When far-right firebrand Steve Bannon was hit with new fraud charges over an alleged border fundraising scheme, he joined the ranks of several close associates of Donald Trump recently prosecuted by the Manhattan district attorney’s office.
In 2019, then-U.S. Attorney Cyrus Vance Jr. brought mortgage fraud charges against Paul Manafort, Trump’s 2016 campaign chairman. And in 2021, current U.S. Attorney Alvin Bragg charged former Trump Organization CFO Allen Weiselberg, for fraud, and Ken Courson, for cybercrime, in separate cases.
Taken together, the cases suggest that the actions of some of Trump’s top allies could still create legal headaches long after Trump has left the White House and even after he has been pardoned.
Charges don’t necessarily lead to convictions, of course, let alone harsh prison terms, as evidenced by the outcome of these past cases. Manafort, who was convicted in federal court before the New York case unfolded, ultimately did not face state charges on double jeopardy grounds. Manafort was pardoned by Trump about two months before the ruling that he could not stand trial in state court due to double jeopardy.
Courson — who was first charged in Brooklyn federal court with online stalking but was euthanized by Trump before he left office — pleaded guilty to two misdemeanors and was ordered to do community service in his state case. Weiselberg, meanwhile, is expected to serve just 100 days in a local jail under his plea deal.
On the surface, some might question whether Bannon’s case at the state level has the same legal weakness as Manafort’s. Bannon was federally charged in August 2020 for allegedly embezzling more than $1 million from the “We Build the Wall” online fundraising campaign. Trump also pardoned Bannon before his case went to trial.
But longtime lawyers told the Guardian that Bragg Bannon’s case was different from Vance’s prosecution of Manafort because when Bannon was pardoned, state-level charges for the same alleged wrongdoing did not carry the same double jeopardy risks, they said.
“Under the New York state constitution, as a general matter, when [federal prosecutors] to prosecute, the state is barred from charging the same offense,” explained Ron Kuby, an attorney. “But that’s a double jeopardy protection, and Bannon was never put in jeopardy, because he never went to trial.”
Kubey also said the prosecution of Bannon sends a strong message to right-wing activists and Trump allies. “He’s not getting a pass on state crimes because his friend the president gave him a federal pardon — nor should he.
“If you look at it from a political perspective, you can imagine a corrupt president giving blanket pardons to all of his cronies, making those cronies seem above the law. Now you have elected district attorneys, showing that cronies are not above the law,” Kuby said.
Neama Rahmani, president of the West Coast Trial Lawyers of Los Angeles, also believed that double jeopardy would not protect Bannon. “New York has a very specific double jeopardy law,” Rahmani explained. “Basically, it says that the state of New York cannot bring a subsequent prosecution after any prosecution has been initiated.”
New York’s double jeopardy law does apply to Manafort, as he has already been tried and convicted. Bannon, on the other hand, was neither convicted nor tried, meaning “that New York state law would not apply.”
“No jury was sworn, no witness was sworn, [so] the risk was not attached,” Rahmani said. “New York does not consider Bannon to be prosecuted, even though he has been indicted [federally] for the purposes of this act”.
Attorney Julie Redelman explained that New York law changed in 2019, making it easier to charge a person in a state case similar to federal crimes for which they received a pardon. That means Bannon’s case could proceed “without the concern of double jeopardy that happened with Manafort.”
Redelman also said New York prosecutors can bring charges for crimes that stretch across state lines. “If any aspect of the case happened in New York, they have the right to pursue it.”
With double jeopardy protections unlikely to apply, Bannon appears to be in significant legal trouble.
“I think he could be in grave danger in this situation because it seems like there was a very good case that the federal government had, and I guess the New York district attorney has a lot of that,” said Carl Tobias, Williams’ president. Law at the University of Richmond School of Law.
Bannon has denied any wrongdoing, calling the indictment a “bogus charge” and “nothing more than a partisan political weaponization of the criminal justice system,” according to CNN.
Kuby outlined a possible defense, though it may not be likely to be developed by Bannon’s team.
“What is the crime of stealing from people who want to build a border wall compared to the crime of building a border wall?” Kubi said. “To the extent that Steve Bannon has fended off his gullible, bigoted, angry followers, I think that’s great.”
He added: “I would really represent him on the grounds that he has performed a public service: money that was supposed to be used to make life harder for poor immigrants has been appropriated for other purposes.”