Steve Bannon Might Be Wearing an Orange Jumpsuit Soon

If you are tired of waiting for Attorney General Merrick Garland to indict Donald Trump for seditious conspiracy, insurrection, obstruction of Congress, or any other crime involving the attempt to overturn the 2020 election, I have some words of consolation: Steve Bannon's trial for contempt of Congress has begun. If convicted, he will likely go to jail.

Bannon might have been emboldened by the fact that contempt of Congress prosecutions are relatively rare.

Ordinarily, I wouldn't take pleasure in the prospect of anyone doing time, as our penal institutions are shamelessly overcrowded and do little in the way of rehabilitation or deterrence to lower our outrageously high crime rates. But apart from Trump himself, there might not be any other person more deserving of a stint in the pokey than Bannon, the loud-mouthed propagandist and podcaster who led Trump's 2016 political campaign to victory, and subsequently served as the disgraced ex-President's chief strategist and senior counselor for nearly eight months in 2017.

The facts of the case against Bannon are straightforward and, from a legal perspective, devastating.

On September 23, 2021, the House Select Committee investigating the January 6 attack on the U.S. Capitol issued a subpoena commanding Bannon to produce documents on October 7 and sit for a sworn deposition on October 14. Bannon defied both requests.

On October 20, the committee voted to hold Bannon in contempt. Three days later, the full House, with the support of nine Republicans and every Democrat, passed a contempt resolution against Bannon and forwarded a request for prosecution to the Department of Justice.

On November 12, a federal grand jury returned a two-count indictment against Bannon for disobeying the subpoena. The first count cites him for refusing to testify, and the second for failing to turn over documents.

Contempt of Congress is a misdemeanor, but a very serious one. Conviction carries a mandatory minimum sentence of thirty days and a maximum of one year in jail. There is no possibility of probation, according to a 2011 federal court ruling interpreting the contempt statute.

The committee set forth its reasons for seeking Bannon's cooperation in a succinct one-page letter that accompanied the subpoena. The letter reads in part:

"The Select Committee has reason to believe that you have information relevant to understanding important activities that led to and informed the events at the Capitol on January 6, 2021. For example, you have been identified as present at the Willard Hotel on January 5, 2021, during an effort to persuade Members of Congress to block the certification of the election the next day, and in relation to other activities on January 6....Moreover, you are quoted as stating, on January 5, 2021 [on Bannon's 'War Room' podcast] that '[a]ll hell is going to break loose tomorrow.' Accordingly, the Select Committee seeks both documents and your deposition testimony regarding these and multiple other matters..."

The subpoena itself lists seventeen categories of records and communications. In addition to the items highlighted in the letter, the list includes all discussions that Bannon had with Trump about the planning, financing, and staging of the events of January 6, and any communications that Bannon had with Trump between November 3, 2020, and January 20, 2021, "concerning efforts to contest the election results or delay or impede the electoral vote."

The list also includes communications Bannon may have had with any third parties about the insurrection. The subpoena specifically names attorney Boris Epstein, who worked as a strategic adviser on Trump's 2020 election campaign; Kash Patel, a one-time aide to former GOP Congressman Devin Nunes of California; and Ezra Cohen-Watnick, an intelligence officer who briefly served as the acting Under-Secretary of Defense in 2020.

Initially, Bannon reacted to the subpoena with tough-guy bravado. Following his first court appearance in November, he told a small crowd of supporters and reporters, "This is going to be the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden. Joe Biden ordered Merrick Garland to prosecute me from the White House lawn when he got off Marine One. And . . . we're going to go on the offense. We're tired of playing defense. We're going to go on the offense on this and stand by."

Bannon might have been emboldened by the fact that contempt of Congress prosecutions are relatively rare, and because his case was assigned to Federal District Court Judge Carl Nichols, a Trump appointee who was narrowly confirmed by the Senate in 2019. In March, Nichols dismissed a felony obstruction charge brought against a Texas man accused of storming the Capitol.

Nichols, however, has been anything but lenient with Bannon. On June 15, Nichols denied Bannon's motion to dismiss the case, rejecting his claims of executive privilege and his contention that the select committee was established illegally in violation of House rules.

As Bannon's July 18 trial date approached, he apparently had a "come-to-Jesus moment" typical of many criminal defendants faced with imminent defeat. In an email sent to committee chairman Representative Bennie Thompson, Democrat of South Carolina, by one of his lawyers on July 9, Bannon offered to testify after all. The email also cited a rambling letter written by Trump, waiving claims of executive privilege.

Neither Judge Nichols nor the DOJ was swayed by Bannon's change of position. On July 11, Nichols denied Bannon's request to postpone his trial to October.

Nichols also ruled that Bannon will not be permitted to argue executive privilege as a defense at trial, and that he will not be allowed to subpoena House Speaker Nancy Pelosi or other members of the select committee to testify. The rulings left attorney David Schoen--who represented Trump in his second impeachment trial and later joined Bannon's legal team--so exasperated that he remarked in open court, "What's the point in going to trial if there are no defenses."

Unlike seditious conspiracy or obstruction cases, contempt of Congress cases do not involve complex issues of intent. All that the prosecution needs to prove is a willful or deliberate intention not to respond to a Congressional subpoena. Evil motives or corrupt purposes need not be shown.

Bannon's eleventh-hour offer to testify likely won't save him, either. As the DOJ noted in a recent court filing, Bannon's crime was committed and became complete in October, when he dodged the committee's subpoena.

What this means, bottom line, is that Bannon had best hope he isn't housed with the general population at the infamous D.C. Central Detention Facility, where he will probably serve his sentence. The same goes for former Trump aide Peter Navarro, who has also been indicted for defying a select committee subpoena. Navarro's trial is set to begin November 17.

And who knows--a victory in the Bannon and Navarro cases might even encourage Garland to find his spine and prosecute Trump for attempting to overthrow what remains of our damaged democracy.