Steve Bannon’s Win at the High Court

The Supreme Court’s brief but bracing ruling in favor of the podcaster and former adviser to President Trump, Stephen Bannon, clears the way for the dismissal of a contempt conviction that is best consigned to history’s dustbin. For Messrs. Trump and Bannon the decision from the Nine is likely especially gratifying because it strikes a blow at the House’s January 6 Committee, a Democratic-dominated tribunal that flirted with attainder. The justices did not reach that stretch of constitutional bedrock, an absolute prohibition that we have long argued was violated by the committee. Instead, the high court overruled the United States Court of Appeals for the District of Columbia Circuit, which held that Mr. Bannon had “willfully” disregarded the committee’s subpoena as statute requires for a finding of contempt. Mr. Bannon contended that he merely took the advice of his counsel not to appear. Mr. Bannon attributed his absenteeism to the possibility that his testimony could have trespassed on executive privilege. The D.C. Circuit, as our A.R. Hoffman reports, determined that “advice of counsel defense is no defense at all.” The Supreme Court disagreed, and now sends the case back to the trial judge, Carl Nichols. The Department of Justice has asked Judge Nichols to dismiss the conviction. The high court’s ruling clears the way for him.We carry no brief for Mr. Bannon, per se. He has, though, already served his sentence — four months in federal prison — so the stakes are largely symbolic. It requires no endorsement of the full panoply of Mr. Bannon’s positions on January 6 — or for that matter, Mr. Trump’s — to recognize that the interests of justice are hardly served by breaching the fundamental constitutional prohibition of attainder and keeping his conviction on the books. If, as we maintain, the January 6 Committee — stuffed to the gills with prosecutors, acting as a court without being bound by the rules of evidence — was a tribunal of attainder, raising the specter of “trial by legislature,” then the subpoenas it issued can be deemed what the law calls “fruit of the poisonous tree.” Further along the branch of that same taboo tree are the contempt charges and convictions that were secured when Mr. Bannon refused to appear. While the justices did not reach that issue and left no trace of an opinion to explain their reasoning, the reversal of the D.C. Circuit suggests that the high court’s majority was uneasy with the prosecution. If Mr. Bannon did not act “willfully,” then did he commit any crime at all? His lawyer, Evan Corcoran, calls it “an unjust conviction” and cites a “fundamental rule — like oil and water, politics and prosecutions don’t mix.”A legal sage at Stanford Law School, Robert Weisberg, tells the Washington Post that he doubts that the justices ruled “out of particular sympathy or ideological alignment with Steve Bannon.” Instead, they were trying to “clean the court of cases the prosecution doesn’t want to pursue.” Mr. Bannon’s criminal contempt conviction for refusing the summons of a constitutionally dubious committee is ripe for a reappraisal.

Steve Bannon’s Win at the High Court

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