Steve Bannon Gives Two Middle Fingers To Court, Gets Four Months In Jail

Are you allowed to wear three shirts and a mangy barn jacket in federal prison? Asking for Steve Bannon, whose legal strategy is about to run headlong into his sartorial commitment to hobo chic.

This morning, US District Judge Carl J. Nichols sentenced the putrefying podcaster to four months to be served concurrently on each of two counts of contempt of Congress.

When subpoenaed by the January 6 Select Committee, Bannon, who was fired from the White House in 2017, claimed that Donald Trump’s assertion of privilege blocked him from engaging with the Committee in any way. Indeed, at every juncture, up to and including this morning’s sentencing hearing, Bannon took a maximally aggressive posture.

From the moment he stood on the courthouse steps and promised to turn the trial into ““the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden,” to his refusal to disclose his finances to pretrial services because he could afford to pay the maximum fine, he’s shown utter contempt for the process. Similarly, his counsel seemed impervious to facts, law, or strong signals from the court that their strategy was steering their client into dangerous waters. Even this morning they continued to press the public authority, executive privilege, and advice of counsel defenses the court repeatedly rejected, while making wild accusations about a partisan witch hunt by the Biden administration to silence their client.

“Defiance in the face of government wrongdoing is reverence for justice,” his lawyers wrote in a sentencing memo last night. And this morning in court attorney David Schoen shouted that Bannon had no remorse, that his actions were “the kind of conduct that you should encourage in this country,” and that the prosecution was corrupt and thus, “quite frankly, Mr. Bannon should make no apology.”

Schoen even went so far as to personally attack Trump’s lawyer Justin Clark, whom he says verbally invoked privilege on behalf of the former president, but then refused to put it in writing.

Wow — Bannon lawyer David Schoen just tore into Trump counsel Justin Clark: “He is nothing but a thug. I wouldn’t believe a thing he says, one of what one might call the Three Stooges… He has lied to me personally. He has ripped me off personally.”

— Hugo Lowell (@hugolowell) October 21, 2022

There is of course a different way to read these events. Clark’s letter to Bannon’s lawyer Robert Costello instructed them to “where appropriate, invoke any immunities and privileges he may have from compelled testimony in response to the subpoena” and “not produce any documents concerning privileged material” — not exactly a blanket invocation of privilege, much less an instruction to give the January 6 Committee the finger and refuse to show up or produce a single document.

In the event, Judge Nichols, a Trump appointee, was not impressed. After the government made its case, the court accepted prosecutors’ sentencing recommendation for an offense level of 6 with a range of one to six months incarceration and a $1,000 to $100,000 fine. In their own sentencing memo, Bannon’s lawyers argued that he deserved credit for accepting responsibility, a position somewhat undercut by literally everything else they and their client said during this trial.

Predictably, Schoen’s arguments about the unconstitutionality of a mandatory minimum sentence fell on deaf ears with Judge Nichols, again, a conservative Trump appointee. And anyway, the court was clearly in no mood to be lenient, although it did knock the fine down to $6,500, declining prosecutors suggestion to impose $100,000 for each count to punish the defendant for refusing to engage with pretrial services.

Bannon will remain free pending appeal, which he has vowed to file immediately. His theory appears to be that the Supreme Court will be eager to overturn Licavoli v. United States, the precedential case holding that mistake of law is no defense to contempt of Congress.

In the meantime, Bannon faces state fraud charges in New York over the home brew border wall scam he was federally pardoned for as Trump was throwing boxes of classified documents in the back of Air Force One. Will he stick with the winning team of Schoen and Costello to defend him in the upcoming case?

Fingers crossed!

US v. Bannon [Docket via Court Listener]

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Liz Dye lives in Baltimore where she writes about law and politics.