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(Photo by Stephanie Keith/Getty Images)
In preparation for Steve Bannon’s sentencing hearing Friday, he and the government both submitted sentencing recommendations today. Unsurprisingly, they have very different thoughts on what should happen to the rightwing podcaster after a jury found him guilty of two counts of contempt of Congress for defying a subpoena for documents and testimony from the January 6 Select Committee.
Prosecutors suggest six months in the hoosegow plus a $200,000 fine, emphasizing that Bannon has “consistently acted in bad faith and with the purpose of frustrating the Committee’s work.”
They point out that Bannon’s lawyer Robert Costello misrepresented the former president’s stance, claiming that Trump had invoked a blanket privilege to block the defendant — who was fired from the White House in 2017 — from having to produce documents or testify about events which took place in 2020 and 2021. In fact, Trump’s lawyer Justin Clark said no such thing, and even wrote a letter on October 16, 2021, after Bannon had failed to appear for his scheduled October 14 deposition, chastising Costello for distorting Trump’s position.
Just to reiterate, our letter referenced below [the October 6 letter] didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call. But as I also indicated the other day other avenues to invoke the privilege – if you believe it to be appropriate – exist and are your responsibility. If you haven’t already I’d encourage you again to contact counsel for the committee to discuss it further.
Clark even offered to help Costello by reviewing documents responsive to the subpoena to see if there were individualized assertions of privilege to be made. But Costello blew him off the same way his client blew off Congress.
Bannon’s trial counsel Evan Corcoran also comes in for scrutiny here. On the eve of Bannon’s jury trial, he approached Select Committee lawyer Timothy Heaphy with a supposed waiver of executive privilege from Trump which would finally allow him to testify — all he wanted was to have the charges dropped against him. How Corcoran intended for legislative counsel to force the Justice Department to drop a criminal indictment was not clear. But once the gambit failed to work, he went back to flipping off the committee.
“When the Defendant’s eleventh-hour attempt to derail his trial failed, he never made any further attempt to comply with the subpoena—continuing up to this day,” they write.
There’s also the minor matter that Bannon was a total asshole about this case on his show and has never shown any remorse, from the day of his arrest when he stood on the courthouse steps and promised to make the trial a “misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden” to his refusal to discuss his finances during the pre-sentencing phase because he could afford to pay whatever they imposed, Bannon has shown utter contempt for the process.
Even now that he is facing sentencing, the Defendant has continued to show his disdain for the lawful processes of our government system, refusing to provide financial information to the Probation Office so that it can properly evaluate his ability to pay a fine. Rather than disclose his financial records, a requirement with which every other defendant found guilty of a crime is expected to comply, the Defendant informed Probation that he would prefer instead to pay the maximum fine. So be it. This Court should require the Defendant to comply with the bargain he proposed when he refused to answer standard questions about his financial condition. The Court should impose a $100,000 fine on both counts—the exact amount suggested by the Defendant.
Perhaps cognizant that promising to go “medieval” on his opponents and describing Judge Carl J. Nichols as conducting “the Moscow show trial of the 1930s” does not necessarily bespeak chastened regret, Bannon’s brief exhorts the court to look beyond the law and dream big.
The ear of a sentencing judge listens for the note of contrition. Someone was convicted. Did they learn their lesson? This case requires something more. It involves larger themes that are important to every American. Should a person be jailed when the caselaw which sets forth the elements of the crime is outdated? Should a person be jailed for the doing the exact same thing that was done by the highest law enforcement officers in this country, yet they received no punishment?
In addition to reasserting all the various advice of counsel and public charge defenses Judge Nichols blocked at trial, Bannon urges the court to give him probation because the precedential case barring mistake of law as a defense to contempt of Congress is, like, really old. And if the court can’t see its way to that, maybe it could stay the sentence pending appeal, in case the Supreme Court wants to do Bannon a solid and overrule it.
Because Contempt of Congress prosecutions are so rare, the D.C. Circuit has not had occasion to address the viability of Licavoli given the evolution of the criminal law on the mens rea element. This case presents a unique chance to update the law. The current state of the law burdens subpoenaed congressional witnesses with navigating complex legal principles – such as executive privilege – that are the argot of lawyers, not laymen.
Bannon’s lawyers lean hard into Judge Nichols’s expressed frustration with the Licavoli precedent. They also make a throwaway argument that imposing a custodial sentence here “would run contrary to the fundamental constitutional principles of individualized sentencing and sentencing proportionality.”
Tune in Friday to see whether Bannon succeeds with his “sure I acted like a jackass and got convicted by a jury of my peers, but the law sucks, so let’s just let this one slide” argument.
US v. Bannon [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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