Thursday, January 25, 2024
We are awaiting any day now a ruling from the U.S. Court of Appeals for the District of Columbia Circuit on Steve Bannon's appeal of his conviction for violating Title 2, United States Code, Section 192 by willfully refusing to testify or provide documents to the January 6 Committee in response to its subpoena. In allowing Bannon to remain free on bond pending appeal, U.S. District Judge Carl Nichols noted that Bannon's appeal raised substantial questions of law: "In particular, as I've noted throughout this case, there is a substantial question regarding what it should mean for a defendant to willfully make default under the contempt of Congress statute and what evidence a defendant should be permitted to introduce on that question." Bannon was prevented from introducing evidence, arguing to the jury, or having the trial court instruct the jury, that his attorney had advised him not to comply with the subpoena. Under a 63-year-old D.C. Circuit precedent, Licavoli v. United States, willfulness in the context of Section 192 does not require a showing that the defendant intended to violate the law or acted with an evil motive or bad purpose. The government need only prove that the failure to comply was deliberate. It is extremely unlikely that Licavoli is still good law today, given numerous Supreme Court white collar crime opinions since 1961 requiring the government to prove an intent to violate a known legal duty in order to show willfulness. Here are some case materials from U.S. v. Stephen Bannon.