Steve Bannon Trial is October 21st

and his odds of avoiding prison are fraught with problems

In 1968, Mel Brooks was the first person to use the phrase “creative accounting” in the film “The Producers”¹.

When I was a criminal defense attorney, I once described the job as “creative losing”. Get some of the charges dropped at the preliminary hearing, it’s a win. Plea a case down to misdemeanors, another win. Talk DA into consolidating charges into a single sentence, great win. Beat some of the charges at trial, win again. But none of the foregoing supplants the ultimate win - beating the government at sentencing.

In federal cases, it’s the only win there is. U.S. Attorneys come to court with ring-fenced cases and a 98% plus conviction rate. They rarely drop charges; and when they do, it’s for cooperation. Federal sentencing guidelines are formulaically designed to give the government a fairly constrained sentencing recommendation.

Insofar as the U.S. Sentencing Commission’s guidelines are advisory, criminal defense attorneys have the creative license to shoot fot a lot less, often dramatically so, on the day sentencing is imposed.

Which brings us to Steve Bannon. After asserting executive privilege as a basis for refusing to testify before the House Select Comittee to Investigate the January 6th Attack on the Capitol, Steve Bannon was subpoenaed, held in contempt, indicted, tried, and convicted.

Oh and to make things interesting, former-President Donald Trump, who does not have executive privilege (President Biden does²), waived his “privilege” just prior to Bannon’s July 18th trial. And once Trump said that, Bannon was suddenly ready to testify³.

Now, a bit of realism about what is coming next:

Promises by his attorney to appeal notwithstanding, Bannon is now kind of obligated to testify before the January 6th Committee. He needs to unless he wants to hit the high end of sentencing for Contempt of Congress (it’s 12 months and he has a prior federal conviction⁴).

Any interviews with the Committee staff are certain to include the feds in some way, shape, or form. And as I intimated two weeks ago⁵, there is a big risk to Steve Bannon of a perjury charge should he decide that protecting Trump is more important than avoiding prison.

Bannon’s conviction changes the landscape for anyone subpoenaed imagining a circuitous legal route to avoid cooperating. That would include Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, and almost likely Trump’s Secret Service detail on January 6th.

At some point between now and October 21st, Donald Trump will either find in Steve Bannon another Michael Cohen or a Paul Manafort. For Trump’s sake, Bannon should be Manafort. For Bannon’s sake, he should be Cohen. But then again, prison was scary in both instances.

1. https://en.wikipedia.org/wiki/Creative_accounting

2. BTW, Joe Biden waived executive privilege for Bannon and a slew of others

3. https://www.rawstory.com/jan-6-steve-bannon/

4. A bit of a legal oddity in that Bannon was pardoned before he went to trial which means he admitted to legal culpability without an actual conviction. Premptive pardons rest upon the recipient admitting that they have committed the offenses in the indictment.

5. The Trump Tease