The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2023 Decided May 10, 2024
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)
David I. Schoen argued the cause and filed the briefs for
appellant.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Chrisellen R.
Kolb, J.P. Cooney, and Molly Gaston, Assistant U.S.
Attorneys.
Before: PILLARD, WALKER, and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARCIA.
2
GARCIA, Circuit Judge: In September 2021, the House
Select Committee to Investigate the January 6th Attack on the
United States Capitol issued a subpoena to appellant Stephen
Bannon to testify and provide documents. Bannon did not
comply—he knew what the subpoena required but did not
appear or provide a single document. Bannon was later
convicted of violating the contempt of Congress statute,
2 U.S.C. § 192, which criminalizes “willfully” failing to
respond to a congressional subpoena. Bannon insists that
“willfully” should be interpreted to require bad faith and argues
that his noncompliance does not qualify because his lawyer
advised him not to respond to the subpoena. This court,
however, has squarely held that “willfully” in Section 192
means only that the defendant deliberately and intentionally
refused to comply with a congressional subpoena, and that this
exact “advice of counsel” defense is no defense at all. See
Licavoli v. United States, 294 F.2d 207, 207 (D.C. Cir. 1961).
As both this court and the Supreme Court have repeatedly
explained, a contrary rule would contravene the text of the
contempt statute and hamstring Congress’s investigatory
authority. Because we have no basis to depart from that
binding precedent, and because none of Bannon’s other
challenges to his convictions have merit, we affirm.
I
On January 6, 2021, rioters attacked the United States
Capitol, seeking to interfere with the certification of the 2020
presidential election results. The attack delayed the scheduled
certification vote of the Joint Session of Congress. The attack
also left over 140 law enforcement officers injured and resulted
in several deaths.
On June 30, 2021, the House of Representatives adopted
House Resolution 503, establishing the Select Committee to
Investigate the January 6th Attack on the United States Capitol.
3
The Resolution charged the Select Committee to investigate
and report on the “facts, circumstances, and causes” of the
January 6th attack. H.R. Res. 503, 117th Cong. § 3 (2021). It
also authorized the Select Committee to subpoena witnesses to
provide testimony and documents, id. § 5(c)(4), and to propose
any legislation the Committee deemed necessary in light of its
investigation, id. § 4(a)(3).
Public accounts indicated that Bannon had predicted on a
January 5, 2021 podcast that “all hell [wa]s going to break
loose” the next day. J.A. 39. Bannon had been employed as
an advisor to then-President Donald Trump for approximately
seven months before leaving the White House in 2017. In
addition to the podcast prediction, Bannon had reportedly
participated in discussions in late 2020 and early 2021 about
efforts to overturn the 2020 election results.
Based on these reports, the Select Committee believed that
Bannon had information relevant to its investigation.
Accordingly, on September 23, 2021, the Select Committee
issued a subpoena to him. The subpoena sought documents and
testimony pertaining to seventeen categories of information
from 2020 and 2021, long after Bannon’s 2017 departure from
the White House: Three pertained to Bannon’s
communications with President Trump in 2020 and 2021; the
rest related to Bannon’s communications with White House
and campaign staff, other private citizens, and related
activities. The subpoena ordered Bannon to produce
documents by October 7, 2021, and to appear for a deposition
on October 14. Bannon did not comply with either demand.
Instead, shortly after the first subpoena deadline passed on
October 7, Bannon’s lawyer informed the Select Committee
that Bannon would not respond. That October 7 letter stated
that Bannon had received communications from Justin Clark,
counsel for former President Trump, indicating that President
4
Trump intended to invoke executive privilege. Until those
issues were resolved, the letter stated, Bannon would not
respond to the request for documents or testimony.
The next day, October 8, the Select Committee responded
in a letter, stating that Bannon had provided no “legal basis”
for his “refusal to comply with the Subpoena.” J.A. 4838. The
Select Committee noted that it had received no assertion,
formal or otherwise, of executive privilege from President
Trump. The Select Committee also explained that such an
assertion would not, in any event, justify Bannon’s wholesale
noncompliance with the subpoena. As the Select Committee
described, “virtually all” of the material sought concerned
Bannon’s actions as a private citizen and pertained to subjects
not covered by executive privilege. Id. The Committee noted
that Bannon could raise any particularized privilege concerns
to the Committee in response to specific questions or document
requests, but that he could not categorically claim “absolute
immunity” from responding to the subpoena. J.A. 4839.
Bannon’s lawyer replied in an October 13 letter to the
Committee, repeating that Clark “informed” Bannon’s lawyer
that President Trump “is exercising his executive privilege”
and that Bannon would not respond to the subpoena. J.A. 4841.
In an October 15 letter, the Select Committee reiterated the
points in its October 8 letter—that it had received no
communication from President Trump asserting executive
privilege and that such an assertion would not justify total
noncompliance by Bannon. The Select Committee repeatedly
warned that if Bannon continued to refuse to comply, it would
consider referring Bannon for prosecution on contempt
charges. The Committee gave Bannon until October 18 to
submit any additional information that might bear on its
contempt deliberations.
5
During this period, though Clark (former President
Trump’s counsel) did not contact the Select Committee, he did
exchange several emails with Bannon’s lawyer. In those
exchanges, Clark warned—contrary to Bannon’s position—
that an assertion of executive privilege would not justify
Bannon’s total noncompliance. In his initial October 6 letter to
Bannon’s counsel, Clark described the subpoena as seeking
materials “including but not limited to” information
“potentially” protected by executive privilege. J.A. 444. Clark
therefore instructed Bannon to invoke, “where appropriate,”
any immunities and privileges Bannon “may have.” Id. In an
October 14 letter to Bannon’s lawyer, Clark disclaimed that
President Trump had directed Bannon not to produce
documents or testify until the issue of executive privilege was
resolved. And on October 16, after learning of Bannon’s
continued claim to the Committee that he was justified in not
responding to the subpoena, Clark repeated that his previous
letter “didn’t indicate that we believe there is immunity from
testimony for your client. As I indicated to you the other day,
we don’t believe there is.” J.A. 448.
Bannon did not comply with the subpoena in any respect.
Nor, despite the Committee’s warnings, did he submit by
October 18 any further information bearing on the Committee’s
contempt deliberations. On October 19, 2021, the Select
Committee informed Bannon that it had unanimously voted to
recommend that the House of Representatives find him in
contempt of Congress.
On November 12, 2021, a grand jury charged Bannon with
two counts of violating 2 U.S.C. § 192. Section 192 provides
that “[e]very person who having been summoned as a witness
by the authority of . . . any committee of either House of
Congress, willfully makes default, or who, having appeared,
refuses to answer any question pertinent to the question under
inquiry, shall be deemed guilty” of contempt of Congress.
6
2 U.S.C. § 192. The indictment’s first count concerned
Bannon’s refusal to appear for the deposition; the second
concerned his refusal to produce the sought-after documents
and communications.
On July 22, 2022, following a five-day trial, a jury found
Bannon guilty on both counts. The district court sentenced
Bannon to four months’ incarceration for each count to run
concurrently, with a $6,500 fine. The district court stayed
Bannon’s sentence pending this appeal.
II
Bannon raises four challenges to his convictions. He
argues that the district court erroneously defined the mental
state required for a contempt of Congress charge, that his
conduct was affirmatively authorized by government officials,
that the Select Committee’s subpoena was invalid to begin
with, and that the trial court should not have quashed certain
trial subpoenas that sought to develop evidence for his defense.
As explained below, each challenge lacks merit.
A
In this appeal, Bannon does not dispute that he deliberately
refused to comply with the Select Committee’s subpoena in
that he knew what the subpoena required and intentionally did
not respond; his nonresponse, in other words, was no accident.
Instead, Bannon challenges the contempt of Congress charges
on the ground that he reasonably believed—based on advice of
counsel—that he did not have to respond. He argued below
and on appeal that “willfully” making default in violation of
2 U.S.C. § 192 requires bad faith—that the defendant must
know that his conduct violated the law. The district court,
however, concluded that Section 192 requires proof only that
the defendant deliberately and intentionally did not respond.
The district court thus denied Bannon’s motion to dismiss the
7
indictment based on his asserted good-faith reliance on his
counsel’s advice, precluded Bannon from presenting such a
defense at trial, and instructed the jury consistent with those
rulings. We review the district court’s legal determination de
novo. See United States v. Sheehan, 512 F.3d 621, 629 (D.C.
Cir. 2008).
Our decision in Licavoli directly rejects Bannon’s
challenge. In Licavoli, we concluded that “willfully” in
Section 192 requires that any failure to appear in response to a
congressional subpoena be only “deliberate” and “intentional.”
294 F.2d at 208; see id. at 207–09. It does not require bad faith,
evil motive, or unlawful purpose. Id. at 209. Indeed, Licavoli
specifically held that an advice of counsel defense—which
ultimately seeks to show the defendant acted in good faith—is
unavailable under this statute. Id. (“Advice of counsel does not
immunize that [deliberate] intention.”).
Bannon does not dispute that description of Licavoli. See
Bannon Br. 10. He instead asks us to depart from its holding.
That request, however, must clear a high bar. Licavoli is
binding upon this panel unless it was inconsistent with an
earlier, on-point decision, United States v. Old Dominion Boat
Club, 630 F.3d 1039, 1045 (D.C. Cir. 2011), or if it has been
overturned—or its rationale “eviscerated”—by a subsequent
decision of the Supreme Court or of this court sitting en banc,
Dellums v. U.S. Nuclear Regul. Comm’n, 863 F.2d 968, 978
n.11 (D.C. Cir. 1988). Bannon has not identified any such case.
To the contrary, every case that addresses the mental state
required for a contempt of Congress conviction firmly supports
Licavoli’s holding.
Recall that Section 192 criminalizes not only “willfully
mak[ing] default”—the clause at issue in Licavoli and this
case—but also—in a second clause—the conduct of one “who,
having appeared, refuses to answer any question pertinent to
8
the question under inquiry.” 2 U.S.C. § 192. As Licavoli itself
observed, the Supreme Court had already held that the latter
clause requires only a deliberate and intentional refusal to
answer. See 294 F.2d at 207–08. For example, in Sinclair v.
United States, 279 U.S. 263 (1929), overruled on other
grounds by United States v. Gaudin, 515 U.S. 506 (1995), the
Supreme Court held that a conviction under that clause requires
only an “[i]ntentional violation”; no “moral turpitude” is
required and assertions that a defendant “acted in good faith on
the advice of competent counsel” are “no defense.” Id. at 299.
Quinn v. United States, 349 U.S. 155 (1955), reached the same
result: Section 192’s latter clause requires only “a deliberate,
intentional refusal to answer.” Id. at 165; see also Yellin v.
United States, 374 U.S. 109, 123 (1963); Watkins v. United
States, 354 U.S. 178, 208 (1957); United States v. Helen Bryan
(“Helen Bryan”), 339 U.S. 323, 330 (1950); Fields v. United
States, 164 F.2d 97, 101 (D.C. Cir. 1947). Although the
“refusal to answer” clause does not use the term “willfully,”
Licavoli rejected the argument that the presence of the adverb
in one clause but not the other counseled any different approach
to the mental state required when a subpoena recipient refuses
to appear altogether instead of appearing but refusing to answer
pertinent questions. See 294 F.2d at 208. Bannon offers no
challenge to that rationale—which would bind us in any
event—in this appeal.
Moreover, cases addressing Section 192 have explained
why, as a practical matter, requiring evidence of bad faith
would undermine the statute’s function. The ability to
effectively enforce subpoenas is critical to Congress’s power
of inquiry, which is in turn essential to Congress’s ability to
legislate “wisely and effectively.” Quinn, 349 U.S. at 160–61.
And effectively enforcing congressional subpoenas would be
exceedingly difficult if contempt charges required showing that
a failure to appear or refusal to answer questions was not just
deliberate and intentional, but also done in bad faith.
9
Otherwise, any subpoenaed witness could decline to respond
and claim they had a good-faith belief that they need not
comply, regardless of how idiosyncratic or misguided that
belief may be. As the Supreme Court has colorfully put it, a
“subpoena has never been treated as an invitation to a game of
hare and hounds, in which the witness must testify only if
cornered at the end of the chase.” Helen Bryan, 339 U.S. at
331. “If that were the case, . . . the great power of testimonial
compulsion, so necessary to the effective functioning of courts
and legislatures, would be a nullity.” Id.
In the face of that authority, Bannon cites cases that do not
undermine Licavoli, much less to the degree required for this
panel to even consider departing from that decision.
Importantly, the cases Bannon cites do not address Section 192
or contempt charges at all, but instead interpret the word
“willfully” in other criminal statutes to require more than a
deliberate and intentional act. For example, in some criminal
statutes, “willful” conduct requires that the defendant act with
a “bad purpose,” meaning with “knowledge that his conduct
was unlawful.” Sillasse Bryan v. United States (“Sillasse
Bryan”), 524 U.S. 184, 191–92 (1998) (quotation omitted)
(interpreting 18 U.S.C. § 924(a)(1)(D), which criminalizes
unlawfully dealing in firearms without a license); Ratzlaf v.
United States, 510 U.S. 135, 140–50 (1994) (interpreting
31 U.S.C. §§ 5322, 5324, which prohibit willfully structuring
cash transactions for the purpose of evading reporting
requirements); United States v. Burden, 934 F.3d 675, 680,
689–93 (D.C. Cir. 2019) (interpreting the “willful[]” violation
of a provision prohibiting the export of defense articles without
a license). But that is at most a “general” rule. Sillasse Bryan,
524 U.S. at 191. As those same cases explain, “willful” “is a
‘word of many meanings,’” and “‘its construction is often . . .
influenced by its context.’” Ratzlaf, 510 U.S. at 141 (alteration
omitted) (quoting Spies v. United States, 317 U.S. 492, 497
(1943)); see also Sillasse Bryan, 524 U.S. at 191 (noting that
10
construction of word “willfully” in statutes “is often dependent
on the context in which it appears”). Because statutory context
is critical, nothing in the authorities Bannon relies upon calls
into question this court’s longstanding interpretation of
“willfully” in Section 192 as requiring a deliberate, intentional
failure to respond to a subpoena.1
Finally, Bannon argues that applying Licavoli to disallow
his advice of counsel defense would raise constitutional
concerns because his counsel’s advice was that then-former
President Trump had asserted executive privilege. This case,
however, provides no occasion to address any questions
regarding the scope of executive privilege or whether it could
have excused Bannon’s noncompliance in these circumstances.
President Trump did not communicate an intent to invoke
executive privilege to the Committee, and Bannon never raised
executive privilege as an affirmative defense to the contempt
charges in district court. See J.A. 3017 (district court similarly
observing that whether executive privilege excused Bannon
from complying with the subpoena was “unteed-up”).2 The
1
At oral argument, Bannon’s counsel identified our pre-
Licavoli decision in Townsend v. United States, 95 F.2d 352 (D.C.
Cir.), cert. denied, 303 U.S. 664 (1938), as the strongest reason why
we should not apply Licavoli. Oral Arg. Tr. 5:10–7:8; 35:3–14.
Unlike the cases interpreting “willfully” that Bannon cited in his
briefs, that decision does address Section 192. But it only further
confirms Licavoli’s holding and ours. Townsend acknowledged that
the meaning of “willfully” depends on the specific “statute in which
it is used,” and concludes, contrary to Bannon’s position, that
“deliberately” refusing to comply with a congressional subpoena
violates Section 192. 95 F.2d at 361.
2
In a July 2022 letter to Bannon, President Trump claimed that
he had previously invoked executive privilege, but that letter was
written long after Bannon had already failed to comply with the
subpoena in October 2021.
11
argument Bannon preserved and presses on appeal is confined
to disputing the mental state required for a contempt of
Congress conviction. It raises no constitutional question to
reaffirm Licavoli’s holding that a deliberate and intentional
refusal to honor a congressional subpoena violates federal law.
B
Bannon also sought to mount what he parses as three
affirmative defenses—all based on the assertion that the
government authorized his default—which he labels
entrapment by estoppel, public authority, and apparent
authority. Bannon advanced a common theme to support those
defenses: that his noncompliance was justified because he
relied on directives from then-former President Trump and a
collection of opinions from the Department of Justice’s Office
of Legal Counsel (“OLC”). The district court concluded that
none of the defenses supported dismissing the indictment and
that Bannon was not entitled to a jury instruction on the
defenses either. Our review is again de novo. See United States
v. Williamson, 903 F.3d 124, 132 (D.C. Cir. 2018).
These defenses stem from fairness concerns with
prosecuting someone who reasonably relies on a government
official’s advance assurance that their conduct would be legal
or on a government official’s authorization of illegal conduct.
For example, where a federal agency “affirmatively misled”
regulated entities into believing certain specific conduct was
lawful, the Supreme Court held that prosecuting the entities for
that very conduct would offend “traditional notions of fairness
inherent in our system of criminal justice.” United States v. Pa.
Indus. Chem. Corp., 411 U.S. 655, 674 (1973). Accordingly,
these government authorization defenses require the defendant
to show (in addition to other elements we need not address) that
the government affirmatively authorized the defendant’s
conduct—here, Bannon’s refusal to produce any documents or
12
testify in response to the Select Committee’s subpoena. See
Cox v. Louisiana, 379 U.S. 559, 569–71 (1965); Raley v. Ohio,
360 U.S. 423, 424–25 (1959); United States v. Alvarado,
808 F.3d 474, 484–85 (11th Cir. 2015); United States v. W.
Indies Transp., Inc., 127 F.3d 299, 313 (3d Cir. 1997).
Bannon cannot show such authorization here. Neither the
communications from former President Trump’s counsel nor
the OLC opinions purported to authorize Bannon’s refusal to
produce any documents or appear for his deposition.
First, the statements from President Trump’s counsel,
Justin Clark. We need not decide if a former government
official can provide the requisite authorization because, as the
record demonstrates, President Trump did not, in fact,
authorize Bannon’s refusal to respond to the subpoena. Clark’s
initial October 6 letter to Bannon’s counsel nowhere suggested
that Bannon should categorically refuse to respond to the
subpoena. It stated that the subpoena “includ[ed]” requests for
information “potentially” protected by executive privilege and
instructed Bannon to, “where appropriate,” invoke any
privileges he “may have.” J.A. 444. When Clark learned that
Bannon was refusing to comply with the subpoena entirely, he
followed up on October 14, disclaiming that President Trump
had directed Bannon to do so. Most pointedly, Clark reiterated
on October 16 that his earlier letter “didn’t indicate that we
believe there is immunity from testimony for your client” and
concluded: “As I indicated to you the other day, we don’t
believe there is.” J.A. 448. The letters, in short, explicitly
communicate the opposite of what Bannon asserted to the
Committee.
Second, the OLC opinions. We similarly need not decide
whether and in what circumstances OLC opinions can support
a government authorization defense because none of the cited
opinions license Bannon’s refusal to produce any documents or
13
appear to testify. Cases finding government authorization of
criminal conduct have typically involved a single government
statement directed to the defendant, or at least to a class of
individuals that includes the defendant, authorizing a specific
course of conduct. See, e.g., Pa. Indus. Chem. Corp., 411 U.S.
at 674.
Here, the OLC opinions Bannon cites involve a variety of
situations where OLC concluded executive privilege could be
properly invoked. But, as the district court correctly observed,
none of the opinions address a situation resembling Bannon’s:
a congressional committee subpoena for communications
“between a nongovernmental employee and a President who,
at the time of the Subpoena, was no longer in office and had
not clearly directed the Subpoena recipient to decline to
comply altogether.” J.A. 2351–52. Further, none of the
opinions addressed communications between a private citizen
subpoena recipient and other private citizens. Here, only a
small subset of the subpoena topics even referenced
communications with President Trump or his staff—the rest
concerned Bannon’s communications with individuals outside
the White House not even arguably subject to executive
privilege.
Reflecting the fact that the OLC opinions are meaningfully
distinguishable from this situation, Bannon resorts to arguing
that his lawyer concluded his nonresponse was authorized by
interpreting the “principles” and “rationale underlying” at least
fifteen different OLC opinions and statements. Reply Br. 11,
15; see also id. 10–18. That Bannon can point only to his
lawyer’s interpretation of underlying principles and rationales,
rather than any specific statement from the government,
confirms that Bannon’s government authorization defenses are
each essentially a repackaged advice of counsel defense. As
we have explained, Section 192 permits no such defense.
14
C
Bannon also argued that his contempt charges should be
dismissed because the Select Committee’s subpoena was
invalid for both substantive and procedural reasons. The
district court concluded that these challenges did not warrant
dismissing the indictment and precluded Bannon from
introducing evidence he claimed supported them. We review
the denial of the motion to dismiss de novo, United States v.
Yakou, 428 F.3d 241, 246 (D.C. Cir. 2005), and the district
court’s exclusion of evidence for abuse of discretion, United
States v. Hall, 945 F.3d 507, 514 (D.C. Cir. 2019). Bannon’s
challenges fail.
1
A congressional committee may use its investigative
power only for a “valid legislative purpose.” Quinn, 349 U.S.
at 161. Bannon contends that the Select Committee lacked
such a purpose in issuing its subpoena to him. We have already
held that the Select Committee, as a general matter, “plainly
has a valid legislative purpose” because “its inquiry concerns a
subject on which legislation could be had.” Trump v.
Thompson, 20 F.4th 10, 41–42 (D.C. Cir. 2021) (quotation
marks and alteration omitted) (quoting Trump v. Mazars USA,
LLP, 591 U.S. 848, 863 (2020)), cert. denied, 142 S. Ct. 1350
(2022); see also id. at 24–25. As we explained in Thompson,
the Committee’s investigation into the events of January 6
could inform a range of legislation, and House Resolution 503
explicitly authorizes the Select Committee to propose
legislation in light of its investigation. Id. at 41–42.
Bannon makes no argument that the subpoena’s subject
matter is unrelated to that authorized investigation. Nor could
he. As the indictment explains, based on public reports, the
Committee believed Bannon had information “relevant to
understanding important activities that led to and informed” the
15
events of January 6, and the information the subpoena sought
was relevant to those events. J.A. 39–40.
Instead, Bannon argues that even if the Select Committee
could have had a valid legislative purpose in seeking this
information from him, his subpoena was invalid because the
Select Committee’s members actually acted for assertedly
improper reasons, namely to target him and send a message to
other potential witnesses. But this argument too runs headlong
into settled law. The Supreme Court has made “clear that in
determining the legitimacy of a congressional act[,] we do not
look to the motives alleged to have prompted it.” Eastland v.
U.S. Servicemen’s Fund, 421 U.S. 491, 508 (1975); accord
Barenblatt v. United States, 360 U.S. 109, 133 (1959)
(declining to inquire into motives of committee members);
Watkins, 354 U.S. at 200 (same). What matters is whether the
subpoena is objectively related to a valid legislative purpose.
This one was.
2
Bannon also raised several procedural objections to the
subpoena: that the Select Committee lacked the thirteen
members and ranking minority member required by House
Resolution 503, and that he should have received a copy of
House Rule 3(b) (describing committee deposition authority)
with the subpoena. These objections suffer from a common
defect: Bannon did not raise them before the Select Committee
and therefore forfeited them.
It is undisputed that the first time Bannon raised these
arguments was in district court, long after his deadline for
responding to the subpoena had passed. Bannon Br. 54–56. A
witness cannot defend against a contempt of Congress charge
based on an affirmative defense that they were able, but failed,
to raise at the time they were ordered to produce documents or
appear. Helen Bryan, 339 U.S. at 332–35. This rule promotes
16
“a decent respect for the House of Representatives” and
ensures that a committee has an appropriate opportunity to
remedy any claimed procedural deficiencies in its subpoenas.
Id. at 332. As the Supreme Court has observed: “To deny the
Committee the opportunity to consider the objection or remedy
it is in itself a contempt of its authority and an obstruction of
its processes.” Id. at 333.
Bannon argues that his failure to raise these objections at
the time he was ordered to appear and produce documents
should nevertheless be excused on either of two grounds.
Neither applies here.
First, objections going to the elements of the contempt
offense—the facts that the government must prove to secure a
conviction—cannot be forfeited. See id. at 328–29; Deutch v.
United States, 367 U.S. 456, 468–72 (1961). But none of the
procedural defects Bannon alleges are elements of the
Section 192 offense. As the district court instructed the jury
here, to establish a Section 192 violation, the government was
required to prove that Bannon was subpoenaed by the Select
Committee to testify or produce papers, the subpoena sought
testimony or information pertinent to the investigation the
Select Committee was authorized to conduct, Bannon failed to
comply with the subpoena, and his failure to comply was
willful. A committee’s compliance with procedural rules is not
an aspect of any of these elements. See Helen Bryan, 339 U.S.
at 330–35. Bannon’s procedural arguments are therefore at
best affirmative defenses that he failed to preserve by not
raising them to the Committee. See, e.g., id. at 328–29
(government need not prove committee quorum as an element
of contempt); Liveright v. United States, 347 F.2d 473, 475
(D.C. Cir. 1965) (committee’s failure to comply with
authorizing resolution is “valid defense” to contempt); see also
Yellin, 374 U.S. at 123 (refusing to answer committee question
based on rule violation would be a “defense”).
17
Bannon suggests that compliance with procedural rules is
part of the second element: congressional authority and
pertinency. Not so. Authority is a question of whether a
committee was “duly empowered” to investigate and “the
inquiry was within the scope of the grant of authority.” United
States v. Seeger, 303 F.2d 478, 482 (2d Cir. 1962). And
pertinency is a question of whether witness questions in fact
related to a matter the committee was authorized to investigate.
Bowers v. United States, 202 F.2d 447, 448 (D.C. Cir. 1953).
None of Bannon’s procedural contentions bear on whether
House Resolution 503 gave the Select Committee the authority
to investigate the January 6th attack or whether the subpoena
issued to Bannon related to that investigation. Because
Bannon’s contentions about compliance with procedural rules
are not elements of the offense, they can be—and have been—
forfeited.
Second, Bannon’s failure to raise these arguments before
the Select Committee could be excused if the grounds for them
were not apparent at the time he was ordered to appear and
produce documents. Cf. Yellin, 374 U.S. at 122–23 (excusing
failure to raise procedural objection where defendant was
“unable” to discern violation prior to trial); Shelton v. United
States, 404 F.2d 1292, 1300 (D.C. Cir. 1968). But that
exception has no application here either. Bannon never
contests the government’s assertion that the composition of the
Select Committee was widely reported at the time. And if
Bannon wished to argue that he was entitled to a copy of Rule
3(b) with the subpoena, he was indisputably aware of the fact
that it had not been provided—indeed, the subpoena’s
attachments explained that he would receive a copy of that rule
when he appeared to testify.
Because the subpoena advanced a valid legislative purpose
and Bannon forfeited his procedural objections to it, the district
court did not err in denying the motion to dismiss the
18
indictment and excluding evidence supporting those objections
as irrelevant. Accordingly, the district court also did not err in
instructing the jury to disregard a reference that Bannon’s
counsel made in his closing argument to Rule 3(b).
D
Finally, Bannon challenges the district court’s rulings
quashing trial subpoenas that he served on Select Committee
members, staffers, counsel, and three House leaders. The
district court held that most of the testimony and documents
sought were protected by the Constitution’s Speech or Debate
Clause and that any information not covered by the Clause was
irrelevant. Bannon then moved to dismiss, arguing that
quashing resulted in a one-sided presentation of evidence that
violated his Fifth and Sixth Amendment rights. The district
court, after considering Bannon’s detailed proffer, denied his
motion because the information Bannon sought was not
material to the charges or defenses properly before the jury.
We again review the denial of Bannon’s motion to dismiss de
novo, Yakou, 428 F.3d at 246, and the district court’s
evidentiary rulings for abuse of discretion, Hall, 945 F.3d at
514.
We conclude that none of the information sought in the
trial subpoenas was relevant to the elements of the contempt
offense, nor to any affirmative defense Bannon was entitled to
present at trial. We accordingly need not consider whether the
Speech or Debate Clause also protects the sought-after
information from disclosure.
As discussed above, Bannon sought to put to the jury
several arguments that the district court properly excluded:
that the underlying subpoena was invalid because of the
political motives of Select Committee members and
procedurally flawed based on the Select Committee’s
composition and Bannon’s non-receipt of a copy of Rule 3(b).
19
Bannon’s trial subpoenas sought information related to those
arguments. He sought, for example, information about the
subjective motives or bias of Select Committee members and
their thinking behind issuing the subpoena to Bannon and
communicating with his counsel. Because the district court
properly concluded those arguments were irrelevant, it made
no error in quashing trial subpoenas seeking information to
support them.
At oral argument, when asked to identify Bannon’s
strongest example of purportedly relevant information sought
in the trial subpoenas, Bannon’s counsel identified a request for
testimony from Select Committee Chairman Bennie Thompson
about his letters to Bannon urging Bannon to comply with the
subpoena even after the initial deadline for a response. Oral
Arg. Tr. 8:22–9:8. The district court reasonably concluded that
any testimony from Chairman Thompson about his letters to
Bannon would be irrelevant. The district court acknowledged
that Bannon could argue to the jury that he believed the
subpoena dates were malleable, such that his noncompliance
by the specified dates was not a deliberate and intentional
default. But what an individual member of the Select
Committee thought—even the chairman—does not go to
Bannon’s state of mind. As the district court observed, it is
Bannon’s understanding of the dates that matters. Bannon’s
counsel conceded that all the information Bannon had from the
Select Committee was reflected in the letters themselves,
which were entered into evidence. That this is Bannon’s
strongest example illustrates the broader conclusion that none
of what Bannon sought in the trial subpoenas went to elements
of the contempt offense or any affirmative defense Bannon was
entitled to present.
Bannon’s arguments that the district court violated his
rights to compulsory process or due process by quashing his
trial subpoenas and denying his motion to exclude all
20
congressional testimony also fail for the same reasons. Both
claims require Bannon to show that “the evidence lost would
be . . . material” to his defense. United States v. Verrusio,
762 F.3d 1, 23 (D.C. Cir. 2014) (quoting United States v.
Valenzuela-Bernal, 458 U.S. 858, 873 (1982)). As explained,
he cannot make that showing.3
III
The judgment of conviction and sentence under 2 U.S.C.
§ 192 is affirmed.
So ordered.
3
We decline to reach Bannon’s wholly undeveloped argument
that quashing the trial subpoenas violated his rights to effective
assistance of counsel and confrontation. See, e.g., Ramsey v. U.S.
Parole Comm’n, 840 F.3d 853, 863 n.6 (D.C. Cir. 2016) (even
assuming a claim was preserved in district court, “perfunctory
appellate briefing does not suffice to raise it in this Court”).