Judge Brad Garcia, nominated to the DC Circuit by President Biden, wrote a unanimous opinion upholding the conviction of former Trump advisor Stephen Bannon for contempt of Congress for refusing to turn over documents requested in a subpoena and to testify. Judges nominated by Trump and Obama joined the May 2024 ruling in US v Bannon.
What is the background of this case?
As part of its work in September 2021, the House Select Committee to Investigate the January 6th Attack on the Unted States Capitol issued a subpoena to testify at a deposition and for documents to Stephen Bannon. Although he knew about the subpoena, Bannon failed to comply. He neither appeared nor provided even “a single document.” Reports indicated that Bannon predicted that “all hell” would “break loose” on January 6 and that he had participated in 2020-2021 discussions about “efforts to overturn the 2020 election results.”
The House found Bannon in contempt of Congress for his failure to comply, and the matter was referred to the US Attorney, which indicted Bannon for contempt under federal law. After a five-day trial, a jury found Bannon guilty of contempt for refusing to testify and produce documents. He was sentenced to four months in jail and a fine. The sentence was stayed as Bannon appealed to the DC Circuit.
How did Judge Garcia and the DC Circuit Rule and Why is it Important?
Judge Garcia wrote a unanimous opinion that affirmed Bannon’s conviction for contempt of Congress. He was joined in full by Obama nominee Cornelia Pillard and Trump nominee Justin Walker.
Garcia rejected the arguments by Bannon against the conviction, particularly his claim that he was relying on the advice of counsel and did not refuse to comply in “bad faith.” As Garcia explained, the DC Circuit had previously held that the statutory requirement that someone convicted of contempt act “willfully” means “only that the defendant deliberately and intentionally refused to comply” with a subpoena. Based on prior precedent, he went on, the “exact ‘advice of counsel’ defense is no defense at all.” Despite Bannon’s claims, Garcia concluded, “we have no basis to depart from that binding precedent.”
Bannon also raised defenses based on the claim that his noncompliance was “justified” because he “relied on directives from then-former President Trump” and on interpretations of opinions from the Department of Justice’s Office of Legal Counsel (OLC). After a careful review of the record, however, Garcia concluded that “[n]either the communications from former President Trump’s counsel nor the OLC opinions purported to authorize Bannon’s refusal to produce any documents or appear for his deposition.” Garcia also rejected other procedural arguments raised by Bannon.
Judge Garcia’s opinion is important because it reinforces significant precedent concerning the authority of Congress and the courts to hold someone in contempt for refusing to comply with a Congressional investigation and subpoena, even though Bannon’s lawyers have already indicated they will try to appeal. In addition, the ruling serves as a reminder of the importance of promptly confirming fair-minded judges like Judge Garcia to our federal courts.
UPDATE: On June 20, 2024 Judge Garcia and JUdge Nina Pillard, who was nominated by president Obama, turned down another request by Bannon to avoid serving his jail sentence. Trump nominee Justin Walker dissented. The Supreme Court also turned down Bannon's request, an dhe began serving his jail sentence on July 1 He continues his appeal