The MAGA-world complaints about a Trump-appointed judge’s decision to send Bannon to prison are misplaced.
The MAGA-world complaints about a Trump-appointed judge’s decision to send Bannon to prison are misplaced.
T here is gnashing of teeth over the federal court order on Thursday that former Trump White House aide Steve Bannon surrender on July 1 to begin serving, finally, the four-month sentence imposed on him nearly two years ago by Judge Carl Nichols. Naturally, much of the caterwauling comes from Bannon himself, who, as our Zach Kessel reports, claimed that the ruling by Nichols — a Trump appointee — was “about shutting down the MAGA movement, shutting down grassroots conservatives, shutting down President Trump.”
While I am chagrined to see Bannon confined, just as I was to see him prosecuted, there is nothing untoward about Judge Nichols’s directive.
Don’t get me wrong, I think Bannon was guilty of obstructing Congress . . . just as I think Attorney General Eric Holder was guilty of obstructing Congress. The difference is that, in their Trump-deranged norm-breaking, the Democrat-controlled House January 6 Committee — which was rigged to exclude members tapped to serve on it by Republican leadership — referred Bannon to the Biden Justice Department, which dutifully prosecuted him; by contrast, the Obama Justice Department (shock, shock!) chose not to prosecute Holder, Obama’s attorney general, when he provided false information (in connection with the Fast and Furious fiasco) to the then-Republican-controlled House.
There was a surface plausibility to Bannon’s claim that his refusal to comply with the J6 Committee subpoena was lawful. Former president Trump had publicly signaled his desire that former aides not cooperate with committee demands for arguably privileged information. The committee’s subpoena called for — among other things (an important caveat here) — testimony about communications with Trump that were arguably privileged under a very extravagant reading of dicta in Nixon v. Administrator of General Services (1977) (which maintained that executive privilege “survives the individual President’s tenure”).
Still, Bannon’s claim was sure to lose if challenged in court: He was not a White House aide during his relevant communications with Trump; the sitting president (Biden) did not support his predecessor’s privilege claims; the committee’s subpoena called for lots of information that was not even arguably privileged; and it turned out that Trump’s lawyer had admonished Bannon that Trump was not directing him to wholly disregard the subpoena.
In a normal situation, the committee would have taken Bannon to court. But there was nothing normal about the J6 Committee, which was in a rush to push out a damning report against Trump — it didn’t have time to litigate against recalcitrant witnesses because it would surely be shut down if Republicans won control of the House in the next election. So Bannon was held in contempt of Congress, and the committee then pressed the Biden Justice Department to indict him (just as it later successfully pressed for an indictment of former Trump aide Peter Navarro — though DOJ declined to indict former Trump chief of staff Mark Meadows).
Attorney General Merrick Garland’s decision to approve Bannon’s indictment was a historic departure. The Justice Department almost never puts the executive branch’s prosecutorial power in the service of congressional investigations this way. Indeed, it hadn’t done so in nearly 40 years when it charged Bannon with two contempt counts.
Bannon was swiftly convicted in a three-day July 2022 trial. The result was inevitable, notwithstanding Bannon’s risible rant this week about how Nichols has it in for MAGA and Trump. It was Nichols, in fact, who found in favor of Garrett Miller, a January 6 defendant who challenged the Justice Department’s resort to a federal obstruction statute in charging Capitol-riot offenses. That ruling broke with Nichols’s fellow judges on the federal bench in the District of Columbia, and it led to the Supreme Court’s agreement to review a similar obstruction case, United States v. Fischer, in which we expect a ruling imminently that could throw a monkey wrench into special counsel Jack Smith’s election-interference prosecution against Trump.
Bannon’s problem was that he had no defense. He wanted to rely on an advice-of-counsel claim, but Nichols ruled, consistent with D.C. Circuit precedent, that such advice (even assuming Bannon was describing it accurately) did not negate intent — i.e., the government needed to prove only that Bannon knew the subpoena was a compulsory order and deliberately flouted it. And there was no doubt about that.
In October 2022, Nichols sentenced Bannon to four months’ imprisonment, which was less than the Justice Department was seeking. Nichols could have ordered Bannon to serve the sentence as his appeal proceeded. The presumption of federal law (see §3143 of the penal code) is that a defendant who has been found guilty “shall . . . be detained.” The presumption can be overcome only if the judge finds that the defendant’s appeal “is not for the purpose of delay and raises a substantial question of law or fact likely to result in . . . reversal” or a reduction in sentence.
Judge Nichols is a very smart guy, and I find it impossible to believe he really thought Bannon had a shot on appeal. Yet, he gave Bannon the benefit of the doubt that the “willfulness” claim was colorable; and he was mindful that it would be unfair to Bannon if, in the highly unlikely event he prevailed on appeal, he had already served a sentence for an overturned conviction. So he granted bail pending appeal.
As a result, Bannon has been at liberty since he was sentenced 20 months ago. But on May 10 (about four weeks ago), the D.C. Circuit unanimously upheld his conviction. The three-judge panel, which included a Trump appointee (along with appointees of Obama and Biden) concluded that Judge Nichols had faithfully adhered to its controlling precedent (a 1961 case called Licavoli v. United States). Even Bannon conceded that this was true; the appellant was asking the circuit to change its precedent, not arguing that Nichols had not followed it, as he was bound to do.
In remanding Bannon on Thursday, Nichols reasoned that, with the circuit having ruled, his prior finding that Bannon’s appeal raises a colorable appellate issue is no longer justifiable. Bannon asked to remain free on bail until the Supreme Court could review his case, but there is no reason to believe the justices will grant him certiorari. Still, rather than order him to surrender immediately to the Bureau of Prisons, Nichols gave Bannon until July 1 to do so.
The complaints about this are misplaced. This is not a situation akin to New York judge Juan Merchan’s patently partisan scheduling of former president Trump’s sentencing just four days prior to the Republican National Convention. Bannon was sentenced months ago and has managed, with the court’s indulgence, to remain at liberty when he could lawfully have been detained in mid 2022. Moreover, Nichols’s remand directive was not designed to cast a pall over a party convention; it was designed to give Bannon time, if he chooses to, to plead with the Supreme Court to take his case. (Which, again, is not gonna happen.)
I wish the Justice Department had not shredded its norms in order to prosecute Bannon at the insistence of an irregular, highly partisan congressional committee. Once again, in their rabid loathing of all things Trump, Democrats have set a new precedent that will inexorably lead to more partisan exploitation of the Justice Department. To take a fresh example, our James Lynch reported this week that House Republicans have issued referrals to the Justice Department seeking perjury prosecutions against the president’s son and brother, Hunter and James Biden. I wouldn’t hold my breath waiting for Attorney General Garland to get on that one. Yet, the statute of limitations on the Bidens’ alleged lies under oath will not lapse until 2029. That leaves plenty of time for re-referrals to be sent to a Republican-controlled Justice Department if there is one in the coming years.
It is hard to gauge whether it is our politics or our rule of law that is more degraded by these partisan-payback prosecutions. One thing is certain: There will be more of them thanks to the progressive-Democratic normalization of using criminal processes as political weapons.
Meantime, it is hard to feel sorry for Bannon. He faced a much more serious federal criminal prosecution: a conspiracy to defraud Trump supporters who contributed to what they believed was a private effort — called “We Build the Wall” — to fund border-wall construction. In another of the condemnable acts Trump committed after losing the 2020 election, he pardoned Bannon in that case. This was clearly not because the former president believed there was something wrong with the prosecution: Trump granted clemency only to his crony, Bannon, not to Bannon’s alleged co-conspirators.
In its Trump derangement, Manhattan district attorney Alvin Bragg’s office subsequently indicted a “We Build the Wall” money-laundering case against Bannon in order to ensure that Bannon would not get the benefit of Trump’s pardon. (Presidents have no power to negate state prosecutions.) And I’ll be darned: Bannon’s state case just happened to be assigned to Judge Merchan!
Nevertheless, it’s also worth considering what happened to Bannon’s federal co-defendants whom Trump did not pardon: Timothy Shea was sentenced to over five years in a federal penitentiary and directed to pay nearly $4 million in restitution and forfeitures; Brian Kolfage was sentenced to over four years’ imprisonment and ordered to pay a whopping $21 million; and Andrew Badolato was sentenced to three years in prison.
It looks as though Steve Bannon has bigger problems than Judge Carl Nichols and a four-month sentence right about now.