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July 22, 2022

Should "pardoned conduct" be part of Steve Bannon's sentencing after his convictions for contempt of Congress?

Regular readers know that I have long been troubled by the use of so-called "acquitted conduct" in federal sentencing, but today's news of Steve Bannon's conviction on two federal criminal charges brings an interesting twist on what conduct a federal judge should or should not consider at sentencing.  First, here are the basic's of Bannon's convictions and coming sentencing via NBC News:

A jury on Friday found former Donald Trump adviser Steve Bannon guilty on two counts of contempt of Congress for blowing off the Jan. 6 select committee.

Bannon's sentencing is scheduled for Oct. 21 when he will face a mandatory minimum prison sentence of 30 days and up to one year behind bars. He could also be fined $100 to $100,000. He is expected to appeal....

Judge Carl Nichols repeatedly refused to delay Bannon's trial despite the defense team's contention that publicity from the Jan. 6 committee hearings would affect the jury pool and their contention that Bannon was barred from testifying due to Trump's purported claims of executive privilege.  A jury was seated on Tuesday morning.

Second, here is the full text (with sentencing terms) of the federal statute, 2 USC § 192, which served as the foundation for Bannon's convictions:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

Third, recall that Bannon was indicted by federal prosecutors back in August 2020 on fraud and money laundering charges, but Prez Trump pardoned Bannon on this last day in office before the case had moved significantly forward.  This Washington Post article made note of notable comments by the federal judge who dismissed the charges following the pardon:  

A federal judge on Monday formally dismissed the fraud case against Stephen K. Bannon, the conservative provocateur and ex-adviser to President Donald Trump, ending months of litigation over how the court system should handle his pardon while related criminal cases remain unresolved.

U.S. District Judge Analisa Torres, citing examples of other cases being dismissed following a presidential reprieve, granted Bannon’s application — saying in a seven-page ruling that Trump’s pardon was valid and that “dismissal of the Indictment is the proper course.”...

In her decision Tuesday, the judge pointed to past judicial discussions on pardons and what they imply about individuals who receive one.  She quoted from a New Jersey court that, in 1833, found that “pardon implies guilt.”

“If there be no guilt, there is no ground for forgiveness. … A party is acquitted on the ground of innocence; he is pardoned through favor,” it says, according to Torres’s ruling.

Putting all these pieces together leads me to the question in the title of this post, namely whether folks think it would be proper (perhaps even obligatory) for Judge Carl Nichols to consider and give significant attention to the prior (and now pardoned) allegations of fraud involving Bannon. 

Of course, 18 USC § 3553(a)(1), calls upon a court at sentencing to consider "the nature and circumstances of the offense and the history and characteristics of the defendant."  The past (alleged and pardoned) fraud conduct certain has part of Bannon's history and characteristics, and a pardon is arguably the antithesis of an exoneration and does not undercut historic jury trial rights like the use of acquitted conduct at sentencing.  Nevertheless, because I think better practice for all purposes is for pardons to be honored and respected through a complete wiping away of all criminal justice sanctions and consequences, I am inclined to want Judge Nichols to not give attention to "pardoned conduct."

July 22, 2022 at 04:46 PM | Permalink


The answer to your question is yes. The sentencing court should follow the statute, 18 USC 3553(a). All of Bannon's behavior is fodder for consideration at sentencing. Neither a pardon nor an acquittal means the defendant didn't do it.

Posted by: Bill Otis | Jul 22, 2022 5:08:42 PM


I think the pertinent statute is 18 USC 3661:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

Posted by: Da Man | Jul 24, 2022 6:18:10 PM

Da Man --

Yes indeed. That statute is even more relevant than the one I named. Thanks.

Posted by: Bill Otis | Jul 24, 2022 6:44:42 PM

Not the most brilliant sentencing strategy for the defendant to shoot his mouth off on television the day after his conviction. It's as if Bannon is daring the court to give him 12 months on each count, to be served consecutively.

And the court has three months to construct a sufficient justification for such an upward variance/departure. Using the prior pardoned conduct would be an important part of that justification.

Posted by: Tom Root | Jul 25, 2022 8:53:17 AM

There is a cooling breeze blowing through Hades today. I agree with Bill, at least on his last sentence and the outcome.

Though neither an acquittal nor a pardon means the defendant didn't do it, I think both carry an intention and implication that he shouldn't be punished for it. And I think that incorporating that conduct into calculation of the starting point for punishment, in what was designed as a determinate sentencing regime and still operates as determinate-lite, infringes the purpose and effect of both the acquittal and the pardon.

But we know where the law is on considering acquitted conduct. I see no basis for treating a pardon differently.

Indeed, because an accepted pardon carries an imputation of guilt, whereas an acquittal does not, I think there would be less basis for ignoring pardoned conduct than acquitted conduct.

Posted by: Def. Atty. | Jul 25, 2022 12:53:19 PM

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