Steve Bannon, Contempt, and Advice of Counsel
Former Trump aide and full-time provocateur Steve Bannon is facing trial on two criminal charges of contempt of Congress for defying a subpoena from the House January 6 Committee. The judge in his case just ruled that Bannon cannot defend against the charges by presenting evidence that he relied on the advice of his attorney when he failed to honor the subpoena. That’s clearly the right decision based on existing law. But although it’s impossible to feel sorry for Bannon, I’m not sure the rule against allowing an advice of counsel defense in this situation is really in the interest of justice.
The Facts of Bannon’s Case
Bannon reportedly was deeply involved in the events leading up to the assault on the Capitol. The Committee subpoenaed Bannon on September 23, 2021, ordering him to produce documents on October 7 and appear for a deposition on October 14. He did not comply with either demand. Instead, his lawyer Robert Costello wrote to the Committee that Bannon would not honor the subpoena because former president Trump had claimed executive privilege over the requested information. Costello claimed Bannon therefore was “legally unable to comply” unless the Committee reached an agreement with Trump or obtained a court order on the scope of the privilege.
The Committee Chairman, Rep. Bennie Thompson, wrote back to Costello and rejected those claims. Thompson pointed out that most of the requested information related to Bannon's activities as a private citizen and that Trump had made no formal assertions of privilege. Thompson warned that if Bannon failed to comply with the subpoena the Committee would consider him to be in contempt.
In additional back-and-forth correspondence, Costello again claimed that Bannon could not comply and Thompson again rejected those claims. Bannon did not produce any documents and did not appear for the deposition. On October 21, the House voted to hold Bannon in contempt and referred the matter to the Department of Justice. On November 12, a grand jury indicted him on two counts of Contempt of Congress.
Contempt of Congress
The contempt of Congress statute, 2 U.S.C. § 192, provides in part:
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 . . . 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 $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. (emphasis mine)
If a witness is found in contempt by the full House or Senate, 2 U.S.C. § 194 provides that Congress shall certify the matter to the United States attorney, “whose duty it shall be to bring the matter before the grand jury for its action.”
As I’ve written before, this statute has, shall we say, some issues. For one, it is a completely inadequate tool for enforcing Congressional subpoenas. Prosecution doesn’t compel the witness to testify, it merely punishes the witness for the contempt after the fact. If the goal is to get the relevant information from the witness – which usually should be the goal, at least -- this criminal sanction does not accomplish that.
There’s also the interesting wrinkle that, although the statute says the U.S. Attorney has the “duty” to present the case to a grand jury, Justice Departments of both political parties have taken the position that “duty” doesn’t mean “obligation.” When a witness from the executive branch is held in contempt by Congress (usually one controlled by the other political party), the Justice Department routinely declines to prosecute, based on concerns about the separation of powers and executive privilege. As a result, most such referrals from Congress go nowhere.
Bannon was in a different posture because he was not part of the current administration when he was found in contempt, and DOJ was controlled by the other political party. He was the first person in years to be indicted for this offense.
The Advice of Counsel Defense
The primary defense Bannon wanted to raise at trial was, “My lawyer told me it was OK.” Bannon sought to argue the government could not prove he acted “willfully,” as required by the contempt statute, because he was acting in good-faith reliance on the advice of his attorney.
This “advice of counsel” defense can defeat the required proof of criminal intent in a narrow category of cases. Generally the criminal law holds that people are responsible for their own knowing actions and, as the old saying goes, ignorance of the law is no excuse. For most crimes the government need only prove that the defendant intended to do the acts that constitute the offense, not that the defendant knew he was violating the law. To take an extreme example, if I commit a robbery or a burglary I will not be allowed to defend by claiming I didn’t know robbery or burglary were against the law or that my lawyer told me it was OK.
But for some criminal violations, the government is required to prove a higher level of intent. This intent requirement can be expressed in different ways: specific intent, or evil intent, or acting in violation of a known legal duty. In such cases, ignorance of the law can, in fact, be an excuse. If your attorney told you that what you were doing was lawful, that advice could defeat the government’s proof of your intent.
This higher level of intent is sometimes expressed in criminal statutes by the requirement that the defendant acted “willfully.” That was Bannon’s argument when it comes to contempt of Congress: he claimed that because the statute requires that his default was “willful,” the government had to prove he deliberately disregarded a known legal duty. If that were the standard, then Bannon could raise an advice of counsel defense.
The Definition of Willful
The definition of “willful” is a confusing area of criminal law. The Supreme Court has noted that willful has a different meaning in different criminal statutes and its meaning often depends on the context. Sometimes it does mean the government must prove a defendant knew he was violating the law. But for most statutes, it means simply that the defendant’s conduct was knowing and intentional, rather than accidental.
In their court papers, Bannon’s attorneys cited cases such as the Supreme Court’s leading decision in Ratzlaf v. United States to argue that “willful” means the government must prove Bannon knew his defiance of the subpoena was unlawful. Ratzlaf involved violations of the currency structuring laws, which prohibit "willfully" breaking up cash transactions into amounts under $10,000 so the banks won't file any currency transaction reports.
The Court noted that breaking down financial transactions into smaller amounts is not obviously evil. The average person would not necessarily be on notice that it might be criminal. In the context of the structuring statute, therefore, the Court held it was not enough that the government prove the defendant knew his conduct would result in the reports not being filed. The requirement of “willfulness” meant the government also had to prove the defendant knew that structuring was unlawful.
The same standard applies in tax crimes, where the Court also has interpreted willfully to mean prosecutors must prove the defendant knowingly violated the tax law. Another example is campaign finance violations, such as the one Trump’s former attorney Michael Cohen pleaded guilty to in connection with the Stormy Daniels payoff. Criminal campaign finance violations require proof the defendant acted willfully, which courts have interpreted to mean the defendant must have known his actions violated campaign finance law.
What these crimes have in common is that they are complex and quasi-regulatory. They contain legal prohibitions that are purely creatures of statute, not so-called "Ten Commandment crimes." The conduct involved is not inherently evil and an ordinary citizen would not necessarily be on notice of the criminal implications. As the Court has noted, they involve “highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct.” Before holding someone criminally responsible for such crimes, therefore, due process requires the government to prove the defendant knew about the relevant legal requirements.
But this heightened requirement of willfulness remains the exception, not the rule. When interpreting statutes, the general rule is still that "willful" means simply consciousness of the act itself, not consciousness that the act is unlawful. Ignorance of the law usually is still no excuse -- which means it's irrelevant if your lawyer gave you bad advice.
The Licavoli Case
Bannon argued that the requirement of willfulness in the contempt statute should be interpreted to require the known violation of a legal duty, just like tax or campaign crimes. Unfortunately for Bannon, there is an old D.C. Circuit case that squarely rejects his argument. In Licavoli v. United States (1961) the defendant was charged under the same contempt statute for failing to respond to a subpoena from the U.S. Senate. He argued the government could not prove he had acted willfully because he had relied on the advice of his attorney.
The Court of Appeals held that “willful” in the contempt statute does not require proof of an evil intent or knowing violation of the law. Any witness who deliberately and intentionally fails to appear, the court held, “willfully makes default” under the statute. The requirement of willfulness serves only to distinguish deliberate decisions not to appear from failures to appear caused by other reasons, such as illness or travel delays. “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 purpose were an element of the offense. But such motive or purpose is not an element of either of these offenses.”
In other words, the crime of contempt is relatively simple: if you are properly served with a subpoena, you must honor it. You don’t get to ignore it and then claim later that your lawyer said it was OK. The crime is more like a robbery or burglary than like a tax crime or structuring. If you make the deliberate decision to defy the subpoena, you are responsible for the consequences of your actions – just as with most criminal offenses.
Not surprisingly, in light of Licavoli, U.S. District Judge Carl Nichols ruled that Bannon may not present evidence of his attorney’s advice at his trial. Bannon’s attorneys argued that this case was different because of the potential issues of executive privilege involved. But the government successfully countered that the only relevant issue was Bannon’s intent, and the nature of any potential privilege did not affect that question.
Advice of Counsel, Contempt, and Executive Privilege
Judge Nichols noted that, if he were writing on a clean slate and was not bound by the Licavoli precedent, he might agree with Bannon that the advice of counsel defense should be allowed. I might agree as well.
I understand the reason behind the general rule that advice of counsel is not a defense to contempt – particularly when it comes to not showing up at all in response to a subpoena, as Bannon did. If it were a defense, it would be far too easy for witnesses to ignore subpoenas simply by claiming their lawyer told them they have some kind of privilege. This would severely undermine the subpoena power of Congress – and of the courts, for that matter. Generally, even if you claim a privilege, you need to show up in response to the subpoena and assert that privilege in person.
That being said -- the result in this case doesn’t feel right to me. I can’t bring myself to type the words that I sympathize with – well, you-know-who – but I can sympathize with someone in his position. It's important to consider the general rule here, divorced from the particular context of January 6 and Bannon.
Suppose you received a subpoena from a Congressional committee -- what would you likely do? You'd talk to a lawyer. Suppose your lawyer tells you that you don’t need to respond and gives you some facially plausible legal reasons why. Suppose further that lawyers for the former president of the United States say the same thing and ask you not to comply. You’re not a lawyer. If you do what we normally expect people to do, follow your lawyer's advice, and are prosecuted, is your only remedy to sue your attorney for malpractice from your jail cell?
This entire proceeding involves legal battles, and complicated ones at that. Issues of executive privilege are not well-settled. And there are some opinions from the DOJ Office of Legal Counsel arguing that executive branch officials need not show up at all in response to a Congressional subpoena. Sure, these opinions are controversial, but they do exist. Yes, I know, Bannon was no longer in the executive branch by January 6. But whether and to what extent executive privilege survives once an individual leaves the government is also an unsettled question.
Still, overall, Bannon's executive privilege claims seem very weak, particularly the claim that he could refuse to show up at all. Many would argue that the advice Bannon received was frivolous, or that his lawyer was incompetent, given that weakness. But if it turns out a lawyer was incompetent, should the client go to jail as a result?
It seems likely that Bannon was primarily interested in trying to stonewall the Committee and would have latched onto any excuse to avoid cooperating. But the reliance on advice of counsel has to be in good faith. If the government could demonstrate that the supposed reliance on legal advice was just an excuse to refuse to cooperate, the jury should reject the defense. But that’s different from saying Bannon should not even get to present the argument to the jury for its consideration.
Legal proceedings in general, and fights over things like executive privilege, have gotten a lot more complex in the sixty years since Licavoli. And as Bannon's lawyers argued, most of the Supreme Court decisions approving the stricter requirement of "willfulness" were decided well after Licavoli. A battle over a subpoena involving the notoriously murky area of executive privilege seems more like a tax or structuring case to me than a burglary or robbery. I’m not sure the average citizen should be expected to know what the law requires. And I’m not sure we should expect witnesses in such cases to ignore the advice of their attorneys, on penalty of criminal contempt.
Judge Nichols didn’t have any choice but to follow the binding precedent of Licavoli. But if Bannon is convicted, he might have a good shot at convincing the D.C. Circuit to take another look at this issue. I’d feel happier about this prospect if the case involved someone less odious than Bannon – but even the odious are entitled to due process.
What all of this highlights once again is the inadequacy of this contempt procedure as a way to enforce Congressional subpoenas. Congress needs to revive some form of its inherent contempt power so that it can seek to compel compliance by witnesses on its own, rather than relying on the Department of Justice and lengthy court proceedings. And the remedy would be that Congress actually gets the information, rather than a misdemeanor prosecution that might not conclude until well after the Congressional investigation is over.
But for now, the Bannon case will proceed to trial, there will be no advice of counsel defense, and the January 6 committee will almost certainly conclude its work without obtaining Bannon’s information.