Federal prosecutors urged a judge Monday to make former president Donald Trump’s political confidant Stephen K. Bannon the first person to be incarcerated for contempt of Congress in more than a half-century, recommending he serve six months in prison for refusing to cooperate with a House committee probing the Jan. 6, 2021, Capitol attack.
They also sought to fine Bannon the maximum $200,000 allowed because he refused to cooperate with court officials’ routine presentencing investigation and divulge his financial records.
“The rioters who overran the Capitol on January 6 did not just attack a building — they assaulted the rule of law upon which this country was built and through which it endures. By flouting the Select Committee’s subpoena and its authority, the Defendant exacerbated that assault,” U.S. prosecutors J.P. Cooney and Amanda R. Vaughn wrote in a 24-page sentencing request. “Such behavior cannot be tolerated, lest it become commonplace and accepted, and the important work of congressional committees like the Select Committee rendered impossible.”
Bannon was convicted at trial in July by a federal jury in Washington on two misdemeanor counts — for refusing to provide either testimony or documents — each punishable by at least 30 days and up to one year in jail.
The House committee investigating the U.S. Capitol attack featured Bannon in its final public hearing Thursday, citing evidence lawmakers said indicated he had advance knowledge of Trump’s intent to declare victory falsely on election night and his plans for Jan. 6.
“All hell is going to break loose tomorrow,” Bannon said on his radio show the day before the attack, in audio excerpts played by lawmakers. Three days before the Nov. 3, 2020, election, he told associates from China, “What Trump’s gonna do is just declare victory. Right? He’s gonna declare victory. But that doesn’t mean he’s a winner … He’s just gonna say he’s a winner.”
Bannon’s defense requested probation and asked that at sentencing Friday, U.S. District Judge Carl J. Nichols stay any sentence imposed until an appeal is decided.
They argued that a D.C. federal appeals court precedent applied by trial judge Nichols to Bannon’s case was unconstitutional — barring defendants charged with contempt of Congress from raising as a defense that they relied on the advice of counsel or believed their cooperation was barred by a president’s claim of executive privilege.
“The ear of a sentencing judge listens for the note of contrition. Someone was convicted. Did they learn their lesson? This case requires something more. It involves larger themes that are important to every American,” attorneys M. Evan Corcoran and David I. Schoen wrote.
“Imposing a sentence of incarceration without requiring proof that Mr. Bannon knew that his conduct was wrong, where the statute requires one to act ‘willfully,’ would violate his rights under the 5th, 6th, and 8th Amendments to the United States Constitution,” they wrote, arguing that prosecutors should have been required to prove Bannon’s criminal intent.
Bannon, 68, a right-wing podcaster and former chief Trump campaign and White House strategist, is the closest person to Trump to be convicted of a crime following the attack on Congress as it met to confirm the 2020 presidential election result. Bannon was not at the Capitol that day, but the contempt case came after lawmakers’ attempt to enforce their calls for witnesses with information to come forward, employing a rarely used criminal statute meant to ensure people comply with congressional subpoenas.
During Bannon’s trial, Corcoran suggested that the committee’s subpoena was illegitimate and politically motivated, and that the deadlines for Bannon to comply were merely “placeholders” for further negotiation. Corcoran, who is also a lawyer for Trump, has become enmeshed as a key figure of the Justice Department and FBI investigation of alleged mishandling of classified documents at the former president’s Mar-a-Lago resort.
U.S. prosecutors highlighted Bannon’s failure to respond or to produce a single document before the subpoena deadline after which Bannon’s attorneys asserted that Trump intended to invoke executive privilege, even though it did not apply because Bannon left the White House in 2017.
In fact, a lawyer for Trump made clear to Bannon’s attorney privately that the former president had given no such instruction. Prosecutors in Monday’s written sentencing recommendation highlighted Trump attorney Justin Clark saying he was angered that Bannon attorney Robert J. Costello “completely misrepresented” Clark’s position in a letter to the committee.
Prosecutors also noted that shortly before trial, Corcoran contacted lead committee investigator Timothy J. Heaphy “as part of a duplicitous quid pro quo” — proposing a strings-attached offer that Bannon testify to the committee in exchange for it supporting a move to end his prosecution — a “stunt” that Heaphy rejected and Corcoran never presented to the government, they said.
Prosecutors called the actions part of a pattern of Bannon’s “absolute” contempt for Congress, which they said included a litany of “hyperbolic and sometimes violent rhetoric” disparaging the House investigation, lawmakers and criminal justice system.
Bannon resorted to “name calling, mimicry, and menacing rhetoric” at lawmakers, memorably vowing to turn his case into “the misdemeanor from hell,” threatening to “go medieval” on enemies and likening his case to a “Moscow show trial of the 1930s,” prosecutors recited.
“The Defendant’s statements prove that his contempt was not aimed at protecting executive privilege or the Constitution, rather it was aimed at undermining the Committee’s efforts to investigate an historic attack on government,” prosecutors Vaughn and Cooney wrote.
No one has been jailed for contempt of Congress since the red-baiting House Un-American Activity Activities Committee hearings of the Cold War era. President Ronald Reagan’s former assistant secretary of state, Elliott Abrams, and former senior CIA official Alan D. Fiers Jr. each served less than a year of probation and community service for taking part in a cover up of the Iran-contra scandal, court records show, before receiving pardons from President George H.W. Bush in 1992.
Scott J. Bloch, former head of the federal agency that protects government whistleblowers during the George W. Bush administration, pleaded guilty in 2010 and was sentenced but was later allowed to withdraw his plea and admit instead to destruction of property. He also served probation.
Bannon is one of two former Trump aides to face criminal charges in connection with rebuffing the committee. Former White House trade adviser Peter Navarro’s trial is set for November.
The Justice Department has said it would not charge former Trump White House chief of staff Mark Meadows and communications chief Dan Scavino Jr., who also were referred by Congress for potential criminal prosecution.
Unlike Bannon and Navarro, Meadows and Scavino engaged in months of talks with the committee over the terms and limits of potential testimony and executive privilege claims. Meadows also turned over thousands of text messages and communications with members of Congress and other White House aides before ending negotiations and withdrawing his appearance for a deposition.
And unlike the other three men, Bannon left the Trump White House in 2017 and was a private citizen at the time of the 2020 election and subsequent presidential transition.