Whether the criminal statute 2 U.S.C. § 192 requires more than mere intentional conduct to prove the mens rea element of 'willfully' when a congressional subpoena recipient is prosecuted for non-compliance

No question identified. : reported but is available at 2025 WL 1503223. These decisions are attached. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1254. BACKGROUND This case raises two important questions about the criminal statute: first, whether this is the only criminal statute on the books where a “willful” mens rea requires merely “intentional” conduct; and second, whether the proper composition of a congressional committee bears on its authority to issue a subpoena. In 2 U.S.C. § 192, Congress criminalized “willfully ... default[ing]” on a lawfully authorized congressional subpoena. The D.C. Circuit interpreted “willfully” to require only intentional conduct. As Judges Rao, Henderson, and Walker argued in dissent below, that interpretation conflicts with 150 years of caselaw from this Court, is contrary to basic canons of construction, and will cause serious harm to the separation of powers. This Court has long held that, in the criminal context, “[t]o prove ‘willfulness,’ the Government must demonstrate that an individual knew that his conduct was unlawful.” Bondi v. VanDerStok, 145 S. Ct. 857, 877 (2025) (Kavanaugh, J., concurring) (collecting authorities). It appears that is the uniform practice of this Court when interpreting criminal statutes. And the text of § 192 confirms that rule should apply here because, in the very same sentence, Congress conspicuously omitted “willfully” when criminalizing a different set of actions. The use of two different mens rea requirements means that “willfully” imposes a heightened standard. The proper mens rea was critical here because Petitioner relied in good faith on his attorney’s advice to delay compliance with a subpoena issued by a House Select Committee until executive privilege disputes were first resolved, as they had been on three prior occasions involving Petitioner’s testimony. Even though Petitioner was advised that he was acting in accordance with the law, he was indicted under § 192, and the District Court (Hon. Carl Nichols) reluctantly concluded the D.C. Circuit’s decision in Licavoli v. United States, 294 F.2d 207 (D.C. Cir. 1961), barred Petitioner from presenting evidence or argument to the jury regarding his reliance on his lawyer’s advice or on executive privilege. App.7a. Licavoli had held that “willfully” in § 192 means only “intentionally.” Under Licavoli, all that matters is whether a subpoena recipient chose not to fully comply with the subpoena—the reasons why are irrelevant. On appeal, the D.C. Circuit panel likewise held itself bound by its decision in Licavoli, but eight judges later wrote or joined separate opinions in response to Petitioner’s en banc petition calling for Licavoli to be overturned. All eight of those judges agreed that Licavoli does not follow this Court’s usual definition of “willfully” in a criminal statute, and they also agreed that Petitioner’s argument finds support in the plain text of § 192. See App.40a (Katsas, J., respecting the denial of rehearing en banc); App.42a, 44a (Garcia, J., joined by Pillard, Wilkins, & Pan, JJ., concurring in the denial of rehearing en banc) (“Bannon is right that in criminal statutes the word ‘willful’ is usually construed to require bad faith.”); App.50a—56a (Rao, J., joined by Henderson & Walker, JJ., dissenting from the denial of rehearing en banc). Judge Katsas noted serious concerns with prosecuting “former Executive Branch officials for good-faith but mistaken privilege assertions,” App.40a (Katsas, J., respecting the denial of rehearing en banc), and Judges Rao, Henderson, and Walker dissented, arguing the decision below “cannot be reconciled with the text or structure of section 192” and also “runs counter to the overwhelming weight of Supreme Court precedent.” App.54a (Rao, J., dissenting from the denial of rehearing en banc). Judges Rao and Henderson also separately argued this case “threatens the separation of powers because it involves the criminal prosecution