Steve Bannon wants to stay out of prison while he appeals his contempt of Congress conviction. He shouldn’t count on succeeding in the long-shot effort, but one never knows what the Supreme Court will do.
He’s hoping for a different outcome than fellow former Donald Trump adviser Peter Navarro, who recently lost a similar bid that he took all the way up to the high court. Like Bannon, Navarro was convicted of congressional contempt for blowing off the House Jan. 6 committee and received a four-month sentence.
The justices gave Navarro no relief, and he’s currently serving his time. Bannon may soon meet the same fate and have to begin serving his sentence as ordered July 1.
When Navarro filed his emergency Supreme Court application in March, it went to Chief Justice John Roberts, who covers such requests from Washington (the country’s geographical regions are divided among the justices). Notably, Roberts didn’t refer the application to the full court as might usually happen; rather, the chief took the unusual step of writing an opinion himself rejecting Navarro. That effectively ended Navarro’s bid, but the defendant tried to shop it to another justice, Neil Gorsuch, who referred it to the full court, which definitively denied it in April without further comment.
In his emergency motion Tuesday to Washington’s federal appeals court, Bannon’s lawyers tried to cite Roberts’ rejection of Navarro in his own favor to keep him out while his appeal is pending. “If the underlying merits presented by Dr. Navarro were of no interest or substantiality, presumably Chief Justice Roberts would simply have denied the request without explanation,” they wrote, adding that Roberts noted procedural issues with Navarro’s claim for emergency relief that Bannon’s lawyers say aren’t present in his.
It’s true that it was unusual for Roberts to write an opinion in Navarro’s case, even if it was only to reject him. But whatever distinction Bannon has in his favor, the fact remains that the full court rejected Navarro without comment, and Bannon has a high bar to clear if he wants to stay out pending appeal.
What’s at issue now isn’t the appeal of the conviction itself but rather whether Bannon can remain free while it’s resolved. The justices can eventually take up the merits of Bannon’s case, just as they can in Navarro’s pending appeal. Like Navarro did (to no avail), Bannon points out that he'd finish serving his sentence before his underlying appeal is resolved. That’s a logical point, but it’s a reality of the system that didn’t help Navarro and won’t, on its own, save Bannon.
We’ll know soon enough whether the justices will keep Bannon free. His lawyers have asked the appeals court to rule by June 18 so that he can seek relief from the Supreme Court if needed. It probably will be.
Bannon also cited the “political realities,” including that locking him up now would bar him “from serving as a meaningful advisor in the ongoing national campaign.” But politics won’t be enough to save him, either. If anything, it reinforces that he’d be rewarded for his chosen pursuits in service of Trump.
Of course, the Supreme Court’s handling of Trump’s immunity appeal has been a boon to the former president and presumptive GOP nominee, with every day it goes undecided reducing the likelihood of a pre-election trial in the federal election interference case. If the Roberts Court chooses to help Bannon, the political realities will be clear there, too.
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