Bannon charged
Top former Trump strategist Steve Bannon has been charged in New York with money laundering, conspiracy and scheme to defraud in connection with his role in a fundraising effort to privately underwrite the construction of the US-Mexico border wall, according to the indictment unsealed on Thursday.
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Bannon is facing charges that he siphoned off more than $1m from the “We Build the Wall” fundraising effort that promised to send all proceeds towards underwriting the completion of the US-Mexico border wall to enrich himself and his associates, the 22-page indictment said.
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Bannon never went to trial after he received a presidential pardon from Donald Trump that expunged the federal charges. But pardons do not apply to state-level prosecutions and the New York state charges mark significant legal peril for the architect of Trump’s 2016 election win.
I sincerely hope so.
The Manhattan district attorney’s office started examining whether to pursue a case against Bannon almost immediately after he received the pardon, one source with knowledge of the matter said, and several close Bannon allies recently received subpoenas to testify before a grand jury.
That office opened its case armed with the knowledge that two others – Kolfage and Badolato – had pleaded guilty to the August 2020 federal case, and that Kolfage had admitted to the judge that he had conspired to illegally receive money from donations made to the project.
Also isn’t accepting a pardon seen as admission of guilt? Don’t some people turn them down for that reason?
“Defendants defrauded hundreds of thousands of donors, capitalizing on their interest in funding a border wall to raise millions of dollars, under the false pretense that all of that money would be spent on construction,” Audrey Strauss, the US attorney in Manhattan, said at the time.
Spent on construction of a spiteful racist wall. I don’t have a whole lot of sympathy for the donors, I gotta say.
I would say that proposition is dubious at best.
I mean, technically your statement is correct that accepting a pardon may be “seen” by some people as an admission of guilt. But some people believe lots of weird things.
But the argument that there is some actual legal implication of guilt is weak at best. There’s a line in an old Supreme Court decision that people sometimes cite for that proposition, but it’s dicta (meaning the Court was not actually deciding that issue). Now, Supreme Court dicta isn’t nothing, but it’s stacked up against a lot of good arguments and citations to the contrary. Among other things, it would also undermine the pardon power if legal inferences could be drawn from accepting one.
It’s not even clear what it would mean anyway. Violation of a NY criminal statute is considered a different offense than violation of a federal one, even if the elements are the same. Even double jeopardy doesn’t apply — you can be acquitted of the federal crime but still convicted of the state crime, or vice versa, under what’s called the “separate sovereigns” doctrine. I suppose there could be an argument over whether the pardon can be admitted in a NY trial as evidence of something, but my guess is that the prosecution wouldn’t even want to risk it — if they actually got the judge to allow it, that’s easily reversible error if a higher court disagrees (as I suspect would be the case).
So yeah, you’ll see plenty of people claim that accepting a pardon is acceptance of guilt, and it’s not a frivolous argument, but I think most experts don’t think much of it, and it’s likely to remain a theoretical argument.
Useful, thank you. The question marks weren’t rhetorical.
@Screechy Monkey,
Along those same lines, I saw an argument a few years ago that if you’re pardoned for a crime, you can’t then plead the fifth to Congress regarding said crime, since you’re no longer liable to criminal prosecution. But if you can be charged at the state level for the same actions, wouldn’t that potentially lead to self-incrimination?
When Joe Arpaio ran for Senate in Arizona an interviewer on TV told him that accepting Trump’s pardon was an admission of guilt, the look on his face was delicious. No one had thought to tell the fool up until then.
I’m glad to see Bannon indicted. He is a slimy crook.
WaM,
You are correct. One of the requirements for invoking the Fifth is that you have a reasonable basis to fear that your testimony would be used to prosecute you. (I forget the exact phrasing of the standard, but it doesn’t really matter for purposes of this question. But note that it’s not a reasonable fear of guilt, or even conviction.)
If that possibility does not exist, then you can’t use the Fifth. Pardons are relatively rare, so this tends to come up more in the context of grants of immunity. If the relevant prosecutorial authority grants you immunity from prosecution, then you can be compelled to testify. (There are two kinds of immunity, transactional and use, but I’ll spare you that digression.) But of course if there’s another potential prosecution that isn’t bound by that immunity, then the Fifth would still be available. So if we were talking about a crime where no state law equivalent exists, then a pardon would be sufficient to compel testimony, but if there’s still a legitimate fear of prosecution by a state, then no.
Thanks, that’s good to know.
Here’s an article discussing a 2021 case from the 10th Circuit that actually ruled on this issue, holding that acceptance of a pardon was not a confession or admission of guilt.
Kind of strange that a pardon would be something you could accept or decline in the first place. Isn’t being pardoned one of those things that happens to you without your participation, even posthumously?
Interesting article.
Wouldn’t the pardon power be available to an executive to exercise if the executive believes the convicted person to be factually innocent? If not, what means is available to the executive to grant relief from conviction for factual innocence?
twiliter — the Burdick case involved a newspaper editor who was being compelled to divulge his sources, and resisted on Fifth Amendment grounds. (These days, you’d more likely see a First Amendment defense, but that’s a whole new discussion, and in any event this was the early 20th century.) The pardon was intended to function as a sort of immunity and thus force him to testify. The Supreme Court held that he had the right to refuse the pardon.
maddog — yes, pardons have been used in that context. That’s one of the things the 10th Circuit discussed.
I see what you mean, I guess it’s like a bestowal where one could refuse. Seems odd though.
Wasn’t the Fifth Amendment put in because of the history of torture being used to elicit false confessions?
I can also see things somewhat less extreme than torture being used similarly.
If there isn’t reason to think the confession might be false, why worry about self incrimination?
(Not rhetorical questions. Maybe there are other good reasons.)
Jim@13,
Well, among other things, without a privilege against self-incrimination, law enforcement has carte blanche to harass people. (I mean, more so than it already does.)
Drag someone in front of a grand jury and ask them all sorts of questions about everything they’ve done or said. Eventually they’ll say something that can be used to charge them with a crime — either some underlying offense, or else perjury.
Hell, without the 5th, you don’t even need a grand jury. States could make it a crime to refuse to answer a police officer’s questions.
Being able to refuse to answer questions forces law enforcement to actually come up with a sufficient evidentiary basis to bring charges, instead of just going on a fishing expedition.