Turning point: Is Steve Bannon headed to jail?

The Jan. 6 coverup turns criminal

A report on Steve Bannon’s indictment — and please subscribe now for my newsletter on law, news and culture at this button. (-Ari)

The GOP’s Jan. 6 coverup turns criminal

Steve Bannon is probably headed to jail.

That is what he thinks, according to a former aide I spoke to this week. That is what the Justice Department is planning, because prosecutors only bring cases they are confident they can win. And it is what many legal experts believe, based on the clear indictment of his admitted defiance of a subpoena.

On Monday, Bannon showed up ready to exploit his arrest. He live-streamed it online. He plugged his podcast show. He held a press conference, attacking the DOJ, Congress, Pres. Biden and darkly warning that those political opponents will face payback for his arrest. 

“This is going to be the misdemeanor from hell,” he thundered, “they took on the wrong guy!”

Inside the courtroom, though, there was a different guy. 

Bannon’s bravado was replaced by quiet compliance. The indictment is straightforward — Bannon admits his defiance, which is illegal.

So what happens from here?

Guilty

Courts routinely enforce subpoenas, but most come from traditional litigation—not high-profile Congressional investigations. So that makes this a bit different.

Bannon is the first person since 1983 to face a grand jury indictment for criminal contempt of Congress. There have been other contempt votes, but they did not spark referrals that led to actual charges. Part of that reflects just how extreme Bannon’s conduct was—even resistant witnesses do not typically announce to Congress that they are flouting the law. 

Trump aides are different. 

The administration spent four years stonewalling DOJ and Congressional probes more than any other administration. Some efforts basically failed—more Trump figures were indicted and convicted than any first term President; other parts of the strategy cynically “worked,” by delaying testimony long past its substance and salience. (That was the ending of the clash over Congress hearing from “star” Mueller witness Don McGahn).

This time, Congress acted fast, and DOJ backed them up. So Bannon will face a real trial, and real jail time if he’s convicted. His choices are fight, as he pledges; or seek some plea or accommodation with DOJ prosecutors, whom he is currently attacking.

From Coup to Cover-up 

Then there’s the most sweeping impact of this indictment:

We just entered the criminal cover up phase of the January 6th coup attempt.

Until now, basically all charges relating to January 6 were for the direct participants who breached the Capitol. 

This is the first indictment of a senior Trump White House veteran. 

And one who touted “all hell” breaking loose in advance of the Jan. 6 insurrection.

It’s also the first indictment for the cover up—not the act. 

The Justice Department is approaching this as a criminal cover up, (with all the echoes of Watergate). Bannon is presumed innocent, like any defendant, but the DOJ has moved from approaching this as the prosecution of an incident... to prosecuting an ongoing cover up, including the obstruction of a valid, government investigation in the House. 

That’s a legal shift. And a big deal.

For any Trump aides or witnesses who are not as eager as Bannon to spend years fighting off jail, this move adds serious heat on them to comply with Congress. (Investigators believe it is already moving a key figure, Trump Chief of Staff Mark Meadows, towards more negotiation or cooperation.) Conversely, if Bannon did beat the charge, that could undercut pressure to cooperate.

He has beat a federal case before, but only with an assist from then-Pres. Trump. 

Bannon was indicted for defrauding MAGA and Trump supporters who thought they were donating money to build the wall, but pardoned before trial. Bannon’s approach to fundraising echoes his approach to campaigning and governing—crossing lines, claiming “disruption” as a strategy, offering bravado when caught.

I pressed him on his funding in a 2018 interview, where he was cagey on details, and claimed to be “selective” about his donors. The later indictment said the opposite.

This time, there is no political ally in the White House to pardon Bannon. And all the hijinx on the court steps will melt into compliance inside the courtroom, where a jury will ultimately decide his fate.

P.S. Do you think this trial is important for accountability? What other questions do you have about the process? Answer in the comments and I will try to respond to some of you per usual.

P.P.S: Here’s that full interview from 2018: