Government Refuses to Let Steve Bannon Sneak Away from His Federal Fraud Indictment

On February 11, Steve Bannon’s pardon was lodged in his federal docket with no explanation, entered with a date of January 19. As compared to the Mike Flynn pardon, there was no DOJ request to dismiss the prosecution nor an indication that Bannon had accepted it.

Apparently, on February 18, Bannon’s lawyer wrote Judge Analisa Torres an email requesting that she dismiss the indictment against Bannon. In response, yesterday the government submitted a letter agreeing that Bannon can be terminated from the docket and have his bond returned, but opposing that the indictment be dismissed.

As prosecutors explain, a pardon is only meant to forgive punishment, it is not intended to forget the crime. And if the court dismissed the indictment, prosecutors point out, it would have consequences beyond the pardon.

The fact that Bannon was pardoned does not extinguish the fact that a grand jury found probable cause to believe that he committed the offenses set forth in the Indictment, nor does it undercut the evidence of his involvement therein which the Government expects to elicit as part of its presentation at trial. Were the Court to dismiss the Indictment against Bannon, it could have a broader effect than the pardon itself, among other things potentially relieving Bannon of certain consequences not covered by the pardon.


Accordingly, because Bannon does not set forth any legal authority for the proposition that a court should dismiss an indictment following a pardon, and the only stated basis for his request is to “clarify” his status, the Court should deny the request.

The government also demands that Bannon file the letter in the docket.

Finally, the Court should direct Bannon to publicly file his February 18th letter on the docket. Bannon’s counsel submitted the letter to the Court by email—and therefore effectively under seal—because, in his view, “Bannon should no longer be a defendant in the case.” However, until the defendant is administratively terminated, he remains a named defendant and more important, Bannon’s status in the case is not a basis to make his submission under seal.

The government submitted the filing on the same day that CNN reported an accelerating state investigation into Bannon for the same crimes.

The Manhattan district attorney’s office has subpoenaed financial records related to Steve Bannon’s crowd-funding border-wall effort, signaling that its criminal investigation into former President Donald Trump’s chief strategist is advancing, according to people familiar with the matter.

Prosecutors sent the subpoenas after Trump pardoned Bannon in late January for federal conspiracy crimes tied to the southern border-wall project, making Bannon among the Trump world figures — including the former president — subjects of criminal investigations by Manhattan district attorney Cyrus Vance.

The grand jury subpoenas were sent to Wells Fargo, one of the financial institutions that handled some of the accounts used in the fundraising effort, and to GoFundMe, the crowdfunding platform where Bannon’s project, “We Build the Wall,” once operated, the people said.

The state grand jury investigation revives the possibility that Bannon, the conservative and outspoken political strategist, could face state criminal charges after shedding the federal case last month.

In addition to the criminal investigation, the New Jersey attorney general’s office has launched a civil inquiry into We Build the Wall. In September, the New Jersey Division of Consumer Affairs subpoenaed We Build the Wall for documents seeking a wide range of records, according to court filings.

This all suggests that Bannon may be in a far worse place for having obtained a Trump pardon.

In mentioning its intent to elicit testimony of Bannon’s actions in the letter, the government seems to be alluding to the fact that Bannon is a named co-conspirator. They will want (and need) to introduce his actions and statements as a co-conspirator into evidence to convict the others. Thus, it is important for prosecutors that he remain a named — albeit pardoned — co-conspirator in the Federal crimes.

Forcing Bannon’s attorney to submit the letter in the docket itself will effectively force him to officially accept the pardon, which prosecutors will then argue is admission of guilt, making the co-conspirator evidence from him even more valuable by association.

The public filing may also be necessary before Cy Vance can request the grand jury materials from Judge Torres, as referenced in the CNN piece.

And, of course, rather than facing a sentence at some Club Fed prison, Bannon might now be facing a crappier New York State prison like Rikers.

All that’s before any other federal charges facing Bannon related for foreign influence peddling.

It was never going to be easy for Bannon to pull off a Trump pardon. Thus far, his attorney Robert Costello may be making things worse.

22 replies
  1. Philip S. Webster says:

    The delightful irony for the so called smartest strategist of Trumps Gang. He called asking Trump for the pardon: Ask and yee shall receive from the heini-ist of leaders.

    Hope he is toast.

    Thank you EW for explaining this.

  2. Y. Brody says:

    Thanks for this (and for all you do). Though technically, Rikers Island is a jail, not a prison. So I think Bannon’s unlikely to be sentenced to Rikers unless he gets less than one year. He could potentially spend some time there though, if he’s detained pretrial. The upstate NY prisons he’s at risk of doing more extended time in probably would not be so much fun either.

    • bmaz says:

      Right. And there is close to zero chance Bannon spends a second in pre-trial detention, at Rikers or anywhere else. Post sentencing, and prior to official DOC assignment, is it possible? Sure, but still not likely.

      • BobCon says:

        Manafort ended up in pretrial detention after violating his terms. Is it a difference in the likely case against Bannon that makes pretrial detention unlikely, or is it that even Bannon is unlikely to be as reckless as Manafort was?

        • bmaz says:

          Their cases have absolutely nothing to do with each other than that it is perceived they are Trump people. What is discussed in this post is entirely state based. And, no, there would be no reason in the world for Bannon to be detained pre-trial. If, and when, he is charged, given release, which he should be on his own recognizance, he violates the same, then let’s talk. Ahead of that, this is absurd.

          • BobCon says:

            Please trust me when I ask a question it’s in good faith — I hate rhetorical questions trying to sneak a point in while in the guise of “just asking questions..” I’m not trying to score any points here.

            Manafort was able to end up locked up pretrial, and I realize that doesn’t lead to any meaningful change in the odds of the same thing happening to Bannon. But I am curious whether there is a significant legal difference in Manafort’s case that increased the odds of him being at risk of pretrial detention, or if the risk is simply that Bannon might do something equally as stupid as Manafort’s activities.

  3. yogarhythms says:

    “Forcing Bannon’s attorney to submit the letter in the docket itself will effectively force him to officially accept the pardon, which prosecutors will then argue is admission of guilt, making the co-conspirator evidence from him even more valuable by association.”
    Happy Friday! Best news i’ve had all day. Somehow when you write it i sense a smile between the lines that cheers me up and simultaneously is irritating to the subject of prosecution.

  4. BobCon says:

    Does a pardon affect sentencing for a separate crime?

    I would assume a mandatory minimum sentence for repeat offenders wouldn’t apply but I’m not sure that would be true.

    It’s less clear to me how it would matter if a judge has flexibility in sentencing to consider past behavior separate from the question of whether there was a conviction.

  5. Fran of the North says:

    Remember eons ago when discussions of the former guy invoked 3-D chess? Seem’s like the Kasparovs are the DOJ judges and the usual suspects are having difficulty grasping the concept of checkers.

    Hopefully a checkmate is in the offing.

    • Norskeflamthrower says:

      Fran, I just wanted to tell you that I haven’t been to the Norske Nook in Madison but my wife and I go to a place on Hwy 61 on the North Shore of Lake Superior called Betty’s Pies. The pies are to die for but more than that it’s in an area that we consider the eighth wonder of the world. As for the Norske Nook, I will look for it next time we hit Madison.

      • Fran of the North says:

        I’ve seen Betty’s on group trips to my buddy’s home on the Gunflint, but never stopped in. I’ll do it next time we head that way if the COVID ever gets to a point where that’s a possibility. Thanks for the recommendation.

        The original NN is in Osseo, just east of 94 at the exit. Might be 5 min after you’re off the interstate.

        When D1 was at UW, we got to Madison now and again, but haven’t had a chance to see that beautiful city since. The ice cream that they make from the milk from the Ag School is excellent to, you can buy it at the student union.

          • Norskeflamthrower says:

            Thank you for the tip, I haven’t been in Sedona since 1968 but my wing commander wants to take a driving trip one of these days from El Paso and Las Cruces (White Sands Missile Range where I spent 13 months) through Albuquerque and Taos to Flagstaff and then down to Nogales and down the eastern shore of Baja (and I think she wants to come back LOL). I DOOOO like pie, thanx.

        • Norskeflamthrower says:

          Oh my, I have driven by the Nook every time I make a run to see my sister in Chicago. I am a native of northcentral Minnesota and my Grampa Ole (yes he was real) helped to clear cut the white pine that we are trying to bring back up there. Every time the commander and chief and I go up there my heart swells thinking about him and his generation that fought to establish the state park system that runs contiguous to the Superior National Forest and serves to protect the entire ecosystem from the relentless, marauding mining predators. Every time I am up there or in my home town 2 1/2 hours directly east I am reborn and committed to fighting to save what we still have up there ’til they plant my boots in the ground. I’ll letcha know when we hit the Norske Nook.

          • Norskeflamthrower says:

            Of course my home town is 2 1/2 hours WEST of the North Shore…old age has played hell with my sense of direction as well as my memory.

  6. Norskeflamthrower says:

    “Thus far, his attorney Robert Costello may be making things worse.”

    Oh what a beautiful moment it is when irony meets karma.

  7. graham firchlis says:

    Taking Rikers as a metaphor, there are lots of New York State facilities as bad or worse. An arrogant fat old white man with a pathologically persistent air of superiority will find any of them an “interesting” experience.

    Perhaps he will choose to turn his considerable communications skills toward prison reform. Amends can express in many forms.

  8. Spencer Dawkins says:

    “This all suggests that Bannon may be in a far worse place for having obtained a Trump pardon.”

    From Dr. Emptywheel’s keyboard to attorney general/district attorney ears …

    I’m going to go enjoy this moment while trying to remember to feel bad for Bannon. I’m not likely to succeed, but I’ll give it a shot.

  9. Zinsky says:

    Like his former boss, Bannon is a smug, arrogant, narcissistic prick. He apparently sees real people as nothing more than pawns in some grand chess game that he and other white privileged pricks get to play. He deserves the maximum punishment available for his crimes.

  10. Maureen A Donnelly says:

    “This all suggests that Bannon may be in a far worse place for having obtained a Trump pardon.”

    thanks for this one Marcy–your piece demonstrates that old yarn #EverythingTrumpTouchesDies.

  11. MarinCoUSA says:

    Thank you MW for reporting. Keeping Bannon in the docket with all the Trump pardon shit-chaos seems like a damn big deal. And a rare ray of light.

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