OPINION: This article may contain commentary which reflects the author's opinion.
Former White House chief strategist Steve Bannon’s guilty verdict could be overturned, one prominent figure argued.
Longtime legal mind and Fox News contributor Gregg Jarrett published an article on his website discussing the details of Bannon’s case and possible outcome. Jarrett believes Bannon has “strong legal grounds” to get his conviction overturned. Bannon was sentenced in October to 120 days in jail for failing to comply with a congressional subpoena from the House Democrat-led Jan. 6 investigation.
In his article, Jarrett cites what he called a potentially wrongfully applied “willful” defiance of a subpoena that is predicated on a “61-year-old circuit court case that was based on a Supreme Court decision that was later repudiated by the high court and overturned.”
“Even U.S. district court judge Carl Nichols recognizes that Bannon’s contempt conviction is likely to get tossed out, which is why he took the extraordinary step of issuing a stay of sentence pending appeal. When Bannon was subpoenaed by the J-6 Committee, Trump’s lawyer sent him a letter stating that the president invoked executive privilege and therefore directed him not to testify. Trump holds the privilege, not Bannon. Under law, Bannon cannot waive it or violate it. So, on advice of his own counsel, Bannon declined to testify. It was the correct advice,” Jarrett wrote.
But at trial, Judge Nichols applied the wrong standard on “willful” defiance of a subpoena. He relied on an outdated 61-year-old DC circuit court case (Licavoli v. U.S., 1961) that was based on a Supreme Court decision that was later repudiated by the high court and overturned. The correct standard, as the Supreme Court has since enunciated, is that prosecutors must show that the defendant knew his actions were unlawful. But if a defendant believes his response to the subpoena is lawful, then he cannot be convicted.
Here, Bannon relied on advice from his lawyer that he could not testify because of executive privilege. Thus, Bannon thought he was acting lawfully. As long as he relied on that advice in good faith, he did not violate the law and should never have been held in contempt and convicted.
It’s nonsensical for prosecutors to claim that executive privilege didn’t apply or that Biden waived his predecessor’s privilege. It is well established that the privilege covers both employees of an administration and non-employees alike. It’s important for presidents to seek outside advice instead of always relying on insiders who tend to tell him what he wants to hear. Moreover, if a subsequent president can waive his predecessor’s privilege, then it renders the privilege meaningless. There is no law that says Biden has the authority to waive someone else’s executive privilege. None. Just the opposite is true. Only the president who invokes the privilege holds the privilege and can waive it.
Steve Bannon Has Strong Legal Grounds to get His J-6 Contempt Conviction Tossed https://t.co/43NuaXW0KD
— Gregg Jarrett (@GreggJarrett) October 22, 2022
Over the summer, prominent lawyer Alan Dershowitz spoke with Newsmax host Greta Van Susteren after a jury in Washington, D.C., convicted Bannon on two charges of contempt of Congress for ignoring a subpoena.
Dershowitz called the conviction “entirely in violation of the Constitution” and predicted that a higher court will “very likely” overturn it.
“The only provision of the Constitution, which appears basically twice, is trial by jury in and in front of a fair jury. Number one, he didn’t have a fair jury. Number two, the judge took his defenses away from him,” Dershowitz said.
After Van Susteren said the D.C. district where the trial was held is “94 percent Democrat,” Dershowitz chimed in, “Well, not only that, but probably 97 percent Trump haters.”
Dershowitz added: “And all you had to do was say, ‘Ladies and gentlemen of the jury, this man Bannon worked for Trump.’ That’s the end of the case.”
“Entirely predictable and entirely in violation of the Constitution. The only provision of the Constitution which appears basically twice is trial by jury, in front of a fair jury. Number one he didn’t have a fair jury. Number two the judge took his defenses away from him. The judge denied him a jury trial. They wouldn’t allow him to put on evidence that he believed there was an executive privilege involved and he wanted a judicial determination before he violated the executive privilege. That issue could not be presented to the jury,” Dershowitz said.
“As I predicted on this show and other shows before this conviction was a foregone conclusion. The only issue is will it be reversed by an appeal. Either by the appellate court in the District of Columbia or by the Supreme Court. I think it’s very likely that this conviction will be reversed at some point,” Dershowitz added.