By Aaron Miller-
Donald Trump’s former strategist has been be sentenced on Friday for criminal contempt of Congress after defying a subpoena from the House committee investigating the January 6, 2021, insurrection.
Steve Bannon, the former White House adviser to Donald Trump was sentenced to four months in prison.
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He had been convicted of defying a subpoena to appear before a congressional committee investigating the 6 January 2021 assault on the US Capitol.
His prison sentence has been delayed pending an appeal – meaning he won’t be immediately jailed.
The committee had sought testimony from Bannon that he was aware of Donald Trump’s intention to falsely declare victory on election night in 2020, and that he had advance knowledge of the plans for the insurrection.
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In a separate recording, Bannon was heard telling associates from China, three days before the 2020 election: “What Trump’s gonna do is just declare victory. Right? He’s gonna declare victory. But that doesn’t mean he’s a winner… he’s just gonna say he’s a winner.”
Judge Carl Nichols emphasised the clear position of the law , adding that contempt of Congress is subject to a mandatory minimum sentence of at least one month of incarceration. He said Steve Bannon has shown “no remorse” for his actions, the judge at his sentencing hearing in Washington DC has said.
“I believe the statute is clear on that point,” Nichols said. He also believes there’s a mandatory maximum of 12 months, but that the guidelines range is between one month and six months of incarceration.
Bannon’s lawyer, David Schoen, said they continued to believe that there was no mandatory minimum and that Bannon could be sentenced to a period of probation.
“You’ve made that argument. … I’ve rejected it,” Nichols said.
The sentencing is a milestone moment in the Justice Department’s response to January 6, as prosecutors say that by “flouting” the committee’s subpoena, Bannon “exacerbated” the assault on the rule of law that the US Capitol attack amounted to. It may also strengthen the leverage lawmakers have in securing cooperation of witnesses resistant to participating in congressional investigations.
Bannon flouted demands for documents and testimony from the panel investigating the Jan. 6, 2021, attack on the U.S. Capitol. Lawmakers on the House Select Committee wanted to know why he said a day before the siege that “all hell is going to break loose tomorrow.”
Federal prosecutors are asked U.S. District Judge Carl Nichols to throw the book at Bannon. They’re seeking what they describe as a “severe” penalty: six months in jail and a fine of $200,000. In court papers earlier this week, they said Bannon pursued “a bad faith strategy of defiance and contempt.”
Bannon is expected to appeal whatever sentence he is given, on the mistaken grounds he believed executive privilege concerns precluded his cooperation with the House investigation. Prosecutors countered that argument in court filings showing that Trump’s own attorney was not on board with Bannon stiffing the House probe.
Bannon’s legal representatives also asked the judge to delay his sentence until after the US Court of Appeals for the District of Columbia Circuit considers his case, a process that could take several months. Nichols may be inclined to grant that request.
The contempt of Congress charge is only a misdemeanor. And throughout the proceedings, Nichols has expressed sympathy to the legal arguments Bannon was making about why the government’s case against him was flawed. The judge said, however, that he was bound by decades-old DC Circuit precedent that severely limited what kind of evidence Bannon could put forward in his defense.
“This case presents a unique chance to update the law,” Bannon said in his request that the sentence be paused while the case is appealed.
In a filing Thursday, the Justice Department made clear that it opposes the ex-Trump adviser’s request, saying the court should “require the Defendant to report to serve his sentence in the ordinary course.”
The Justice Department have asked the judge to impose a six months prison sentence on Bannon with prosecutors emphasising the “bad faith” they say Bannon showed in how he approached both the subpoena and the prosecution that was brought against him.
Such a sentence would be on the upper end of the 1-6 months sentencing range contemplated by the guidelines the US Probation Office put forward.
The DOJ sentencing memo attacked the arguments Bannon put forward that he was merely listening to the advice of his attorneys in not complying, as the prosecutors highlighted the fiery remarks he made publicly about the case.
“The Defendant has expressed no remorse for his conduct and attacked others at every turn. The Court should reject the Defendant’s request to be credited with acceptance of responsibility that he has never shown,” the prosecutors wrote.
The appeal will seek the DC circuit court to quash the conviction for which he is set on Friday. to face a potential six month prison sentence and $200,000 in fines as recommended by the justice department, according to sources familiar with the matter.
Bannon’s appeal is expected to make the case that the legal precedent that prevented US district court judge Carl Nichols from allowing his lawyers to argue the definition of “willful” defiance used at trial, as well as the fact that he had relied on the advice of counsel, was inapplicable.
The argument appears to capitalize on repeated acknowledgements by Nichols in pre-trial rulings that he considered the legal precedent to be outdated and might have otherwise permitted Bannon’s lawyers to say the former aide – because of bad legal advice – did not realise he acted unlawfully.
“I think that the DC Circuit may very well have gotten this wrong,” Nichols said. “The problem is, I’m not writing on a clean slate here.”
Bannon’s appeal is expected to make reference to the precedent set by the DC circuit in Licavoli v United States 1961 – that the justice department merely had to prove Bannon intentionally defied the select committee subpoena – was outdated.
Wilful
The definition of “willful” for contempt of Congress prosecutions has changed since the ruling in the Licavoli case, the memo noted, and the supreme court recently has said prosecutors have to show defendants knew their conduct was unlawful in order to prove they willfully violated a statute.
That should have been the standard for Bannon’s trial, the memo argued, suggesting that would have paved the way for Bannon to make the case that he did not believe defying the subpoena was unlawful after his lawyers told him he was protected by executive privilege.
Bannon could face an uphill struggle with his appeal. Even if the precedent was updated, legal experts said, Bannon would still have to defend against the justice department and the select committee’s argument that Trump never actually asserted privilege for his former strategist.
Bannon still has an uphill struggle, even if he could produce correspondence to show Trump had asserted executive privilege – to date, there has only been an email from his lawyer appearing to make that assumption – he would have still needed to attend the deposition and assert it question by question, the experts said.
Bannon was charged with two counts of contempt of Congress after his refusal to comply at all with the select committee’s subpoena demanding documents and testimony last year triggered the House of Representatives to refer him to the justice department for prosecution.
The select committee had sought Bannon’s cooperation after it identified him early on in the investigation as a key player in the run-up to the Capitol attack, who appeared to have advance knowledge of Trump’s efforts to stop the certification of Joe Biden’s election win on January 6.
Speaking to reporters outside court, Bannon vowed to have the case reversed on what his lawyer called a “bullet-proof appeal”.
“We may have lost the battle here today, but we’re not going to lose this war,” he said.
Lawyers with the US Department of Justice had argued that Bannon felt “above the law” by ignoring a “mandatory” legal summons from the congressional committee investigating the 6 January breach of the US Capitol.
“Our government only works if people show up, it only works if people play by the rules, and it only works if people are held accountable when they do not,” prosecutor Molly Gaston said during closing statements.
“The defendant chose allegiance to Donald Trump over compliance with the law.”
Despite vowing to go “medieval” on his enemies, Bannon’s defence team rested its case on Thursday without him testifying and without calling any other witnesses.
Attorneys argued the trial against Bannon was an act of political retribution.
They asserted that, rather than ignoring the subpoenas, he believed he was negotiating on them, and also believed the deadlines in the summons were flexible, not fixed.
In closing statements, defence lawyer Evan Corcoran told the court the path his client took “turned out to be a mistake”, but “was not a crime”.
The 12-member jury panel deliberated for just under three hours on Friday before reaching its verdict.
Bannon was a key player in former President Donald Trump’s 2016 election win, serving first as his campaign chief and later taking on the role of chief strategist at the White House.
He left that position amid political fallout from a violent far-right rally in Charlottesville, Virginia, in August 2017. But the podcaster is still considered a top ally of Mr Trump.
The House of Representatives select committee investigating the Capitol riots first issued a legal summons to Bannon in September 2021.
The panel has long believed he was involved in efforts by Trump supporters to storm Congress and challenge the outcome of the 2020 presidential election.
It is particularly interested in Bannon’s communications with Mr Trump before the incident, as well as “war room” meetings held at a nearby hotel with other key figures, allegedly as part of a last-ditch attempt to thwart the certification of Joe Biden’s election win.
The day before the attack, he declared on his podcast that “all hell is going to break loose tomorrow”.
Bannon proclaimed his innocence and defied the subpoenas, saying he would turn it into a “misdemeanour from hell” for the Biden administration.
He also maintained his conversations with the former president were covered by executive privilege, a legal principle that holds communications between presidents and their advisers to be protected from disclosure in order to allow for candid advice.
A judge ruled he could not claim privilege in this case.
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