Steve Bannon, a former senior White House official and political advisor to President Donald Trump, is scheduled to stand trial for federal criminal contempt of Congress. Bannon’s charges stem from a criminal referral from the U.S. House of Representatives outlining his failure to comply with a subpoena for documents and testimony issued by the House Select Committee to Investigate the January 6th Attack on the United States Capitol (the “Select Committee”).  Back in October, Congress adopted a resolution finding Bannon in contempt of Congress, and he was indicted the following month for two counts of violating the Contempt of Congress statute, 2 U.S.C. § 192, with one count related to testimony and the other to documents. Bannon has maintained throughout the controversy that former President Trump has directed him not to produce the subpoenaed information on executive privilege grounds, thereby absolving Bannon of the legal obligation to comply. 

The case brings to the foreground the question of what state of mind is required to prove criminal contempt of Congress.

In the course of making pretrial motions, Bannon indicated he wants to argue to jurors that he relied on his attorney’s advice that President Trump’s executive privilege claim defeated the congressional subpoena obligation, and therefore he couldn’t be found contemptuous of Congress under the statute. However, in early April, federal district court Judge Carl Nichols issued an order granting federal prosecutors’ motion to exclude evidence during Bannon’s trial that he relied in good faith on the advice of his attorney when declining to appear in response to a congressional subpoena. 

As discussed below, that opinion sheds light on the state of judicial interpretation of the level of mental culpability required to violate the Contempt of Congress statute.

Background on United States v. Bannon

On Sept. 23, 2021, Select Committee Chair Bennie Thompson (D-MS) signed and transmitted a subpoena, cover letter, and schedule to Bannon ordering the production of both documents and testimony relevant to the Select Committee’s investigation into ‘‘important activities that led to and informed the events at the Capitol on January 6, 2021.’’ The Chair’s letter identified public reports describing activities and past statements that gave the committee reason to believe Bannon possesses information about matters within the scope of the inquiry.

Bannon’s attorney, Robert Costello, accepted service and then, following the Oct. 7, 2021 return date on the Select Committee’s subpoena, engaged in a series of exchanges with the Select Committee objecting to Bannon’s obligation to comply with the subpoena. Costello relied on an Oct. 6, 2021 letter from former President Trump’s counsel Justin Clark to Costello that instructed Bannon to ‘‘invoke any immunities and privileges he may have from compelled testimony,’’ ‘‘not produce any documents concerning privileged material,’’ and ‘‘not provide any testimony concerning privileged material.’’ 

During the extended exchange, the Select Committee rejected the notion that there was a valid assertion of executive privilege before it that would absolve Bannon of his compliance obligations and questioned Bannon’s coverage by an executive privilege assertion in any event due to his status as a private citizen during the period under investigation. Further, the Select Committee expressed its view that Bannon had an obligation to appear for his deposition and raise any privilege objections on a question-by-question basis rather than a blanket assertion of privilege or immunity. 

Costello ultimately informed the Select Committee that Bannon would not produce documents or appear for testimony until a court had ruled on, or former President Trump and the Select Committee reached an agreement on, the matter of executive privilege. Later, in January 2022, the Supreme Court declined to review the D.C. Circuit’s rejection of President Trump’s claim of executive privilege, an assertion that had been contravened by incumbent President Joe Biden. However, that Supreme Court action did not occur before the Select Committee resolution finding Bannon in contempt and the House of Representatives’ referring him to federal prosecutors. Nor did it occur before the U.S. Attorney’s Office secured the two count grand jury indictment against Bannon for violating the Contempt of Congress statute.

A Mens Rea (“Guilty Mind”) Primer

Under U.S. federal criminal law, crimes generally have two elements: (1) one must engage in prohibited conduct (the “actus reus” element) with (2) a culpable mind (the “mens rea” element). Take, for example, a typical first degree murder statute formulation: “the willful, deliberate, or premeditated killing of another person.” To obtain a conviction, a prosecutor needs:

  • Proof the defendant undertook a voluntary action causing the killing (the actus reus element)
  • Proof demonstrating the link between that action and the death of the victim (the causation element)
  • Proof the victim is dead (a status element), and
  • Proof that the voluntary fatal action was undertaken by the defendant with a mental state that was “willful, deliberate, or premeditated” (the mens rea element) 

There are wide variations to statutory mens rea elements in terms of different levels of culpability required, different judicial interpretations of the same word across different statutes, and, different overall mens rea schemes across federal and state jurisdictions. 

The Contempt of Congress statute (Section 192) states:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than [$100,000] nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

The mens rea word in contention in Bannon is “willfully.” It complicates matters, however, that federal courts have brought different interpretations to that word across the U.S. code. 

The “Advice of Counsel” Defense

Bannon wants to raise an “advice of counsel” defense. This kind of defense asserts that a criminal defendant could not have acted with the criminal statute’s required guilty mind because they relied on the advice of an attorney when engaging in the allegedly criminal conduct. The classic elements of the defense, where available, are (1) the defendant fully disclosed all material facts to their attorney before seeking advice, (2) the defendant in fact relied on that advice, and (3) the defendant relied on that advice in the good faith belief that they were engaging in legal conduct. 

Many statutes, however, do not lend themselves to an advice-of-counsel defense if there is not a fraudulent or bad-faith intent element. This recitation of the hornbook law from a recent extortion and tax evasion case is helpful and demonstrating the distinction: 

For example, in United States v. Scully, the Second Circuit stated that “[r]eliance on the advice of counsel, in cases where fraudulent intent is a required element for guilt, is a defense that tends to refute the government’s proof of such intent.” 877 F.3d 464, 478 n.6 (2d Cir. 2017); see L. Sand et al., Modern Federal Jury Instructions 8.01 (“When fraudulent intent is an element of the crime, the prosecution has the burden of proving such intent beyond a reasonable doubt. It follows that, in such cases, the defendant’s ‘good faith’ constitutes an absolute defense to such crime”). By contrast, where there is no requirement that the defendant intended to violate the statute criminalizing an offense, the advice of counsel instruction is not warranted. See United States v. Remini, 967 F.2d 754, 757 (2d Cir. 1992). It is presumed that “every citizen knows the law,” Bryan v. United States, 524 U.S. 184, 193 (1988).

United States v. Ray, __ F. Supp. __ (S.D.N.Y., April 1, 2022)

Because it is a defense that negates a mental state of bad faith, bad faith has to be an essential element of the criminal statute for which the defendant was charged. That became a stumbling block for Bannon’s defense.

The Bannon Holding: No Advice-of-Counsel Defense for Criminal Contempt of Congress

In Bannon’s case, the district court applied binding D.C. Circuit precedent to hold that an advice-of-counsel defense is not available to defeat the federal criminal contempt of Congress statute.

In Licavoli v. United States, the DC Circuit held that

reliance upon advice of counsel is no defense to a charge of refusing to answer a question…All that is needed … is a deliberate intention to do the act. Advice of counsel does not immunize that simple intention. It might immunize if evil motive or purposes were an element of the offense. But such motive or purpose is not an element of [2 U.S.C. § 192].

Bannon’s defense team made several arguments in order to confront this adverse D.C. Circuit precedent. First, he argued the U.S. Supreme Court case the D.C. Circuit relied on in 1961 – Sinclair v, United States – had been overruled. The district court acknowledged that Sinclair was weakened, “but not the holding that Licavoli relies on.”  

Second, Bannon argued that the Supreme Court had elaborated on the meaning of the word “wilfully” in other federal criminal statutes since Licavoli was decided in 1961 in ways that would make an advice-of-counsel defense viable here. But Judge Nichols disagreed, noting that, even if true for other statutes operating under a willful standard, the district court is not at liberty to disregard binding precedent from the D.C. Circuit that appears to be on point.

Finally, Bannon argued that executive privilege altered the analysis. Adopting DOJ’s reasoning, Judge Nichols held that a claim of executive privilege does not alter the mens rea requirements of the statute. As such, the existence of a privilege claim did not render an advice-of-counsel defense viable.

Pending any further action upon appeal, the state of the law on the mens rea required to prove a criminal violation of the Contempt of Congress remains that “willfully” means a deliberate act of withholding the information under congressional subpoena. The  statute does not require proof of “evil motive or purpose.” Rather, the statute merely requires a deliberate intention not to respond to the congressional command. 

We will see whether any appellate court pronouncements from here alter that assessment.

Photo: Former Trump administration White House advisor Steve Bannon departs U.S. district court after an appearance on November 15, 2021(Win McNamee/Getty Images)