But U.S. District Court Judge Carl Nichols ruled on Wednesday that Bannon will be precluded from making that case in front of a jury. He said that the “advice of counsel” defense is not applicable in contempt of Congress cases, citing a 1961 ruling by the U.S. Court of Appeals that he says is still binding on lower courts like his.
Costello’s advice to Bannon was based on the longstanding Department of Justice opinions issued by the department’s Office of Legal Counsel, which has repeatedly determined that advisers to the president are immune from congressional subpoenas on matters related to government business. OLC has also determined that when a witness testifies on matters that might implicate executive privilege, the president is entitled to have a representative present to assert the privilege when necessary.
The Justice Department has said the OLC advice has no bearing on its assessment of whether Bannon violated the contempt statute, which simply required that he appear in response to a congressional subpoena.
Bannon’s lawyers said the ruling would prevent them from making a key point within their argument but wasn’t a fatal setback to their defense. Rather, they signaled that they would simply point to the OLC opinions as proof that the subpoena itself was invalid and that the entire prosecution is flawed.
“We believe the prosecution is constitutionally barred and that in any event, the OLC opinions and reliance on them provides a complete defense,” said Bannon’s attorney David Schoen, who said the team would formally lodge those arguments in an April 15 motion to dismiss the case.
Schoen said Nichols’ decision could reorder the interpretation of the contempt of Congress statute itself, raising “fascinating constitutional arguments as to why this statute is unconstitutional as applied.”
“We fully respect Judge Nichols and his decision,” Schoen said, adding that “we believe the judge applied the law as he believed he was bound to do.”
Bannon has contended that the prosecution against him is politically motivated and has vowed to turn the charge against him into the “misdemeanor from hell” for Democrats and the Biden administration.
Nichols, a Trump appointee, previously ordered the Justice Department to provide internal documents to Bannon about its charging decision. The department indicated it has provided 218 pages of materials to Bannon in response to Nichols’ order, nearly all of which were already in the public domain.
Nichols has a long history with OLC decisions, having argued in court as a Justice Department attorney in the Bush administration in support of a limitation on Congress’ ability to compel testimony from current and former top White House officials.