Steve Bannon's Hopes of Avoiding Prison Suffer Blow

Former White House chief strategist Steve Bannon's hopes of appealing his contempt of Congress conviction have been dealt a major blow after a judge questioned the top Donald Trump ally's key line of defense.

Bannon's legal team argued before a three-judge panel at the U.S. Court of Appeals for the District of Columbia Circuit on Thursday that he should have his 2022 conviction for defying a congressional subpoena issued to him by the House Select Committee investigating the January 6 attack thrown out.

Bannon was found guilty of two counts of contempt of Congress in July 2022 and sentenced to four months the following October. He has not spent any time in jail, pending the result of his appeal.

David Schoen, an attorney for the MAGA figurehead, argued that Bannon should have been protected from prosecution because Trump invoked executive privilege in October 2021 preventing Bannon from testifying. This led to Bannon relying on advice from his then-attorney, Robert Costello, that he could not waive the privilege, which keeps information from the executive branch from becoming public.

However, Circuit Judge Cornelia Pillard seemed to dismiss the claims from Schoen that the executive privilege defense is "presumptively valid" while noting that Bannon, who left the White House in 2017, was a private citizen during the period covered by the January 6 House select committee's subpoena.

"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," Pillard said. "And none of the conduct at issue here was during Mr. Bannon's service in the White House was it? None of it."

Schoen replied that the subpoena did cover Trump's presidency, to which Pillard replied that it was "not during Bannon's service."

"Do you have any authority that suggests—any authority at all—that suggests that some kind of executive privilege or immunity would apply to conduct that postdates a person's service?" Pillard asked.

In a statement, Schoen rejected the judge's remarks and suggested the invocation of executive privilege being presumptively valid is a "constitutional principle based" on the concept of the executive branch's role in the separation of powers dynamic.

"To say it is 'presumptively valid' means that when and to what executive privilege is invoked is solely the president's or former president's prerogative and Congress must treat its invocation and coverage as valid as a matter of law and particularly pursuant to the separation of powers doctrine," Schoen told Newsweek.

"The underlying point here, though, is that there is no limitation on the invocation of executive privilege or its presumption of validity such that it only applies so long as the person with whom the communications were conducted is employed by the White House as an adviser. He or she never had to have been so employed."

Elsewhere, Schoen claimed that Bannon did not willfully ignore the subpoena, but was prevented from complying, and could not make this case to the jury at his trial.

"Mr. Bannon acted in the only way he understood from his lawyer that he was permitted to behave," Schoen told the court.

Justice Department Attorney Elizabeth Danello argued that Bannon was warned multiple times that the executive privilege defense would not stand up as a reason to not comply with the subpoena.

"Mr. Bannon deliberately chose not to comply with a legitimate congressional subpoena," Danello said.

Prior to the hearings, Schoen told Newsweek that "no matter where anyone stands" on Bannon, they should hope his contempt conviction gets reversed on appeal.

"It is a very dangerous proposition to hold someone criminally culpable and send them to prison without a finding that he or she ever acted in any way that he or she believed was against the law or wrong. That is what happened here," Schoen said.

The U.S. Court of Appeals for the District of Columbia Circuit took the case under consideration.

Update 11/10/2023, 9:50 a.m. ET: This article has been updated with comment from David Schoen.