How Doomed Is Steve Bannon?

Steve Bannon’s trial for failing to testify to the Congressional committee investigating Jan. 6 starts Monday. And he’s probably going to jail, former prosecutors told VICE News.
Former White House strategist Steve Bannon speaks with reporters after departing federal court on Nov. 15, 2021, in Washington. (AP Photo/Alex Brandon, File)​
Former White House strategist Steve Bannon speaks with reporters after departing federal court on Nov. 15, 2021, in Washington. (AP Photo/Alex Brandon, File)

Steve Bannon will finally get his day in court on Monday. 

And the outlook’s not great for “Sloppy Steve,” to use the nickname dropped on him by the man Bannon risked his freedom to protect—former President Donald Trump. 

Bannon is facing two misdemeanor counts of contempt of Congress after failing to show up to testify to the committee investigating Jan. 6, which subpoenaed him. And unless something weird and unexpected happens, Bannon will probably end up scoring a criminal conviction and serving at least 30 days in jail and potentially more, three former prosecutors following the case told VICE News. 

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“I think his chances of walking away from this with no jail time are pretty slim,” said Rebecca Roiphe, a former New York prosecutor who now teaches prosecutorial ethics at New York Law School. “This is not a borderline case.” 

Bannon vowed to turn his case into the “misdemeanor from hell” and use the proceedings to stomp his enemies by calling members of Congress including Democratic House Speaker Nancy Pelosi to testify about their own doings. 

But his big plan backfired. On Monday, the judge slapped down Bannon’s demand that he be allowed to drag House members into the courtroom. The judge disallowed many of the arguments Bannon’s lawyers had planned to base his defense and refused multiple requests from Bannon for a delay.

Bannon’s pre-trial smackdown was so complete, so totally devastating, that his lawyer David Schoen was left sputtering to the judge: “What’s the point in going to trial here if there are no defenses?”

There may not be much of a point, besides sliding down greased rails toward a criminal conviction on both counts of contempt of Congress, lawyers following the proceedings told VICE News.  

“There just isn’t any defense that he can mount,” said Seth Waxman, a former federal prosecutor based in Washington, D.C. “It’s a very straight-forward case. Did you receive the subpoena? Yes? If you didn’t comply, then you violated the order and you’re in contempt.”

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Bannon may be left with one viable defense: To argue that he did not understand the deadline for complying with the subpoenas from the Jan. 6 panel, which he flagrantly disregarded last fall with his trademark pugnaciousness. Bannon’s team may seek to convince the jury that the due dates were still somehow under negotiation. 

The bigger question, however, will be whether Bannon spends serious time in prison if he is indeed convicted.

Bannon faces a maximum two years if convicted on both misdemeanor counts and a minimum 30 days. But Trump-appointed District Court Judge Carl J. Nichols gets wide discretion in sentencing beyond that. And Judge Nichols may feel he needs to make an example of Bannon for anyone else tempted to defy a Congressional subpoena.

‘A misdemeanor from Hell’

The facts of the case against Bannon aren’t complex.

Bannon famously amped up Jan. 6 the day before, telling his audience to “strap in” because “all hell is going to break loose tomorrow.”

Bannon spoke with Trump at least two times on Jan. 5, according to White House call logs revealed by the Jan. 6 committee this week, including an 11-minute call around 9 a.m. and a six-minute call shortly before 10 p.m.

His big talk made many observers wonder how much he knew about the deadly attack that unspooled the next day. 

“I’ll tell you this: It’s not going to happen like you think it’s going to happen,” Bannon told his audience. “It’s going to be quite extraordinarily different.”

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Bannon claimed that he didn’t have to answer questions from the committee because he was protected by executive privilege, which shields some White House communications on the principle that the president should get frank advice from advisors without worrying it will leak.  

But many lawyers found Bannon’s claim laughable. Bannon left Trump’s White House in 2017, years before the Jan. 6 attack. Executive privilege is held by the president and can’t be willy-nilly invoked by someone who used to work for the president several years ago. 

Bannon also didn’t do the bare minimum that anyone invoking such a legal privilege to avoid answering questions is supposed to do, which is to show up to the deposition and raise the privilege in response to specific questions.

“Even if you do have a legitimate privilege, you have to come and claim it,” said Jill Wine-Banks, who served as a member of the prosecution team during the Watergate scandal of the 1970s.

Furthermore, it was never clear that Trump invoked executive privilege on Bannon’s behalf in the first place. 

This week, in fact, prosecutors revealed that Trump’s lawyer, Justin Clark, told the Department of Justice explicitly that Trump never did extend the privilege to Bannon. 

Then, on Monday, Judge Nichols barred Bannon from arguing at trial that executive privilege excused his refusal to cooperate. (The D.C. Circuit Court ruled in 1961 that misunderstanding the law doesn’t count as a viable defense in a contempt of Congress case.) 

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With Bannon’s attempts to delay his trial faltering, his lawyer released a new letter from Trump saying Bannon is now free to testify to the committee, as far as Trump’s concerned. 

Bannon took to the airwaves to say he’d testify to the committee if they’d give him a “date, time, microphone that works, and a Holy Bible to take the oath on.” 

But on Thursday, Judge Nichols said he’d decide during the trial whether to allow Bannon to tell the jury that he has changed his mind and offered to cooperate with the Jan. 6 committee. 

Prosecutors dismissed Bannon’s “eleventh-hour” about-face as an empty, self-serving gesture that shouldn’t have anything to do with a criminal case over his refusal to cooperate last fall. 

"His continued failure to comply with the subpoena's document demand while claiming he now will testify suggests his actions are little more than an attempt to change the optics of his contempt on the eve of trial, not an actual effort at compliance," Justice Department lawyers told the court.

Wild card: Bannon’s Trump-appointed judge

Bannon’s fate is largely now in the hands of Judge Nichols, who was appointed by Trump in 2018 after serving in former Republican President George W. Bush’s Department of Justice. 

Ironically, while working for Bush in 2008, Nichols argued in an otherwise unrelated case that then-serving White House officials had immunity from Congressional subpoenas to protect their confidential advice to the president. 

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Now, Judge Nichols will be the arbiter of Bannon’s ability to use his trial as a soapbox for political diatribes about Nancy Pelosi and the evils of Democrats. If Bannon can appeal to the political resentments of just one juror, or perhaps Judge Nichols himself, he may get a hung jury (effectively starting the trial over again) or the bare-minimum sentence, despite the strong factual case against him.

Bannon, as usual, has appeared undaunted. 

“Pray for our enemies,” Bannon thundered on his podcast on Tuesday, after his lawyers were smacked down in court. “We’re going medieval on these people. We’re going savage on these people. So pray for them.” 

Whatever Bannon meant by that, he’s probably not going to get the chance to practice any warrior moves from the Middle Ages during his trial next week, former prosecutors and current defense attorneys said. 

“I don’t believe the judge will lose control of the courtroom given the way he’s handled this so far,” Wine-Banks said. “If Bannon tries to go off like he does on his podcast, he’ll be stopped, and the jury will be excused, and the judge will tell him, ‘I can’t have this in my courtroom.’” 

Wine-Banks agreed Bannon appears to be heading for a speedy conviction. 

“I think he has no defenses left,” she said.