Bannon Demands Stay Of Prison Sentence Based On Crystal Ball Vision Of SCOTUS's Secret Dreams
He read it in the goat entrails. That's binding precedent, right?
(Photo by Sean Gallup/Getty Images)
Steve Bannon would like to stay out of jail, please.
In July of 2022, the putrefying podcaster was convicted on two counts of contempt of Congress after he defied subpoenas for documents and testimony from the January 6 Select Committee. Judge Carl Nichols stayed the four-month sentence pending appeal, finding that review was “not taken for the purpose of delay but rather raises a substantial question of law that is likely to result in a reversal or an order for a new trial.”
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The trial court expressed skepticism about the prevailing circuit precedent, a 1961 case called Licavoli v. US, excluding advice of counsel as a defense to a contempt of Congress charge. But the DC Circuit declined the invitation to overrule Licavoli.
“As both this court and the Supreme Court have repeatedly explained, a contrary rule would contravene the text of the contempt statute and hamstring Congress’s investigatory authority,” Judge Brad Garcia wrote for the unanimous panel on May 10. “Because we have no basis to depart from that binding precedent, and because none of Bannon’s other challenges to his convictions have merit, we affirm.”
Judge Nichols duly ordered Bannon to report to the Bureau of Prisons by July 1. But Ol’ Three Shirts isn’t giving up just yet.
Last night his attorney, Trent McCotter of Boydon Gray in DC, docketed an emergency motion for release pending appeal. And while it lacks the screeching indignation of Bannon’s earlier filings, which were signed by attorneys Evan Corcoran, David Schoen, and Robert Costello, it does stay true to the podcaster’s signature brand of confidently stating absolute bullshit as if it were scientific fact.
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The main conceit of this motion is that the DC Circuit must attempt to read the minds of Supreme Court justices, and guide itself accordingly. Bannon insists that SCOTUS is just champing at the bit to kneecap Congress’s ability to compel witnesses by changing the meaning of the word “willfully” as it is now understood in light of Licavoli.
“The Supreme Court has demonstrated an exceedingly strong interest in interpreting [2 USC] § 192. That Court has granted review in no less than nineteen cases involving various aspects of that statute, despite its brevity,” he writes, dropping to a footnote which includes a list of those cases, the most recent of which is from 1966 — hardly a sign that the mens rea requirement under § 192 is top of the justices’ minds.
Bannon goes on to suggest that the Chief Justice’s refusal to hear Peter Navarro’s identical request is actually proof that the Court very much does want to hear it.
“Chief Justice Roberts took the highly unusual step of issuing an in-chambers decision—the first in many years issued by a Justice—to explain that he was denying the request only because of procedural concerns specific to Dr. Navarro’s case, which were ‘distinct from his pending appeal on the merits,” Bannon writes, “If the underlying merits presented by Dr. Navarro were of no interest or substantiality, presumably Chief Justice Roberts would simply have denied the request without explanation, as frequently occurs.”
O RLLY?
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Justice Roberts sparing his colleagues the trouble of having to look at Navarro’s “please don’t put me in jail” petition is proof that they’re super interested in overruling Licavoli? Even assuming that this were a permissible inference, it would be rather undercut by what happened next.
Aside from this selective reading of the SCOTUS tea leaves, Bannon’s lawyers also argue that forcing him to go to jail during the election will have national implications:
There is also no denying the political realities here. Mr. Bannon is a high-profile political commentator and campaign strategist. He was prosecuted by an administration whose policies are a frequent target of Mr. Bannon’s public statements. The government seeks to imprison Mr. Bannon for the four-month period leading up to the November election, when millions of Americans look to him for information on important campaign issues. This would also effectively bar Mr. Bannon from serving as a meaningful advisor in the ongoing national campaign.
However will the MAGA faithful survive without Steve Bannon’s hate mongering podcast? Please, your honors, keep this godly main out of the pokey long enough that Trump can get back to the White House and pardon him again.
Bannon exhorts the panel to work with haste, rendering a ruling by June 18 so that he can take a flyer at Chief Justice Roberts if and when he loses. And then maybe at Justice Gorsuch, too, although considering recent revelations, Justice Alito would be a better bet.
US v. Bannon [Circuit Docket, via Court Listener]
US v. Bannon [Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
