Nichols cushioned the blow of the four-month prison sentence by opting to allow Bannon, 68, to remain free pending appeal, which is likely to push the issue back until next year and possibly be longer.
A jury convicted Bannon in July of two counts of contempt of Congress — one for refusing to testify before the Jan. 6 select committee, the other for refusing to provide relevant documents to the panel.
The select committee subpoenaed Bannon to appear in September 2021 as he sought testimony from close Trump aides involved in efforts to help him overthrow the 2020 election. Prosecutors indicted him in November 2021, three weeks after the House voted to despise him.
Bannon entered the courtroom on Friday wearing a drab green barn jacket and carrying a copy of the Financial Times. He was not wearing a tie and, as usual, had three pens hidden outside the outermost of his three visible shirts. The former White House official spoke only briefly, saying he was happy with his attorneys and had enough time to review the probation office’s report on his conduct and background.
Bannon, who remained impassive during the hearing, chose not to address Nichols when given the opportunity for all defendants to explain their actions. “My lawyers spoke for me,” he said.
An attorney for Bannon, David Schoen, said his client should show no remorse because he did nothing wrong and deserves no punishment.
“This is a case in which, quite frankly, Mr. Bannon should not apologize,” Schoen said. “There is nothing here to deter. There is nothing here to punish.
Prosecutor JP Cooney railed against Bannon, pointing the finger at him and saying he “showed his contempt for the criminal justice system, his contempt, his contempt for Congress.”
Cooney portrayed Bannon as a stubborn defiance of congressional demands.
“The defendant did not lift a finger,” the prosecutor said. “We could have been in a different situation if the defendant had fulfilled his minimum obligation, which is to appear. He didn’t even manage to do that…I can’t think of any more blatant disregard than the one he engaged in.
Nichols explicitly disagreed with the government on this point, noting that Bannon had hired legal counsel and had dialogue with the committee. His lawyers also pointed out that he said he was prepared to testify if the privilege issue was resolved through negotiation or a court.
Schoen used the sentencing hearing to attack the government’s tactics in the case, complaining that prosecutors searched email and phone logs for Bannon’s attorney, Robert Costello, and ended up recovering files that actually belonged to another man with the same name.
Prosecutors acknowledged errors in their handling of those requests, but Schoen lambasted the government for its conduct.
“It’s a lie to a federal judge,” he said. “It degrades the integrity of this process.”
Under federal law, the two counts Bannon was convicted of each carried a minimum sentence of one month incarceration and a maximum of one year in prison. The Justice Department had asked Nichols to sentence Bannon to six months in prison. Prosecutors argued the minimum sentence was mandatory, but Bannon’s attorneys argued he could be sentenced to probation or house arrest, rather than jail.
Nichols said several favors weighed in favor of a “substantial” sentence for Bannon – from the seriousness and importance of the Jan. 6 select committee investigation to Bannon’s continued defiance of the select committee even after Trump claimed in July to “renounce” any claim of executive privilege over his cooperation.
While many legal commentators have insisted that Bannon could not have had privileged conversations with Trump after Bannon left the staff of the White House in 2017, Nichols said Friday that such discussions could be covered by executive privilege.
However, the judge also seemed troubled that Bannon never produced any documents to the committee, even those that seemed certain not to be covered by a privilege Trump asserted.
Nichols acknowledged that Bannon appeared to be relying on his attorney’s advice, and he noted that the Jan. 6 select committee opted against a civil suit to enforce his subpoena.
Bannon was the first of four witnesses held in contempt by the select committee for refusing to comply with a subpoena. Another, former Trump adviser Peter Navarro, has also been charged and is due to stand trial next month before US District Court Judge Amit Mehta. The Justice Department, however, declined to press charges against two other top Trump aides, Mark Meadows and Dan Scavino, who were also scorned by the panel.
Bannon, who used his “War Room” podcast to promote false claims that the election was stolen by Joe Biden, was among those who helped Trump strategize to keep Biden from taking office, in part. by orchestrating the challenges of Congressional Republicans. Bannon was part of a team of close advisers to Trump who helped monitor real-time strategy from a command center at the Willard Hotel on January 5-6, 2021. He also helped convince Trump to focus his energy on January 6. congressional election certification session as a last resort to stay in power.
Bannon also appeared to express knowledge, in late October 2020, of Trump’s plan to declare victory on election night even before the results of the presidential contest were conclusive.
Prosecutors have also raised concerns about Bannon’s handling of the criminal case against him. Days before his trial began, Bannon and Trump attempted to derail the start of the trial by abruptly announcing a change of heart on Bannon’s willingness to testify – and Trump’s willingness to “relinquish” any claims of executive privilege on Bannon’s testimony.
DOJ attorneys argued that the move was primarily intended to disrupt the trial. Bannon has yet to provide any documents or testimony to the select committee despite Trump’s alleged decision to bless his cooperation.
Bannon primarily argued that the case against him is based on an unfair interpretation of complex legal principles regarding executive privilege, the powers of the former president and whether he had the right to rely on the advice of his attorney when he initially chose not to appear to testify to provide any documents to lawmakers.
As the week-long trial approached, Nichols agreed with prosecutors that long-standing court precedents prevented Bannon from arguing that he was merely following his attorney’s advice. And Nichols agreed that the same precedent prevented Bannon from claiming he believed he was immune from testifying due to Trump’s executive privilege, a move that stripped Bannon of his strongest defense. Bannon intends to make those rulings a centerpiece of his appeal.
Despite his near-silence in front of the judge on Friday, after the hearing, Bannon eagerly appeared before the cameras camped outside the court. The former White House aide proclaimed his respect for the court and the “judicial process”, then embarked on a political campaign declaring that next month’s midterm elections would spell disaster for the Biden administration.
“The Biden administration ends…November 8,” Bannon promised. “Merrick Garland will be the first attorney general charged with impeachment and removed from office.”
Bannon’s provocative comments echoed his explosive remarks at the start of the criminal case last year, when he said it would prove “the crime from hell for Merrick Garland, Nancy Pelosi and Joe Biden “.
When Bannon was asked on Friday why he chose not to testify at his trial or not address the court at sentencing, Schoen interjected and said, “It was under my direction.”
Schoen told reporters that Nichols’ decision to allow Bannon to delay his entry into prison showed the seriousness of the legal issues raised in his appeal.
“It is an extraordinary decision to allow a suspension pending appeal. It was the proper decision,” the defense attorney said. “I believe the appeal in this case is bulletproof.”