On Friday, one year to the day after Congress voted to hold Steve Bannon in contempt for defying the Jan. 6 committee’s subpoena, Bannon was sentenced to four months in jail. He was allowed to stay out of custody pending his appeal.
The sentence by Carl J. Nichols, a Trump appointee, was not the six-month term that the Justice Department wanted, which is the top of the sentencing guidelines for the crime of contempt. But don’t be fooled into thinking that the conviction and sentence don’t matter. Holding Bannon accountable in this way is a significant win for the rule of law, even if there is a wait before he actually faces that accountability.
First, the rule of law dies if individuals can thumb their nose at legal processes. A subpoena means you must appear before a court or legislative committee and be sworn to tell the truth. Last October, Bannon decided just not to show up. He was saying in effect, “You can take this subpoena and shove it.”
Law means that legislatively enacted rules are what reign in a country, not kings, their courtiers or their power. Without those rules, there is no order. If one person can violate them without consequence, no one will feel compelled to pay them heed. The result, to borrow the words of 17th century British political philosopher Thomas Hobbes, would be a state-of-nature life that is “nasty, brutish and short.”
Credit Attorney General Merrick Garland for understanding these things and acting. Prior attorneys general have regularly ignored congressional referrals to the Justice Department to prosecute contempt.
Observe the difference that enforcement of the law makes. On Thursday, Politico reported that Donald Trump had hired a law firm to deal with the January 6 committee’s subpoena. That subpoena was officially released on Friday with a demand for him to appear for a deposition on November 4 to testify about his “central role” in the attempt to overturn the 2020 election. In case you haven’t noticed, he hasn’t always been respectful of such commands, but he appears to be paying attention to the subpoena and wanting the committee to know it.
Second, respect for the law requires that the consequences for disobedience be significant. As Judge Nichols told Bannon, “Others must be deterred from committing similar crimes.” The federal contempt statute only required that Bannon serve one month. Four times that mandatory minimum is not nothing.
If Steve Bannon didn’t care about spending months behind bars, why did he lobby for and accept a 2021 pardon on his federal indictment for scamming his followers on a phony grift raising money to “build the wall?”
And for those among us who may doubt that a four-month sentence promotes respect for the law, compare the sobered Steve Bannon of October 2022, after his sentence, with the one before his arraignment in November 2021. In front of the microphones after his sentencing, Bannon expressed his respect for the court and for the legal process. A year ago, he predicted for the media that his trial would be “the misdemeanor from hell” for Merrick Garland, Nancy Pelosi, and Joe Biden. That prediction faded into the woodwork after his conviction, like so much Steve Bannon’s bluster.
Third, Judge Nichols, at a moment where cynicism about our constitutional structure threatens to sweep the country, just reaffirmed that our court system continues to function well. Appointed by Donald Trump in 2018, Nichols brooked no foolery in Bannon’s trial or in imposing sentence.
In this, Judge Nichols followed other Trump appointees on the 11th Circuit, who recently ruled against Trump in the Mar-a-Lago classified documents case. Their rulings have demonstrated that Aileen Cannon, another Trump appointee who has ignored precedent to rule in his favor, will hopefully be an outlier, not representative of those appointed to the bench, whichever president named them. Rather, institutional principle and precedent predominate in the criminal courts over those who would transgress them.
There is something else worth noting. For multiple reasons, the January 6 insurrection and Bannon’s defiance of the House subpoena are birds of a feather. Both involve defiance of law and order. The subpoena that Bannon spurned was part of investigating what happened on Jan. 6. Without a full and complete investigation of an insurrection, more are guaranteed.
That’s why it matters that Bannon was prosecuted and faces months behind bars, just like those individuals who participated directly in the violence. As for his release pending appeal, in my experience as a former federal prosecutor, that was the norm in white collar cases. Nichols was a careful judge during the trial, so you can count on that appeal failing and Bannon doing his time.
Four months in jail may not seem severe unless, like Bannon, you’ve never heard an iron-barred door clink closed behind you as you enter a 10-foot-by-10-foot cell with a toilet, a bed, and little else. Judge Nichols sent a message to Bannon like the one that Nichols’ D.C. colleague, District Court Judge Reggie Walton, issued on Thursday, when he sentenced Jan. 6 insurrectionist Aiden Bilyard: “You make your bed, you gotta lie in it.”
