Judge Rules Bannon Must Go to Prison by July 1 while Appealing Contempt Case

The Washington Post

16:24 JST, June 7, 2024

A federal judge on Thursday ordered former Trump political adviser and right-wing podcaster Stephen K. Bannon to report to prison by July 1 to begin serving a four-month prison term for contempt of Congress.

Federal prosecutors had asked the judge to lift a previous hold on Bannon’s sentence, arguing that no substantial legal questions remain over his two-count conviction for refusing to provide documents or testimony to a House committee probing the Jan. 6, 2021, attack on the U.S. Capitol. A panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected Bannon’s appeal on all grounds last month, though his legal team has indicated that it plans to take their fight to the Supreme Court, if necessary.

U.S. District Judge Carl J. Nichols agreed with prosecutors after a nearly hour-long hearing. “I don’t believe that the original basis for my stay of Mr. Bannon’s sentence exists any longer. I no longer consider that his appeal raises substantial questions of law of a kind likely to reverse his conviction,” Nichols said, citing the appellate panel’s ruling.

A lawyer for Bannon, 70, disagreed, arguing to Nichols that the same legal questions that prompted the judge to allow his client to remain free after sentencing will remain unsettled until resolved by the full D.C. Circuit or the Supreme Court.

Nichols, a Trump appointee who sentenced Bannon in October 2022, acknowledged that Bannon was likely to appeal his latest order and gave him nearly four weeks to seek a stay from those higher courts.

Bannon did not visibly react to the decision at the defense table. Outside court, wearing his usual black blazer and layered shirts, he cast his case in partisan terms.

“This is about one thing – shutting down the MAGA movement, shutting down grass-roots conservatives, shutting down President Trump,” Bannon said. “There’s not a prison built or a jail built that will ever shut me up. … We’re going to win this. We’re going to win at the Supreme Court, and more importantly, we’re going to win on Nov. 5 in an amazing landslide.”

Bannon’s attorneys argued in court that he would suffer “irreparable harm” if he were sent to prison now, because he would almost certainly complete his four-month sentence before his appeals are decided. Attorney David I. Schoen said that by June 24, he would request a rehearing before the full D.C. Circuit of the ruling affirming his July 2022 conviction for contempt of Congress.

“By the Government’s own account, these issues can only be fully reviewed on their merits by the Court of Appeals sitting en banc or by the United States Supreme Court; therefore there is no basis for considering the removal of the stay of the sentence pending appeal until the appeals process has fully run its course,” Schoen argued in filings before Thursday’s hearing.

Even amid his legal troubles, Bannon has maintained a high profile, speaking out on political matters and advising conservatives in office. On his “War Room” podcast, the former chief strategist of Donald Trump’s 2016 campaign who served a year in the White House continues to spread false claims that the 2020 election was stolen, and he helped spur conservatives in the House to topple then-Speaker Kevin McCarthy (R-Calif.) in October.

Just this week, Bannon called on “ambitious backbencher state attorneys general and district attorneys” to “seize the day” and prosecute Democrats, the New York Times reported. Trump has raised the prospect of prosecuting political opponents, such as 2016 rival Hillary Clinton.

Bannon had been allowed to remain free even after his contempt conviction and sentencing, because Nichols said he raised a substantial question about whether he should have been able to argue that he relied on legal advice to ignore a House subpoena for documents and testimony related to the Jan. 6 attack, and therefore he did not “willfully” refuse to cooperate with investigators.

Nichols has said that he did not have the authority to overrule a 1961 D.C. Circuit decision barring such defenses but that the full court of appeals could.

On Thursday, Assistant U.S. Attorney John D. Crabb Jr. argued that the three-judge panel’s “full-throated” upholding of that decades-old precedent, Licavoli v. United States, tipped the scale, and that should give Nichols “comfort and confidence” that Bannon’s conviction was unlikely to be overturned.

Though Bannon can ask the Supreme Court to intervene and prevent him from reporting to prison, the justices declined a similar request from Trump trade adviser Peter Navarro, 74, who in March became the first person incarcerated for contempt of Congress since the Cold War era. Navarro, who said in a memoir that he and Bannon had a plan to keep Joe Biden from taking office, was convicted of contempt in September and received an identical sentence in January from U.S. District Judge Amit P. Mehta.

The cases, though, had some important differences. Navarro interacted with the House investigative committee investigating the Jan. 6 attack without an attorney. Bannon communicated with the committee through an attorney, Robert J. Costello, who ultimately withdrew from the criminal case before trial because he was a potential witness.

Crabb noted that Bannon’s and Navarro’s appeals were rejected by two three-judge panels of the D.C. Circuit, with one judge serving on both panels. That meant, Crabb argued, that five of 11 members of the appeals court have signaled their disagreement with Bannon’s position and that Bannon would have to “run the table” to get his conviction overturned.

The case in D.C. is not Bannon’s only legal trouble. A New York state judge last summer ordered him to pay nearly $500,000 in legal fees to lawyers representing him in connection with a number of matters, including a criminal case alleging he defrauded donors contributing to a private effort to build a wall on the U.S.-Mexico border. Trump had pardoned Bannon in connection with those allegations.

After the pardon, the Manhattan district attorney’s office charged Bannon in 2022 with violating New York state laws against money laundering, fraud and conspiracy in relation to the same “We Build the Wall” campaign. Bannon has denied the charges and is due to stand trial this year. The judge in that case is the one who presided over Trump’s conviction recent trial, which ended with his conviction on 34 state felony counts of falsifying business records in connection with a hush money payment made to an adult-film actress ahead of the 2016 presidential election.