Can Steve Bannon Raise an Advice-of-Counsel Defense?

The government asserts that former Trump adviser Steve Bannon cannot raise an advice-of-counsel defense to his criminal contempt charges for refusing to comply with a congressional subpoena regarding the Jan. 6 attack on the U.S. Capitol.

The government has asked the court to preclude this defense, but the court should refuse.

The House committee investigating the attack subpoenaed Bannon to produce documents and to appear for a deposition. The subpoena sought documents relating to Bannon’s communications with former President Trump, and to other matters. Bannon invoked executive privilege and advised the committee that he would not comply with the subpoena until a court rules on that issue.

The committee said Bannon must comply with those portions of the subpoena not covered by any privilege and that it expected him to appear for his deposition and raise any privilege issues in response to specific questions. Bannon responded that he would not produce any documents or testify until the committee either reached an agreement with Trump or obtained a court ruling as to Trump’s executive privilege claim. Bannon did not appear before the committee to testify, nor did he produce any documents.

Bannon was charged with two counts of contempt of Congress. One count is based on his failure to appear at the deposition, the other is based on his failure to produce documents.

Advice of Counsel as a Defense to Contempt

The contempt statute punishes any person who is summoned as a witness by Congress and “willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry.” Thus, the government must prove that Bannon “willfully” failed to comply with the subpoena.

The U.S. Supreme Court ruled in 1998 that, to establish a “willful” crime, the government must prove the defendant acted with knowledge that his conduct was unlawful. An “advice of counsel” defense seeks to negate this conclusion by showing that the defendant relied in good faith on counsel’s advice that his course of conduct was legal.

Nonetheless, the government contends that this defense is not available to Bannon. It relies on a 1961 decision by the D.C. Circuit which held that, under the contempt of Congress statute, advice of “counsel cannot immunize a deliberate, intentional failure to appear pursuant to a lawful subpoena lawfully served.”

That holding, however, is not squarely supported by the previous Supreme Court decisions on which it relied. And it conflicts with the Supreme Court’s subsequent decision that a “willful” offense requires a defendant to know his conduct is unlawful.

Still, the Supreme Court has precluded advice of counsel as a defense in some criminal contempt cases. The court has explained that the necessity for expedition in the administration of the criminal law justifies forcing a person to choose between (1) complying with a court’s order to provide evidence and (2) refusing to comply, thereby risking a contempt conviction if his claims are rejected on appeal.

An advice-of-counsel defense undermines this stark choice and causes the threat of a contempt sanction to lose much of its potency to compel reluctant witnesses to provide evidence when their objection to doing so is overruled.

But most of the Supreme Court’s decisions precluding an advice-of-counsel defense involve cases where the contempt charge arises out of a judicial proceeding after the defendant’s claim that he is not legally obliged to provide certain evidence or testimony has been rejected by a judge. In contempt of Congress cases, the defendant has not yet had an opportunity to present his legal argument to any judge.

The Supreme Court has rejected advice of counsel as a defense in contempt of Congress cases where the defendant refuses to answer questions on the ground they are not pertinent to the legislative inquiry. Congressional hearings would be crippled if a witness could refuse, with impunity, to answer any questions that his counsel advises him are not pertinent. Furthermore, the stakes usually are limited where the issue is simply whether a particular question is pertinent.

But privilege issues present a distinct set of concerns. The Supreme Court recently emphasized that recipients of congressional subpoenas can assert executive privilege. And the court underscored that congressional subpoenas for the president’s information—including information held by third parties—raise significant separation of powers issues because they unavoidably pit the political branches against each other.

Separation of Powers Issue

If reliance on the advice of counsel is not a defense to a contempt charge where executive privilege is at issue, then the result will be to increase the leverage of Congress in disputes with the Executive Branch (or a former president), and potentially infringe on the separation of powers. Plainly, the Supreme Court is wary of any such result.

Further, while Bannon is more than willing to risk a contempt conviction, many other persons in his position would not be. The D.C. Circuit observed long ago that “the representative of one [Branch] in conflict with another should not have to risk jail to vindicate his constituency’s rights.” Recognizing reliance on advice of counsel as a defense to a contempt charge avoids this dilemma.

Bannon should be allowed to raise an advice-of-counsel defense. Whether that defense will succeed remains to be seen, especially since he did not simply refuse to provide evidence that he believes is privileged; rather, he stonewalled the congressional subpoena altogether.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Steven D. Gordon, a partner in the Washington, D.C., office of Holland & Knight LLP, represents corporate and individual clients under investigation or facing criminal charges. He has served as lead counsel in more than 100 trials and has argued appeals in most of the federal circuits and the U.S. Supreme Court.