(Photograph by Stephanie Keith/Getty Photographs)
Steve Bannon isn’t going to let just a little factor like jail cease him! Simply yesterday, attorneys for the putrefying podcaster filed yet one more batshit movement asking Choose Carl Nichols to prettyplease let their consumer out of jail now, though he’s solely midway by means of a four-month stint at FCI Danbury for contempt of Congress.
Bannon was convicted in July of 2022, after blowing off a subpoena from the January 6 Choose Committee, and he managed to remain out of the pokey for a yr whereas Choose Nichols let him take a flyer on the DC Circuit. Bannon argued that both the DC Circuit or the Supreme Court docket would seemingly overturn Licavoli v. US, 294 F.2nd 207 (D.C. Cir. 1961), which barred the recommendation of counsel protection for contempt of Congress.
On Might 10, Judges Cornelia Pillard, Justin Walker, and Brad Garcia unanimously denied his attraction. And on June 10, the identical panel rejected Bannon’s emergency movement for launch pending attraction, however this time Choose Walker dissented, suggesting that Licavoli is likely to be overturned by the Supreme Court docket.
“As a result of the Supreme Court docket isn’t certain by Licavoli, as a result of Licavoli’s interpretation of ‘willfully’ is a detailed query, and since that query might be materials, Bannon mustn’t go to jail earlier than the Supreme Court docket considers his forthcoming petition for certiorari,” he wrote.
Choose Walker made no point out of en banc evaluate, and on June 28, the Supreme Court docket denied Bannon’s emergency petition for launch pending attraction. However, Bannon’s lawyer Trent McCotter, argues that Choose Walker’s one-page dissent signifies that the DC Circuit is sort of sure to overrule Licavoli, and thus Choose Nichols ought to deal with this as a fait accompli and launch Bannon now.
“Choose Walker’s dissents have a behavior of turning into majority opinions,” he argues, citing Loper Vivid and West Virginia v. EPA — as if the Supreme Court docket wanted Justin Walker’s nudge to overturn Chevron and intestine the Clear Air Act!
McCotter makes an extra weird argument concerning the DC Circuit, sitting en banc, requesting that the federal government file a response to the suggestion that they need to “revisit Licavoli.”
“Calling for a response is uncommon,” he writes, including that “However extra importantly: the federal government filed its response to the petition on July 31, 2024, and almost a full month has now handed with none subsequent order from the D.C. Circuit. That is according to two outcomes: both the D.C. Circuit will grant rehearing, or there shall be a denial accompanied by a written dissent.”
He goes on to introduce some sport principle, concluding that, even when the petition for rehearing is denied, the truth that the Circuit Court docket thought-about it at size is an intervening occasion that justifies releasing his consumer instantly:
Over a major pattern measurement, if the Court docket has not summarily denied the en banc petition inside 25 days of the response being filed, the chances of a grant or a separate opinion accompanying a denial have been 100%.7 Mr. Bannon’s case has now surpassed that 25-day threshold—it’s at 29 days and counting.
Both a grant or a dissent from denial would essentially exhibit the mens rea challenge right here is one on which affordable minds may differ—i.e., it’s “substantial.” United States v. Perholtz, 836 F.2nd 554, 555 (D.C. Cir. 1987). And such motion would additionally essentially be an intervening and altered circumstance since this Court docket’s final resolution on bail
Studying the judicial tea leaves is a wonderfully respectable pastime, and we right here at ATL have been recognized to have interaction in it ourselves. We don’t typically confuse it with authorized reasoning, nonetheless, a lot much less ask a federal decide to hitch us within the delusion. Notably when, as right here, the Supreme Court docket has had an opportunity to think about precisely the identical challenge and stated “Thanks, however no thanks.”
However maybe Choose Nichols will see issues otherwise.
US v. Bannon [Disrict Docket via Court Listener]US v. Bannon [Circuit Docket via Court Listener]
Liz Dye lives in Baltimore the place she produces the Legislation and Chaos substack and podcast.
