- A federal judge struck down a key pillar of Steve Bannon's defense against contempt-of-Congress charges.
- Judge Carl Nichols, a Trump appointee, said Bannon cannot use the so-called advice of counsel defense.
- Nichols cited a 1961 ruling as "binding" precedent that prevents Bannon from arguing that he defied House subpoenas on the advice of his lawyers.
Steve Bannon just lost a key defense ahead of his trial on contempt of Congress charges: that he was following his lawyer's advice when he defied subpoenas from the House select committee investigating the Capitol riot.
In a four-page order, US District Judge Carl Nichols blocked Bannon from raising that argument at his July trial, citing a decades-old precedent that prevents those charged with contempt of Congress from using the so-called advice of counsel defense.
Nichols, a Trump appointee confirmed in 2019 to the Washington, DC, federal trial court, appeared to hand down the decision reluctantly. At a hearing last month, he raised questions about the 1961 ruling by the US Court of Appeals for the DC Circuit that foreclosed the advice of counsel defense against contempt of Congress charges.
But he ultimately sided with the Justice Department's view that the DC Circuit's decision, in Licavoli v. United States, was binding precedent and should prevent Bannon from arguing to jurors that he defied House subpoenas in good faith reliance on his lawyer's advice.
Nichols wrote in his order that the 1961 decision "remains binding, and Bannon has failed to demonstrate that it is inapplicable here.
"After all, Licavoli involved a prosecution under the exact statute that Bannon is charged with violating, and the Court of Appeals expressly held that an advice-of-counsel defense is unavailable for that charge."
At a March 16 hearing, Nichols had appeared skeptical of the ruling. In his order Wednesday, he noted his remark during the hearing that "if this were a matter of first impression, the Court might be inclined to agree with defendant and allow this evidence in."
Bannon is set to stand trial on July 18.
If convicted, Bannon faces up to a year in jail and a fine of up to $100,000.
Bannon's indictment came within weeks of the House recommending that the Justice Department prosecute the Trump ally over his defiance of the congressional investigation into the January 6, 2021, attack on the Capitol.
Shortly after the November indictment, Bannon pledged to make the prosecution the "misdemeanor from hell" for the Justice Department.
Bannon is one of several Trump allies who have cited executive or attorney-client privilege when refusing to cooperate with the House select committee. Others include former chief of staff Mark Meadows, the conservative lawyer John Eastman, and the former White House aides Kash Patel and Dan Scavino.
Legal experts have been skeptical that Bannon has a legitimate executive privilege claim, given that he was forced to resign from the Trump White House in the summer of 2017, more than three years before the Capitol siege took place.
The House of Representatives referred Meadows to the Justice Department for criminal contempt charges in December, which the department is currently weighing.
"We will follow the facts and the law wherever they may lead," Attorney General Merrick Garland said when asked about the status of the Meadows referral on Wednesday. The House will also vote Wednesday evening on whether to refer Scavino and the Trump White House trade advisor Peter Navarro for contempt charges.