(Photo by Stephanie Keith/Getty Images)
Steve Bannon isn’t going to let a little thing like jail stop him! Just yesterday, lawyers for the putrefying podcaster filed yet another batshit motion asking Judge Carl Nichols to prettyplease let their client out of jail now, even though he’s only halfway through a four-month stint at FCI Danbury for contempt of Congress.
Bannon was convicted in July of 2022, after blowing off a subpoena from the January 6 Select Committee, and he managed to stay out of the pokey for a year while Judge Nichols let him take a flyer at the DC Circuit. Bannon argued that either the DC Circuit or the Supreme Court would likely overturn Licavoli v. US, 294 F.2d 207 (D.C. Cir. 1961), which barred the advice of counsel defense for contempt of Congress.
On May 10, Judges Cornelia Pillard, Justin Walker, and Brad Garcia unanimously denied his appeal. And on June 10, the same panel rejected Bannon’s emergency motion for release pending appeal, but this time Judge Walker dissented, suggesting that Licavoli might be overturned by the Supreme Court.
“Because the Supreme Court is not bound by Licavoli, because Licavoli’s interpretation of ‘willfully’ is a close question, and because that question may well be material, Bannon should not go to prison before the Supreme Court considers his forthcoming petition for certiorari,” he wrote.
Judge Walker made no mention of en banc review, and on June 28, the Supreme Court denied Bannon’s emergency petition for release pending appeal. Nevertheless, Bannon’s lawyer Trent McCotter, argues that Judge Walker’s one-page dissent means that the DC Circuit is almost certain to overrule Licavoli, and thus Judge Nichols should treat this as a fait accompli and release Bannon now.
“Judge Walker’s dissents have a habit of turning into majority opinions,” he argues, citing Loper Bright and West Virginia v. EPA — as if the Supreme Court needed Justin Walker’s nudge to overturn Chevron and gut the Clean Air Act!
McCotter makes an additional bizarre argument about the DC Circuit, sitting en banc, requesting that the government file a response to the suggestion that they should “revisit Licavoli.”
“Calling for a response is rare,” he writes, adding that “But more importantly: the government filed its response to the petition on July 31, 2024, and nearly a full month has now passed without any subsequent order from the D.C. Circuit. This is consistent with two outcomes: either the D.C. Circuit will grant rehearing, or there will be a denial accompanied by a written dissent.”
He goes on to introduce some game theory, concluding that, even if the petition for rehearing is denied, the fact that the Circuit Court considered it at length is an intervening event that justifies releasing his client immediately:
Over a significant sample size, if the Court has not summarily denied the en banc petition within 25 days of the response being filed, the odds of a grant or a separate opinion accompanying a denial have been 100%.7 Mr. Bannon’s case has now surpassed that 25-day threshold—it is at 29 days and counting.
Either a grant or a dissent from denial would necessarily demonstrate the mens rea issue here is one on which reasonable minds could differ—i.e., it is “substantial.” United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1987). And such action would also necessarily be an intervening and changed circumstance since this Court’s last decision on bail
Reading the judicial tea leaves is a perfectly respectable pastime, and we here at ATL have been known to engage in it ourselves. We do not generally confuse it with legal reasoning, however, much less ask a federal judge to join us in the delusion. Particularly when, as here, the Supreme Court has had a chance to consider exactly the same issue and said “Thanks, but no thanks.”
But perhaps Judge Nichols will see matters differently.
US v. Bannon [Disrict Docket via Court Listener]
US v. Bannon [Circuit Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.