United States v. Stephen Bannon (ORDER IN SLIP OPINION FORMAT)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed May 27, 2025

No. 22-3086

UNITED STATES OF AMERICA,

APPELLEE

v.

STEPHEN K. BANNON,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cr-00670-1)

On Petition for Rehearing En Banc

Before: SRINIVASAN, Chief Judge; HENDERSON***,

MILLETT, PILLARD**, WILKINS**, KATSAS*, RAO***,

WALKER***, CHILDS, PAN**, and GARCIA**, Circuit Judges

ORDER

Appellant’s petition for rehearing en banc and the response

thereto were circulated to the full court, and a vote was

requested. Thereafter, a majority of the judges eligible to

2

participate did not vote in favor of the petition. Upon

consideration of the foregoing, the amicus curiae brief filed by

the U.S. House of Representatives in support of neither party,

and appellant’s 28(j) letter, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

* A statement by Circuit Judge Katsas respecting the denial of

rehearing en banc, is attached.

** A statement by Circuit Judge Garcia, joined by Circuit

Judges Pillard, Wilkins and Pan, concurring in the denial of

rehearing en banc, is attached.

*** Circuit Judges Henderson, Rao, and Walker would grant the

petition for rehearing en banc.

A statement by Circuit Judge Rao, joined by Circuit Judge

Henderson in full, and Circuit Judge Walker with respect to Part

II (limited to the question of whether to overrule Licavoli),

dissenting from the denial of rehearing en banc, is attached.

Statement of Circuit Judge KATSAS respecting the denial

of rehearing en banc: Congress has made it a crime for any

person to “willfully” default on a congressional subpoena. 2

U.S.C. § 192. This case presents the question whether that

offense reaches individuals who default on congressional

subpoenas without knowledge of wrongdoing, such as those

who honestly but mistakenly believe that a privilege protects

the subpoenaed items from compelled disclosure.

When interpreting criminal statutes, the Supreme Court

“consistently” has construed the term willfully to require that a

defendant “acted with knowledge that his conduct was

unlawful.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 n.9

(2007) (cleaned up); see, e.g., Sillasse Bryan v. United States,

524 U.S. 184, 191–92 (1998); Ratzlaf v. United States, 510

U.S. 135, 137 (1994); Cheek v. United States, 498 U.S. 192,

200–01 (1991). These decisions cast significant doubt on

Licavoli v. United States, 294 F.2d 207 (D.C. Cir. 1961), which

held that good-faith “reliance upon advice of counsel” does not

foreclose criminal liability under section 192. See id. at 207–

09 (“Evil motive is not a necessary ingredient of willfulness

under this clause of the statute.”). As the dissent persuasively

explains, post at 15–18, the prosecution of former Executive

Branch officials for good-faith but mistaken privilege

assertions raises questions that are troubling, important, and

likely to recur. That concern, plus the significant tension

between Licavoli and more recent Supreme Court decisions,

supports a plausible case for rehearing en banc.

Nonetheless, Licavoli finds support in an earlier Supreme

Court decision, United States v. Helen Bryan, 339 U.S. 323

(1950). There, a defendant refused to comply with a

congressional subpoena because, “after consulting with

counsel,” she “came to the conclusion” that the committee at

issue “had no constitutional right” to issue the subpoena. See

id. at 325 (cleaned up). Yet the Supreme Court upheld the

conviction, stating that the government makes out “a prima

2

facie case of wilful default” by showing that the defendant

“intentionally failed to comply” with a congressional

subpoena. Id. at 330. Moreover, the Court did so without

probing either the sincerity or the reasonableness of the

defendant’s belief that the subpoena was unconstitutional.

If section 192 authorizes criminal liability for good-faith

but mistaken assertions of unconstitutionality, then it likewise

must authorize liability for good-faith but mistaken assertions

of privilege. In other words, the current breadth of section 192

traces as much to Helen Bryan as to Licavoli. So, any

problematic overbreadth is something that only the Supreme

Court can fix.

GARCIA, Circuit Judge, with whom Circuit Judges

PILLARD, WILKINS, and PAN join, concurring in the denial of

rehearing en banc: Stephen Bannon did not respond to a

congressional subpoena and was convicted of “willfully

mak[ing] default” in violation of 2 U.S.C. § 192, the contempt-

of-Congress statute. See United States v. Bannon, 101 F.4th

16, 18–20 (D.C. Cir. 2024). Bannon argued that his default

was not “willful” because he acted in good-faith reliance on his

counsel’s advice that the subpoena sought privileged

information. See id. at 21. A panel of our court rejected that

argument as foreclosed by Licavoli v. United States, 294 F.2d

207 (D.C. Cir. 1961), which held that any “deliberate,

intentional failure” to respond constituted “willful[]” default

under Section 192. Id. at 208. Bannon now asks the en banc

court to revisit that long-settled interpretation.

As Judge Katsas describes, Licavoli’s holding stems from

the Supreme Court’s earlier opinion in United States v. Helen

Bryan, 339 U.S. 323 (1950). Thus, if there are any doubts

about the proper interpretation of “willful” in this statute, they

are for the Supreme Court to resolve. I write separately only to

briefly explain that there are compelling arguments that Helen

Bryan and Licavoli were correctly decided.

Bannon is right that in criminal statutes the word “willful”

is usually construed to require bad faith. See Bannon, 101 F.4th

at 22–23 (collecting cases). “Willful,” however, “is a word of

many meanings, and its construction is often influenced by its

context.” Ratzlaf v. United States, 510 U.S. 135, 141 (1994)

(cleaned up). Thus, “willful” can at times “denote[] an

intentional as distinguished from an accidental act.” Browder

v. United States, 312 U.S. 335, 342 (1941); see Cheek v. United

States, 498 U.S. 192, 208–09 (1991) (Scalia, J., concurring in

the judgment) (“One may say, as the law does in many

contexts, that ‘willfully’ refers to consciousness of the act but

not to consciousness that the act is unlawful.”).

2

Here, statutory context indicates that “willful” default

requires only deliberate conduct. Section 192 criminalizes two

acts: (1) “willfully mak[ing] default” by failing to respond to a

congressional subpoena and (2) “appear[ing]” before a

congressional committee but “refus[ing] to answer any

[pertinent] question.” 2 U.S.C. § 192. The first offense

includes a “willfulness” requirement, but the second does not.

As Bannon sees it, then, a conviction for failing to appear at all

would require a showing of bad faith, but a conviction for

appearing and refusing to answer relevant questions would not.

I am skeptical that Congress intended to enact such a

scheme. Imagine a witness who genuinely believed his

lawyer’s advice that a privilege justified refusing to testify on

subjects listed in a subpoena. On Bannon’s reading, that

witness could not be convicted if he declined to appear before

a congressional committee altogether. Yet he could be

convicted if he appeared but declined to answer specific

questions based on the same advice. That construction makes

little sense. Why would Congress have made it harder to

convict a witness for the more obstructive conduct of

categorically refusing to appear, but easier to convict a witness

who appears but declines to answer certain questions? Worse,

why would such a witness ever appear, when doing so would

place him at higher risk of prosecution and conviction? By

simply declining to participate, the subpoenaed witness would

put the government to the added burden of disproving his

subjective belief that a privilege applied.*

*

To be clear, a defendant facing a contempt prosecution may

surely raise a privilege claim as an affirmative defense. But Bannon

did not raise such an affirmative defense here; that would have

required him to show that the subpoenaed topics were in fact

protected by executive privilege. This case concerns only whether,

to prove an element of the crime, the government bears the burden

3

Bannon has not tenably explained why Congress would

pass a law that encourages less-cooperative conduct. His

reading is especially perplexing given that the purpose of the

contempt-of-Congress statute is to facilitate congressional

inquiry. See, e.g., Helen Bryan, 339 U.S. at 329, 331.

The strongest response would be that the statute’s plain

text nonetheless requires Bannon’s reading, despite the

perverse incentives it creates. After all, the term “willfully”

appears in only the make-default portion of the statute, we

presume Congress’s selective usage of the term was

intentional, and we must give that choice effect. See,

e.g., Russello v. United States, 464 U.S. 16, 23 (1983). So, the

argument goes, if the make-default and refuse-to-answer

prongs have the same mens rea requirement, Congress may as

well have not included the word “willfully” at all.

I am unpersuaded. “Willfully” does work in Section 192

even if it includes “deliberate, intentional” acts, because it

precludes reading the make-default prong as creating criminal

exposure for inadvertent defaults. There are any number of

reasons a subpoenaed witness might unintentionally fail to

appear and thus “default”—“illness, travel trouble, [or]

misunderstanding,” to name a few. Licavoli, 294 F.2d at 208.

Without the “willfully” qualifier, the statute could have been

read to criminalize those defaults too. But there would have

been no similar need to clarify the scope of liability for a

witness’s “refus[al] to answer” pertinent questions. Unlike a

“default,” a “refusal” is necessarily intentional; no one would

say a witness “refused” to answer a question because he did not

hear it. See id.

Common-sense arguments support the long-settled

interpretation of “willfully” in this statute. And Bannon’s

of disproving a defendant’s subjective (but potentially mistaken)

belief that a privilege applied.

4

reading is not necessary to give that term meaning. Those

considerations further support our denial of rehearing en banc.

RAO, Circuit Judge, with whom Circuit Judge

HENDERSON joins in full and Circuit Judge WALKER joins with

respect to Part II, dissenting from the denial of rehearing en

banc: Stephen Bannon, a former advisor to President Donald

Trump, invoked executive privilege and refused to comply

with a legislative subpoena seeking information about the

events of January 6. He was convicted of criminal contempt of

Congress and imprisoned. A panel of this court affirmed

Bannon’s convictions. I would grant rehearing en banc because

Bannon’s petition raises questions of exceptional importance.

The Supreme Court has repeatedly recognized that

individuals prosecuted for contempt of Congress are entitled to

“every safeguard which the law accords in all other federal

criminal cases.” Russell v. United States, 369 U.S. 749, 755

(1962); see also Gojack v. United States, 384 U.S. 702, 707

(1966). One fundamental safeguard is the government’s burden

to prove every element of the crime beyond a reasonable doubt.

In Bannon’s case, however, the government was not required

to prove all the elements of criminal contempt of Congress

under 2 U.S.C. § 192.

Section 192 requires proof the defendant “willfully”

defaulted on a congressional subpoena. But over sixty years

ago, this court read the willfulness requirement out of the

statute. See Licavoli v. United States, 294 F.2d 207, 208 (D.C.

Cir. 1961). The full court should overturn Licavoli because it

is at odds with the plain meaning of section 192 and

longstanding Supreme Court precedent interpreting willfulness

in criminal statutes. Bannon’s convictions must be vacated

because he was not allowed to argue at trial that he resisted the

subpoena on grounds of executive privilege.

Section 192 also requires proof the defendant defaulted on

a lawful subpoena issued “by the authority of either House of

Congress.” Bannon maintains the committee that issued the

subpoena was not constituted in accordance with its

2

authorizing resolution, and he raises a novel and important

question about whether the committee’s defective composition

undermined its authority to issue lawful subpoenas. If Bannon

is right, this provides an independent ground for reversing his

convictions.

This contempt of Congress prosecution against a former

Executive Branch official asserting executive privilege raises

serious separation of powers concerns. I would grant rehearing

en banc to ensure we apply the exacting standards of the

criminal law and protect the important individual and

constitutional interests at stake.

I.

In June 2021, the House of Representatives established the

Select Committee to Investigate the January 6th Attack on the

United States Capitol (“Select Committee”). H.R. Res. 503,

117th Cong. §§ 1, 3(1) (2021) (“Resolution”). The Resolution

prescribed the Select Committee’s composition, providing that

“[t]he Speaker shall appoint 13 Members to the Select

Committee, 5 of whom shall be appointed after consultation

with the minority leader.” Id. § 2(a). The chairman of the Select

Committee was authorized to order depositions “upon

consultation with the ranking minority member.” Id.

§§ 5(c)(4), (6)(A). Notwithstanding the Resolution, the

Speaker appointed only nine members to the Select Committee

and never appointed a ranking minority member. The Select

Committee subpoenaed dozens of individuals and

organizations thought to be connected to January 6.

Stephen Bannon, a former senior advisor to President

Trump, received a subpoena for documents and testimony

relating to, among other things, his “communications with

President Donald J. Trump” in 2020 and 2021 and with White

House and campaign staff concerning the events on January 6.

3

Based on reports that Bannon had discussed the election

certification with members of Congress on January 5 and had

predicted “[a]ll hell” would “break loose” the following day,

the Select Committee believed Bannon had information

relevant to its investigation. Bannon declined to respond to the

subpoena based on advice from counsel that the documents and

testimony were protected by executive privilege. Only two

weeks after Bannon’s refusal to respond, the House voted to

find Bannon in contempt of Congress and refer him to the

Department of Justice for prosecution. Bannon was charged

with two counts of “willfully mak[ing] default” on a

congressional subpoena in violation of section 192.

At trial, Bannon argued section 192 requires the

government to prove he defaulted willfully, that is, with

knowledge that his default was unlawful. To negate

willfulness, Bannon asked to present evidence that he relied in

good faith on advice from counsel that he was not required to

comply with the subpoena because the materials sought were

protected by executive privilege. Moreover, Bannon argued

Licavoli should not control because in the six decades since the

case was decided, the Supreme Court has clarified that

“willfully” in criminal statutes requires the government to

prove a defendant knew his actions were unlawful. The district

court rejected Bannon’s request and explained that while it

“might be inclined to agree with [Bannon] and allow this

evidence in” if this were a matter of first impression, Licavoli

foreclosed Bannon’s defense.

Bannon also moved to dismiss the indictment on the

ground that the subpoena was not lawfully issued. Among

other things, Bannon argued the Select Committee was

improperly constituted because the Speaker did not appoint

thirteen members, as required by the Resolution. Bannon

further claimed the subpoena was not issued in consultation

4

with the ranking minority member because the Select

Committee had no ranking minority member. These defects,

Bannon alleged, undermined the Select Committee’s authority

and rendered the underlying subpoena invalid. The district

court dismissed the motion and barred Bannon from presenting

evidence about the Select Committee’s composition.

A jury convicted Bannon of violating section 192, and he

was sentenced to four months of incarceration. Upholding

Bannon’s convictions, the panel reaffirmed Licavoli and held

the government needed to prove only that Bannon’s default

was deliberate and intentional. United States v. Bannon, 101

F.4th 16, 21–23, 28 (D.C. Cir. 2024). Moreover, the panel

found Bannon’s objections to the Select Committee’s

composition were “procedural arguments” that did not go to

any element of section 192. Id. at 26. As such, Bannon first had

to present these arguments to the Select Committee, and his

failure to do so resulted in forfeiture. Id.

Bannon spent four months in prison.1 He now seeks

rehearing en banc.

II.

I would grant rehearing en banc to overrule Licavoli.

Consistent with Supreme Court precedent, the best reading of

section 192 is that a defendant willfully defaults on a

1

The panel denied Bannon’s request for release pending his petition

for a writ of certiorari. Judge Walker dissented, explaining that

Bannon should have been released pending appeal because “[f]or a

court unbound by Licavoli, like the Supreme Court, the proper

interpretation of ‘willfully’ in Section 192 is a close question or one

that very well could be decided the other way.” United States v.

Bannon, No. 22-3086, 2024 WL 3082040, at *3 (D.C. Cir. June 20,

2024) (Walker, J., dissenting) (cleaned up).

5

congressional subpoena only when he knows his default is

unlawful. If the district court had applied this interpretation, the

government would have been required to prove Bannon had the

requisite knowledge of wrongdoing, and Bannon would have

been entitled to present evidence that he lacked such

knowledge because he believed, in good faith, that the House

sought information protected by executive privilege. Because

the government was not required to prove all the elements of

section 192, Bannon’s convictions must be reversed. See

Gojack, 384 U.S. at 716 (reversing section 192 conviction

because the government failed to prove “an essential element

of the offense”).

A.

The criminal contempt of Congress statute provides:

Every person who having been summoned as a

witness by the authority of either House of

Congress to give testimony or to produce

papers ... willfully makes default, or who,

having appeared, refuses to answer any

question pertinent to the question under inquiry,

shall be deemed guilty of a misdemeanor.

2 U.S.C. § 192 (emphasis added). Section 192 includes two

distinct offenses: (1) “willfully mak[ing] default” after being

summoned by the House or Senate, and (2) appearing before

the House or Senate and “refus[ing] to answer any [pertinent]

question.” Bannon was convicted under the first offense, which

includes an explicit mens rea element—default must be made

“willfully.”

Because section 192 is a criminal statute, the “usual

standards of the criminal law must be observed.” Gojack, 384

U.S. at 707; see also Russell, 369 U.S. at 755. In criminal

6

statutes, “the word ‘willfully’ … generally means an act done

with a bad purpose.” United States v. Murdock, 290 U.S. 389,

394 (1933); see also Felton v. United States, 96 U.S. 699, 702

(1877) (“The word ‘willfully,’ … in the ordinary

sense … means not merely ‘voluntarily,’ but with a bad

purpose.”) (cleaned up); Sillasse Bryan v. United States, 524

U.S. 184, 191 (1998) (“As a general matter, when used in the

criminal context, a willful act is one undertaken with a bad

purpose.”) (cleaned up). In other words, to be convicted of a

crime that requires willfulness, the defendant must have had

“knowledge that his conduct was unlawful.” Sillasse Bryan,

524 U.S. at 192 (quoting Ratzlaf v. United States, 510 U.S. 135,

137 (1994)). Because section 192’s first offense requires

willfulness, knowledge of wrongdoing is a necessary element

of defaulting on a congressional subpoena.

The text and structure of section 192 reinforce that willful

default means willful default. The statute’s first offense

explicitly requires willfulness. By contrast, the second offense

does not specify a mens rea requirement. The Supreme Court

has held that the second offense requires only intentional or

deliberate action. Sinclair v. United States, 279 U.S. 263, 299

(1929). We ordinarily presume that when Congress uses a term

in one place and omits it in another, the choice is intentional

and the variation meaningful. See Russello v. United States,

464 U.S. 16, 23 (1983). Considering the variation in mens rea

requirements for the two section 192 offenses, “willfully” must

mean something beyond intentional or deliberate action. See

Potter v. United States, 155 U.S. 438, 446 (1894) (explaining

that when “‘willful’ is omitted from the description of offences

in the latter part of [the] section,” “[i]ts presence in the first

cannot be regarded as mere surplusage; it means something”).

This straightforward interpretation also accords with

United States v. Murdock, in which the Supreme Court

7

distinguished the two section 192 offenses and explained that

the second offense does not require “bad purpose or evil intent”

because it lacks a willfulness requirement. 290 U.S. at 397–98.

The necessary implication of Murdock is that section 192’s

first offense requires a bad purpose. Reading the statute as a

coherent whole, knowledge of wrongdoing must be an element

of willful default on a congressional subpoena.

More than sixty years ago, however, our court in Licavoli

read the willfulness requirement out of the statute. We relied

principally on United States v. Helen Bryan, which asserted

that the government can establish “a prima facie case of

wil[l]ful default” under section 192 if it proves a defendant

“intentionally failed to comply” with a valid subpoena. 339

U.S. 323, 330 (1950). But the Court did not explain how this

statement comports with the text of section 192, Murdock, or

the long line of criminal cases construing “willfully” to require

knowledge of wrongdoing. Perhaps this is because the Court

discussed willful default only to address the narrow question

on which it had granted certiorari: whether the presence of a

quorum of the committee was a material question of fact for

the jury. Id. at 327. That was the sole issue we decided in the

one-paragraph decision reversed by the Supreme Court. Helen

Bryan v. United States, 174 F.2d 525, 526 (D.C. Cir. 1949) (per

curiam). And the Court expressly stated it was not addressing

any issues “not passed upon by the Court of Appeals.”2 Helen

Bryan, 339 U.S. at 343.

2

I therefore disagree with Judge Katsas that Helen Bryan compels

the result in Licavoli and this case. See Katsas Statement 1–2. In a

section of her brief raising “additional reasons not passed upon by

the Court of Appeals,” Bryan argued her refusal to comply with the

subpoena was based on advice from counsel that the committee’s

authorizing resolution was unconstitutional. Brief for Respondents

8

Moreover, the narrowness of Helen Bryan was confirmed

in a case decided the same day, in which the Supreme Court

did not rule out the possibility that evidence of good faith could

overcome the government’s prima facie showing of intentional

default. See United States v. Fleischman, 339 U.S. 349, 363

(1950); see also McPhaul v. United States, 364 U.S. 372, 379

(1960). There is no reason for this court to cling to an

overbroad reading of Helen Bryan that stands in tension with

the Supreme Court’s consistent understanding that “willfully”

in criminal statutes requires more than merely intentional or

deliberate action.

Under the best interpretation of section 192, the

government must prove an individual defaulted on a

congressional subpoena willfully, that is, with knowledge that

his conduct was unlawful. Licavoli cannot be reconciled with

the text or structure of section 192, and the decision runs

counter to the overwhelming weight of Supreme Court

precedent. See Bondi v. VanDerStok, 145 S. Ct. 857, 877

(2025) (Kavanaugh, J., concurring) (“To prove ‘willfulness,’

the Government must demonstrate that an individual knew that

his conduct was unlawful, not merely that he knew the facts

that made his conduct unlawful.”). Licavoli should be

overruled.

B.

Restoring the correct meaning of section 192 would have

significant consequences for this case. Bannon sought to

introduce evidence that his default was not willful because he

at 31, United States v. Helen Bryan, 339 U.S. 323 (1950) (No. 99).

But the Supreme Court did not grant review on this question and

explicitly declined to consider any of Bryan’s additional arguments.

Helen Bryan poses no barrier to overruling Licavoli.

9

believed the requested information was protected by executive

privilege. The Supreme Court has recognized that recipients of

legislative subpoenas “retain common law and constitutional

privileges with respect to certain materials,” including

“communications protected by executive privilege.” Trump v.

Mazars USA, LLP, 140 S. Ct. 2019, 2032 (2020) (citing Senate

Select Comm. on Presidential Campaign Activities v. Nixon,

498 F.2d 725, 730–31 (D.C. Cir. 1974) (en banc)); see also

Garner v. United States, 424 U.S. 648, 663 n.18 (1976)

(explaining “a defendant could not properly be convicted for

an erroneous claim of privilege asserted in good faith” under a

statute requiring willfulness). If Bannon believed in good faith

that executive privilege protected the subpoenaed materials, his

default was not willful because it was not made with

knowledge of wrongdoing. Bannon should have had the

opportunity to raise these arguments at trial. The government

then could have offered evidence to rebut this argument.

For purposes of rehearing, this court need not decide

whether Bannon’s claim of executive privilege was made in

good faith or would have ultimately prevailed. The important

issue raised in this petition is the government’s burden in a

criminal prosecution under section 192. Because the district

court and the panel followed Licavoli, the government was not

required to prove an essential element of the crime—willful

default. The full court should interpret section 192 to mean

what it says, overrule Licavoli, and vacate Bannon’s

convictions.

III.

Rehearing is also warranted to consider a question of first

impression: Is the proper composition of a congressional

committee essential to its authority to issue a subpoena, or is it

merely a “procedural” requirement that can be forfeited in a

10

criminal contempt of Congress prosecution, as the panel held?

The full court should address this question because committee

authority is an element of a section 192 violation, and it is an

open question whether a committee’s proper composition is an

aspect of its authority. There are good reasons to conclude that

a subpoena is issued by the authority of the House only when

the issuing committee is constituted in accordance with its

authorizing resolution.

A.

It is undisputed that “a clear chain of authority from the

House to the [committee] is an essential element” of a

section 192 charge. Gojack, 384 U.S. at 716; see also Bannon,

101 F.4th at 26 (recognizing “congressional authority” is an

element of section 192). To prove this element, the government

was required to establish beyond a reasonable doubt that the

Select Committee’s “authority [was] clear and [was] conferred

in accordance with law.” Gojack, 384 U.S. at 714. While courts

ordinarily will not inquire into the “appropriateness of [a]

procedure as a method of conducting congressional business,”

the Supreme Court has repeatedly emphasized the importance

of evaluating legislative procedures in the “administration of

criminal justice, and specifically the application of [a] criminal

statute.” Id.; see also Christoffel v. United States, 338 U.S. 84,

88 (1949).

The question Bannon raises is whether the Select

Committee’s defective composition rendered any subpoena it

issued invalid for purposes of criminal contempt because it was

not issued “by the authority of either House of Congress.” 2

U.S.C. § 192. There is no serious dispute that the Select

Committee was not composed in accordance with the plain

terms of the authorizing resolution. The Resolution provides

that “[t]he Speaker shall appoint 13 Members to the Select

11

Committee, 5 of whom shall be appointed after consultation

with the minority leader.” H.R. 503, 117th Cong. § 2(a) (2021).

The Speaker appointed only nine members, however, and did

not appoint a ranking minority member. This violated the

Resolution, as the House now acknowledges. See Brief for the

U.S. House of Representatives as Amicus Curiae in Support of

Neither Party at 11, United States v. Bannon, No. 22-3086.

The panel held that any defects in the Select Committee’s

composition were merely “procedural” and did not undermine

its authority to issue subpoenas. Bannon, 101 F.4th at 26–27.

Such “procedural arguments,” the panel concluded, are “at best

affirmative defenses” that Bannon failed to preserve by not

raising them before the Select Committee. Id. at 26.

Labeling Bannon’s objections as “procedural” does not

resolve the question presented. Neither the Supreme Court nor

this court has considered whether a committee must be

constituted in accordance with its authorizing resolution to

issue a lawful subpoena. If proper composition is a

prerequisite, then the government was required to prove this

aspect of the Select Committee’s authority beyond a reasonable

doubt, and Bannon could not have forfeited his objection by

failing to raise it to the Select Committee. See id.; Gojack, 384

U.S. at 707. Bannon raises an open and important question

about the Select Committee’s authority that should be decided

by the full court.

B.

There are serious arguments that defects in the Select

Committee’s composition undermined its authority to issue a

valid subpoena under section 192. Although no court has

addressed this precise question, several principles can be

drawn from Supreme Court and circuit precedent assessing

congressional authority in the context of criminal prosecutions.

12

First, a committee has authority to issue subpoenas only

when acting within its delegated authority. Because a

committee may wield only the investigative power delegated

to it from the House or Senate, its power “to exact testimony

and to call for the production of documents must be found in

[the] language” of its authorizing resolution. United States v.

Rumely, 345 U.S. 41, 44 (1953). Congressional committees

“are restricted to the missions delegated to them,” and “[n]o

witness can be compelled to make disclosures on matters

outside that [delegated] area.” Watkins v. United States, 354

U.S. 178, 206 (1957). Thus, a “[c]ourt[] administering the

criminal law cannot apply sanctions for violation of the

mandate of [a committee] unless that [committee]’s authority

is clear and has been conferred in accordance with law.”

Gojack, 384 U.S. at 714. The Supreme Court has policed the

boundaries of committee delegations and reversed section 192

convictions when a committee exceeded the authority

conferred by its resolution. See, e.g., Rumely, 345 U.S. at 47;

Gojack, 384 U.S. at 716 (holding that “[a]bsent proof of a clear

delegation to the subcommittee” to issue a subpoena, “the

subcommittee was without authority which can be vindicated

by criminal sanctions under [section] 192”).

Second, even when a committee possesses delegated

authority to issue subpoenas, it must issue those subpoenas in

conformity with the procedures contained in the committee

(and House or Senate) rules. Under section 192, the

government must prove beyond a reasonable doubt that a

defendant was “validly served with a lawful subpoena.” Helen

Bryan, 339 U.S. at 330 (emphasis added). “To issue a valid

subpoena … a committee or subcommittee must conform

strictly to the resolution establishing its investigatory powers.”

Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C. Cir. 1978).

13

When a committee rule relates to an element of the

section 192 offense, “it must be strictly observed.” Gojack, 384

U.S. at 708. Ensuring a committee follows its rules is part of

the judicial role in the “administration of criminal justice, and

specifically the application of the criminal statute which has

been invoked.” Id. at 714; see also Yellin v. United States, 374

U.S. 109, 122–24 (1963) (reversing a section 192 conviction

despite the defendant’s failure to object before the committee

because the defendant reasonably thought the committee was

adhering to its rules). Following these principles, this circuit

has reversed convictions under section 192 when a subpoena

was not issued in accordance with the committee’s rules. See

Shelton v. United States, 327 F.2d 601, 607 (D.C. Cir. 1963)

(reversing a section 192 conviction because the defendant “had

a right under the Subcommittee charter to have the

Subcommittee responsibly consider whether or not he should

be subpoenaed before the subpoena issued”); Liveright v.

United States, 347 F.2d 473, 475–76 (1965) (reversing a

section 192 conviction because the subpoena was not issued in

accordance with the committee’s authorizing resolution).

Section 192 requires the issuance of a lawful subpoena, and a

subpoena is lawful only if a committee follows the governing

rules in issuing it.3

Finally, a committee must follow the rules governing its

composition in order to be a “competent tribunal.” Christoffel,

3

In Shelton and Liveright, we treated the subpoena’s invalidity as an

affirmative defense to, not an element of, section 192’s second

offense, because one could appear before a committee without being

summoned and still unlawfully refuse to answer a pertinent question.

See Liveright, 347 F.2d at 475 n.5. Whether an element of

section 192’s first offense, or an affirmative defense to the second,

the lawfulness of a subpoena depends on compliance with a

committee’s rules for issuing subpoenas.

14

338 U.S. at 89. Christoffel involved a perjury prosecution

under a statute that required a “competent tribunal” as an

element of the offense. Id. at 85. The Supreme Court held that

competency required the committee to satisfy the House

quorum rules, and therefore the government was required to

prove the quorum requirements were met. Id. at 89–90; see also

id. at 90 (“A tribunal that is not competent is no tribunal, and

it is unthinkable that such a body can be the instrument of

criminal conviction.”). As the Court explained, “[t]he question

is [not] what rules Congress may establish for its own

governance” but “rather what rules the House has established

and whether they have been followed.” Id. at 88–89. Christoffel

provides a helpful analogy for interpreting section 192, which

requires the committee to act by the authority of the House.

Such authority, like competency, may depend on the

committee following House rules governing its composition.

As this discussion demonstrates, the Supreme Court and

this circuit carefully assess a committee’s authority when

reviewing criminal convictions under section 192. The

questions Bannon raises about the Select Committee’s

defective composition are important and require similar

consideration. The Select Committee’s authorizing resolution

required the appointment of thirteen members and a ranking

member, neither of which occurred. Were these composition

requirements essential to the Select Committee’s exercise of

delegated authority from the House? That is, to issue a lawful

subpoena for purposes of section 192, was the Select

Committee required to be constituted in accordance with the

Resolution? In light of Supreme Court and circuit precedent,

proper composition of a committee may well be critical to a

committee’s authority and, therefore, a necessary condition for

issuing a lawful subpoena.

15

The government maintains the Select Committee was

properly constituted because the Resolution did not strictly

require appointment of thirteen members. But this factual issue

is irrelevant to the legal question, namely, whether the

Committee’s proper composition is an element of its authority

to issue a lawful subpoena. The full court should resolve this

question because it is “unthinkable” that a committee without

authority “can be the instrument of [a] criminal conviction.” Id.

at 90.

***

When adjudicating criminal contempt of Congress, courts

must ensure “that the congressional investigative power, when

enforced by penal sanctions, [is] not … abused.” Gojack, 384

U.S. at 707. Rehearing is warranted to maintain the exacting

standards of the criminal law, which protect individual liberty

and preserve the separation of powers.

Bannon’s petition first implicates the essential safeguards

for individual liberty in criminal cases. The Supreme Court has

repeatedly held that the protections of the criminal law apply

to section 192 prosecutions. Courts must hold the government

to its burden of proving every element of criminal contempt of

Congress. See id. Yet our decision in Licavoli allows a person

to be convicted of willful default without any showing of

willfulness. We should overrule Licavoli and vacate Bannon’s

convictions.

Moreover, this case presents a question of first impression:

whether the proper composition of a committee is an essential

aspect of its delegated authority to issue lawful subpoenas, as

required by section 192. When seeking to impose criminal

sanctions, a committee must be “meticulous in obeying its own

rules.” Yellin, 374 U.S. at 124. In this political and partisan

16

context, rules about a committee’s composition should not be

lightly disregarded by courts as merely “procedural.”

Finally, this case threatens the separation of powers

because it involves the criminal prosecution of a former

Executive Branch official invoking executive privilege in the

face of a congressional subpoena. Congress may gather

information and issue subpoenas in furtherance of its

legislative powers. McGrain v. Daugherty, 273 U.S. 135, 174

(1927); Mazars, 140 S. Ct. at 2031. But the President is entitled

to assert executive privilege to protect the confidentiality of his

communications and the independence of the Executive

Branch.4 United States v. Nixon, 418 U.S. 683, 708 (1974)

(recognizing executive privilege is “fundamental to the

operation of Government and inextricably rooted in the

separation of powers under the Constitution”). These

constitutional prerogatives come into conflict when a

committee seeks information the Executive considers

privileged.

While such disputes between the political branches are

usually resolved through accommodation and compromise

without involving the courts, Mazars, 140 S. Ct. at 2030–31,

this case involves a rare instance in which Congress

recommended criminal contempt. Even more uncommon, the

Executive Branch pursued the prosecution, breaking from its

4

The Executive Branch has long asserted the right to withhold

privileged information from congressional committees and has

maintained that the President and his immediate advisors cannot be

compelled to testify. See Assertion of Executive Privilege

Concerning the Dismissal and Replacement of U.S. Attorneys, 31

Op. O.L.C. 1, 2 (2007); Assertion of Executive Privilege with

Respect to Clemency Decision, 23 Op. O.L.C. 1, 4–5 (1999);

Immunity of the Former Counsel to the President from Compelled

Congressional Testimony, 31 Op. O.L.C. 191, 192–93 (2007).

17

longstanding position that section 192 “does not apply to

executive branch officials who resist congressional subpoenas

in order to protect the prerogatives of the Executive Branch.”

Congressional Oversight of the White House, 45 Op. O.L.C.,

slip op. at 50 (Jan. 8, 2021); see also Prosecution for Contempt

of Congress of an Executive Branch Official Who Has Asserted

a Claim of Executive Privilege, 8 Op. O.L.C. 101, 140 (1984)

(“The Executive … must be free from the threat of criminal

prosecution if its right to assert executive privilege is to have

any practical substance.”).

In the past, Congress rarely referred Executive Branch

officials for criminal contempt, and the Executive generally

refused to prosecute officials who invoked executive privilege.

Between 1980 and 2017, Congress referred only six Executive

Branch officials for prosecution. See CONG. RSCH. SERV.,

RL34097, CONGRESS’S CONTEMPT POWER AND THE

ENFORCEMENT OF CONGRESSIONAL SUBPOENAS 31, 47, 52–53,

74–85 (2017). When executive privilege was at stake, the

Department of Justice declined to press charges.

Recently, however, the floodgates have opened. Between

2019 and 2023, the House cited six former or current Executive

Branch officials for criminal contempt of Congress. The

Department of Justice proceeded with charges against two of

those officials, including Bannon. Last year, the House

approved a criminal contempt citation against then-Attorney

General Merrick Garland for his refusal to produce audio

recordings related to President Biden’s alleged mishandling of

classified materials. See H.R. Res. 1292, 118th Cong. (2024).

With this acceleration in contempt of Congress prosecutions

against Executive Branch officials—prosecutions almost

always brought in this circuit—the issues raised here are likely

to recur and should be resolved now.

18

The uptick in criminal contempt of Congress prosecutions

against former Executive Branch officials is further reason to

clarify that section 192 requires proof of willful default. If

Bannon invoked executive privilege in good faith, he would be

shielded from criminal sanction under section 192 because any

default would not be willful. Courts must assess this element

and any protections for executive privilege even when the

Executive Branch proceeds with a prosecution despite the

claims of privilege. Cf. In re Search of Info. Stored at Premises

Controlled by Twitter, Inc., No. 23-5044, 2024 WL 158766, at

*2 (D.C. Cir. Jan. 16, 2024) (statement of Rao, J., respecting

denial of rehearing en banc) (explaining presidential materials

may be presumptively privileged “even in the absence of an

assertion of executive privilege”).

When criminal contempt of Congress is pursued, “[t]he

jurisdiction of the courts cannot be invoked to impose criminal

sanctions in aid of a roving commission.” Gojack, 384 U.S. at

715. Because the questions presented in this petition are vital

to individual liberty and implicate the separation of powers

between Congress and the Executive, I respectfully dissent

from the denial of rehearing en banc.