A federal judge is set to hear arguments Thursday morning over whether former Donald Trump political adviser and right-wing podcaster Stephen K. Bannon should report to prison immediately to begin serving a four-month term for contempt of Congress after an appeals court upheld his conviction in May.
Federal prosecutors made the request last month, arguing that no substantial legal questions remain over Bannon’s two-count conviction for refusing to provide documents or testimony to a House committee probing the Jan. 6, 2021, attack after a panel of the U.S. Court of Appeals for the D.C. Circuit rejected Bannon’s appeal on all grounds.
“Under these circumstances, the Court ‘shall order’ defendant ‘be detained,’ so the stay of sentence must be lifted,” Assistant U.S. Attorney John Crabb Jr. wrote to U.S. District Judge Carl J. Nichols, who sentenced Bannon in October 2022 but agreed to postpone his prison stay pending appeal.
A lawyer for Bannon, 70, disagreed, arguing to Nichols that the same legal questions that prompted the judge to allow his client to remain free after sentencing will remain unsettled until the full D.C. Circuit or the Supreme Court resolve them.
“By the Government’s own account, these issues can only be fully reviewed on their merits by the Court of Appeals sitting en banc or by the United States Supreme Court; therefore there is no basis for considering the removal of the stay of the sentence pending appeal until the appeals process has fully run its course,” Bannon attorney David I. Schoen argued in filings before Wednesday’s hearing.
Bannon would suffer “irreparable harm” if he were sent to prison now because he would almost certainly complete his four-month sentence before his appeals are decided, Schoen wrote.
Schoen has said that he would seek a rehearing before the full D.C. Circuit after a three-judge panel of the appeals court affirmed on May 10 Bannon’s conviction at trial by a D.C. jury in July 2022. The panel said that Bannon can still seek a review from the full appeals court or the Supreme Court, and that it would not return the case to Nichols until seven days after either handled such a request. Prosecutors argued that Nichols retains authority to revoke Bannon’s bond now and make him report to prison.
At sentencing, Nichols placed Bannon’s reporting date on hold, saying he raised a substantial question about whether he should be able to argue that he did not “willfully” refuse to cooperate because he relied on legal advice to ignore a House subpoena for his documents and testimony, among other defenses.
Nichols has said that he did not have the authority to overrule a 1961 D.C. Circuit decision barring such defenses, but that the full court of appeals could.
Bannon could also ask the Supreme Court to intervene, but the justices declined a similar request from Trump trade adviser Peter Navarro, 74, who in March became the first person incarcerated for contempt of Congress in more than half a century, since the red-baiting hearings of the Cold War era. Navarro, who said in a memoir that he and Bannon had a plan for Jan. 6 that would keep Joe Biden from taking office, was convicted of the same crimes in September and received an identical sentence in January from U.S. District Judge Amit P. Mehta.
Navarro interacted with the House investigative committee without an attorney, however, while Bannon communicated with them through an attorney, Robert J. Costello, who represented Bannon in several matters before withdrawing from the case before trial because he was a potential witness.
