency,” Schoen replied.
“But not during Mr. Bannon’s service,” Pillard said. “Do you have any authority that suggests – any authority at all – that suggest that some kind of executive privilege or immunity would apply to conduct that postdates a person’s service?”
Bannon was convicted in July 2022. He was sentenced to 4 months in prison, which has been on hold so Bannon could appeal.
The 3 judge panel consisted of:
Judge Brad Garcia – Biden
Judge Cornelia Pillard – Obama
Judge Justin Walker – Trump
