Before Steve Bannon’s trial, where he was convicted of two counts of contempt of Congress, he attempted to use an “advice of counsel” defense, arguing that his attorney had advised him that he should not serve the subpoenas. committee of the House of Representatives on January 6 could actually be canceled because Donald Trump would invoke executive privilege.
That lawyer was Robert Costello, who has become better known lately as the one and only defense witness at Trump’s hush money trial.
Yet Bannon’s reliance on Costello’s advice was never what most of us would reasonably consider. First, Trump attorney Justin Clark Costello wrote to say that Trump was notIn fact, he is invoking the executive privilege of Bannon, who left the White House in 2017, regarding his testimony. Clark also emphasized that Trump never advised Bannon to withhold his testimony or documents until the executive privilege issues were resolved.
U.S. District Judge Carl Nichols, a Trump nominee who presided over the case, initially agreed to suspend Bannon’s four-month sentence because he believed the case raised serious appellate issues. In particular, Bannon noted that he disagreed with a 1961 opinion from the U.S. Court of Appeals for the D.C. Circuit, as Bannon recounted in a recent letter.
According to that opinion, Licavoli v. United States, reliance on the advice of counsel cannot negate the defendant’s willfulness when it comes to contempt. Nichols therefore casually explained that while he had “serious reservations” that Licavoli was “not consistent with modern case law surrounding the use” of “intentional,” he was bound by that 1961 ruling.
But in its opinion upholding Bannon’s conviction last month, the DC Circuit reaffirmed its precedent and rejected Bannon’s other challenges to his contempt convictions:
It was that opinion that led Justice Department prosecutors to lift the suspension of Bannon’s sentence, which in turn led to Nichols ordering Bannon to report to prison by July 1.
This article was originally published on MSNBC.com
