New York’s Bannon Indictment: Is Politicized Prosecution the Tonic for Pardon Abuse?

M edia reports indicate that state prosecutors in Manhattan have obtained a grand-jury indictment of Steve Bannon, charging him with the fraud scheme for which then-president Donald Trump pardoned him on the way out the Oval Office door. Bannon will reportedly surrender to be arraigned on Thursday, when the charges will presumably be unsealed.

The state prosecution invites us to ask: Is blatantly politicized state prosecution the tonic for blatant abuse of the presidential pardon power?

As I detailed when Bannon was federally indicted in autumn 2020, the prosecution involves a fundraising venture known as “We Build the Wall.” Bannon and three co-conspirators are alleged to have raised over $25 million dollars off Trump’s signature campaign vow to build a wall along the southern border. Trump could never get Congress to fund such a wall (congressional Democrats prefer the Biden approach of no border security), but Bannon and his associates vowed to get it built with private money (and got fundraising help from Don Trump Jr., who was not accused of wrongdoing). Significantly, they committed to spend every penny raised on wall-construction and not to raid “We Build the Wall” funds for private use. But Bannon and his partners are alleged to have skimmed, collectively, well over a million dollars, which was used for luxury purchases, other personal expenses, paying off debts, etc.

Bannon is now being prosecuted by New York State authorities on the same scheme initially charged by federal prosecutors in the Southern District of New York. The latter indictment was vitiated by the Trump pardon. Yet, a president’s constitutional authority to grant clemency is limited to federal charges; it does not bar state prosecution (just as a state governor’s pardon is no protection against federal prosecution). Nor is the Constitution’s double-jeopardy protection available for Bannon: Though the feds indicted him, he was never brought to trial.

Among the most scandalous aspects of Trump’s pardon of Bannon was its blatant cronyism: While Bannon was given clemency, his three co-defendants were left to face the music. The pardon did not reflect an assessment that the criminal treatment of the infraction was unduly severe; it was an undisguised political favor.

Since the pardon, two of Bannon’s three co-defendants, Brian Kolfage and Andrew Badolato, have pled guilty to fraud conspiracy. They are now scheduled to be sentenced in December and are likely to face up to five years’ imprisonment. The third co-defendant, Timothy Shea, initially agreed to plead guilty but pulled out of the deal and opted to go to trial. In June, a jury heavily favoring conviction deadlocked; retrial in Manhattan federal court is scheduled to begin late next month.

The Constitution’s only real check against pardon abuse is impeachment. Practically speaking, that is no check at all when clemency is granted as a president’s tenure in office is ending. Inexorably, then, abuse has become the pardon power’s most familiar feature. Trump was neither unique nor the worst offender in this regard — the latter distinction belongs to President Clinton. That, of course, does not make Trump’s malfeasance any more excusable.

That’s why I have argued that the Constitution should be amended to eliminate the pardon power. The notion of presidential clemency as a necessary check on the occasional excesses of the criminal-justice system is obsolete. Today, the protections enjoyed by criminal defendants and convicts include heightened due process, an elaborate sentencing system, and multiple levels of appellate review. These measures guard against excessive sentences and the disparate treatment of similarly situated offenders. There is no need for presidents to be an added safeguard against prosecutorial overreach — particularly given that the Justice Department, which did not exist when the Constitution went into effect, is an executive-branch component, subordinate to the president. A society that purports to revile political intrusions on the administration of justice should find pardons — the ultimate political intrusion — to be intolerable.

But what of the responsive state prosecution against Bannon?

The New York State justice system does not even pretend to be nonpartisan. The district attorneys, like the state attorney general, are elected officials. In a deep-blue one-party state, where elective offices are awarded based on low-turnout primaries, campaigns are geared toward the preferences of progressive activists. Prosecutors therefore commit to the woke agenda of coddling hardened criminals while aggressively using law enforcement as a weapon against political enemies — in particular, Trump and his followers.

Progressive prosecutor Alvin Bragg, the Manhattan DA, is prosecuting Steve Bannon because he is Steve Bannon — Trump confidant and MAGA brawler. Bannon is being prosecuted because he is an arch nemesis of progressive Democrats. He is a proxy for the prosecution against Trump himself that Bragg would like to do, if only the evidence were there. The same can be said of Allen Weisselberg, the Trump Organization financial officer, whom Bragg has pursued on trifling charges, and the Trump Organization — the business entity (though none of the people who operate it) is slated for a criminal trial next month on similarly piddling infractions.

Meantime, major crime is up 36 percent in New York City this year over last (and 2021 was a high-crime year). In Manhattan, where people once again fear walking the streets, crime is rampant because the DA has no interest in prosecuting criminals. Do you really think Bragg and his ilk would care that some Trump enthusiasts got ripped off contributing to a border-security venture if they’d been scammed by pro-illegal-immigration activists?

America’s cities are killing themselves, not just by emboldening criminals but by signaling that half the country is regarded as the enemy — the half for which regnant Democrats reserve their prosecutorial vigor. Abuse of the pardon power is a travesty. But politicized prosecution is not the cure for politicized non-prosecution.