Steve Bannon Gets Sentenced

When Steve Bannon faces sentencing this morning, before federal judge Carl Nichols (a Trump appointee), DOJ will be asking for a sentence of 6 months of custody. Bannon was convicted on two counts of contempt of Congress for failing to comply—one might say utterly flouting—a subpoena calling for testimony and the production of documents to the January 6 committee.

The charge, which is a misdemeanor, carries a potential sentence of up to one year. There is a 30 day mandatory minimum. The government has asked for a sentence of 6 months. That’s the high end of the range suggested by the U.S. Sentencing Guidelines, which reflect both the offense conduct and the defendant’s prior criminal history. Bannon has none, since pardoned offenses don’t count. (Trump gave Bannon a last-minute pardon in a federal case that involved defrauding “We Build The Wall” donors of millions of dollars).

Bannon has asked the court for a sentence of probation. He’s also asked the court to “stay” any sentence, permitting him to appeal before he serves it. But that’s not how criminal cases work. The relevant statute, 18 U.S.C. 3143, which covers release or detention of a defendant pending sentencing, provides: that the judge “shall” remand a defendant to custody after sentencing, unless he finds by clear and convincing evidence that the defendant is neither a flight risk or a danger to the community, and:

“(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—(i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.”

Expect the government to strenuously object to permitting Bannon to remain out on bond during the appeal. “Clear and convincing” evidence is something in between more likely than not, the civil burden of proof and guilty beyond reasonable doubt, the criminal one. Bannon will argue that there is a substantial question of law on appeal here, because at trial, he wanted to use an advise of counsel defense, arguing that he relied in good faith on advice his lawyer gave him. But precedent clearly prohibits that defense in a case like this, and the Judge, albeit with the appearance of reluctance, followed it.

In his sentencing memo, Bannon argues he should remain out of custody because his appeal will provide the courts with a “unique chance to update” current case law in this regard. In my judgment, that’s a far cry from what the law requires here—that the appeal raises a “substantial question.” And certainly, this argument is insufficient for the judge to find there is clear and convincing evidence Bannon is raising a substantial question, one he’s likely to succeed on before the appellate courts. But given the Judge’s appearance of sympathy towards Bannon’s desire to raise the defense at trial, even odds on whether he’ll let him avoid custody now. The government has the right to appeal the judge’s order if he does.

The government is also likely to question whether Bannon is a flight risk, and should be remanded to custody on that basis alone. Bannon has a history of significant foreign connections. For instance, he was arrested in the “We Build the Wall” case while on board the yacht of Chinese billionaire Guo Wengui. In a normal case, a defendant who showed indicia of being a flight risk and was bringing a hail Mary appeal asking the courts to re-decide an established legal principle would not get an appeal bond.

Even if the judge orders Bannon into custody during the appeal, it’s possible that he might give him a brief period of time to get his affairs in order and permit him to surrender to the custody of the U.S. Marshal to begin the service of his sentence. That wouldn’t be unusual, given the relatively short duration of the expected sentence. We’ll know how all of this plays out for Bannon in a few hours.

We’re in this together,

Joyce