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

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed May 27, 2025

No. 22-3086

UNITED STATES OF AMERICA,
APPELLEE

STEPHEN K. BANNON,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cr-00670-1)

On Petition for Rehearing En Banc

Before: SRINIVASAN, Chief Judge; HENDERSON***,
MILLETT, PILLARD**, WILKINS**, KATSAS*, RAO***,
WALKER***, CHILDS, PAN**, and GARCIA**, Circuit Judges

ORDER

Appellant’s petition for rehearing en banc and the response
thereto were circulated to the full court, and a vote was
requested. Thereafter, a majority of the judges eligible to
2

participate did not vote in favor of the petition. Upon
consideration of the foregoing, the amicus curiae brief filed by
the U.S. House of Representatives in support of neither party,
and appellant’s 28(j) letter, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:
Clifton B. Cislak, Clerk

BY: /s/
Daniel J. Reidy
Deputy Clerk

* A statement by Circuit Judge Katsas respecting the denial of
rehearing en banc, is attached.

** A statement by Circuit Judge Garcia, joined by Circuit
Judges Pillard, Wilkins and Pan, concurring in the denial of
rehearing en banc, is attached.

*** Circuit Judges Henderson, Rao, and Walker would grant the
petition for rehearing en banc.

A statement by Circuit Judge Rao, joined by Circuit Judge
Henderson in full, and Circuit Judge Walker with respect to Part
II (limited to the question of whether to overrule Licavoli),
dissenting from the denial of rehearing en banc, is attached.
Statement of Circuit Judge KATSAS respecting the denial
of rehearing en banc: Congress has made it a crime for any
person to “willfully” default on a congressional subpoena.
2
U.S.C. § 192
. This case presents the question whether that
offense reaches individuals who default on congressional
subpoenas without knowledge of wrongdoing, such as those
who honestly but mistakenly believe that a privilege protects
the subpoenaed items from compelled disclosure.
When interpreting criminal statutes, the Supreme Court
“consistently” has construed the term willfully to require that a
defendant “acted with knowledge that his conduct was
unlawful.” Safeco Ins. Co. of Am. v. Burr,
551 U.S. 47
, 57 n.9
(2007) (cleaned up); see, e.g., Sillasse Bryan v. United States,
524 U.S. 184
, 191–92 (1998); Ratzlaf v. United States,
510
U.S. 135, 137
(1994); Cheek v. United States,
498 U.S. 192
,
200–01 (1991). These decisions cast significant doubt on
Licavoli v. United States,
294 F.2d 207
(D.C. Cir. 1961), which
held that good-faith “reliance upon advice of counsel” does not
foreclose criminal liability under section 192. See
id.
at 207–
09 (“Evil motive is not a necessary ingredient of willfulness
under this clause of the statute.”). As the dissent persuasively
explains, post at 15–18, the prosecution of former Executive
Branch officials for good-faith but mistaken privilege
assertions raises questions that are troubling, important, and
likely to recur. That concern, plus the significant tension
between Licavoli and more recent Supreme Court decisions,
supports a plausible case for rehearing en banc.
Nonetheless, Licavoli finds support in an earlier Supreme
Court decision, United States v. Helen Bryan,
339 U.S. 323
(1950). There, a defendant refused to comply with a
congressional subpoena because, “after consulting with
counsel,” she “came to the conclusion” that the committee at
issue “had no constitutional right” to issue the subpoena. See
id. at 325
(cleaned up). Yet the Supreme Court upheld the
conviction, stating that the government makes out “a prima
2
facie case of wilful default” by showing that the defendant
“intentionally failed to comply” with a congressional
subpoena.
Id. at 330
. Moreover, the Court did so without
probing either the sincerity or the reasonableness of the
defendant’s belief that the subpoena was unconstitutional.
If section 192 authorizes criminal liability for good-faith
but mistaken assertions of unconstitutionality, then it likewise
must authorize liability for good-faith but mistaken assertions
of privilege. In other words, the current breadth of section 192
traces as much to Helen Bryan as to Licavoli. So, any
problematic overbreadth is something that only the Supreme
Court can fix.
GARCIA, Circuit Judge, with whom Circuit Judges
PILLARD, WILKINS, and PAN join, concurring in the denial of
rehearing en banc: Stephen Bannon did not respond to a
congressional subpoena and was convicted of “willfully
mak[ing] default” in violation of
2 U.S.C. § 192
, the contempt-
of-Congress statute. See United States v. Bannon,
101 F.4th
16
, 18–20 (D.C. Cir. 2024). Bannon argued that his default
was not “willful” because he acted in good-faith reliance on his
counsel’s advice that the subpoena sought privileged
information. See
id. at 21
. A panel of our court rejected that
argument as foreclosed by Licavoli v. United States,
294 F.2d
207
(D.C. Cir. 1961), which held that any “deliberate,
intentional failure” to respond constituted “willful[]” default
under Section 192.
Id. at 208
. Bannon now asks the en banc
court to revisit that long-settled interpretation.
As Judge Katsas describes, Licavoli’s holding stems from
the Supreme Court’s earlier opinion in United States v. Helen
Bryan,
339 U.S. 323
(1950). Thus, if there are any doubts
about the proper interpretation of “willful” in this statute, they
are for the Supreme Court to resolve. I write separately only to
briefly explain that there are compelling arguments that Helen
Bryan and Licavoli were correctly decided.
Bannon is right that in criminal statutes the word “willful”
is usually construed to require bad faith. See Bannon, 101 F.4th
at 22–23 (collecting cases). “Willful,” however, “is a word of
many meanings, and its construction is often influenced by its
context.” Ratzlaf v. United States,
510 U.S. 135, 141
(1994)
(cleaned up). Thus, “willful” can at times “denote[] an
intentional as distinguished from an accidental act.” Browder
v. United States,
312 U.S. 335, 342
(1941); see Cheek v. United
States,
498 U.S. 192
, 208–09 (1991) (Scalia, J., concurring in
the judgment) (“One may say, as the law does in many
contexts, that ‘willfully’ refers to consciousness of the act but
not to consciousness that the act is unlawful.”).
2
Here, statutory context indicates that “willful” default
requires only deliberate conduct. Section 192 criminalizes two
acts: (1) “willfully mak[ing] default” by failing to respond to a
congressional subpoena and (2) “appear[ing]” before a
congressional committee but “refus[ing] to answer any
[pertinent] question.”
2 U.S.C. § 192
. The first offense
includes a “willfulness” requirement, but the second does not.
As Bannon sees it, then, a conviction for failing to appear at all
would require a showing of bad faith, but a conviction for
appearing and refusing to answer relevant questions would not.
I am skeptical that Congress intended to enact such a
scheme. Imagine a witness who genuinely believed his
lawyer’s advice that a privilege justified refusing to testify on
subjects listed in a subpoena. On Bannon’s reading, that
witness could not be convicted if he declined to appear before
a congressional committee altogether. Yet he could be
convicted if he appeared but declined to answer specific
questions based on the same advice. That construction makes
little sense. Why would Congress have made it harder to
convict a witness for the more obstructive conduct of
categorically refusing to appear, but easier to convict a witness
who appears but declines to answer certain questions? Worse,
why would such a witness ever appear, when doing so would
place him at higher risk of prosecution and conviction? By
simply declining to participate, the subpoenaed witness would
put the government to the added burden of disproving his
subjective belief that a privilege applied.*

*
To be clear, a defendant facing a contempt prosecution may
surely raise a privilege claim as an affirmative defense. But Bannon
did not raise such an affirmative defense here; that would have
required him to show that the subpoenaed topics were in fact
protected by executive privilege. This case concerns only whether,
to prove an element of the crime, the government bears the burden
3
Bannon has not tenably explained why Congress would
pass a law that encourages less-cooperative conduct. His
reading is especially perplexing given that the purpose of the
contempt-of-Congress statute is to facilitate congressional
inquiry. See, e.g., Helen Bryan,
339 U.S. at 329, 331
.
The strongest response would be that the statute’s plain
text nonetheless requires Bannon’s reading, despite the
perverse incentives it creates. After all, the term “willfully”
appears in only the make-default portion of the statute, we
presume Congress’s selective usage of the term was
intentional, and we must give that choice effect. See,
e.g., Russello v. United States,
464 U.S. 16, 23
(1983). So, the
argument goes, if the make-default and refuse-to-answer
prongs have the same mens rea requirement, Congress may as
well have not included the word “willfully” at all.
I am unpersuaded. “Willfully” does work in Section 192
even if it includes “deliberate, intentional” acts, because it
precludes reading the make-default prong as creating criminal
exposure for inadvertent defaults. There are any number of
reasons a subpoenaed witness might unintentionally fail to
appear and thus “default”—“illness, travel trouble, [or]
misunderstanding,” to name a few. Licavoli,
294 F.2d at 208
.
Without the “willfully” qualifier, the statute could have been
read to criminalize those defaults too. But there would have
been no similar need to clarify the scope of liability for a
witness’s “refus[al] to answer” pertinent questions. Unlike a
“default,” a “refusal” is necessarily intentional; no one would
say a witness “refused” to answer a question because he did not
hear it. See
id.
Common-sense arguments support the long-settled
interpretation of “willfully” in this statute. And Bannon’s

of disproving a defendant’s subjective (but potentially mistaken)
belief that a privilege applied.
4
reading is not necessary to give that term meaning. Those
considerations further support our denial of rehearing en banc.
RAO, Circuit Judge, with whom Circuit Judge
HENDERSON joins in full and Circuit Judge WALKER joins with
respect to Part II, dissenting from the denial of rehearing en
banc: Stephen Bannon, a former advisor to President Donald
Trump, invoked executive privilege and refused to comply
with a legislative subpoena seeking information about the
events of January 6. He was convicted of criminal contempt of
Congress and imprisoned. A panel of this court affirmed
Bannon’s convictions. I would grant rehearing en banc because
Bannon’s petition raises questions of exceptional importance.

The Supreme Court has repeatedly recognized that
individuals prosecuted for contempt of Congress are entitled to
“every safeguard which the law accords in all other federal
criminal cases.” Russell v. United States,
369 U.S. 749, 755
(1962); see also Gojack v. United States,
384 U.S. 702, 707
(1966). One fundamental safeguard is the government’s burden
to prove every element of the crime beyond a reasonable doubt.
In Bannon’s case, however, the government was not required
to prove all the elements of criminal contempt of Congress
under
2 U.S.C. § 192
.

Section 192 requires proof the defendant “willfully”
defaulted on a congressional subpoena. But over sixty years
ago, this court read the willfulness requirement out of the
statute. See Licavoli v. United States,
294 F.2d 207, 208
(D.C.
Cir. 1961). The full court should overturn Licavoli because it
is at odds with the plain meaning of section 192 and
longstanding Supreme Court precedent interpreting willfulness
in criminal statutes. Bannon’s convictions must be vacated
because he was not allowed to argue at trial that he resisted the
subpoena on grounds of executive privilege.

Section 192 also requires proof the defendant defaulted on
a lawful subpoena issued “by the authority of either House of
Congress.” Bannon maintains the committee that issued the
subpoena was not constituted in accordance with its
2
authorizing resolution, and he raises a novel and important
question about whether the committee’s defective composition
undermined its authority to issue lawful subpoenas. If Bannon
is right, this provides an independent ground for reversing his
convictions.

This contempt of Congress prosecution against a former
Executive Branch official asserting executive privilege raises
serious separation of powers concerns. I would grant rehearing
en banc to ensure we apply the exacting standards of the
criminal law and protect the important individual and
constitutional interests at stake.

In June 2021, the House of Representatives established the
Select Committee to Investigate the January 6th Attack on the
United States Capitol (“Select Committee”). H.R. Res. 503,
117th Cong. §§ 1, 3(1) (2021) (“Resolution”). The Resolution
prescribed the Select Committee’s composition, providing that
“[t]he Speaker shall appoint 13 Members to the Select
Committee, 5 of whom shall be appointed after consultation
with the minority leader.” Id. § 2(a). The chairman of the Select
Committee was authorized to order depositions “upon
consultation with the ranking minority member.” Id.
§§ 5(c)(4), (6)(A). Notwithstanding the Resolution, the
Speaker appointed only nine members to the Select Committee
and never appointed a ranking minority member. The Select
Committee subpoenaed dozens of individuals and
organizations thought to be connected to January 6.

Stephen Bannon, a former senior advisor to President
Trump, received a subpoena for documents and testimony
relating to, among other things, his “communications with
President Donald J. Trump” in 2020 and 2021 and with White
House and campaign staff concerning the events on January 6.
3
Based on reports that Bannon had discussed the election
certification with members of Congress on January 5 and had
predicted “[a]ll hell” would “break loose” the following day,
the Select Committee believed Bannon had information
relevant to its investigation. Bannon declined to respond to the
subpoena based on advice from counsel that the documents and
testimony were protected by executive privilege. Only two
weeks after Bannon’s refusal to respond, the House voted to
find Bannon in contempt of Congress and refer him to the
Department of Justice for prosecution. Bannon was charged
with two counts of “willfully mak[ing] default” on a
congressional subpoena in violation of section 192.

At trial, Bannon argued section 192 requires the
government to prove he defaulted willfully, that is, with
knowledge that his default was unlawful. To negate
willfulness, Bannon asked to present evidence that he relied in
good faith on advice from counsel that he was not required to
comply with the subpoena because the materials sought were
protected by executive privilege. Moreover, Bannon argued
Licavoli should not control because in the six decades since the
case was decided, the Supreme Court has clarified that
“willfully” in criminal statutes requires the government to
prove a defendant knew his actions were unlawful. The district
court rejected Bannon’s request and explained that while it
“might be inclined to agree with [Bannon] and allow this
evidence in” if this were a matter of first impression, Licavoli
foreclosed Bannon’s defense.

Bannon also moved to dismiss the indictment on the
ground that the subpoena was not lawfully issued. Among
other things, Bannon argued the Select Committee was
improperly constituted because the Speaker did not appoint
thirteen members, as required by the Resolution. Bannon
further claimed the subpoena was not issued in consultation
4
with the ranking minority member because the Select
Committee had no ranking minority member. These defects,
Bannon alleged, undermined the Select Committee’s authority
and rendered the underlying subpoena invalid. The district
court dismissed the motion and barred Bannon from presenting
evidence about the Select Committee’s composition.

A jury convicted Bannon of violating section 192, and he
was sentenced to four months of incarceration. Upholding
Bannon’s convictions, the panel reaffirmed Licavoli and held
the government needed to prove only that Bannon’s default
was deliberate and intentional. United States v. Bannon,
101
F.4th 16
, 21–23, 28 (D.C. Cir. 2024). Moreover, the panel
found Bannon’s objections to the Select Committee’s
composition were “procedural arguments” that did not go to
any element of section 192.
Id. at 26
. As such, Bannon first had
to present these arguments to the Select Committee, and his
failure to do so resulted in forfeiture.
Id.
Bannon spent four months in prison.1 He now seeks
rehearing en banc.

II.

I would grant rehearing en banc to overrule Licavoli.
Consistent with Supreme Court precedent, the best reading of
section 192 is that a defendant willfully defaults on a

1
The panel denied Bannon’s request for release pending his petition
for a writ of certiorari. Judge Walker dissented, explaining that
Bannon should have been released pending appeal because “[f]or a
court unbound by Licavoli, like the Supreme Court, the proper
interpretation of ‘willfully’ in Section 192 is a close question or one
that very well could be decided the other way.” United States v.
Bannon, No. 22-3086,
2024 WL 3082040
, at *3 (D.C. Cir. June 20,
2024) (Walker, J., dissenting) (cleaned up).
5
congressional subpoena only when he knows his default is
unlawful. If the district court had applied this interpretation, the
government would have been required to prove Bannon had the
requisite knowledge of wrongdoing, and Bannon would have
been entitled to present evidence that he lacked such
knowledge because he believed, in good faith, that the House
sought information protected by executive privilege. Because
the government was not required to prove all the elements of
section 192, Bannon’s convictions must be reversed. See
Gojack,
384 U.S. at 716
(reversing section 192 conviction
because the government failed to prove “an essential element
of the offense”).

The criminal contempt of Congress statute provides:

Every person who having been summoned as a
witness by the authority of either House of
Congress to give testimony or to produce
papers ... willfully makes default, or who,
having appeared, refuses to answer any
question pertinent to the question under inquiry,
shall be deemed guilty of a misdemeanor.
2 U.S.C. § 192
(emphasis added). Section 192 includes two
distinct offenses: (1) “willfully mak[ing] default” after being
summoned by the House or Senate, and (2) appearing before
the House or Senate and “refus[ing] to answer any [pertinent]
question.” Bannon was convicted under the first offense, which
includes an explicit mens rea element—default must be made
“willfully.”

Because section 192 is a criminal statute, the “usual
standards of the criminal law must be observed.” Gojack,
384
U.S. at 707
; see also Russell,
369 U.S. at 755
. In criminal
6
statutes, “the word ‘willfully’ … generally means an act done
with a bad purpose.” United States v. Murdock,
290 U.S. 389,
394
(1933); see also Felton v. United States,
96 U.S. 699, 702
(1877) (“The word ‘willfully,’ … in the ordinary
sense … means not merely ‘voluntarily,’ but with a bad
purpose.”) (cleaned up); Sillasse Bryan v. United States,
524
U.S. 184, 191
(1998) (“As a general matter, when used in the
criminal context, a willful act is one undertaken with a bad
purpose.”) (cleaned up). In other words, to be convicted of a
crime that requires willfulness, the defendant must have had
“knowledge that his conduct was unlawful.” Sillasse Bryan,
524 U.S. at 192
(quoting Ratzlaf v. United States,
510 U.S. 135,
137
(1994)). Because section 192’s first offense requires
willfulness, knowledge of wrongdoing is a necessary element
of defaulting on a congressional subpoena.

The text and structure of section 192 reinforce that willful
default means willful default. The statute’s first offense
explicitly requires willfulness. By contrast, the second offense
does not specify a mens rea requirement. The Supreme Court
has held that the second offense requires only intentional or
deliberate action. Sinclair v. United States,
279 U.S. 263, 299
(1929). We ordinarily presume that when Congress uses a term
in one place and omits it in another, the choice is intentional
and the variation meaningful. See Russello v. United States,
464 U.S. 16, 23
(1983). Considering the variation in mens rea
requirements for the two section 192 offenses, “willfully” must
mean something beyond intentional or deliberate action. See
Potter v. United States,
155 U.S. 438, 446
(1894) (explaining
that when “‘willful’ is omitted from the description of offences
in the latter part of [the] section,” “[i]ts presence in the first
cannot be regarded as mere surplusage; it means something”).

This straightforward interpretation also accords with
United States v. Murdock, in which the Supreme Court
7
distinguished the two section 192 offenses and explained that
the second offense does not require “bad purpose or evil intent”
because it lacks a willfulness requirement. 290 U.S. at 397–98.
The necessary implication of Murdock is that section 192’s
first offense requires a bad purpose. Reading the statute as a
coherent whole, knowledge of wrongdoing must be an element
of willful default on a congressional subpoena.

More than sixty years ago, however, our court in Licavoli
read the willfulness requirement out of the statute. We relied
principally on United States v. Helen Bryan, which asserted
that the government can establish “a prima facie case of
wil[l]ful default” under section 192 if it proves a defendant
“intentionally failed to comply” with a valid subpoena.
339
U.S. 323, 330
(1950). But the Court did not explain how this
statement comports with the text of section 192, Murdock, or
the long line of criminal cases construing “willfully” to require
knowledge of wrongdoing. Perhaps this is because the Court
discussed willful default only to address the narrow question
on which it had granted certiorari: whether the presence of a
quorum of the committee was a material question of fact for
the jury.
Id. at 327
. That was the sole issue we decided in the
one-paragraph decision reversed by the Supreme Court. Helen
Bryan v. United States,
174 F.2d 525, 526
(D.C. Cir. 1949) (per
curiam). And the Court expressly stated it was not addressing
any issues “not passed upon by the Court of Appeals.”2 Helen
Bryan,
339 U.S. at 343
.

2
I therefore disagree with Judge Katsas that Helen Bryan compels
the result in Licavoli and this case. See Katsas Statement 1–2. In a
section of her brief raising “additional reasons not passed upon by
the Court of Appeals,” Bryan argued her refusal to comply with the
subpoena was based on advice from counsel that the committee’s
authorizing resolution was unconstitutional. Brief for Respondents
8
Moreover, the narrowness of Helen Bryan was confirmed
in a case decided the same day, in which the Supreme Court
did not rule out the possibility that evidence of good faith could
overcome the government’s prima facie showing of intentional
default. See United States v. Fleischman,
339 U.S. 349, 363
(1950); see also McPhaul v. United States,
364 U.S. 372, 379
(1960). There is no reason for this court to cling to an
overbroad reading of Helen Bryan that stands in tension with
the Supreme Court’s consistent understanding that “willfully”
in criminal statutes requires more than merely intentional or
deliberate action.

Under the best interpretation of section 192, the
government must prove an individual defaulted on a
congressional subpoena willfully, that is, with knowledge that
his conduct was unlawful. Licavoli cannot be reconciled with
the text or structure of section 192, and the decision runs
counter to the overwhelming weight of Supreme Court
precedent. See Bondi v. VanDerStok,
145 S. Ct. 857
, 877
(2025) (Kavanaugh, J., concurring) (“To prove ‘willfulness,’
the Government must demonstrate that an individual knew that
his conduct was unlawful, not merely that he knew the facts
that made his conduct unlawful.”). Licavoli should be
overruled.

Restoring the correct meaning of section 192 would have
significant consequences for this case. Bannon sought to
introduce evidence that his default was not willful because he

at 31, United States v. Helen Bryan,
339 U.S. 323
(1950) (No. 99).
But the Supreme Court did not grant review on this question and
explicitly declined to consider any of Bryan’s additional arguments.
Helen Bryan poses no barrier to overruling Licavoli.
9
believed the requested information was protected by executive
privilege. The Supreme Court has recognized that recipients of
legislative subpoenas “retain common law and constitutional
privileges with respect to certain materials,” including
“communications protected by executive privilege.” Trump v.
Mazars USA, LLP,
140 S. Ct. 2019, 2032
(2020) (citing Senate
Select Comm. on Presidential Campaign Activities v. Nixon,
498 F.2d 725
, 730–31 (D.C. Cir. 1974) (en banc)); see also
Garner v. United States,
424 U.S. 648
, 663 n.18 (1976)
(explaining “a defendant could not properly be convicted for
an erroneous claim of privilege asserted in good faith” under a
statute requiring willfulness). If Bannon believed in good faith
that executive privilege protected the subpoenaed materials, his
default was not willful because it was not made with
knowledge of wrongdoing. Bannon should have had the
opportunity to raise these arguments at trial. The government
then could have offered evidence to rebut this argument.

For purposes of rehearing, this court need not decide
whether Bannon’s claim of executive privilege was made in
good faith or would have ultimately prevailed. The important
issue raised in this petition is the government’s burden in a
criminal prosecution under section 192. Because the district
court and the panel followed Licavoli, the government was not
required to prove an essential element of the crime—willful
default. The full court should interpret section 192 to mean
what it says, overrule Licavoli, and vacate Bannon’s
convictions.

III.

Rehearing is also warranted to consider a question of first
impression: Is the proper composition of a congressional
committee essential to its authority to issue a subpoena, or is it
merely a “procedural” requirement that can be forfeited in a
10
criminal contempt of Congress prosecution, as the panel held?
The full court should address this question because committee
authority is an element of a section 192 violation, and it is an
open question whether a committee’s proper composition is an
aspect of its authority. There are good reasons to conclude that
a subpoena is issued by the authority of the House only when
the issuing committee is constituted in accordance with its
authorizing resolution.

It is undisputed that “a clear chain of authority from the
House to the [committee] is an essential element” of a
section 192 charge. Gojack,
384 U.S. at 716
; see also Bannon,
101 F.4th at 26 (recognizing “congressional authority” is an
element of section 192). To prove this element, the government
was required to establish beyond a reasonable doubt that the
Select Committee’s “authority [was] clear and [was] conferred
in accordance with law.” Gojack,
384 U.S. at 714
. While courts
ordinarily will not inquire into the “appropriateness of [a]
procedure as a method of conducting congressional business,”
the Supreme Court has repeatedly emphasized the importance
of evaluating legislative procedures in the “administration of
criminal justice, and specifically the application of [a] criminal
statute.” Id.; see also Christoffel v. United States,
338 U.S. 84,
88
(1949).

The question Bannon raises is whether the Select
Committee’s defective composition rendered any subpoena it
issued invalid for purposes of criminal contempt because it was
not issued “by the authority of either House of Congress.”
2
U.S.C. § 192
. There is no serious dispute that the Select
Committee was not composed in accordance with the plain
terms of the authorizing resolution. The Resolution provides
that “[t]he Speaker shall appoint 13 Members to the Select
11
Committee, 5 of whom shall be appointed after consultation
with the minority leader.” H.R. 503, 117th Cong. § 2(a) (2021).
The Speaker appointed only nine members, however, and did
not appoint a ranking minority member. This violated the
Resolution, as the House now acknowledges. See Brief for the
U.S. House of Representatives as Amicus Curiae in Support of
Neither Party at 11, United States v. Bannon, No. 22-3086.

The panel held that any defects in the Select Committee’s
composition were merely “procedural” and did not undermine
its authority to issue subpoenas. Bannon, 101 F.4th at 26–27.
Such “procedural arguments,” the panel concluded, are “at best
affirmative defenses” that Bannon failed to preserve by not
raising them before the Select Committee. Id. at 26.

Labeling Bannon’s objections as “procedural” does not
resolve the question presented. Neither the Supreme Court nor
this court has considered whether a committee must be
constituted in accordance with its authorizing resolution to
issue a lawful subpoena. If proper composition is a
prerequisite, then the government was required to prove this
aspect of the Select Committee’s authority beyond a reasonable
doubt, and Bannon could not have forfeited his objection by
failing to raise it to the Select Committee. See id.; Gojack,
384
U.S. at 707
. Bannon raises an open and important question
about the Select Committee’s authority that should be decided
by the full court.

There are serious arguments that defects in the Select
Committee’s composition undermined its authority to issue a
valid subpoena under section 192. Although no court has
addressed this precise question, several principles can be
drawn from Supreme Court and circuit precedent assessing
congressional authority in the context of criminal prosecutions.
12
First, a committee has authority to issue subpoenas only
when acting within its delegated authority. Because a
committee may wield only the investigative power delegated
to it from the House or Senate, its power “to exact testimony
and to call for the production of documents must be found in
[the] language” of its authorizing resolution. United States v.
Rumely,
345 U.S. 41, 44
(1953). Congressional committees
“are restricted to the missions delegated to them,” and “[n]o
witness can be compelled to make disclosures on matters
outside that [delegated] area.” Watkins v. United States,
354
U.S. 178, 206
(1957). Thus, a “[c]ourt[] administering the
criminal law cannot apply sanctions for violation of the
mandate of [a committee] unless that [committee]’s authority
is clear and has been conferred in accordance with law.”
Gojack,
384 U.S. at 714
. The Supreme Court has policed the
boundaries of committee delegations and reversed section 192
convictions when a committee exceeded the authority
conferred by its resolution. See, e.g., Rumely,
345 U.S. at 47
;
Gojack,
384 U.S. at 716
(holding that “[a]bsent proof of a clear
delegation to the subcommittee” to issue a subpoena, “the
subcommittee was without authority which can be vindicated
by criminal sanctions under [section] 192”).

Second, even when a committee possesses delegated
authority to issue subpoenas, it must issue those subpoenas in
conformity with the procedures contained in the committee
(and House or Senate) rules. Under section 192, the
government must prove beyond a reasonable doubt that a
defendant was “validly served with a lawful subpoena.” Helen
Bryan, 339 U.S. at 330 (emphasis added). “To issue a valid
subpoena … a committee or subcommittee must conform
strictly to the resolution establishing its investigatory powers.”
Exxon Corp. v. FTC,
589 F.2d 582, 592
(D.C. Cir. 1978).
13
When a committee rule relates to an element of the
section 192 offense, “it must be strictly observed.” Gojack,
384
U.S. at 708
. Ensuring a committee follows its rules is part of
the judicial role in the “administration of criminal justice, and
specifically the application of the criminal statute which has
been invoked.”
Id. at 714
; see also Yellin v. United States,
374
U.S. 109
, 122–24 (1963) (reversing a section 192 conviction
despite the defendant’s failure to object before the committee
because the defendant reasonably thought the committee was
adhering to its rules). Following these principles, this circuit
has reversed convictions under section 192 when a subpoena
was not issued in accordance with the committee’s rules. See
Shelton v. United States,
327 F.2d 601, 607
(D.C. Cir. 1963)
(reversing a section 192 conviction because the defendant “had
a right under the Subcommittee charter to have the
Subcommittee responsibly consider whether or not he should
be subpoenaed before the subpoena issued”); Liveright v.
United States,
347 F.2d 473
, 475–76 (1965) (reversing a
section 192 conviction because the subpoena was not issued in
accordance with the committee’s authorizing resolution).
Section 192 requires the issuance of a lawful subpoena, and a
subpoena is lawful only if a committee follows the governing
rules in issuing it.3

Finally, a committee must follow the rules governing its
composition in order to be a “competent tribunal.” Christoffel,

3
In Shelton and Liveright, we treated the subpoena’s invalidity as an
affirmative defense to, not an element of, section 192’s second
offense, because one could appear before a committee without being
summoned and still unlawfully refuse to answer a pertinent question.
See Liveright,
347 F.2d at 475
n.5. Whether an element of
section 192’s first offense, or an affirmative defense to the second,
the lawfulness of a subpoena depends on compliance with a
committee’s rules for issuing subpoenas.
14
338 U.S. at 89
. Christoffel involved a perjury prosecution
under a statute that required a “competent tribunal” as an
element of the offense.
Id. at 85
. The Supreme Court held that
competency required the committee to satisfy the House
quorum rules, and therefore the government was required to
prove the quorum requirements were met.
Id.
at 89–90; see also
id. at 90
(“A tribunal that is not competent is no tribunal, and
it is unthinkable that such a body can be the instrument of
criminal conviction.”). As the Court explained, “[t]he question
is [not] what rules Congress may establish for its own
governance” but “rather what rules the House has established
and whether they have been followed.”
Id.
at 88–89. Christoffel
provides a helpful analogy for interpreting section 192, which
requires the committee to act by the authority of the House.
Such authority, like competency, may depend on the
committee following House rules governing its composition.

As this discussion demonstrates, the Supreme Court and
this circuit carefully assess a committee’s authority when
reviewing criminal convictions under section 192. The
questions Bannon raises about the Select Committee’s
defective composition are important and require similar
consideration. The Select Committee’s authorizing resolution
required the appointment of thirteen members and a ranking
member, neither of which occurred. Were these composition
requirements essential to the Select Committee’s exercise of
delegated authority from the House? That is, to issue a lawful
subpoena for purposes of section 192, was the Select
Committee required to be constituted in accordance with the
Resolution? In light of Supreme Court and circuit precedent,
proper composition of a committee may well be critical to a
committee’s authority and, therefore, a necessary condition for
issuing a lawful subpoena.
15
The government maintains the Select Committee was
properly constituted because the Resolution did not strictly
require appointment of thirteen members. But this factual issue
is irrelevant to the legal question, namely, whether the
Committee’s proper composition is an element of its authority
to issue a lawful subpoena. The full court should resolve this
question because it is “unthinkable” that a committee without
authority “can be the instrument of [a] criminal conviction.”
Id.
at 90
.

***

When adjudicating criminal contempt of Congress, courts
must ensure “that the congressional investigative power, when
enforced by penal sanctions, [is] not … abused.” Gojack,
384
U.S. at 707
. Rehearing is warranted to maintain the exacting
standards of the criminal law, which protect individual liberty
and preserve the separation of powers.

Bannon’s petition first implicates the essential safeguards
for individual liberty in criminal cases. The Supreme Court has
repeatedly held that the protections of the criminal law apply
to section 192 prosecutions. Courts must hold the government
to its burden of proving every element of criminal contempt of
Congress. See
id.
Yet our decision in Licavoli allows a person
to be convicted of willful default without any showing of
willfulness. We should overrule Licavoli and vacate Bannon’s
convictions.

Moreover, this case presents a question of first impression:
whether the proper composition of a committee is an essential
aspect of its delegated authority to issue lawful subpoenas, as
required by section 192. When seeking to impose criminal
sanctions, a committee must be “meticulous in obeying its own
rules.” Yellin,
374 U.S. at 124
. In this political and partisan
16
context, rules about a committee’s composition should not be
lightly disregarded by courts as merely “procedural.”

Finally, this case threatens the separation of powers
because it involves the criminal prosecution of a former
Executive Branch official invoking executive privilege in the
face of a congressional subpoena. Congress may gather
information and issue subpoenas in furtherance of its
legislative powers. McGrain v. Daugherty,
273 U.S. 135, 174
(1927); Mazars,
140 S. Ct. at 2031
. But the President is entitled
to assert executive privilege to protect the confidentiality of his
communications and the independence of the Executive
Branch.4 United States v. Nixon,
418 U.S. 683, 708
(1974)
(recognizing executive privilege is “fundamental to the
operation of Government and inextricably rooted in the
separation of powers under the Constitution”). These
constitutional prerogatives come into conflict when a
committee seeks information the Executive considers
privileged.

While such disputes between the political branches are
usually resolved through accommodation and compromise
without involving the courts, Mazars, 140 S. Ct. at 2030–31,
this case involves a rare instance in which Congress
recommended criminal contempt. Even more uncommon, the
Executive Branch pursued the prosecution, breaking from its

4
The Executive Branch has long asserted the right to withhold
privileged information from congressional committees and has
maintained that the President and his immediate advisors cannot be
compelled to testify. See Assertion of Executive Privilege
Concerning the Dismissal and Replacement of U.S. Attorneys,
31
Op. O.L.C. 1
, 2 (2007); Assertion of Executive Privilege with
Respect to Clemency Decision,
23 Op. O.L.C. 1
, 4–5 (1999);
Immunity of the Former Counsel to the President from Compelled
Congressional Testimony,
31 Op. O.L.C. 191
, 192–93 (2007).
17
longstanding position that section 192 “does not apply to
executive branch officials who resist congressional subpoenas
in order to protect the prerogatives of the Executive Branch.”
Congressional Oversight of the White House, 45 Op. O.L.C.,
slip op. at 50 (Jan. 8, 2021); see also Prosecution for Contempt
of Congress of an Executive Branch Official Who Has Asserted
a Claim of Executive Privilege,
8 Op. O.L.C. 101
, 140 (1984)
(“The Executive … must be free from the threat of criminal
prosecution if its right to assert executive privilege is to have
any practical substance.”).

In the past, Congress rarely referred Executive Branch
officials for criminal contempt, and the Executive generally
refused to prosecute officials who invoked executive privilege.
Between 1980 and 2017, Congress referred only six Executive
Branch officials for prosecution. See CONG. RSCH. SERV.,
RL34097, CONGRESS’S CONTEMPT POWER AND THE
ENFORCEMENT OF CONGRESSIONAL SUBPOENAS 31, 47, 52–53,
74–85 (2017). When executive privilege was at stake, the
Department of Justice declined to press charges.

Recently, however, the floodgates have opened. Between
2019 and 2023, the House cited six former or current Executive
Branch officials for criminal contempt of Congress. The
Department of Justice proceeded with charges against two of
those officials, including Bannon. Last year, the House
approved a criminal contempt citation against then-Attorney
General Merrick Garland for his refusal to produce audio
recordings related to President Biden’s alleged mishandling of
classified materials. See H.R. Res. 1292, 118th Cong. (2024).
With this acceleration in contempt of Congress prosecutions
against Executive Branch officials—prosecutions almost
always brought in this circuit—the issues raised here are likely
to recur and should be resolved now.
18
The uptick in criminal contempt of Congress prosecutions
against former Executive Branch officials is further reason to
clarify that section 192 requires proof of willful default. If
Bannon invoked executive privilege in good faith, he would be
shielded from criminal sanction under section 192 because any
default would not be willful. Courts must assess this element
and any protections for executive privilege even when the
Executive Branch proceeds with a prosecution despite the
claims of privilege. Cf. In re Search of Info. Stored at Premises
Controlled by Twitter, Inc., No. 23-5044,
2024 WL 158766
, at
*2 (D.C. Cir. Jan. 16, 2024) (statement of Rao, J., respecting
denial of rehearing en banc) (explaining presidential materials
may be presumptively privileged “even in the absence of an
assertion of executive privilege”).

When criminal contempt of Congress is pursued, “[t]he
jurisdiction of the courts cannot be invoked to impose criminal
sanctions in aid of a roving commission.” Gojack,
384 U.S. at
715
. Because the questions presented in this petition are vital
to individual liberty and implicate the separation of powers
between Congress and the Executive, I respectfully dissent
from the denial of rehearing en banc.

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

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