David I. Schoen, the attorney for Steve Bannon, released the following statement on Friday afternoon:
The Court of Appeals panel held today that it does not have the authority to overrule the 1961 panel of the Court that issued the decision in the Licavoli case on the definition of the word “willfully” as used in the Contempt of Congress statute. Mr. Bannon will now seek redress before the full Court of Appeals, which has the authority to overrule Licavoli.
The Court of Appeals panel held today that it does not have the authority to overrule the 1961 panel of the Court that issued the decision in the Licavoli case on the definition of the word “willfully” as used in the Contempt of Congress statute. Mr. Bannon will now seek redress before the full Court of Appeals, which has the authority to overrule Licavoli.
There are many fundamentally important constitutional issues at stake in this case. Today’s decision is wrong as a matter of law and it reflects a very dangerous view of the threshold for criminal liability for any defendant in our country and for future political abuses of the congressional hearing process.
The Department of Justice argued before the Court that this panel did not have the authority to overrule the Licavoli panel’s decision – only the full Court sitting en banc can do that. The DOJ should support a petition for rehearing en banc to have the full court review this important issue of law.
As the trial court judge wrote earlier in this case. The Court’s definition in Licavoli is ” not consistent with modern case law surrounding the use of that term, let alone the traditional definition of the word.” The full Court of Appeals should make that clear and correct the Licavoli panel’s error.
When Steve Bannon’s lawyer, Robert Costello, received a subpoena for Mr. Bannon to testify before the January 6 committee and he received a direction from President Trump that the he was invoking Executive Privilege with respect to the subpoena, Mr. Costello did two things:
1. He advised Mr. Bannon in no uncertain terms that he was not permitted as a matter of law to in any way respond to the subpoena – that executive privilege had been raised and that it was not his privilege to waive; and
2. Mr. Costello wrote to the committee and told them that Mr. Bannon would fully comply with the subpoena if the the committee worked out any privilege issues with President Trump or they took the matter before a court and the court ordered Mr. Bannon to comply. Mr. Bannon was charged with “willfully making default” in response to a congressional subpoena.
In America, we do not criminally prosecute, let alone convict and send to prison people who not only don’t believe their conduct to be wrongful or in violation of the law, but, as in this case, people who follow the advice of their lawyers who tell them that the law does not permit them to comply with a congressional subpoena when Executive Privilege has been invoked. President Trump expressly confirmed to the trial court in writing that he had indeed invoked Executive Privilege with respect to the subpoena Mr. Bannon received.
A. For decades and, as reaffirmed in the last few years in decisions from the United States Supreme Court, a clear jurisprudential principle has been that “willfully” for purposes of criminal culpability requires a defendant to have acted in a manner he or she knew was wrong and violated the law. The Court of Appeals panel that issued this decision today found that it was bound by a 1961 decision called Licavoli which held that in the context of the congressional contempt statute “willfully” doesn’t require a belief that the conduct is wrong; rather all that matters is whether a subpoena was issued and the recipient complied with it. Licavoli did not involve executive privilege.
B. Long-standing constitutional principles, exhaustively recognized and identified by the Department of Justice for decades in binding opinions, make clear that any such definition when executive privilege has been invoked, violates the fundamental doctrine of separation of powers. It is the President’s or a former President’s prerogative to determine when and over what to invoke executive privilege and only a court, not a committee issuing the subpoena, can be the arbiter of whether executive privilege applies and how far its breadth extends.
Mr. Costello asked the committee to let a judge decide; they had no interest. The committee only wanted the political mileage it thought it would get for pursuing contempt.
It is unconscionable to hold a private citizen criminally liable for responding to a subpoena in the manner his lawyer told him is the only manner the law permits and especially when a constitutional principle like executive privilege is involved. The panel today held that it is bound by the 1961 Licavoli decision, notwithstanding the construction given to the word “willfully” in the criminal law context, which for decades clearly has required some determination that the defendant believed his conduct was wrong.
C. The trial judge in this case expressly wrote that the Licavoli definition cannot be reconciled with either the traditional or the modern definition of “willfully” but that his hands were tied by the precedent which he could not overrule. Similarly, this panel held, as the prosecution had argued, that it does not have the authority to overrule the Licavoli panel and is bound by it. That is why all parties should agree that the full Court of Appeals should hear this case sitting en banc.
D. The government convinced the trial court to bar Mr. Bannon from putting before the jury any evidence as to why he responded as he did to the committee subpoena. Interestingly, even in Licavoli, the jury was permitted to hear the Defendant’s story. The jury in Mr. Bannon’s case was prohibited from hearing that he followed his lawyer’s orders and what those orders were. He was barred from putting on any defense, while the prosecution was permitted to argue to the jury that Mr. Bannon simply ignored the subpoena because he thought he was above the law. They knew he had not ignored it and they knew his lawyer had told him the law didn’t permit him to comply; but the jury never knew either.
E. It also troubling that the Court endorsed the holding in this case that Mr. Bannon could not raise challenges to the multiple violations of the Rules of the House of Representatives from the formation of the 1/6 Committee through its decision to hold Mr. Bannon in contempt.
Every American subpoenaed to testify before Congress ought to be able to depend on a fair hearing before a fairly constituted body. Speaker Pelosi violated the House Rules and protocol and the trust of the American people when she formed the 1/6 committee as she did.
This was promised as an “investigative” committee into the events of 1/6; but she appointed as its Chair, Rep. Benny Thompson who filed a lawsuit alleging that he was personally injured by the events he was supposed to be investigating and placing blame for those events before any investigation even began.
The committee was filled with political partisans who regularly held press conferences announcing their opinions again without conducting any investigation. House Rules were unabashedly violated in the subpoena process all with impunity. The violations struck at the very heart of the integrity of the process as recent findings in the House have exposed; but this court has said it won’t consider any of these violation in connection with Mr. Bannon’s subpoena. The DOJ asked the court to decline to consider the violations and the court agreed. We believe a full review would have well served the country.
There are additional issues of constitutional dimension that were raised on appeal that we will also ask the En Banc Court to consider based on their direct conflict with other authority from this Court and the United States Supreme Court. That is the next step.
David I. Schoen
Attorney at Law
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Photo “Steve Bannon” by Gage Skidmore. CC BY-SA 2.0. Background Photo “Courtroom” by Karen Neoh. CC BY 2.0.
