How a judge explained his sentence of Steve Bannon to four months for contempt of Congress

A sentence of four months in prison that ex-Trump adviser Steve Bannon was sentenced was shorter than the six months prosecutors were seeking, but still a noteworthy punishment and a boost to the House January 6 committee’s efforts.

As lawmakers have struggled for years to secure participation with Trump allies in their investigations, the sentence was a warning shot to other reluctant witnesses as the House January 6 probe could be entering its final months. The sentence was also handed down just hours before the select committee unveiled a subpoena to former President Donald Trump.

Though the sentence was a major rebuke to Bannon’s request that he receive only probation for the offense, US District Judge Carl Nichols sided with Bannon in ruling that the former White House official would not have to serve the prison sentence until the appeal of his conviction plays out. His legal team will have 14 days to file the appeal, and if they don’t, Bannon will have to make arrangements to surrender voluntarily by November 15.

Here’s what happened in the sentence proceedings, which lasted more than two hours Friday morning.

Nichols said Bannon showed “no remorse” for his actions

Nichols said that Bannon had failed to show responsibility for his conduct, a factor that ultimately led the judge to a heavier punishment. “He has expressed no remorse for his actions,” Nichols said during the proceedings, and the judge stressed that Bannon had not demonstrated that he would comply with the subpoenas.

Other factors cut in favor of a substantial penalty as well, the judge said. There were “problems,” the judge said, with Bannon’s position that Trump made an assertion of executive privilege that prevented Bannon testifying or turning over any documents.

Bannon was also a private citizen, having been out of government for years, Nichols said. He said it was possible that some of the requested information was covered by privilege, the judge noted, but Bannon was less likely to have privileged documents than others. Bannon’s failure to turn over any documents to the committee, or even put together a privilege log, weighed against him as well, the judge said, and Nichols pressed his lawyers on this point several times during the hearing.

The judge also concluded that “Mr. Bannon appears to be of perhaps some very small risk of recidivism,” at least when it comes to subpoenas.

Other factors cut in in Bannon’s favor

There were factors that weighed in Bannon’s favor, the judge said before announcing the sentence.

The subpoena to Bannon presented potential legal issues, the judge said, as it concerned someone who spoke to the President.

“Mr. Bannon did not completely ignore the fact that he had received a subpoena,” Nichols said, pointing to Bannon’s use of an attorney who engaged with the committee. That the lawmakers moved quickly to hold Bannon in contempt, rather than go the route of filing a civil lawsuit to enforce the subpoena, also cut in his favor, the judge said.

Bannon had been compliant with the conditions of pretrial release and in the proceedings in Nichols’ courtroom.

Prosecutor urged judge to treat Bannon ‘like every other citizen’

In arguing for a six-month prison sentence, US attorney J.P. Cooney told Nichols that all the government was asking for was Bannon to be “treated like every other citizen.”

Citizens show up to comply with grand jury subpoenas every day, and “those citizens put themselves in harm’s way to cooperate,” Cooney said.

“This man, the defendant, a man of means, a public figure, suffered no such threats for testifying,” the prosecutor argued, adding that Bannon “never lifted a finger” to find a responsive document or talk to the committee.

Bannon “thumbed his nose at Congress,” Cooney said, adding that “the defendant is not above the law.”

Bannon attorney defends his conduct: “Mr. Bannon should make no apology.”

As he argued for leniency, Bannon attorney David Schoen rebuked the idea that a lack of remorse warranted a harsher sentence.

“Mr. Bannon should make no apology,” Schoen said, as he claimed that the prosecution ran afoul of the Constitution. “There is nothing here to deter, there is nothing here to punish.”

Schoen’s impassioned remarks went on for more than a half-and-hour, his voice raising at times. He made several extended references to James Madison, appearing to read from a paperback copy of The Federalist Papers, and he described the government’s approach in the case as “tyranny.”

He said the way that Bannon approached the subpoena, by prioritizing concerns about executive privilege, was the “kind of conduct we should encourage in this country.” He accused the DOJ of “trying to make an example out of Mr. Bannon.”

Bannon — who did not wear a suit for the proceedings, but rather dark pants and a olive green barn coat — kept a stoic face throughout Friday’s proceedings. He cracked a smirk, however, when the judge announced that he would not have to serve his sentence until after the appeal was litigated.

Schoen was asked Friday night by CNN’s Jake Tapper why his client hadn’t complied with the committee’s subpoena and then invoked the Fifth Amendment, much like other former Trump officials who testified before the committee.

“Because he’s Steve Bannon,” Schoen said on “CNN Tonight with Jake Tapper,” adding, “He doesn’t like the optic of taking the Fifth Amendment.”

This story has been updated following Bannon’s sentencing.

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