On Steve Bannon’s Epically Bad Faith

The government’s sentencing memo for Steve Bannon, which asks Judge Carl Nichols to sentence Bannon to six months in prison for blowing off the January 6 Committee subpoena, mentions his bad faith thirteen times (and his failure to make any good faith effort once).

From the moment that the Defendant, Stephen K. Bannon, accepted service of a subpoena from the House Select Committee to Investigate the January 6th Attack on the United States Capitol (“the Committee”), he has pursued a bad-faith strategy of defiance and contempt.


The factual record in this case is replete with proof that with respect to the Committee’s subpoena, the Defendant consistently acted in bad faith and with the purpose of frustrating the Committee’s work.


For his sustained, bad-faith contempt of Congress, the Defendant should be sentenced to six months’ imprisonment—the top end of the Sentencing Guidelines’ range—and fined $200,000—based on his insistence on paying the maximum fine rather than cooperate with the Probation Office’s routine pre-sentencing financial investigation.


When his quid pro quo attempt failed, the Defendant made no further attempt at cooperation with the Committee—speaking volumes about his bad faith.


Throughout the pendency of this case, the Defendant has exploited his notoriety—through courthouse press conferences and his War Room podcast—to display to the public the source of his bad-faith refusal to comply with the Committee’s subpoena: a total disregard for government processes and the law.


The Defendant’s contempt of Congress was absolute and undertaken in bad faith.


The Defendant’s claim for acceptance of responsibility is contradicted by his sustained bad faith.


As Mr. Costello informed the Select Committee on July 9, 2022, “[the Defendant] has not had a change of posture or of heart.” Ex. 17. Mr. Costello could not have put it more perfectly: the Defendant has maintained a contemptuous posture throughout this episode and his bad faith continues to this day.


Not once throughout this episode has the Defendant even tried to collect a document to produce, and he has never attempted in good faith to arrange to appear for a deposition.


The Defendant hid his disregard for the Committee’s lawful authority behind bad-faith assertions of executive privilege and advice of counsel in which he persisted despite the Committee’s—and counsel for the former President’s—straightforward and clear admonishments that he was required to comply.


Here, the Defendant’s constant, vicious barrage of hyperbolic rhetoric disparaging the Committee and its members, along with this criminal proceeding, confirm his bad faith.


The Defendant here, by contrast, has never taken a single step to comply with the Committee’s subpoena and has acted in bad faith throughout by claiming he was merely acting on former President Trump’s instructions—even though former President Trump’s attorney made clear he was not.


And any sentence below the six-month sentence imposed in Licavoli would similarly fail to account for the full extent of the Defendant’s bad faith in the present case.


The Defendant’s bad-faith strategy of defiance and contempt deserves severe punishment

To substantiate just how bad his bad faith is, the memo includes a list of all the public attacks he made on the process, just three of which are:

On June 15, 2022, after a motions hearing, the Defendant exited the courthouse and announced that he looked forward to having “Nancy Pelosi, little Jamie Raskin, and Shifty Schiff in here at trial answering questions.” See “Judge rejects Bannon’s effort to dismiss criminal case for defying Jan. 6 select committee,” Politico, June 15, 2022, available at https://www.politico.com/news/2022/06/15/judge-rejects-bannons-effortto-dismiss-criminal-case-for-defying-jan-6-select-committee-00039888 (last viewed Oct. 16, 2022).

Shortly before trial, on a July 12 episode of his podcast, the Defendant urged listeners to pray for “our enemies” because “we’re going medieval on these people, we’re going to savage our enemies. See Episode 1996, War Room: Pandemic, July 12, 2022, Minute 16:37 to 17:46, available at https://warroom.org/2022/07/12/episode-1996- pfizer-ccp-backed-partners-elon-musk-trolls-trump-alan-dershowitz-on-partisanamerica-and-the-constitution-informants-confirmed-at-j6/ (episode webpage last accessed Oct. 16, 20222 ).

During trial, on July 19, the Defendant gave another courthouse press conference, in which he accused Committee Chairman Rep. Bennie Thompson of “hiding behind these phony privileges,” ridiculed him as “gutless” and not “man enough” to appear in court, and mocked him as a “total absolute disgrace.” The Defendant also teased Committee member Rep. Adam Schiff as “shifty Schiff” and another member of Congress, Rep. Eric Swalwell, as “fang fang Swalwell.” He went on to say that “this show trial they’re running is a disgrace.” See “Prosecutors say Bannon willfully ignored subpoena,” Associated Press Archive, July 24, 2022, available at https://www.youtube.com/watch?v=3SR_EJL5nkw (last accessed Oct. 16, 2022).

It also describes how Bannon refused to tell the Probation office how much money he had; DOJ used that refusal to ask for a $200,000 fine as a result.

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.

The most interesting details about the memo, however, are the inclusion of an effort Bannon made in July to get the Committee to help him delay the trial for immediate cooperation. DOJ included both an interview report and the notes Committee investigative counsel Tim Heaphy took after Evan Corcoran — the lawyer Bannon shares with Trump — tried to get the Committee to help him out in July.

HEAPHY described the overall “vibe” of his conversation with CORCORAN as defense counsel’s 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.

In his notes, Heaphy suggested that DOJ might offer Bannon a cooperation plea in July.

My takeaway is that Bannon knows that this proposal for a continuance and ultimate dismissal of his trial is likely a non-starter, which prompted him to call us to explore support as leverage. I expect that DOJ will not be receptive to this proposal, as he is guilty of the charged crime and cannot cure his culpability with subsequent compliance with the subpoena. I won’t be surprised if DOJ is willing to give Bannon a cooperation agreement as part of a guilty plea. In other words, DOJ may allow Bannon to plead to one count and consider any cooperation in formulating their sentencing recommendation.

What I find most interesting about this is the date: the interview was October 7. Either DOJ did this interview just for sentencing. Or they conducted the interview as part of an ongoing investigation.

Update: Here’s Bannon’s memo. His bid for probation is not good faith given the mandatory sentence. But his request for a stay of sentence pending appeal is virtually certain to work because, as Bannon quotes heavily, Nichols thinks Bannon has a good point about relying on advice from counsel.

“I think that the D.C. Circuit may very well have gotten this wrong; that makes sense to me, what you just said. The problem is, I’m not writing on a clean slate here.” Hr’g Tr. 35:25-36:3, Mar. 16, 2022.

“The defendant was charged with violating 2 US Code Section 192. As relevant here, that statute covers any individual who “willfully makes default” on certain Congressional summonses. The defendant argues he’s entitled to argue at trial that he cannot have been “willfully” in default, because he relied in good faith, on the advice of counsel, in not complying with the Congressional subpoena. He points to many Supreme Court cases defining “willfully,” including Bryan v. United States, 524 U.S. 184, 1998, to support his reading of the statute. If this were a matter of first impression, the Court might be inclined to agree with defendant and allow this evidence in. But there is binding precedent from the Court of Appeals, Licavoli v. United States, 294 F.2d 207, D.C. Circuit 1961, that is directly on point.” Id. at 86:25-87:15.

“Second, the defendant notes that in the sixth [sic] decade since Licavoli, the Supreme Court has provided clarity on the meaning of “willfully” in criminal statutes. Clarity that favors defendant. That might very well be true. But none of that precedent dealt with the charge under 2 U.S. Code, Section 192. Licavoli did. Thus, while this precedent might furnish defendant with arguments to the Court of Appeals on why Licavoli should be overruled, this court has no power to disregard a valid and on-point or seemingly onpoint holding from a higher court.” Id. at 89:3-12.

“I noted in my prior decision that I have serious questions as to whether Licavoli correctly interpreted the mens rea requirement of “willfully”, but it nevertheless remains binding authority.” Hr’g Tr. 126:6-9, June 15, 2022.

56 replies
  1. Rugger_9 says:

    Bannon’s not a dummy. Instead of claiming ignorance, Bannon figured that as the self-designated smartest guy in the room he could talk his way out of it. However…

    Individual-1 is no longer able to pardon him out of trouble. Bannon’s obstruction as noted above also reinforced his intent to not cooperate. Boo hoo hoo. I would see this as a preview of what Individual-1 will do when the walls close in on him. It will get some traction in the MSM as a way to ‘heal’ the divide, which conveniently ignores why the divide exists in the first place. TFG will then pretend to cooperate to get himself off the hook, again.

    I don’t think Garland’s DoJ will fall for it.

    • Kathy B says:

      I think that’s insightful.

      It also parses with something that crossed my mind… 1/6 committee has subpoena’ed Trump, but I expect that he will fight it as he always does and they know that. It’s a win/win/win, really.

      If they get him in and he takes the 5th, it adds teeth to the civil cases where doing so can be used for adverse inferences. If he does testify, it seems likely to corroborate other testimony or incriminate him further – or result in perjury. If he doesn’t, it’s a possibly jailable contempt situation.

      Meanwhile, DOJ has separately issued 30-40 related subpoenas of Trump aides and officials in September.

      All that investigation points up ladder toward Trump and his colleagues, just as the 900 cases charging participants and planners of the 1/6 violence has climbed so far to seditious conspiracy charges with at least 2 guilty pleas out of 10 with those charges.

      The entire last 1/6 hearing pointedly organized testimony to highlight the elements needed for a conspiracy charge for Trump, using timelines, quotes and so on.

      Given the 4 grand juries in play (and the need not to foreclose investigation options), I’m betting that much legal preparation is in hand for one or more indictment after the midterms and/or after the 1/6 report, which I hope comes out well before January, as depending on the outcome of the election, especially in the House, it’s possible that the commission could be corruptly dissolved.

      Wherever they are in December, that’s got to be the drop dead date for ensuring the report and the 1000-ish depositions are in DOJ’s hands.

      Bottle of champagne on it!

      [Welcome back to emptywheel. Thanks for changing to a more differentiated name but “Kathy B” is not long enough to meet the 8-letter minimum for usernames. Thanks. /~Rayne]

      • TooLoose LeTruck says:

        What’s that variation on that one?

        “If you’re in a card game and you can’t spot the mark looking around at the other players at the table, it’s most likely you”?

      • Purple Martin says:

        I dunno…I’ve spent considerable time in some pretty dingy and deplorable rooms. Glad that’s offset by all the enjoyable and productive time I’ve spent in rooms just trying to keep up with the smart people.

    • Time Enough says:

      So he’s likely going to do 6 months (in white collar prison) and $200K vs. no discovery and no disposition? Has he really lost here?

    • Silly but True says:

      A $200,000 fine isn’t like a speeding ticket to you or I in the face of Seinfeld money. It’s more like a parking ticket.

      The jail time might sting a little bit, but he’ll probably monetize it into a podcast or one of his War Room episodes.

  2. Klaatu Something says:

    one of the few positives to emerge from this madness was to realize how much I project my Shadow on this walking font of flapdoodle, I used to enjoy hating him but now I have better ways to spend my time

    • Wajim says:

      It’s “Klaatu barada nikto,” which definitely meets EW’s new 8 character username standard, unlike “Gort,” which would be a cool handle for sci-fi nerds (I presume) like us. Think it’s an anagram that can spell out “Trump will sell you out,” kinda like “Danger, Will Robinson!” (Yes, honey, a nap sounds good.) And you are wise, Klaatu-wan, to ignore the hourly storm und drang of the past/current/ongoing/future political shit show; life is too brief

  3. JonathanW says:

    Isn’t Judge Nichols a judge who lives in a similar bubble as Bannon? Could Bannon just be hoping for the judge to give him a light sentence?

    • Doctor Cyclops says:

      He will likely allow him to remain at liberty while he appeals the ruling that precluded him from presenting a “reliance on the advice of counsel” defense.

      • JVO says:

        Maybe, just maybe, Judge Nichols will realize that since Bannon is such a smart guy (as he repeatedly claims) Bannon’s “reliance on counsel” argument is as facile as it appears and he should go directly to jail. I dunno, but to me, a guy who is that smart and as flippant and disrespectful as Bannon is, doesn’t deserve the benefit of the doubt.

          • ExRacerX says:


            They’re both liquids?

            Bannon can float on water?

            Bannon is combustible, while water is not?


            • JVO says:

              Apologies in advance if this is verboten, but my first thought was that douchebag Alex Jones approves this message. Ugh!

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  4. joel fisher says:

    I think the judge will start out with a “normal” sentence, but then he’s presented with an abnormal defendant. I’m guessing the normal defendant can be prodded into saying, “Geez, this was a big mistake” or “I’m so ashamed” or “I’m really sorry” or “I won’t do it again”; not Bannon. The, “Fuck Congress, I’m glad I did it, and I’ll do it again if I get the chance” approach he using really ought to get him the max. There are those who would say he should get what everybody else gets, but he’s not the same as everybody else.

  5. viget says:

    Something tells me there is another investigation…..

    I wonder if Bannon has documents in his possession that would be responsive to the NARA documents subpoena of May 2022…perhaps the J6C could have evidence of such?

    I would expect that conviction on the contempt charge and the trial record could be used as evidence in any obstruction investigation into the missing docs. And I’m thinking it may serve as aggravating factor(s) for sentencing purposes?

    • Norskeflamthrower says:

      “I wonder if Bannon has documents in his possession that would be to the NARA documents supoena of May 2022…perhaps the J6C could have evidence of such?”

      Oh what a wonderful “wonder”.

      (Rayne when I use my phone I don’t have my EW password saved and my 76 year old memory escapes me…this is the one I will use from now on. Thanx and I appreciate your work here.)

      [If you have a note application on your phone, save the username and your email address in it so you can copy paste them into the fields. That’s most of the problem solved. /~Rayne]

  6. Jenny says:

    Bully Bannon looking for a fight. Hurt people hurt people.
    “No one heals himself by wounding another.” St. Ambrose

    • Buzzkill Stickinthemud says:

      “Good will begets good will.”

      – George H. W. Bush*

      * Pretty sure it’s not his originally.**

      ** Not a fan of any Bush.

  7. Pedro P says:

    Bannon is a boob, no doubt. Keep in mind though, now that House select committees can be hand picked by whom ever is in power, there will probably be a lot more subpoenas issued. I hate to say it but some might be political. If Bannon gets six months, everyone else should too.

    • Rayne says:

      You’re assuming that everyone else who receives a subpoena from a congressional committee will 1) refuse to comply with the subpoena, and 2) continue contempt of Congress after being indicted by a grand jury for contempt of Congress by acting in bad faith repeatedly before sentencing.

      You’re also assuming that witnesses need to be subpoenaed to begin with because they refused to respond to a request to testify and/or provide documents to a congressional committee.

      Not to mention the assumption the party in control of one or more chambers will change, and that the party in control will act on a wholly partisan political basis.

      That’s a metric fuckton of assumptions, Pedro.

      • Pedro P says:

        Assumptions? I am only talking about Bannon, Rayne. If anyone else refuses to comply with a congressional subpoena and they are indicted by a grand jury for contempt of Congress , they should get whatever punishment Bannon gets.

        No matter who’s committee issued the subpoena.

        • ExRacerX says:

          “If Bannon gets six months, everyone else should too.”

          “If anyone else refuses to comply with a congressional subpoena and they are indicted by a grand jury for contempt of Congress, they should get whatever punishment Bannon gets.”

          “If” is the word (& the implied assumption) in both statements because there’s no guarantee either “if” will actually occur.

        • John Paul Jones says:

          You used the plural (“subpoenas”), implying more than one person, which means, for an ordinary reader such as myself, you’re not “only talking about Bannon.” And if you think the original subpoena was “political,” i.e., not valid in some way, you should say that, rather than choosing innuendo.

        • Rayne says:

          If Bannon gets six months, everyone else should too.

          Yeah, you’ve said this twice now and it’s an assumption on your part that “everyone else” will merit the same sentence as Bannon.

          Except the House January 6 Committee invited more than a thousand witnesses to testify, only about 10% have had to be subpoenaed for refusing to answer a request, and only Bannon has been a massively contemptuous asshole the entire process before and after indictment.

          You seem to forget that Congress is US, the representatives of WE, the people. Someone pissing in America’s face as much as Bannon has to obstruct a government proceeding on our behalf deserves at least 6 months — not everyone else, because not everyone else is so openly contemptuous of our democratic process and the Constitution.

          For that matter I don’t see you bitching that Navarro, Meadows, and Scavino didn’t get 6 months. Why “everybody else” in the future but not those found in contempt now fails by your logic.

  8. Willis Warren says:

    Were the original German fascists this stupid? you never hear that in history books, but it just seems like only idiots are attracted to this kind of authoritarian shit.

      • JVO says:

        Personally, “idiot” is not a useful a term. I agree there are many, I just think it’s not useful to paint with such a broad and coarse brush.

  9. pcanapanapa says:

    Was there a mention of his legal troubles in NY in the pre-sentence report?

    Also, I thought that a bond is typically revoked if you are indicted while you are released pending sentencing.

  10. Rugger_9 says:

    OT, I saw that RoJo was on Faux News today whining that it wasn’t 50-50 in the debate auditorium (too many Marquette students – doesn’t he grasp he’s their Senator too?) before saying this about Mandela Barnes:

    “When you go on Russia Today TV and you’re willing to let yourself be used as a tool for Vladimir Putin propaganda, you know, what else would you call that then turning against your country?”

    I dunno, who went to Russia on 04 JUL 2018 (IIRC) with seven other GQP types for a photo op with RT? Hint: it wasn’t Mandela Barnes. Does anyone have a clip of Barnes ever being on Russia Today?

    • Molly Pitcher says:

      Hi Rugger,

      Googling Mandela Barnes Russia Today, the only mentions are on RWM, and most of those are on pretty sketchy sites. I’m not buying it. But I have seen videos of RoJo in Russia on July 4th.

      And the Cal Bears and Niners are killing me. Wilcox has to go.

      • Rugger_9 says:

        I was hoping not to re-live Saturday. Too much yelling at the TV, but I’d start with Musgrave first. This loss like the one to Arizona last year will probably keep the Bears out of a bowl, again. Let’s see who’s left to get three wins now… Washington (maybe, but not likely), Oregon (maybe. but even less likely), at SC (see Oregon), at OSU (note that weird things happen in Corvallis like 61-minute games undetected by the refs, not likely but would be appreciated), Stanford (too unpredictable, but right now not likely) and UCLA (see Oregon). 3 ranked teams, 2 near-ranked and one bitter rival. My beloved will enjoy the closer end to FB season even if I don’t.

        However, as I thought, RoJo follows the usual GQP operating principle that every accusation by them is an admission about them.

  11. Jim says:

    Let’s remember, Susan McDougal got 18 months for refusing to cooperate with an investigation and answer “three questions”. And she didn’t try and overthrow the elected government.

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      • Troutwaxer says:

        Jim doesn’t get that the Susan McDougal case and the Bannon case are two different animals, but he’s only half-wrong. Of the two, Bannon is clearly the worse offender, and his jail term will be significantly shorter than McDougal’s, not to mention the “treason” issue. (Note the quotes around the word “treason.”)

        Long story short, we need to add something to the sentencing guidelines which covers “committing a crime in furtherance of a seditious, insurrective, or treasonous act” or somesuch – my phrasing could have been better.

        • Rugger_9 says:

          Most of Susan McDougal’s time in the sneezer (h/t Charlie Pierce) was due to her ongoing refusal to testify against Silly Billy Clinton leading to pre-trial detention, not due to a conviction. FWIW, the real ‘Slick Willie’ is the former Speaker of the Assembly here in CA (Willie Brown, still around) who managed to convince a pre-MAGA GOP to elect him as Speaker even though the GOP briefly held the Assembly.

  12. Sy says:

    Does Bannon have to actually testify anymore? It would be ridiculous if the verdict and sentence resolves the case without actually forcing him to testify, and the demand to testify is dropped.

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  13. red4751 says:

    So I’ll donate $100 if I don’t get booted off.

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    • bmaz says:

      How about you GTFO? Don’t ever pull that shit here. That comment alone is enough to boot you. Then there are the nowhere ones we did not allow. You are very much in the wrong place.

      • red4751 says:

        What does it mean to be inclusive?
        Inclusion is seen as a universal human right. The aim of inclusion is to embrace all people irrespective of race, gender, disability, medical or other need. It is about giving equal access and opportunities and getting rid of discrimination and intolerance (removal of barriers).

        • Rayne says:

          The removal of barriers to free speech means you can start your own blog.

          As for intolerance: consider Popper’s Paradox.

          Participation in this site’s comments can’t bought for the purposes of providing you a platform for free speech. You can get one for free (free, like free puppy, not free like free beer) by launching your own blog.

          So far your two comments have not been on topic. I suggest you get on topic to comment further or find something else to do.

  14. Username_TBD_26AUG2022-0454h says:

    “Oct. 16, 20222” – [sic] or typo?

    [THIRD AND FINAL REQUEST: You may NOT use a real person’s name and/or title without proving you are that person; the name you attempted to use here, “Fmr. House Majority Leader Eric Cantor” has been replaced with a temporary placeholder denoting the date and time of your first known comment. Pick another unique username with a minimum of 8 letters to participate in comments. If you attempt to comment again without using a unique username, you will be blocked. /~Rayne]

    • bmaz says:

      You are NOT Eric Cantor, do not pull that crap here. And “typo” scolds suck, don’t do that either. If you are to ever come back, use a real handle and do something substantive as opposed to being a common typo scold. Or you will be done.

      • Hychka says:

        You fly right this time.
        Don’t let it go to your head.
        You can be brutal and destructive when you’re wrong.

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