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Dear Reader,

Steve Bannon has had his fun – podcast rants, courthouse-steps stemwinders, a degree of twisted celebrity – all of it, thus far, consequence-free. But soon, he’s going to prison. Federal prison, virtually for sure. And now, in all likelihood, New York state prison too. 

I try not to revel in any person’s impending loss of liberty. I really do. But, hoo boy – Bannon has really, really pushed his luck.  

Bannon first faced a criminal charge in August 2020, when the Southern District of New York indicted him and three others for a fraud involving a crowdfunding effort called “We Build the Wall.” The idea – it’s right there in the name, really – was to raise money from donors enamored with Donald Trump’s vision of a big, beautiful wall on the Southern border. To this day, I can’t quite figure out the idea here: did people really think their money would be used to privately finance a wall on an international boundary? These things are generally left to, you know, governments. 

In any event, part of the pitch was that all donations would go to wall construction, and none would go to Bannon or the other principals. At one point, Bannon declared publicly, “100% of the funds raised … will be used in the execution of our mission and purpose … we’re a volunteer organization.” Behind this and other promises, Bannon and his fellow shysters raised over $25 million. But – set your face to stunned – about $1 million of those donations mysteriously landed in Bannon’s personal piggybank.

The outlook was bleak for Bannon. Virtually nobody beats an SDNY indictment, and the evidence looked clear-cut. But in January 2021, during his final hours in office, Trump rode to the rescue with a pardon – for Bannon but, conspicuously, for none of his three co-defendants. The official White House statement explained that Bannon “has been an important leader in the conservative movement and is known for his political acumen.” I’ve seen plenty of reasonable requests for leniency based on all manner of justifications, but purported “political acumen” is a new one. 

While Bannon skated thanks to his connection to Trump, two of his fellow fraudsters eventually pled guilty and now face sentences of about four years and five years, respectively. The third co-defendant was tried but the jury hung; a re-trial is forthcoming.  

One might think that, after a close brush with federal conviction, a person might feel some gratitude and steer far clear of anything else that might land him in hot water. One would be mistaken in this belief, if the person in question was Steve Bannon.

Because, later in 2021, he received a subpoena from the January 6 Committee and essentially flipped them the bird. He made no effort to comply, and dared them to do anything about it. Well, the Committee held Bannon in contempt, DOJ indicted him, and, in July 2022, a jury convicted him quickly, no questions asked. Bannon had pronounced that his case would be the “misdemeanor from hell for Merrick Garland.” Turns out, it was more of a cakewalk.

Bannon noted correctly that his case was a misdemeanor, so he faces a maximum of one year behind bars. But contempt of Congress is the rare federal misdemeanor that also carries a mandatory minimum of 30 days. So, barring an unlikely win on appeal, Bannon will be going to federal lockup for at least a month. 

So far, not so bad for Bannon, really. Do a month inside, maybe a few, emerge as a political martyr, get some fresh material for the podcast, and write a book about life in the big house. 

But now, the old “We Build the Wall” scam has come back to life. The New York County (Manhattan) District Attorney has brought its own state-level charges against Bannon for the same scheme. The DA has framed its case a bit differently than the SDNY – focusing more on Bannon’s use of shell companies to secretly move hundreds of thousands of dollars to the CEO of the corrupt fundraising effort – but the underlying conduct is largely the same.

The DA’s evidence looks strong. According to the indictment, one of Bannon’s co-conspirators texted him that the group would be stating publicly that its CEO would not take any salary, and that this promise “removes all self interest taint on this” and “gives [the CEO] saint hood.” Bannon responded, “[the shell company] can pay him.” Bannon later texted a co-conspirator, “You want $100k to [the CEO]” and “we need wire of cash to [the shell company].” This, folks, is a strong case.

Shortly before his first courtroom appearance on the new charges, Bannon declared to hilarious effect, “They will never shut me up, they’ll have to kill me first.” I suppose he was trying to have a Braveheart moment here, but he landed closer to Dumb and Dumber. Kill him first? Kill him? Who? Why? Over a fraud case? 

Bannon surely will raise a Double Jeopardy defense here, but he’s cooked on that. He’ll likely claim he was already charged for essentially the same scheme by federal prosecutors (and then pardoned), so how can he be charged again by state prosecutors now? The problem, first, is that the Supreme Court in 2019 reaffirmed the doctrine of “separate sovereigns” – meaning federal and state prosecutors represent different governmental entities and therefore can both charge crimes based on the same underlying conduct. Second, Bannon was never tried, convicted, or acquitted on the original federal charge, so there was never any single jeopardy, so to speak, to lay the groundwork for a Double Jeopardy claim now. Third, New York state passed a law in 2019 specifically permitting state charges for conduct that already has been the subject of a presidential pardon.  

So now Bannon is looking at federal time (at least a month, guaranteed) plus additional state-level exposure. If Bannon does go down on the new state case, the most serious charges against him carry 15-year maximum sentences. He’s not likely to get the max, or anything close to it, but at least a few years seems likely. 

For a 68-year-old who’s not exactly on the TB12 fitness regimen, that’s a cold, daunting reality. The joyride, for Steve Bannon, is over.

Stay Informed,

Elie