DOJ recommends 6-month jail term for Bannon

The Justice Department is recommending a six-month jail sentence and $200,000 fine for Steve Bannon, the longtime adviser to Donald Trump who defied a subpoena to the Jan. 6 select committee.

Prosecutors said Bannon, from the moment he received the select committee subpoena on Sept. 2021, “has pursued a bad-faith strategy of defiance and contempt.”

A jury found Bannon guilty in July on two misdemeanor counts of contempt of Congress for refusing to testify and provide documents to the select committee. Bannon is due to be sentenced by U.S. District Court Judge Carl Nichols on Friday.

The panel had demanded testimony from Bannon about his efforts to help Trump subvert the 2020 election and his knowledge of efforts to pressure members of Congress to challenge the results. Bannon was also part of a team of Trump allies who gathered at the Willard Hotel on Jan. 6 and helped direct Trump’s last-ditch strategy to disrupt the transfer of power.

Prosecutors described a particularly brazen effort by Bannon to derail the case against him by announcing a last-ditch bid to cooperate with the select committee just days before trial.

“His effort to exact a quid pro quo with the Committee to persuade the Department of Justice to delay trial and dismiss the charges against him should leave no doubt that his contempt was deliberate and continues to this day,” the prosecutors argued.

In their sentencing memo, the Justice Department attorneys revealed newly disclosed contacts between Bannon’s lawyer, Evan Corcoran, and the select committee in which he pushed the panel to recommend dropping the charges in exchange for Bannon’s cooperation.

One attached exhibit showed that an FBI agent had interviewed the select committee’s top investigator Tim Heaphy on Oct. 7 about his interaction with Corcoran, who once worked with Heaphy at the Justice Department. Corcoran contacted him just days before Bannon’s July trial to ask about joining forces to dismiss the case, Heaphy recalled. Heaphy, who took contemporaneous notes of the call and had another staffer join as a potential witness, said “the overall ‘vibe’ of his conversation” was an “attempt to solicit the Select Committee's assistance in their effort to delay Bannon's criminal trial and obtain a dismissal of the Contempt of Congress charges pending against him,” according to the FBI agent’s summary of the interview.

Prosecutors also cited Bannon’s public rhetoric about the select committee throughout his criminal proceedings in support of their sentencing suggestions. They noted that he routinely used his “War Room” podcast and public appearances at the courthouse to deride the investigation.

“Through his public platforms, the Defendant has used hyperbolic and sometimes violent rhetoric to disparage the Committee’s investigation, personally attack the Committee’s members, and ridicule the criminal justice system,” prosecutors J.P. Cooney and Amanda Vaughn wrote. “The Defendant’s statements prove that his contempt was not aimed at protecting executive privilege or the Constitution, rather it was aimed at undermining the Committee’s efforts to investigate an historic attack on government.”

The prosecution also noted that Bannon’s contempt of Congress continues “to this day” because he has yet to cooperate even after his conviction.

“That cannot be tolerated,” Cooney and Vaughn write. “Respect for the rule of law is essential to the functioning of the United States government and to preserving the freedom and good order this country has enjoyed for more than two centuries.”

The prosecutors also noted Bannon refused to comply with the probation office’s pre sentence investigation regarding his financial capacity, claiming he said he was able to afford any fine imposed.

In his own sentencing memo, Bannon’s attorneys argued for a sentence of probation and urged Nichols to delay it until after Bannon has appealed it. They argued that the case law governing Bannon’s trial prevented him from offering legitimate defenses that might have resulted in an acquittal. Nichols himself agreed that some of the legal precedents that governed the trial were outdated but that he was bound by them as a district court judge.

Bannon’s team seized on that acknowledgment from Nichols at the outset of their 20-page memo, noting that the old case law prevented Bannon from arguing that he had relied on his lawyer’s advice when he decided to blow off the Jan. 6 committee subpoena.

“Should a person be jailed when the case law which sets forth the elements of the crime is outdated?” Corcoran and attorney David Schoen wrote, adding, “Should a person who has spent a lifetime listening to experts – as a naval officer, investment banker, corporate executive, and Presidential advisor – be jailed for relying on the advice of his lawyers?”

Bannon’s team presented the case as 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,” the attorneys argued.

The concerns raised by Bannon’s team revolve largely around a 40-year-old case known as U.S. v. Licavoli, which sharply limited the excuses a congressional witness could give for refusing to respond to a subpoena. Bannon’s team had argued that the case didn’t apply to him because the Licavoli matter didn’t involve questions about executive privilege. Nichols said he had concerns about Licavoli but that his court was bound by it.

Although the crime Bannon is charged with carries a minimum one-month jail sentence, Bannon contended that a term of incarceration would violate his constitutional rights because he didn’t believe he was violating the law. He urged Nichols to adopt his position and issue a probationary sentence instead.