Judge Carl Nichols did not impose the six-month sentence the Justice Department was pushing for. Still, four months in the slammer, the term imposed on Steve Bannon today, was a stiff sentence under the circumstances.
Bannon’s was a nonviolent crime (flouting House subpoenas), and he had no prior record of criminal convictions (though he was pardoned in a significant federal fraud case that New York State prosecutors are now pursuing). The Democrats who run the House January 6 committee could have followed the usual route of going to court to litigate Bannon’s dubious executive-privilege claims and thus enforcing their subpoena; instead, they turned to the Democrats who run the Justice Department. Attorney General Merrick Garland dutifully brought a nearly unheard-of criminal contempt-of-Congress indictment — DOJ’s first in four decades. This is all about January 6 and the norm-breaking of Donald Trump, so as far as Democrats are concerned, norms of restraint are not even bumps in the road. To repeat what I’ve said on other occasions, I suspect they will not like living in the new world they have created.
As I detailed when Bannon was convicted back in July, the case was not really going to begin until the appeal.
Judge Nichols ruled that Bannon had no legal basis to rely on an invocation of executive privilege under circumstances. Even though the Supreme Court has reasoned that former presidents maintain some vague, limited capacity to invoke executive privilege, Nichols found the privilege inapposite given that (a) Bannon was not a government official during the January 6 time frame (having been pushed out of the Trump administration years earlier), (b) President Biden did not support former President Trump’s attempt to invoke privilege, (c) the record indicated that Trump’s counsel had not advised Bannon to withhold all compliance with the committee, and (d) a witness who seeks to rely on executive privilege upon being subpoenaed is supposed to show up as directed and cite the privilege when it is relevant, on a question-by-question or document-by-document basis. You don’t get to just ignore a subpoena.
Nichols may well be right. On the other hand, to convict, the government is required by statute to prove beyond a reasonable doubt that a person willfully defied a congressional subpoena. That is a demanding level of criminal mens rea, essentially calling for proof that a person acted knowingly and deliberately, with the specific intention to do something the law forbids. When Nichols barred Bannon from relying on executive privilege, the defense lost any ability to try to convince the jury that Bannon relied in good faith on Trump’s invocation, that he believed the invocation was supported by Supreme Court precedent, and that he agreed to testify as directed (after he was already indicted) once he understood that Trump had waived the privilege.
Now that he has been sentenced, Bannon’s trial-court proceedings are over, and he will be able to urge on the Court of Appeals the arguments he was precluded from making to the jury. He is likely to lose. Still, I’ll stick with my observation at the time he was found guilty: “Bannon’s appeal is apt to be more interesting than his trial. In the latter, he didn’t have a prayer.”