No.

23A-____
________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________

STEPHEN K. BANNON,
Applicant,
v.

UNITED STATES OF AMERICA,

Respondent.

________________________________________________________________________

EMERGENCY APPLICATION FOR

CONTINUED RELEASE PENDING APPEAL
________________________________________________________________________

R. Trent McCotter
Counsel of Record
Jonathan Berry
Michael Buschbacher
BOYDEN GRAY PLLC
801 17th St NW, Ste 350
Washington, DC 20006
202-955-0620
[email protected]

Counsel for Applicant

 TABLE OF CONTENTS
INTRODUCTION .................................................................................................... 1
OPINIONS BELOW ................................................................................................ 7
JURISDICTION ...................................................................................................... 7
STATUTORY PROVISIONS .................................................................................. 8
STATEMENT ........................................................................................................... 8
ARGUMENT .......................................................................................................... 15
I. The Relevant Standard: Mr. Bannon Need Only Demonstrate a
“Substantial Question” ............................................................................... 15
II. There Is a Substantial Question Regarding the Meaning of
“Willfully” In Section 192 ........................................................................... 18
A. This Court Has Uniformly Interpreted “Willfully” in the
Criminal Context to Require a Showing That the Defendant
Acted with Knowledge His Conduct Was Unlawful ...................... 19
B. Numerous Other Bases Demonstrate the D.C. Circuit’s
Precedent Is Wrong........................................................................... 20
C. The D.C. Circuit’s “Practical” Concerns Are Misplaced ................ 24
D. The Improperly Lowered Mens Rea Prevented Mr. Bannon
from Making His Defense ................................................................ 25
E. The Rule of Lenity Favors Rejecting the D.C. Circuit’s Test ....... 26
III. There Are Good Reasons to Believe This Court Would Grant
Review .......................................................................................................... 27
A. This Court Has Granted Nearly Twenty Cases Arising out of
Section 192 Convictions and Frequently Interprets
“Willfully” in Other Contexts........................................................... 28
B. This Court Has Granted Relief in Nearly Identical
Circumstances ................................................................................... 30
C. The Stakes Are Extraordinarily High ............................................ 31
D. This Application Differs from Peter Navarro’s .............................. 33
E. In All Events, the Court Should Still Grant Release .................... 34
IV. There Is Also a Substantial Question Regarding the Test Under
Section 3143 .................................................................................................34
V. Other Considerations Strongly Favor Mr. Bannon .................................35

ii
CONCLUSION ...................................................................................................... 38

Exhibit A: Order Denying Release over Judge Walker’s Dissent (D.C. Cir.
June 20, 2024)
Exhibit B: Order Lifting Stay of Sentence (D.D.C. June 6, 2024)
Exhibit C: Order Staying Sentence (D.D.C. Nov. 7, 2022)
Exhibit D: Panel Opinion (D.C. Cir. May 10, 2024)
Exhibit E: Judgment of Conviction (D.D.C. Oct. 21, 2022)
Exhibit F: Statutory Addendum

iii
 TABLE OF AUTHORITIES

Page(s)

Cases

Bahlul v. United States,

840 F.3d 757 (D.C. Cir. 2016) .......................................................................... 22

Bailey v. United States,

516 U.S. 137 (1995) .......................................................................................... 21

Barenblatt v. United States,

360 U.S. 109 (1959) .......................................................................................... 28

Bart v. United States,

349 U.S. 219 (1955) .......................................................................................... 28

Braden v. United States,

365 U.S. 431 (1961) .......................................................................................... 28

Bryan v. United States,

524 U.S. 184 (1998) ............................................................................. 19, 23, 30

Deutch v. United States,

367 U.S. 456 (1961) .......................................................................................... 28

Emspak v. United States,

349 U.S. 190 (1955) .......................................................................................... 28

Felton v. United States,

96 U.S. 699 (1877) ............................................................................................ 20

Flaxer v. United States,

358 U.S. 147 (1958) .......................................................................................... 28

Gojack v. United States,

384 U.S. 702 (1966) .......................................................................................... 28

Halo Elecs., Inc. v. Pulse Elecs., Inc.,

579 U.S. 93 (2016) ............................................................................................ 29

Helix Energy Sols. Grp., Inc. v. Hewitt,

598 U.S. 39 (2023) ............................................................................................ 24

iv
Henson v. Santander Consumer USA Inc.,
582 U.S. 79 (2017) ............................................................................................ 21

Hutcheson v. United States,

369 U.S. 599 (1962) .......................................................................................... 28

Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA,

559 U.S. 573 (2010) .......................................................................................... 30

Julian v. United States,

463 U.S. 1308 (1983) ........................................................................................ 17

Licavoli v. United States,

294 F.2d 207 (D.C. Cir. 1961) ...................... 3–5, 11–14, 20–23, 26, 29, 31–33

McDonnell v. United States,

576 U.S. 1091 (2015) ............................................................................. 6, 17, 30

McDonnell v. United States,

579 U.S. 550 (2016) .......................................................................................... 30

McGee v. Alaska,
463 U.S. 1339 (1983) ........................................................................................ 17

McPhaul v. United States,

364 U.S. 372 (1960) ............................................................................. 23, 24, 28

Navarro v. United States,

144 S. Ct. 771 (2024) ........................................................................................ 33

Nielsen v. Preap,
586 U.S. 392 (2019) .......................................................................................... 21

Potter v. United States,

155 U.S. 438 (1894) .......................................................................................... 21

Quinn v. United States,

349 U.S. 155 (1955) ....................................................................................28, 29

Ratzlaf v. United States,

510 U.S. 135 (1994) ....................................................................................19, 30

Rehaif v. United States,

588 U.S. 225 (2019) .......................................................................................... 19

v
Reno v. Koray,
515 U.S. 50 (1995) ............................................................................................ 26

Russell v. United States,

369 U.S. 749 (1962) .......................................................................................... 28

Sacher v. United States,

356 U.S. 576 (1958) .......................................................................................... 28

Safeco Ins. Co. of Am. v. Burr,

551 U.S. 47 (2007) ............................................................................................ 19

Screws v. United States,

325 U.S. 91 (1945) ............................................................................................ 19

Sinclair v. United States,

279 U.S. 263 (1929) ....................................................................................22, 28

Spurr v. United States,

174 U.S. 728 (1899) .......................................................................................... 19

Taggart v. Lorenzen,
587 U.S. 554 (2019) .......................................................................................... 29

United States v. Bryan,

339 U.S. 323 (1950) ....................................................................................23, 28

United States v. Fleischman,

339 U.S. 349 (1950) .......................................................................................... 28

United States v. Garcia,

340 F.3d 1013 (9th Cir. 2003) .....................................................................2, 35

United States v. McDonnell,

792 F.3d 478 (4th Cir. 2015)............................................................................ 30

United States v. Miller,

753 F.2d 19 (3d Cir. 1985) ............................................................................... 16

United States v. Murdock,

290 U.S. 389 (1933) ......................................................................................6, 22

United States v. Nacchio,

608 F. Supp. 2d 1237 (D. Colo. 2009) ............................................................. 17

vi
United States v. Perholtz,
836 F.2d 554 (D.C. Cir. 1987) ............................................................... 2, 16, 35

United States v. Pettengill,

No. 1:09-cr-138, 2011 WL 6945708 (D. Me. Dec. 30, 2011) .......................... 34

United States v. Pollard,

778 F.2d 1177 (6th Cir. 1985) ...................................................................15, 17

United States v. Rumely,

345 U.S. 41 (1953) ............................................................................................ 28

United States v. Sheehan,

512 F.3d 621 (D.C. Cir. 2008) .......................................................................... 26

Watkins v. United States,

354 U.S. 178 (1957) .......................................................................................... 28

Wilkinson v. United States,

365 U.S. 399 (1961) .......................................................................................... 28

Wooden v. United States,

595 U.S. 360 (2022) ....................................................................................19, 26

Yellin v. United States,

374 U.S. 109 (1963) .......................................................................................... 28

Statutes

2 U.S.C. § 192............................................... 2, 3, 5, 6, 8, 10–14, 18, 20–29, 32, 33

18 U.S.C. § 3143........................................................... 1, 2, 6, 7, 13, 15–17, 34, 35

28 U.S.C. § 1254....................................................................................................... 7

28 U.S.C. § 1651....................................................................................................... 7

Other Authorities

Sup. Ct. R. 10 ......................................................................................................... 29

Final Vote Results for Roll Call 60, Feb. 14, 2008,
https://clerk.house.gov/evs/2008/roll060.xml (Harriet Miers)
(H.R. Res. 982) ..................................................................................................31

vii
Final Vote Results for Roll Call 441, June 28, 2012,
https://clerk.house.gov/evs/2012/roll441.xml (Eric Holder)
(H.R. Res. 711) ..................................................................................................31

Final Vote Results for Roll Call 489, July 17, 2019,
https://clerk.house.gov/evs/2019/roll489.xml (William Barr)
(H.R. Res. 497) ..................................................................................................31

Executive Privilege Assertion for Audio Recordings at 4,

Christopher Fonzone, Ass’t Att’y Gen. to Merrick Garland,
Att’y Gen., May 15, 2024 ................................................................................. 32

Todd Garvey & Michael A. Foster, Cong. Rsch. Serv., LSB10660,

The Bannon Indictment and Prosecution (Nov. 19, 2021),
https://crsreports.congress.gov/product/pdf/LSB/LSB10660 ........................ 25

Josh Gerstein & Kyle Cheney, ‘Are You Kidding Me?’: Biden-
Appointed Judge Torches DOJ for Blowing off Hunter Biden-
Related Subpoenas from House GOP, Politico (Apr. 5, 2024),
https://www.politico.com/news/2024/04/05/biden-appointed-
judge-torches-doj-00150884 .......................................................................25, 36

Philip Shabecoff, House Charges Head of E.P.A. with Contempt,

N.Y. Times, Dec. 17, 1982................................................................................ 31

viii
 PARTIES TO THE PROCEEDING AND RELATED PROCEEDINGS

Applicant is Stephen K. Bannon. Respondent is the United States of

America.

The proceedings below were United States of America v. Stephen K.

Bannon, No. 1:21-cr-670 (D.D.C.), and United States of America v. Stephen K.

Bannon, No. 22-3086 (D.C. Cir.).

The District Court previously granted Mr. Bannon’s request for release

pending appeal but lifted that decision after the D.C. Circuit issued a panel

opinion on May 10, 2024, affirming Mr. Bannon’s convictions on two counts of

contempt of Congress. The District Court ordered Mr. Bannon to surrender by

July 1, 2024. On June 20, 2024, the D.C. Circuit denied Mr. Bannon’s

emergency motion for release pending appeal, with Judge Walker dissenting

in a separate opinion.

ix
To the Honorable John G. Roberts, Chief Justice of the United States
and Circuit Justice for the D.C. Circuit:

Pursuant to 18 U.S.C. § 3143(b), Appellant Stephen K. Bannon seeks

continued release pending further appeal of his convictions in this case. Given

his surrender date of July 1, 2024, he respectfully requests a ruling before that

date, and an administrative stay of the surrender date if necessary to allow for

sufficient time to consider this matter.

INTRODUCTION

Applicant Mr. Bannon seeks the narrow relief of continued bail pending

completion of his further appeals—relief that Judge Walker would have

granted below, as explained in his dissent. Ex.A.4 (Walker, J., dissenting). This

relief is warranted because the D.C. Circuit’s precedent on the relevant mens

rea element is contrary to this Court’s uniform caselaw on the meaning of

“willfully” in the criminal context, and absent relief Mr. Bannon will be forced

to serve his entire term before this Court has the opportunity to review that

issue. This case therefore easily satisfies the requirements for continued bail

pending certiorari. See Ex.A.4 (Walker, J., dissenting).

There is no dispute that Mr. Bannon “is not likely to flee or pose a danger

to the safety of any other person or the community if released”—indeed, he has

been out on release for years now without incident, and his “crime” was non-

1
violent. 18 U.S.C. § 3143(b)(1)(A). Nor is there any claim that his continued

pursuit of appeal is “for the purpose of delay.” Id. § 3143(b)(1)(B).

Accordingly, Mr. Bannon “shall” be released if his case “raises a

substantial question of law or fact,” that, if accepted, would result in reversal,

a shorter sentence, or a new trial. Id. That requires “only a non-frivolous issue

that, if decided in [his] favor, would likely result in reversal or could satisfy

one of the other conditions.” United States v. Garcia, 340 F.3d 1013, 1020 n.5

(9th Cir. 2003). 1 As explained below in Part I, this is not the same standard for

obtaining a stay. Mr. Bannon is not required to show he is likely to succeed on

that issue or that there has been reversible error—a point that even the D.C.

Circuit majority order did not dispute below. See Part I, infra; Ex.A.

This case raises at least two substantial questions that satisfy this

standard. The first involves the definition of the mens rea element in 2 U.S.C.

§ 192 for “willfully … default[ing]” on a congressional subpoena. 2 U.S.C. § 192.

This Court has long held that “willfulness” in the criminal context requires the

defendant to understand what he is doing is unlawful. Indeed, it appears that

is the uniform interpretation this Court has adopted in the criminal context.

And that reading is especially strong here because § 192, in the very same

1 The D.C. Circuit has adopted a noticeably stricter test, requiring the movant to show “a
‘close’ question or one that very well could be decided the other way.” United States v.
Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1987); see Part IV, infra.

2
sentence, omits “willfully” when criminalizing a different set of actions.

Congress clearly meant to impose a different and higher mens rea for the

provision applied to Mr. Bannon.

The proper mens rea is a critical issue because Mr. Bannon relied in good

faith on his attorney’s advice not to respond to a subpoena issued by a House

Select Committee until executive privilege issues were resolved—as they had

been on three prior occasions when Mr. Bannon had agreed to testify after

President Trump’s counsel had asserted executive privilege. Following their

prior practice, Mr. Bannon’s counsel asked the Committee to resolve those

privilege issues with the holder of that privilege, or have the matter resolved

in a civil suit. Instead of pursuing those routes as was done in the past, the

House swiftly voted to hold Mr. Bannon in contempt, and then the government

quickly indicted him under § 192.

Despite Mr. Bannon’s reliance on his counsel’s advice in good faith, and

despite the fact that § 192 requires “willfulness” for a default, the District

Court (Hon. Carl Nichols) reluctantly concluded that Licavoli v. United States,

294 F.2d 207 (D.C. Cir. 1961), barred Mr. Bannon from presenting any

evidence or argument to the jury regarding his good faith reliance on his

lawyer’s advice or that Mr. Bannon believed his actions were in compliance

with the law. Ex.D.7. Licavoli had held that “willfully” in § 192 meant only

3
“intentionally,” i.e., not by mistake or accident, and that good faith reliance on

counsel could not be raised even as a defense.

Judge Nichols explained, “As I’ve stressed many times, I have serious

reservations that the Court of Appeals’ interpretation of willfully [in Licavoli]

is consistent with the modern understanding of the word. It’s not consistent

with modern case law surrounding the use of the term, let alone the traditional

definition of the word. But as I’ve previously held and I reiterate today, I am

bound by Licavoli and its holdings.” JA2993. 2

This permitted the government to argue falsely to the jury that Mr.

Bannon had “ignore[d]” the subpoena and “thumb[ed] his nose” at the Select

Committee. JA3913–16. The jury heard that the only explanation for his

decision was that he thought he was “above the law” and “didn’t care” and “had

contempt” for the Committee. JA4518. The jury convicted Mr. Bannon, and he

was sentenced to four months’ imprisonment, which the District Court stayed,

citing concerns about whether Licavoli was still binding and whether the

Committee lacked proper subpoena authority.

A panel of the D.C. Circuit affirmed the convictions, but did so based on

its belief that Licavoli likewise bound the panel to hold that good faith reliance

on advice of counsel is completely irrelevant—not even a defense. Ex.D.

2 “JA” refers to the joint appendix filed at the D.C. Circuit on May 3, 2023.

4
 Even though Judge Walker joined that unanimous panel opinion, he

subsequently dissented from the denial of release pending appeal. Ex.A.4. As

he aptly explained, “Because the Supreme Court is not bound by Licavoli,

because Licavoli’s interpretation of ‘willfully’ is a close question, and because

that question may well be material, Bannon should not go to prison before the

Supreme Court considers his forthcoming petition for certiorari.” Ex.A.5

(Walker, J., dissenting).

Indeed, Licavoli’s interpretation of “willfully” is contrary to this Court’s

precedent and canons of construction. See Part II, infra. As the D.C. Circuit

panel acknowledged, this Court has held that the “‘general’ rule” is that

“willfully” means “knowledge that his conduct was unlawful,” which strongly

favors Mr. Bannon. Ex.D.9. In fact, that appears to be this Court’s uniform rule

in the criminal context. But the panel felt obliged to disregard this Court’s rule

because of Licavoli. Ex.D.10. As Judge Walker explained in his dissent from

the denial of release, however, this Court “will have no such obstacle.” Ex.A.4

(Walker, J., dissenting).

Further, Licavoli relied on the fact that this Court had rejected an

advice-of-counsel argument in the context of the separate provision of § 192

that does not contain a “willfully” modifier. But under this Court’s approach to

statutory construction, Congress’s use of two different mens rea thresholds in

the very same provision is strong evidence that the two clauses impose different

5
tests. Licavoli is especially unpersuasive because this Court had already

expressly recognized that “[t]wo distinct offenses are described in the

disjunctive [in § 192], and in only one of them is willfulness an element.”

United States v. Murdock, 290 U.S. 389, 397 (1933).

Taken together, these factors confirm the mens rea issue is a

“substantial” question, just as Judge Walker concluded.

Although § 3143 does not require Mr. Bannon to make a showing that

this Court would actually grant review on this issue, there are good reasons to

believe the Court would do so. See Part III, infra. This Court has long taken an

interest in § 192, granting no fewer than nineteen cases on its interpretation

over the years and has also repeatedly granted cases on willfulness. Further,

the stakes could not be higher. Under the D.C. Circuit’s caselaw, future

disagreements about subpoena compliance will be met not with negotiation—

but with indictments.

Moreover, this Court has previously granted continued release pending

appeal in similar contexts even when the lower court decision was unanimous

and no judge had voted in favor of en banc rehearing. See, e.g., McDonnell v.

United States, 576 U.S. 1091 (2015). Here, Mr. Bannon makes an even stronger

showing, as Judge Walker dissented from the denial of release pending appeal.

This case raises a second substantial question: there is an acknowledged

circuit split regarding the appropriate test under § 3143(b) itself. Any issue on

6
which the circuits disagree is necessarily a substantial question. See Part IV,

infra.

If Mr. Bannon is denied release, he will be forced to serve his prison

sentence before this Court has a chance to consider a petition for a writ of

certiorari, given the Court’s upcoming Summer recess. See Part V, infra.

As Judge Walker stated, Mr. Bannon’s case raises substantial legal

questions, and he “should not go to prison before the Supreme Court considers

his forthcoming petition for certiorari.” Ex.A.5 (Walker, J., dissenting).

OPINIONS BELOW

The D.C. Circuit’s panel order denying release, over Judge Walker’s

dissent, has not been reported; it is attached as Exhibit A. The District Court’s

order granting the government’s motion to lift the stay of sentence is attached

as Exhibit B. The District Court’s order granting a stay of sentence pending

appeal is attached as Exhibit C. The D.C. Circuit’s panel opinion on the

underlying claims was reported at 101 F.4th 16; it is attached as Exhibit D.

JURISDICTION

Pursuant to 18 U.S.C. § 3143(b), a “judicial officer” “shall order the

release” of an individual who “has filed an appeal or a petition for a writ of

certiorari” if the requirements of § 3143(b) are satisfied. This Court further has

jurisdiction pursuant to 28 U.S.C. § 1651(a) and 28 U.S.C. § 1254(1).

7
 STATUTORY PROVISIONS

2 U.S.C. § 192 states:

Every person who having been summoned as a witness by the

authority of either House of Congress to give testimony or to
produce papers upon any matter under inquiry before either
House, or any joint committee established by a joint or concurrent
resolution of the two Houses of Congress, or 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 a misdemeanor,
punishable by a fine of not more than $1,000 nor less than $100
and imprisonment in a common jail for not less than one month
nor more than twelve months.

Additional pertinent statutory provisions are reprinted in the Statutory

Addendum. Ex.F.

STATEMENT

A. Factual Background.

On September 23, 2021, the House Select Committee addressing the

events of January 6, 2021, issued a subpoena to Mr. Bannon, seeking

information related to his communications with then-President Trump, White

House and Trump Campaign staffers, and other matters. Ex.D.3. 3

On October 6, 2021, President Trump’s counsel informed Mr. Bannon’s

attorney that the subpoena sought information that was “protected from

3 The Select Committee was not constituted in accordance with the grant of authority from
the full House of Representatives and thus was not duly authorized to issue subpoenas. That
significant legal issue is not directly presented in this Application but will be addressed in
Mr. Bannon’s further appeals.

8
disclosure by the executive and other privileges.” JA444. President Trump’s

counsel further stipulated that “President Trump is prepared to defend these

fundamental privileges in court.” JA444. He then made clear that “President

Trump instructs Mr. Bannon” to “where appropriate, invoke any immunities

and privileges he may have from compelled testimony,” to “not produce any

documents concerning privileged material,” and to “not provide any testimony”

regarding the same. JA444.

President Trump later reiterated in writing his invocation of executive

privilege. JA4781 (“When you first received the Subpoena to testify and provide

documents, I invoked Executive Privilege.”).

Mr. Bannon’s attorney told Mr. Bannon that he did not have the power

to waive that executive privilege, as it belonged solely to President Trump.

JA359-372. Mr. Bannon’s counsel formed that view after studying, inter alia,

opinions of the Department of Justice’s Office of Legal Counsel addressing

whether a congressional subpoena can require an “Executive Branch employee

or former employee to appear before Congress for a deposition while not

permitting an appropriate Executive Branch employee to be present.” JA368.

Mr. Bannon’s counsel also informed President Trump’s counsel of his position

9
that the former President’s “invocation of those privileges absolutely limits Mr.

Bannon’s ability to testify before Congress and provide documents.” JA447.

As a result, Mr. Bannon’s attorney wrote to the Select Committee on

October 7, 2021—the return date of the subpoena—and explained his position

that Mr. Bannon was unable to provide a response until an accommodation

was reached and the executive-privilege issues resolved, either between the

Committee and President Trump, or by a court in a civil suit. JA198–99. Mr.

Bannon’s counsel confirmed that “[w]e will comply with the directions of the

courts.” JA199.

The next day, the Select Committee responded by claiming the position

taken by Mr. Bannon’s counsel was “willful non-compliance.” JA323–25. Mr.

Bannon’s counsel responded in writing that Mr. Bannon was not acting in

“defiance” of the Committee—and in fact, “Mr. Bannon has testified on three

prior occasions, before the Mueller Investigation, the House Intelligence

Committee and the Senate Intelligence Committee.” JA326. But “[i]n each of

those instances,” “President Trump waived his invocation of the executive

privileges,” and Mr. Bannon’s counsel requested that the same accommodation

process to resolve the privilege assertion should be followed here. Id. Mr.

Bannon’s counsel also cited several cases that he believed supported this

position. Id.

10
 The Select Committee declined to engage in the normal accommodation

process or to have the matter resolved in civil litigation. Instead, on October

19, 2021—i.e., less than a week after Mr. Bannon’s counsel’s last letter—the

Committee recommended that Mr. Bannon be found in contempt of Congress

for refusing to comply with the subpoena. Ex.D.5. Just two days later, the

House voted 229-202 to find Mr. Bannon in Contempt of Congress. JA339.

Only three weeks later, a grand jury returned an indictment against Mr.

Bannon on two counts of violating 2 U.S.C. § 192, which states that “every

person who having been summoned to give testimony or to produce papers”

and “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; Ex.D.5-6. Mr. Bannon’s case proceeded on the

first prong—i.e., he was charged with “willfully mak[ing] default.”

B. Proceedings Below.

The trial took place in the U.S. District Court for the District of Columbia

before the Hon. Carl J. Nichols. The government moved in limine to preclude

Mr. Bannon from arguing, even as a defense, that he had relied in good faith

on his counsel and that this reliance undercut the government’s claim that he

had “willfully” defaulted on the subpoena.

The District Court reluctantly granted the government’s motion, finding

that he was bound to follow the D.C. Circuit’s 1961 decision in Licavoli v.

11
United States, 294 F.2d 207 (D.C. Cir. 1961), which held that good faith was

irrelevant to any charge under § 192. The District Court noted that Licavoli’s

construction of “willfully” was an anomaly. JA743; JA4582. Mr. Bannon’s trial

counsel asked, “[W]hat’s the point of going to trial here if there are no

defenses,” to which the District Court responded, “[A]greed.” JA3026-27. But

the District Court concluded that Licavoli was binding, albeit highly

questionable.

Accordingly, Mr. Bannon was barred from presenting any evidence or

argument on good faith reliance on counsel. Ex.D.7; JA741. This allowed the

prosecution to claim to the jury that Mr. Bannon had “ignore[d]” the subpoena,

“thumb[ed] his nose” at the Select Committee, and that he had “no

justification” for his actions. JA3913–16. The government argued to the jury

that the only explanation for Mr. Bannon’s position was that he thought he

was “above the law” and “didn’t care” and “had contempt” for the Committee.

JA4518. Mr. Bannon was barred from responding to those false accusations

about his state of mind.

In instructing the jury, the District Court ruled that the statute’s

“willfulness” requirement meant only that Mr. Bannon’s actions had to be

“deliberate and intentional.” JA4582. As such, the District Court instructed

the jury that “it is not a defense … that the defendant did not comply …

because of the legal advice he received from his attorney or someone else,

12
because of his understanding or belief of what the law required or allowed, or

because of his understanding that he had a legal privilege, such as executive

privilege, that excused him from complying.” JA4582.

On July 22, 2022, the jury found Mr. Bannon guilty on both counts.

Ex.D.6. He was sentenced to four months’ imprisonment. Id. The District Court

concluded that the mens rea issue, among others, raised a substantial question

under 18 U.S.C. § 3143(b), and accordingly granted Mr. Bannon’s motion for

release pending appeal. JA4762.

On appeal, the D.C. Circuit held that Licavoli was still binding. Ex.D.7.

The D.C. Circuit acknowledged this Court has emphasized the “‘general’ rule”

that “willfully” means a defendant must act with “‘knowledge that his conduct

was unlawful,’” an interpretation that strongly favors Mr. Bannon. Ex.D.9. The

D.C. Circuit also acknowledged that the cases relied on by Licavoli addressed

the different provision of § 192 that “does not use the term ‘willfully,’” but that

Licavoli had nonetheless concluded the exact same mens rea applied to both

provisions. Ex.D.8.

Despite those substantial questions, the panel likewise concluded

Licavoli was still binding, as it had not been unequivocally overruled by an

intervening decision. Ex.D.7. The D.C. Circuit also noted “practical” concerns

if the government had to prove a defendant knew he was acting unlawfully.

Ex.D.8.

13
 After the D.C. Circuit’s opinion issued, the government asked the

District Court to revoke bail, and that court agreed, concluding that after the

D.C. Circuit panel had rejected Mr. Bannon’s arguments that his case no longer

presented a substantial question. Ex.B. The District Court ordered Mr. Bannon

to surrender by July 1, 2024.

Mr. Bannon filed an emergency motion with the D.C. Circuit requesting

release pending further appeals, which was denied 2-1 on June 20, 2024. Ex.A.

The same panel that affirmed his convictions 3-0 addressed the release motion.

This time, however, Judge Walker dissented, agreeing with Mr. Bannon that

“the panel [on which Judge Walker himself had sat] felt obliged to disregard

the Supreme Court’s ‘general rule’ because Licavoli remained binding in this

Circuit. The Supreme Court itself will have no such obstacle, however.” Ex.A.4

(Walker, J., dissenting). He continued, “For 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.” Id.

Judge Walker’s dissent concluded: “Because the Supreme Court is not

bound by Licavoli, because Licavoli’s interpretation of ‘willfully’ is a close

question, and because that question may well be material, Bannon should not

go to prison before the Supreme Court considers his forthcoming petition for

certiorari.” Ex.A.5 (Walker, J., dissenting).

14
 ARGUMENT

I. The Relevant Standard: Mr. Bannon Need Only Demonstrate a

“Substantial Question.”

Section 3143 states that a “judicial officer” “shall” order release where

the movant satisfies the requirements of § 3143(b): (1) “the person is not likely

to flee or pose a danger to the safety of any other person or the community if

released”; (2) “the appeal is not for the purpose of delay”; and (3) the movant

“raises a substantial question of law or fact likely to result in—(i) reversal, (ii)

an order for a new trial, (iii) a sentence that does not include a term of

imprisonment, or (iv) a reduced sentence to a term of imprisonment less than

the total of the time already served plus the expected duration of the appeal

process.” § 3143(b)(1).

That third factor—the “substantial question”—is at issue here. This

Court reviews the “substantial question” issue de novo. United States v.

Pollard, 778 F.2d 1177, 1181–82 (6th Cir. 1985).

The government contended below that Mr. Bannon must make an

“additional” showing of a likelihood of en banc rehearing or Supreme Court

review. CADC.Opp.7. Even the D.C. Circuit majority order, which rejected Mr.

Bannon’s motion for release, did not accept the government’s position. Ex.A.

Indeed, the government’s argument fails for two reasons: (1) no such showing

is required under § 3143, as explained next; and (2) even if it were, there is

15
good reason to believe this Court would be interested in further review, as

explained below in Part III.

Section 3143 expressly applies to cases where the movant has already

lost at the circuit court—e.g., where he has filed “a petition for writ of

certiorari,” § 3143(b)(1)—yet the statute nowhere changes the test or requires

an additional showing in such circumstances.

There is only one test under § 3143, and it requires a “two-part inquiry.”

United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1987). The Court first

decides whether “the appeal raise[s] a substantial question.” Id. The Court

then separately looks at whether a new trial or lessened sentence would “likely”

result “if that question is resolved in appellants’ favor.” Id. Thus, when

inquiring about “likelihood,” the Court must assume the question will be

resolved favorably.

Contrary to the government’s assertion below, CADC.Opp.7 & n.1, the

“phrase ‘likely to result in reversal or an order for a new trial’ cannot

reasonably be construed to require the … court to predict the probability of

reversal,” United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985).

“The federal courts are not to be put in the position of bookmakers who

trade on the probability of ultimate outcome. Instead, that language must be

read as going to the significance of the substantial issue to the ultimate

disposition of the appeal.” Id. Accordingly, “all” circuit courts have “concluded

16
that the statute does not require” a showing that the lower court “committed

reversible error.” Pollard, 778 F.2d at 1181–82.

The Solicitor General has previously agreed that § 3143 doesn’t impose

the same standard as for a stay pending appeal. In the McDonnell case

(discussed in detail in Part III.B, infra), the Solicitor General advised this

Court that because “‘the statutory standard for determining whether a

convicted defendant is entitled to be released pending a certiorari petition is

clearly set out in 18 U.S.C. 3143(b),’ … the application should be evaluated

using the standard prescribed in Section 3143(b), rather than under the stay

factors that the Court applies when Congress has not established the governing

criteria.” Memo. for the U.S. in Opposition 15, McDonnell v. United States,

15A218 (Aug. 26, 2015) (emphasis added).

Thus, unlike someone seeking a stay pending appeal, Mr. Bannon need

not show there is a fair chance this Court would actually grant review and

reverse. The government’s invocation of emergency-stay cases below is thus

misplaced. CADC.Opp.7–8. 4

4 The government has previously cited McGee v. Alaska, 463 U.S. 1339 (1983) (Rehnquist, J.,
in chambers), and Julian v. United States, 463 U.S. 1308 (1983) (Rehnquist, J., in chambers),
as looking to the probability this Court would grant review in the context of a bail motion,
see Resp.17, Navarro v. United States, No. 23A843 (U.S. Mar. 18, 2024). But those cases
“arose before the enactment of the Bail Reform Act,” thus they do “not set the standard for
review under the Bail Reform Act, and furthermore would require inappropriate speculation
by this Court.” United States v. Nacchio, 608 F. Supp. 2d 1237, 1240 n.6 (D. Colo. 2009). This

17
 As Judge Walker concluded below, Mr. Bannon easily demonstrates a

substantial question, and that showing means he is entitled to continued

release, given that this argument (if accepted) would entitle him to a new trial.

See Parts II, infra. And even if a showing were needed that this Court may

grant review, Mr. Bannon makes that showing. See Part III, infra.

II. There Is a Substantial Question Regarding the Meaning of

“Willfully” In Section 192.

As Judge Nichols explained below, the D.C. Circuit’s precedent

construing “willfully” in § 192 is “not consistent with modern case law

surrounding the use of the term, let alone the traditional definition of the

word.” JA2993; see Part II.A, infra. That same view led Judge Walker to

dissent from the denial of release for Mr. Bannon below, even though Judge

Walker himself had joined the panel decision ruling against Mr. Bannon. See

Ex.A.4 (Walker, J., dissenting).

In fact, it appears this Court has uniformly construed the term “willfully”

in the criminal context to require knowledge the act was unlawful. Part II.A,

infra. The D.C. Circuit’s precedent is also starkly inconsistent with this Court’s

canons of construction. Part II.B, infra. With all signs pointing in favor of Mr.

Bannon’s interpretation, this issue raises at least a substantial question.

Court has not cited those cases even once since the Bail Reform Act was passed forty years
ago.

18
 A. This Court Has Uniformly Interpreted “Willfully” in the
Criminal Context to Require a Showing That the Defendant
Acted with Knowledge His Conduct Was Unlawful.

When used in criminal statutes, “willfully” means an act “undertaken

with a ‘bad purpose.’” Bryan v. United States, 524 U.S. 184, 191–92 (1998). In

other words, “the Government must prove that the defendant acted with

knowledge that his conduct was unlawful.” Ratzlaf v. United States, 510 U.S.

135, 137 (1994); see Wooden v. United States, 595 U.S. 360, 378 (2022)

(Kavanaugh, J., concurring) (“[W]ith respect to federal crimes requiring

‘willfulness,’ the Court generally requires the Government to prove that the

defendant was aware that his conduct was unlawful.”); Rehaif v. United States,

588 U.S. 225, 246 (2019) (Alito, J., dissenting) (“[W]e have construed the term

as used in [criminal] statutes to mean the ‘intentional violation of a known

legal duty.’”).

Indeed, it appears this is the uniform interpretation this Court has

applied to “willfully” in the context of federal criminal statutes, dating back at

least 150 years. See Bryan, 524 U.S. at 191–92; Ratzlaf, 510 U.S. at 137; Safeco

Ins. Co. of Am. v. Burr, 551 U.S. 47, 60 (2007) (when case is “on the criminal

side of the law,” “’willfully’ typically narrows the otherwise sufficient intent,

making the government prove something extra”); Screws v. United States, 325

U.S. 91, 101 (1945) (“[W]hen used in a criminal statute, it generally means an

act done with a bad purpose.”); Spurr v. United States, 174 U.S. 728, 735 (1899)

19
(“signifying an evil intent without justifiable excuse”); Felton v. United States,

96 U.S. 699, 702 (1877) (same). Counsel is unaware of a contrary case.

If this Court simply adheres to its own longstanding rule, Mr. Bannon

must get a new trial. But as Judge Walker explained in his dissent from denial

of release, the D.C. Circuit panel felt obligated to disregard this Court’s rule

because of the D.C. Circuit’s own sixty-year-old decision in Licavoli. Ex.A.4.

This Court will not be so bound, however. Further, as explained next, there are

numerous other reasons to conclude Licavoli is wrong.

B. Numerous Other Bases Demonstrate the D.C. Circuit’s

Precedent Is Wrong.

1. Licavoli Is Inconsistent with This Court’s Textual

Canons.

Besides defying this Court’s apparently uniform rule of interpreting

“willfully” in criminal statutes, see Part II.A, supra, the D.C. Circuit’s textual

analysis in Licavoli is also grievously inconsistent with this Court’s canons of

construction. Licavoli rested on the fact that this Court had held in a 1929 case

that “act[ing] in good faith on the advice of competent counsel” is “no defense”

against the separate provision in § 192 regarding witnesses who “having

appeared, refuse[] to answer any question pertinent to the question under

inquiry.” Ex.D.8 (citing Sinclair v. United States, 279 U.S. 263, 299 (1929)).

But critically, as even the panel below acknowledged, the provision of

§ 192 addressed in that 1929 case “does not use the term ‘willfully.’” Id. By

20
adding “willfully” only in the provision for which Mr. Bannon was convicted,

Congress clearly intended to impose a higher mens rea requirement.

This Court has made this exact point in the context of a different statute:

“The word ‘willful’ is omitted from the description of offenses in the latter part

of this section. Its presence in the first cannot be regarded as mere surplusage;

it means something. It implies on the part of the [defendant] knowledge and a

purpose to do wrong.” Potter v. United States, 155 U.S. 438, 446 (1894). “We

assume that Congress used two terms because it intended each term to have a

particular, nonsuperfluous meaning,” Bailey v. United States, 516 U.S. 137,

146 (1995), especially when the two different terms are “cheek by jowl in the

same phrase,” Henson v. Santander Consumer USA Inc., 582 U.S. 79, 84

(2017); see Nielsen v. Preap, 586 U.S. 392, 414 (2019).

But on notably thin reasoning, Licavoli reached the exact opposite

conclusion: “The elements of intent are the same in both” clauses of § 192, and

both require only intentional conduct. Licavoli, 294 F.2d at 209.

At most, Licavoli—and the majority order denying release, Ex.A.2—can

explain why “willfully” wasn’t added to the second clause of § 192, but they

have no answer for why Congress did use “willfully”—rather than a lesser

mens rea—in the clause of § 192 at issue here. Clearly, that choice “means

something.” Potter, 155 U.S. at 446. But Licavoli held it didn’t. That is wrong.

21
 2. This Court Has Expressly Recognized Section 192
Contains Two Different Mens Rea Elements.

Relatedly, this Court twice has addressed the “willfully” language in

§ 192—and both decisions strongly favor Mr. Bannon.

Licavoli relied on this Court’s 1929 Sinclair decision, but in 1933 this

Court expressly limited Sinclair’s rule to the lesser-mens-rea clause at issue in

that case. “Two distinct offenses are described in the disjunctive [in § 192], and

in only one of them is willfulness an element.” Murdock, 290 U.S. at 397

(distinguishing Sinclair). Where the statute calls for willfulness, this Court

held that a refusal to answer may be “intentional and without legal

justification, but the jury might nevertheless find that it was not prompted by

bad faith or evil intent, which the statute makes an element of the offense.” Id.

at 397–98.

That is what Mr. Bannon argued but was foreclosed by Licavoli, which

summarily dismissed Murdock because it involved a tax statute. 294 F.2d at

208–09. But that completely missed the point that Murdock specifically

distinguished and narrowed Sinclair, which did interpret § 192. 5

5The government claimed below that Murdock’s narrowing of Sinclair is “dictum” because
Murdock was a tax case. CADC.Opp.16. But distinguishing a prior decision is the opposite of
dicta. Anyway, the D.C. Circuit should have “treat[ed] Supreme Court dicta as authoritative.”
Bahlul v. United States, 840 F.3d 757, 763 n.6 (D.C. Cir. 2016) (Kavanaugh, J., concurring).

22
 This Court also addressed the “willfully” provision of § 192 in McPhaul

v. United States, 364 U.S. 372 (1960), where the Court noted briefly there was

a “prima facie case of willful failure to comply with the subpoena” only because

the defendant had made no attempt to “state his reasons for noncompliance”

to the committee until he appeared in person, thus denying the committee the

chance to “tak[e] other appropriate steps to obtain the records.” Id. at 379

(cleaned up). By contrast, Mr. Bannon’s attorney was repeatedly in contact

with the Select Committee and provided explanations for why Mr. Bannon felt

unable to comply until the privilege issues were resolved, as had occurred at

least three times when he had been subpoenaed in the past. Ex.D.3–5.

McPhaul also said that even when the defendant failed to provide any

reasons whatsoever for noncompliance, he was still entitled to “present some

evidence to explain or justify his refusal,” so it could be “resol[ved] by the jury.”

McPhaul, 364 U.S. at 379. But even that is barred under D.C. Circuit

precedent.6

6 The majority order denying release claimed this Court suggested in United States v. Bryan,
339 U.S. 323 (1950), that “willfully” in § 192 means “only that a defendant act ‘deliberately
and intentionally,’” Ex.A.2. Respectfully, that is incorrect. At most, Bryan made the same
point as McPhaul about a recipient who “refuses to give any reason” to the committee for
“fail[ing] to deliver” requested documents. Bryan, 339 U.S. at 333. It is uncontested that Mr.
Bannon’s attorney did provide reasons to the Committee. And as noted above, McPhaul made
clear that even when a recipient gives no reasons at all, he is still entitled to present his
explanation to the jury—but Licavoli precludes even that.

23
 C. The D.C. Circuit’s “Practical” Concerns Are Misplaced.

The D.C. Circuit panel opinion also expressed “practical” concerns about

the government affirmatively having to prove “bad faith.” Ex.D.8. That

characterization misses an important point: even if it did not negate mens rea

as a matter of law, Mr. Bannon’s good faith reliance on counsel at least should

have been presented to the jury as a defense and to undercut the government’s

repeated (and false) accusations that he had “ignore[d]” the subpoena. See

McPhaul, 364 U.S. at 379. Courts and juries routinely consider whether a

defendant’s conduct was willful. The fact that it is sometimes difficult to prove

willfulness is a feature, not a bug.

In any event, practical concerns cannot overcome the text of § 192, which,

as explained above, carefully uses the word “willfully” to indicate a high mens

rea threshold, in accordance with this Court’s general rule on construing that

term. See Helix Energy Sols. Grp., Inc. v. Hewitt, 598 U.S. 39, 59 (2023)

(“‘[E]ven the most formidable policy arguments cannot overcome a clear’

textual directive.”).

Moreover, there is no “practical” problem with allowing a defendant to

raise advice-of-counsel arguments so a jury can weigh them. That is hardly

analogous to the government’s fear that defendants will “manufactur[e] a claim

of good faith” (which would seem to be a logical impossibility, in any event).

CADC.Opp.15.

24
 In fact, DOJ recently instructed its own attorneys to refuse to respond to

congressional subpoenas issued regarding Hunter Biden, apparently on

privilege grounds.7 It can hardly be an “idiosyncratic” approach if DOJ itself is

doing it.

D. The Improperly Lowered Mens Rea Prevented Mr. Bannon

from Making His Defense.

Prosecutions under § 192 are exceedingly rare, despite the prevalence of

high-profile disputes over such subpoenas. Before the Biden Administration,

the last time the government convinced a jury to convict someone under § 192

was fifty years ago. 8

Given this, one would assume that the government would pursue such

charges only in the most extraordinary circumstances—and that is certainly

how the prosecution tried to portray Mr. Bannon’s actions to the jury, which

was told that he had “ignore[d]” the subpoena, “thumb[ed] his nose” at the

Select Committee, and that he had “no justification” for his actions. JA3913–

16. The jury heard that the only explanation for his actions was that he thought

7 Josh Gerstein & Kyle Cheney, ‘Are You Kidding Me?’: Biden-Appointed Judge Torches DOJ
for Blowing off Hunter Biden-Related Subpoenas from House GOP, Politico (Apr. 5, 2024),
https://www.politico.com/news/2024/04/05/biden-appointed-judge-torches-doj-00150884.
8Todd Garvey & Michael A. Foster, Cong. Rsch. Serv., LSB10660, The Bannon Indictment
and Prosecution 1–2, (Nov. 19, 2021),
https://crsreports.congress.gov/product/pdf/LSB/LSB10660.

25
he was “above the law” and “didn’t care” and “had contempt” for the

Committee. JA4518.

Mr. Bannon was unable to respond to those false accusations about his

state of mind. That was a crucial flaw in his trial. As Judge Walker explained

in his dissent from the denial of release, “eliminating the prosecutor’s burden

of proving mens rea is a serious constitutional error.” Ex.A.5 (Walker, J.,

dissenting) (quoting United States v. Sheehan, 512 F.3d 621, 631 (D.C. Cir.

2008)). “Error cannot be harmless where it prevents the defendant from

providing an evidentiary basis for his defense.” Sheehan, 512 F.3d at 633.

Yet that is exactly what happened here, as the D.C. Circuit panel opinion

recognized: Licavoli “precluded Bannon from presenting such a defense at

trial, and [the District Court] instructed the jury consistent with those

rulings.” Ex.D.7.

E. The Rule of Lenity Favors Rejecting the D.C. Circuit’s Test.

Finally, construing “willfully” in § 192 contrary to this Court’s

apparently uniform precedent and canons of construction would also raise

serious lenity concerns, especially when combined with the 50-year practice of

not pursuing convictions under § 192, let alone when the defendant relied in

good faith on advice of counsel. See Wooden, 142 S. Ct. at 1081 (Gorsuch, J.,

concurring) (“[A]ny reasonable doubt about the application of a penal law must

be resolved in favor of liberty.”); see Reno v. Koray, 515 U.S. 50, 64 (1995)

26
(lenity is triggered when “after seizing everything from which aid can be

derived,” the Court can make “no more than a guess as to what Congress

intended”). These lenity concerns provide yet another basis for finding the

issue to be substantial.

***

For all these reasons, the mens rea issue is at least a substantial

question. Accordingly, Mr. “Bannon should not go to prison before the Supreme

Court considers his forthcoming petition for certiorari.” Ex.A.5 (Walker, J.,

dissenting).

III. There Are Good Reasons to Believe This Court Would Grant
Review.

As explained above, Mr. Bannon need not make a showing that there is

a fair prospect or likelihood that this Court will actually grant certiorari. See

Part I, supra. But even if considerations of this Court’s further review were

relevant, there are good reasons to believe the Court would grant review of

Licavoli’s anomalous interpretation of “willfully,” which contradicts the strong

weight of this Court’s precedent and core canons of statutory construction.

Indeed, as Judge Nichols explained below, the D.C. Circuit’s precedent

construing “willfully” in § 192 is “not consistent with modern case law

surrounding the use of the term, let alone the traditional definition of the

word,” JA2993, and thus this case presents an ideal vehicle for addressing and

27
reversing the D.C. Circuit’s divergent precedent in this area. Further, this

Court has previously demonstrated a strong interest in § 192 and has also

granted relief in similar postures in the past.

A. This Court Has Granted Nearly Twenty Cases Arising out

of Section 192 Convictions and Frequently Interprets
“Willfully” in Other Contexts.

This Court has demonstrated an exceedingly strong interest in

interpreting § 192, granting review in no fewer than nineteen cases involving

various aspects of that statute, despite its brevity, which represents a

significant grant rate. 9

The Court’s interest may be due to the importance of preserving the

rights of citizens compelled to appear before congressional committees. For

instance, there were widespread concerns that § 192 was being used for

political purposes during the days of the House Committee on Un-American

Activities in the 1950s and 1960s. Certiorari grants ceased in the following

decades, but only because the government stopped pursuing § 192 as a

prosecution tool.

9Gojack v. United States, 384 U.S. 702 (1966); Yellin v. United States, 374 U.S. 109 (1963);
Russell v. United States, 369 U.S. 749 (1962); Hutcheson v. United States, 369 U.S. 599 (1962);
Deutch v. United States, 367 U.S. 456 (1961); Braden v. United States, 365 U.S. 431 (1961);
Wilkinson v. United States, 365 U.S. 399 (1961); McPhaul, 364 U.S. 372; Barenblatt v. United
States, 360 U.S. 109 (1959); Flaxer v. United States, 358 U.S. 147 (1958); Sacher v. United
States, 356 U.S. 576 (1958); Watkins v. United States, 354 U.S. 178 (1957); Bart v. United
States, 349 U.S. 219 (1955); Emspak v. United States, 349 U.S. 190 (1955); Quinn v. United
States, 349 U.S. 155 (1955); United States v. Rumely, 345 U.S. 41 (1953); United States v.
Fleischman, 339 U.S. 349 (1950); Bryan, 339 U.S. 323; Sinclair, 279 U.S. 263.

28
 The government has now resurrected it after fifty years. Given Licavoli

and the D.C. Circuit Court decision below, there is little incentive for future

congressional committees to accommodate assertions of executive privilege.

This creates clear separation-of-powers concerns that could unduly infringe on

the operations of the Executive Branch.

The Court’s demonstrated interest in reviewing cases arising under

§ 192 alone provides a sufficient showing this Court would strongly consider

granting review. See Quinn v. United States, 349 U.S. 155, 157 (1955)

(acknowledging the Court was likelier to grant certiorari on § 192 cases

because of “the fundamental and recurrent character of the questions

presented”).

Further, as noted above, the few Supreme Court cases addressing the

relevant clause of § 192 favor Mr. Bannon, and this Court routinely grants

review of lower court decisions that are in tension with the Court’s own

decisions. See Sup. Ct. R. 10(c).10

Finally, the Court frequently and recently has granted cases touching on

the interpretation of “willfully” in various contexts. See, e.g., Taggart v.

Lorenzen, 587 U.S. 554, 565 (2019); Halo Elecs., Inc. v. Pulse Elecs., Inc., 579

10The government claimed below there is no “conflict among the circuits,” CADC.Opp.18, but
that is misleading given that § 192 cases almost invariably arise in D.C. If anything, this
favors further review because all § 192 cases will be subject to the broad opinion in Licavoli.

29
U.S. 93, 106 n.* (2016); Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich

LPA, 559 U.S. 573, 584 (2010); Bryan, 524 U.S. at 191–92; Ratzlaf, 510 U.S. at

137.

B. This Court Has Granted Relief in Nearly Identical

Circumstances.

Under nearly identical procedural circumstances, this Court has granted

emergency relief to ensure the defendant remained free pending completion of

appeals. For example, in the “corruption” case against Governor Bob

McDonnell—which Judge Walker cited in his dissent from denial of release

below, Ex.A.5 (Walker, J., dissenting)—the Fourth Circuit unanimously

rejected Gov. McDonnell’s challenges to his convictions, United States v.

McDonnell, 792 F.3d 478, 486 (4th Cir. 2015), and not a single circuit judge

voted in favor of rehearing en banc, Order, United States v. McDonnell, No. 15-

4019 (4th Cir. Aug. 11, 2015), ECF No. 131.

This Court, however, unanimously granted Gov. McDonnell’s emergency

application to ensure he remained released pending the outcome of a

forthcoming petition for a writ of certiorari, McDonnell, 576 U.S. 1091, and

then later granted review and reversed the Fourth Circuit in a 9-0 decision,

McDonnell v. United States, 579 U.S. 550, 580–81 (2016).

Clearly this Court believed there was a substantial question despite the

circuit court’s unanimous ruling against Gov. McDonnell and despite the lack

30
of interest among any of the circuit judges in rehearing the case en banc. If

anything, Mr. Bannon’s case is even stronger because he, unlike Gov.

McDonnell, will otherwise be forced to serve his entire sentence before his

appeals are complete.

C. The Stakes Are Extraordinarily High.

Before Mr. Bannon’s case, there was significant doubt about whether

Licavoli remained good law in the D.C. Circuit, as Judge Nichols noted below.

But now that a panel of the D.C. Circuit has said Licavoli remains binding,

there is no obstacle to future indictments of anyone and everyone who allegedly

defaults on a congressional subpoena, even when they had good faith defenses

like advice of counsel or executive privilege—defenses that Licavoli will bar

them even from presenting to a jury.

Examples of individuals held in contempt of Congress for allegedly

disregarding subpoenas include Attorneys General of both parties, the White

House Counsel, and the EPA Administrator. 11 In the future, when the House

or Senate and the Executive Branch are controlled by the same party, there is

11 Final Vote Results for Roll Call 489, July 17, 2019,
https://clerk.house.gov/evs/2019/roll489.xml (William Barr) (H.R. Res. 497); Final Vote
Results for Roll Call 441, June 28, 2012, https://clerk.house.gov/evs/2012/roll441.xml (Eric
Holder) (H.R. Res. 711); Final Vote Results for Roll Call 60, Feb. 14, 2008,
https://clerk.house.gov/evs/2008/roll060.xml (Harriet Miers) (H.R. Res. 982); Philip
Shabecoff, House Charges Head of E.P.A. with Contempt, N.Y. Times, Dec. 17, 1982, at A1,
https://www.nytimes.com/1982/12/17/us/house-charges-head-of-epa-with-contempt.html.

31
every reason to fear that former Executive Branch officials will face prison

after declining to provide privileged materials to a committee, even where the

position taken was based upon the advice of counsel in good faith and requested

further negotiations.

The government argued below that it is unlikely there will be such

prosecutions when officials invoke executive privilege. CADC.Opp.22–23.

Indeed, OLC recently issued another opinion claiming that § 192 “does not

apply to Executive Branch officials who do not comply with a congressional

subpoena based on a presidential assertion of executive privilege.” Executive

Privilege Assertion for Audio Recordings at 4, Christopher Fonzone, Ass’t Att’y

Gen. to Merrick Garland, Att’y Gen., May 15, 2024,

https://tinyurl.com/r5tmyk85.

But that memo strongly supports Mr. Bannon’s request because it shows

that not even OLC—which speaks for the Department of Justice itself—will

actually defend the holding of Licavoli, which says the only question for mens

rea is whether the defendant intentionally did not respond.

Any executive official who asserts executive privilege is “intentionally”

declining to provide the subpoenaed materials—and therefore under Licavoli

has necessarily violated § 192 and is barred even from presenting evidence of

good faith non-compliance. But OLC has consistently construed § 192 as not

covering that scenario, demonstrating the issue is far more nuanced than

32
Licavoli’s simplistic and atextual approach. See OLC.Op.50 n.34 (PDF

pagination).

There is good reason to believe this Court would consider stepping in and

shutting this Pandora’s Box.

D. This Application Differs from Peter Navarro’s.

At the District Court, the government relied on Your Honor’s denial of

Peter Navarro’s application for release pending appeal after he was convicted

under § 192. See Navarro v. United States, No. 23A843 (U.S. 2024). But if

anything, that denial supports Mr. Bannon. Navarro argued at length that this

Court would likely disagree with Licavoli, and in response, Your Honor issued

an in-chambers decision—the first in many years issued by a Justice—to

explain that the denial was only because of procedural concerns specific to

Navarro’s case, which were “distinct from his pending appeal on the merits.”

Navarro v. United States, 144 S. Ct. 771 (2024) (Roberts, C.J., in chambers).

Respectfully, if the underlying merits presented by Navarro were of no

interest or substantiality, presumably the application would simply have been

without explanation, as frequently occurs. Mr. Bannon’s motion cleanly

presents the same important mens rea issue, but without the procedural

concerns present in Mr. Navarro’s motion.

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 E. In All Events, the Court Should Still Grant Release.

Finally, even if this Court considers the odds of future review to be both

relevant and low, the Court should still grant continued release.

As other courts have explained in the context of a defendant who has

already been on release pending appeal: “Even though the Court considers

remote the likelihood of the Supreme Court’s granting the [certiorari] petition,

the Court does not relish the prospect of revoking [the defendant’s] bail and

requiring his immediate incarceration, only to have the Supreme Court do the

unexpected and accept certiorari.” United States v. Pettengill, No. 1:09-cr-138,

2011 WL 6945708, at *2 (D. Me. Dec. 30, 2011).

In such circumstances, “an additional delay to obtain the most

authoritative answer [from the Supreme Court] seems wise.” Id. So too here.

IV. There Is Also a Substantial Question Regarding the Test Under

Section 3143.

Mr. Bannon’s case raises a second substantial question, this one about

the test for “substantiality” under 18 U.S.C. § 3143(b) itself. 12 As this Court

has said in a different context, the “construction of the words ‘substantial

question’ is itself a substantial question.” Herzog, 75 S. Ct. at 350. And there

is a circuit split on this issue, meaning it is necessarily a substantial question

12 This argument was fully preserved below, but the majority order did not address it.

34
with a fair prospect of review by this Court (again, assuming such a showing

is needed).

The D.C. Circuit holds that § 3143 requires a matter that is “a ‘close’

question or one that very well could be decided the other way.” Perholtz, 836

F.2d at 555. But Perholtz expressly recognized that other circuits disagree and

apply a distinctly lower threshold. Id. In the Ninth Circuit, for example, a

defendant must present “only a non-frivolous issue that, if decided in the

defendant’s favor, would likely result in reversal or could satisfy one of the

other conditions.” Garcia, 340 F.3d at 1020 n.5.

If Mr. Bannon were in the Ninth Circuit, with its lesser test, he would

remain out on appeal while he pursued further review; indeed, Judge Walker

found that Mr. Bannon would satisfy even the D.C. Circuit’s stringent test,

which means he would easily satisfy the Ninth Circuit’s. By forcing Mr. Bannon

instead to serve his entire sentence before his appeals are completed, the

government is necessarily precluding any opportunity for him to serve less

time in prison. That satisfies § 3143’s requirements because it also applies to

issues that would result in a shorter prison stint. See § 3143(b)(1)(B)(iv).

V. Other Considerations Strongly Favor Mr. Bannon.

Several other points warrant emphasizing. If Mr. Bannon is not granted

continued release pending further appeal, he would likely be forced to serve

his entire sentence before this Court could consider the important issues raised

35
in his case, because his sentence would run during the Summer and Fall of

2024, during the Summer recess.

The Court should also be mindful of the government’s own conduct when

it comes to congressional subpoenas. Congress recently issued subpoenas to

DOJ regarding Hunter Biden, yet DOJ instructed its Tax Division lawyers to

refuse to comply.13 Judge Reyes in the U.S. District Court for the District of

Columbia sharply criticized DOJ for the hypocrisy: “There’s a person in jail

right now [Navarro] because you all brought a criminal lawsuit against him

because he did not appear for a House subpoena. … And now you guys are

flouting those subpoenas. … And you don’t have to show up?” 14

“Jail for thee, not for me” is hardly an acceptable position for the

government. The government stated below that “equal justice under the law”

and an “[e]ven-handed application of the bail statute” required promptly

imprisoning Mr. Bannon. CADC.Opp.23. Such aphorisms ring hollow when

DOJ itself ignores House subpoenas and faces no repercussions.

An even-handed approach thus strongly favors allowing Mr. Bannon to

remain on release. At the very least, DOJ’s decision to ignore congressional

subpoenas demonstrates both the significance of the mens rea issue as a matter

Gerstein & Cheney, ‘Are You Kidding Me?’, supra (referencing Comm. on the Judiciary v.
13

Daly, No. 1:24-cv-815 (D.D.C.)).

14 Id.

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of law and also the illogic of preventing Mr. Bannon from even arguing to the

jury that his reliance on advice of counsel undermined the government’s case

for “willfulness.”

There is also no denying the fact that the government seeks to imprison

Mr. Bannon for the four-month period immediately preceding the November

presidential election. There is no reason for that outcome in a case that

presents substantial legal issues.

As Judge Walker concluded in his dissent from the denial of release:

“Bannon should not go to prison before the Supreme Court considers his

forthcoming petition for certiorari.” Ex.A.5 (Walker, J., dissenting). This Court

should grant his Application.

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 CONCLUSION

For the foregoing reasons, Mr. Bannon respectfully requests that his

Application be granted and that he remain on release pending conclusion of his

appeals, including a petition for a writ of certiorari, if timely sought. If

necessary, Mr. Bannon respectfully requests that the Court issue an

administrative stay of the July 1 surrender date to allow for sufficient time to

consider this matter.15

June 21, 2024 Respectfully submitted,

/s/ R. Trent McCotter

R. Trent McCotter
Counsel of Record
Jonathan Berry
Michael Buschbacher
BOYDEN GRAY PLLC
801 17th St NW, Ste 350
Washington, DC 20006
202-955-0620
[email protected]

Counsel for Applicant

15The D.C. Circuit’s judgment has issued, so this Court may wish to expedite merits review
by treating this Application as a petition for a writ of certiorari and granting it, but that alone
will not delay the surrender date.

38