NEW YORK — Stephen K. Bannon, the firebrand political strategist and ex-confidant to former president Donald Trump, is fighting to get his federal fraud case formally dismissed over the strong objection of prosecutors, who have argued that his full pardon does not mean his indictment must be wiped from the record.
Bannon, who helped engineer Trump’s 2016 election win before briefly serving as a White House adviser, asked a judge late Thursday to follow others in New York and elsewhere who outright dismissed cases after Trump issued pardons. To support his bid, Bannon cited the post-pardon dismissals of charges against Michael Flynn, Trump’s former national security adviser accused of lying about his contacts with Russian officials, and rapper Lil’ Wayne, who was facing gun charges in Florida.
The U.S. attorney’s office in Manhattan, which is preparing for trial against three of Bannon’s co-defendants in an alleged border wall fundraising scam, is seeking an “administrative” termination of Bannon’s case, which would halt the prosecution against him for good but would not clear his name from the docket. The case would officially remain pending while the others, who were not pardoned by Trump before he left office in January, await trial.
Following Bannon’s pardon, which covers only federal charges, the Manhattan District Attorney’s Office began its own investigation of the alleged scam, raising the possibility that Bannon could face state fraud charges. If his case remains open in federal court, it is not expected to affect the ability of state prosecutors to file charges.
It is not clear why the U.S. attorney is challenging what was expected to be a straightforward dismissal of Bannon’s case, or whether prosecutors believe the case against the remaining three would suffer strategically at trial should Bannon be officially excluded.
In a letter to U.S. District Judge Analisa Torres on Feb. 25, prosecutors argued that “the pardon granted to Bannon is not a basis to dismiss the Indictment against him” and that it does not eliminate the probable cause that led to his indictment, “nor does it undercut the evidence of his involvement therein which the Government expects to elicit as part of its presentation at trial.”
“Were the Court to dismiss the Indictment against Bannon, it could have a broader effect than the pardon itself, among other things potentially relieving Bannon of certain consequences not covered by the pardon,” the letter continued, citing an unrelated case in which a pardoned commodities dealer could not register as a broker.
[All the people President Trump pardoned on his way out of office]
The U.S. attorney’s office declined to comment further about its request to keep Bannon’s case pending. A response to Bannon’s motion is expected in two weeks. It is not clear when the judge is expected to rule on the matter.
Bannon’s attorney Robert Costello argued in the motion that the U.S. attorney’s office is already treating the case as if Bannon were no longer part of it. Prosecutors reminded Costello of his obligation to return or destroy evidence received in the pretrial document-sharing process known as discovery, and Bannon has stopped receiving new discovery materials that his alleged accomplices are receiving.
Costello said the dismissal is being sought because a pardon “means that Mr. Bannon will never be brought to trial” and because, as a person who has not been convicted, Bannon “is presumed by the Constitution to be an innocent man.”
“The presumption of innocence can only be removed by a conviction which will never happen in this case,” Costello added. “The only purpose of an indictment is to apprise an individual of the charges against him or her, and to bring that defendant to trial based upon those charges.”
In the case of Flynn, U.S. District Judge Emmet Sullivan rejected the Justice Department’s request to dismiss but indicated there was no other option but to do so once Trump stepped in with a clemency order. “Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot,” the judge said at the time, according to an account in Bannon’s motion.
Similarly, a federal court in Florida dismissed a gun case against rapper Lil’ Wayne, whose real name is Dwayne Carter. Trump pardoned Carter along with dozens of others on his final day in office. Ken Kurson, a friend of Trump’s son-in-law Jared Kushner and another person to receive a pardon — in a stalking case in Brooklyn — saw the matter wiped from the docket without argument.
Bannon was arrested in August and accused of defrauding supporters of “We Build the Wall,” a private effort ostensibly intended to raise money to build an imposing barrier along the U.S.-Mexico border — Trump’s signature campaign promise in 2016. Bannon was accused of pocketing more than $1 million while conveying to contributors that the entirety of the funds collected would support wall construction. He had pleaded not guilty.
The organization’s founder, Air Force veteran Brian Kolfage, is still expected to stand trial, along with co-defendants Andrew Badolato and Timothy Shea. They also have pleaded not guilty.
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