Former Trump aide Steve Bannon will assert an “advice of counsel” defense in appeals court after being convicted and sentenced to four months in prison last year.
After a jury found the Bannon’s War Room host guilty of two counts of contempt of Congress, his prison sentence was put on hold so that he could appeal the decision. Bannon’s attorney will stand before a three-judge panel on Thursday to defend his client.
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“Bannon was barred from putting on any evidence or argument that he believed he responded to the subpoena in the only way the law permitted once executive privilege was invoked, and that he acted in the manner his experienced lawyer directed him that he had to act as a matter of law,” his attorney argued in court filings.
The contempt of Congress conviction came after Bannon disobeyed a subpoena from the Jan. 6 House committee, but the former Trump strategist argued this subpoena was never valid and that even if it was, he should have been allowed to present various defenses to the jury to explain himself in his previous trial.
Bannon maintains his innocence on account of his reliance on the advice of his attorney, a similar defense to that of another figure facing charges related to the 2020 election: former President Donald Trump.
The former president was ordered on Wednesday to share with the court whether he intends to use the “advice of counsel” defense in his federal election subversion trial, as Trump’s attorneys have claimed in media interviews that he was acting on the advice of his lawyers following the 2020 presidential election.
A federal judge ruled that Bannon could not use the “advice of counsel” defense in his previous trial due to the precedent set in the landmark Licavoli v. United States case, but Bannon is offering another line of cases that he believes undermine this precedent.
If Bannon’s appeal is unsuccessful, he faces four months in prison and a $6,500 fine. However, in that event, he could still bring his appeal to higher courts and drag out the process — possibly all the way to the Supreme Court.
As it stands, Bannon’s case will go before a three-judge panel on the District of Columbia Circuit, with each judge having been appointed by one of the three most recent presidents: Joe Biden, Trump, and Barack Obama.
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David Schoen, Trump’s attorney from his second impeachment trial, will represent Bannon in his appeal as oral arguments are set to begin Thursday at 2 p.m.
“Recent decisions from the United States Supreme Court can dispense with the fundamental requirement that there be some evidence of a wrongful or criminal purpose,” Schoen argued in court filings.