Steve Bannon sentenced to 4 months in jail: Key takeaways and analysis

Our brilliant live-blogging legal analyst Lisa Rubin was just on MSNBC explaining what this sentence means and what might comes next.

One important thing to keep in mind: There's little chance this potential jail time will change Bannon's pattern of defying democracy and the rule of law.

“This is a person who will continue to contumaciously pursue his allegations of election fraud and treat the Jan. 6 committee with utter disdain," Lisa said.

Steve Bannon has been sentenced to jail time, you say? 

The four-month jail sentence is meager in my view, and an indicator of inequities between judicial treatment of wealthy white guys compared to everyone else. 

But I’d be remiss if I didn’t offer Bannon a gift fit for the occasion: this sentencing-themed playlist of songs featuring the likes of Eminem, DJ Khaled, Mary J. Blige and The Fray.

“Today was my judgment day by the judge,” Bannon just said outside of court.

He then pointed behind him, saying: “As that sign says right there … on Nov. 8, there’s going to [be] judgment on the illegitimate Biden regime and, quite frankly, Nancy Pelosi and the entire [Jan. 6] committee.”

“And we know which way that’s going,” he added, citing Reps. Liz Cheney and Adam Kinzinger, both outgoing Republican members of the House who are on the Jan. 6 committee.

“This is democracy,” Bannon said.

Judge Nichols said Bannon does not need to begin his sentence today if he files a timely appeal. If he does not do so, he must surrender himself on Nov. 15 to being service his jail sentence.

Bannon has been sentenced to four months in jail and a $6,500 fine, reports NBC News' Ryan Reilly. He was handed a four-month sentence for each contempt of Congress count, though they were ordered to be served concurrently.

“Others must be deterred from committing similar crimes,” Judge Nichols reportedly stated.

One of the most interesting turns in l’affaire Bannon has been the defense team’s scapegoating of Justin Clark, a former senior Trump White House aide and campaign official who then represented Trump in his own executive privilege-related litigation with the Jan. 6 committee. Clark was also Trump’s representative in terms of his assertions of executive privilege vis-a-vis witnesses subpoenaed by the committee.

When Clark was interviewed by the FBI in late June 2022, he told them several things that Bannon’s team now vociferously disputes:

Clark acknowledged his October 2021 letter asserts “executive privilege” but with qualifications: He was telling Costello that Bannon should rely on executive privilege only with respect to those documents and testimony that are, in fact, privileged.

Clark told the FBI that while it was possible that such communications existed, he had no knowledge of Bannon actually possessing documents, information or testimony that would qualify for protection under executive privilege. Similarly, Clark was unaware of Bannon having any status that would give him total immunity from providing documents to or appearing before the Jan. 6 committee. 

Trump also did not believe Bannon had such immunity, which is why the instruction letter to Bannon was phrased differently than those to three other witnesses who, unlike Bannon, were members of the Trump administration during the time period at issue in the Jan. 6 committee’s subpoenas to them.

Collectively, Clark’s testimony helps establish that Bannon’s claim of reliance on executive privilege was faulty at best, and in utter bad faith at the worst. No wonder Bannon lawyer David Schoen attacked Clark viciously in court today.

Judge Nichols has returned to the bench to impose Bannon's sentence. As Reuters' Sarah Lynch reports:

Republicans, as you’d predict, are showing their support for Bannon’s effort to obstruct the Jan. 6 committee’s investigation. 

Right as his sentencing was about to start, the GOP’s official Twitter account shared a clip of an appearance by Chairwoman Ronna McDaniel on Bannon’s podcast. 

America’s most prominent cheerleader for right-wing fascism chimed in, too.

For those who were wondering: No supportive tweet from Ye … yet.

The typically loquacious Bannon has been uncharacteristically tight-lipped in the courtroom this morning. Bannon declined to speak before the court before Judge Nichols declared a brief recess.

“My lawyers have spoken for me, Your Honor," Bannon said, according to NBC News.

Nichols will hand down Bannon's sentence when the hearing resumes.

According to one courtroom observer, Bannon’s team is trying to convince Judge Nichols that Bannon’s supposed contempt was always about honoring executive privilege, “not that he’s above the law.”

But, of course, another complicating fact for the defense team is that Bannon was years removed from his White House service and held no position, paid or otherwise, with the Trump campaign. It’s not remotely clear that at the time of the communications at issue, Bannon qualified as a presidential adviser, let alone one in Trump’s inner circle such that the presidential communications privilege should apply to any conversations or documents, much less all of them.

That’s why it matters that Judge Nichols interrupted defense lawyer David Schoen’s impassioned monologue, noting that Bannon has never produced any “non-privileged document” to the committee. So far, this has not been the morning Bannon and his team wanted — or expected.

As I type, Bannon lawyer David Schoen has been alternately pounding the table and yelling, chastising DOJ prosecutors for their “zeal” to make Bannon “their trophy” and proclaiming his bona fides as a lawyer for Democrats.

But none of this has anything to do with the sole issue before Judge Nichols this morning: whether Bannon should be sentenced to time behind bars and/or pay a hefty fine as punishment for his total neglect of the Jan. 6 committee’s subpoena.

And as my fellow recovering litigator George Conway just observed, Schoen’s theatrics betray a core truth about courtroom presentations: “If the facts are with you, argue the facts. If the law’s with you, argue the law. If neither, yell.”

There’s one other problem with Bannon’s “I just did what my lawyer told me, too!” line of defense, an argument that Judge Nichols excluded from the trial and would be relevant only if Bannon successfully appeals.

Bannon lawyer Robert Costello claims he instructed his client not to comply with the Jan. 6 committee’s subpoena because without an opportunity for Trump’s lawyers to attend Bannon’s testimony, Trump could not control a privilege that belongs to Trump alone. Yet in the days leading up to Bannon’s trial, Trump purported to waive that privilege in an effort to help Bannon avoid trial. 

At that point, as I’ve written previously, another Bannon (and Trump) lawyer, Evan Corcoran, floated a deal to the committee staff: If Bannon testifies, DOJ drops the charges. Neither the committee nor DOJ bit. And so, without making any effort to comply with the subpoena, Bannon proceeded to trial.

But DOJ asks today: If Bannon’s sole and genuine concern was maintaining Trump’s privilege, why didn’t he comply as soon as Trump opened the door for him in July? That’s a darn good question.

Things don't seem to be going super well for Bannon this morning. As NBC's Ken Dilanian noted on MSNBC moments ago, there have been two big moments during the hearing so far:

Judge Nichols ruled in favor of the DOJ, stating a contempt of Congress conviction is indeed subject to a mandatory minimum jail sentence of 30 days. He also agreed with prosecutors that Bannon has shown zero remorse for his wrongdoing.

I’ve written already about Bannon’s core argument on appeal: That the court improperly prevented him from arguing to the jury that in ignoring the Jan. 6 committee’s subpoena, he was following the advice of his lawyer and therefore did not “willfully” default.

There may be merit to his legal argument; that is, based on changes in the case law since 1961, a D.C. Circuit panel could decide that defendants should be able to advance advice of counsel defenses to contempt of Congress charges.

But the DOJ has a potent retort: Even if the case law changed and defendants could argue that they relied in good-faith on their counsel’s advice, the evidence here would show Bannon himself did not.

First, as the Justice Department argued this morning, Trump never articulated a claim of executive privilege to the committee nor did anyone on Team Trump suggest to Bannon’s lawyers that it would be appropriate or advisable for Bannon to ignore the subpoena completely, as opposed to showing up and invoking privilege in response to questions. Instead, Bannon hid “behind a fabricated claim of executive privilege.”

Second, given that Trump did not, in fact, invoke privilege and given Bannon’s continued proximity to Trump and his team, Bannon’s reliance on his counsel’s advice to stay away from the committee altogether was not a decision made in good faith, but rather one arrived at disingenuously and disrespectfully.

In other words, DOJ is posing this question: So what if the case law is wrong if Bannon’s defense would fail on the clear evidentiary record?

Whatever jail sentence Bannon does or does not receive today, his political strategy will continue to be carried out by his MAGA followers. His mantra to “flood the zone with s---” is being pushed by right-wing activists everywhere who hope to see Trump back in the White House.

As MSNBC Daily editor Zeeshan Aleem wrote last month:

"Today grassroots right-wing activists focused on 'election integrity' are channeling Bannon’s 'flood the zone' ethos themselves. Normal people may not be able to leak influential half-truths and disinformation to reporters the way influential politicos like Bannon can, but they can generate controversy and a false aura of scandal through organized stunts."

Read Zeeshan's full story below.

“Quite frankly, Mr. Bannon should make no apology.” 

That’s what Bannon defense lawyer David Schoen just declared in court, reports NBC’s Ryan Reilly.

Schoen went on to add that his client “should show no remorse,” Reilly tweeted.

Having already ruled that the contempt of Congress statute indeed carries a mandatory minimum of one month, Judge Nichols has also reasoned that the sentencing guidelines range for Bannon — which are just guidelines — is “one to six months on each of the two counts.”

Again, Nichols could stay Bannon’s sentence pending his appeal, but it appears that he is inching toward an actual jail sentence and not one as limited as some have predicted.

Feels important to mention: According to prosecutors, Bannon’s potential $200,000 fine stems from his refusal to cooperate with a pre-sentencing investigation into his finances. He effectively preferred a fine over willingly giving investigators insight into where and how he gets his money. 

Put a pin in that! Remember: Bannon is facing multiple criminal charges, including fraud, in a case stemming from his efforts to raise money for private construction companies to build a wall along the U.S. border with Mexico — a key priority for former President Donald Trump while he was in office. 

Bannon has pleaded not guilty, but Manhattan District Attorney Alvin Bragg alleges that Bannon “acted as the architect of a multimillion-dollar scheme to defraud thousands of donors across the country — including hundreds of Manhattan residents.”

Bannon, it would seem, has at least one glaring reason to fear what could happen if investigators were able to probe his money-making operations.

In its filing last night, the Justice Department not only takes issue with Bannon’s purported good-faith reliance on his lawyer’s advice, but perhaps more significantly, it reminds Judge Nichols that the term of probation Bannon seeks is not even feasible under the federal statute under which Bannon was convicted.

Specifically, the “plain terms” of 2 U.S.C. § 192 mandate a minimum sentence of one month — and the only court to confront this issue head on determined “this minimum sentence is mandatory.” Where a statute carries a mandatory minimum, DOJ continues, a court is powerless to substitute probation or even home confinement, which is a variant on probation and “not a form of imprisonment.” 

Judge Nichols may still stay Bannon’s sentence pending appeal — but he has already ruled, some 30-plus minutes in, that the statute does set forth a mandatory minimum of one month.

Late last night, the Justice Department filed a brief on the eve of Bannon’s sentencing, in which prosecutors urged Judge Nichols to remember that Bannon has “acted in bad faith from the moment he accepted service of the subpoena.” 

Whether or not case law needs revision, the DOJ explains, Bannon’s decision to flout the Jan. 6 committee’s subpoena had “nothing to do with his purported respect for the Constitution, the rule of law, or executive privilege, and everything to do with his personal disdain for the members of Congress sitting on the Committee and their effort to get to the bottom of the attack on the country’s peaceful transfer of power.” 

To some extent, Nichols has already agreed with that characterization, telling those assembled in court this morning that he concurs Bannon has shown “no remorse for his actions.”

That’s an understatement. What Nichols did not see was Bannon’s statement outside the courthouse this morning, where he called the Biden administration an "illegitimate regime and said it would come to an end on Election Day in November.

Far from expressing remorse, Bannon has doubled down on his disdain for the legitimately elected president — and more ominously, suggested that the upcoming midterm elections, which solely concern Congress and statewide races, will nonetheless “end” Biden’s administration.

As my colleague Ryan Reilly notes, it’s a busy day at the D.C. federal courthouse today.

Bannon’s sentencing is, perhaps, the most intriguing activity as far as most observers are concerned, but the courthouse will also see Jan. 6 defendants sentenced today, as the federal seditious conspiracy trial against several members of the Oath Keepers militia is being held at the courthouse as well. There’s also a possibility that the grand jury impaneled to look into Trump’s handling of classified documents at Mar-a-Lago conducts some business there today. 

Needless to say: There’s potential for some very interesting hallway conversation.

Judge Nichols appears to be agreeing with the Justice Department's arguments so far during the sentencing hearing this morning, Reuters reported.

According to Reuters' Sarah Lynch:

Federal prosecutors have recommended that Bannon receive six months in jail and a $200,000 fine for defying a subpoena from the Jan. 6 committee.

Bannon, who faces a mandatory minimum sentence of 30 days, is seeking probation. His lawyers said he “has not been convicted of a violent crime, he has no other criminal convictions, and he has strong ties to the D.C. area.” 

Bannon could become the first person incarcerated for defying a subpoena from Congress in more than 50 years. But as Lisa notes, don't expect Bannon to serve any jail time soon.

Not a great start for Bannon this morning. As he made a short statement outside the courthouse ahead of his sentencing, NBC News reported that protesters could be heard chanting "Traitor!"

"I want to thank all you guys for coming," Bannon said, before appearing to push Trump's election lies and claim Biden's presidency would end on Election Day in November. "Remember this illegitimate regime, their judgment day is on [Nov. 8] when the Biden administration ends."

He then appeared to reference the Chinese Communist Party: "By the way. And remember. Take down the CCP. Thank you."

Bannon has arrived at E. Barrett Prettyman Courthouse in Washington for sentencing. NBC's Liz Brown-Kaiser caught his arrival below:

Bannon is hardly the only one in Trump’s orbit to resist cooperating with the Jan. 6 committee. 

Like Bannon, former White House trade adviser Peter Navarro was charged with criminal contempt of Congress after he refused to comply with a subpoena. He’s set to stand trial in federal court in Washington next month. Navarro unsuccessfully sought to delay the trial so he could promote a book.

On the day of Navarro’s arrest, the Justice Department said similar charges would not be filed against former White House chief of staff Mark Meadows or Dan Scavino, who served under Meadows. Leading members of the Jan. 6 committee questioned that decision at the time.

In August, Bannon appeared on a World Prayer Network prayer call and encouraged listeners to work the polls during the midterm elections.

"If we want to win, your congregations have to be in the counting rooms and prepared to have those knife fights," Bannon said.

MSNBC Daily columnist Anthea Butler broke down Bannon's disturbing message in August:

"Bannon summoning Christian Republicans to work the polls is part of a broader strategy to make November’s midterm elections as chaotic as the 2020 election. Evangelical churches and large religio-political rallies have served as ground zero for organizing designed to encourage political contributions and election fervor among conservative Christians. The rallying call is the big lie that not only claims that Trump won in 2020, but that every election is compromised."

Read Anthea's full story below.

When Bannon was indicted in New York last month, the pardon he received in the waning moments of Trump’s presidency offered no protection. 

The state charges, which involve Bannon’s fundraising for Trump’s effort to build a wall along the southern border, served as an unwelcome reminder for the former president as he faces legal cases in New York and Georgia, wrote MSNBC Daily editor Hayes Brown:

“Bannon’s legal fate is a portent for his former boss. It indicates that even if Trump had issued himself a ‘self-pardon’ in the closing days of his term, as he reportedly considered, it wouldn’t protect him from the state and local investigations into him and his businesses. As he prepares to take another run at the presidency, Trump is likely to become more convinced than ever that only the Oval Office can provide the legal safety he craves.”

Read Hayes’ full story below.

Like his buddy Trump, Bannon's legal troubles sure seem to be mounting. He was charged last month with defrauding donors to the "We Build the Wall" campaign, a fundraising effort ostensibly created to help fund Republican efforts to build a wall along the U.S.-Mexico border.

A grand jury in New York indicted Bannon on charges of money laundering, conspiracy and scheme to defraud in connection with the project. He pleaded not guilty after turning himself in to authorities on Sept. 8.

The indictment alleged Bannon, who led the wall effort's so-called advisory group, helped funnel tens of thousands of dollars in donations to the project's president — even though the group claimed all of the donations would go toward the wall.

If, like me, you spend your days steeped in legal proceedings affecting Trump and those closest to him, you’ve probably noticed that the former president’s orbit doesn’t just share a particular brand of politics; it also shares lawyers as various Jan. 6-related investigations continue.

Consider this: Trump lawyer John Rowley also represents former White House aides Peter Navarro and Stephen Miller as well as GOP Rep. Scott Perry. Another Trump lawyer, Tim Parlatore, also represents Bernard Kerik, the former NYPD chief-turned-Rudy Giuliani aide, as well as Doug Mastriano, the GOP’s gubernatorial candidate in Pennsylvania.

And the lawyers who will represent Bannon at his sentencing this morning are no different: Both have represented or currently represent Trump. One, David Schoen, is a longtime civil rights lawyer who was a part of Trump’s legal team during his second, Jan. 6-tied impeachment. The other, Evan Corcoran, has found himself in his own hot water recently, given his reported authorship — but not signature — of the June 2022 certification that all classified documents moved from the White House to Mar-a-Lago had been turned over to the FBI.

To date, none of these shared representations, including that of Bannon, has prompted any objection from the Justice Department. If the DOJ perceives an attorney cannot fairly and fully represent one client given a prior or ongoing commitment to another client with divergent interests, it will bring that perceived conflict to the lawyer’s attention, or even, in exceptional circumstances, raise it with the court. But the legal team we’ll see with Bannon in court is a vivid reminder: Where Trump is concerned, no man is an island.

Far-right nationalist Giorgia Meloni, whose political party has roots in Benito Mussolini’s dictatorship, is set to soon become the next prime minister of Italy.

MSNBC’s Ari Melber recently discussed Meloni on “The Beat,” saying she’s a neo-fascist who is promoting a twist on authoritarianism while still attacking immigrants, minorities and democratic norms. Melber also touched on Meloni’s connections to the likes of Bannon.

“MAGA leaders like Steve Bannon also have some fingerprints in this right-wing surge in Europe — he’s been paying attention,” Melber said on his show. “Bannon sees that ‘neo’ branding as a kind of Trojan horse for the agenda that he clearly knows comes out of the fascist groups.”

Watch the full clip below.

Federal District Court Judge Carl Nichols — a Trump nominee — will decide today whether Bannon is sentenced to six months in jail and a $200,000 fine (the Justice Department’s recommendation), probation alone (what Bannon himself has asked for), or something in between.

But even if Nichols determines that Bannon deserves time behind bars, don’t expect him to be remanded, or taken to jail, immediately. That’s because Bannon intends to appeal his conviction after he is sentenced — and Judge Nichols, who has repeatedly signaled sympathy to Bannon’s legal argument, could decide that any sentence should be stayed pending appeal. 

Here’s why:

Bannon’s planned trial defense was that in refusing to so much as show up for his testimony, he was simply following the advice of his lawyer, Robert Costello. Specifically, Costello maintains — including in a filing yesterday — that he advised Bannon that 1) Trump had invoked executive privilege in response to the subpoena to Bannon; 2) because the Jan. 6 committee would not allow Trump’s lawyers to attend Bannon’s deposition and Trump is the privilege holder, there was no way for Trump to protect his privilege; and 3) under DOJ policy, if the privilege holder’s counsel cannot attend testimony impacting that privilege, the subpoena is invalid and unenforceable. 

Reliance on the advice of counsel is a real, if risky, defense. Among other things, it requires a defendant to waive privilege over all his communications with the lawyer on whose advice he supposedly relied. But Bannon never got that far. Instead, before trial, Judge Nichols ruled that Bannon could not use an advice of counsel defense because of a 60-year-plus case, United States v. Licavoli.

 The statute under which Bannon was convicted punishes those who “willfully” refuse to give testimony or produce documents to a congressional committee. It doesn’t matter if, in failing to appear, Bannon was relying on his lawyer’s advice.

In the lead-up to his trial, Bannon argued to Judge Nichols that Licavoli shouldn’t govern his case because it relies on cases that have themselves been overruled and the Supreme Court has clarified what it means to be willful in criminal contexts. But Nichols, while moved, said his hands were tied: While Bannon might have ample “arguments to the Court of Appeals on why Licavoli should be overruled,” he himself “has no power to disregard a valid and on-point or seemingly on-point holding from a higher court.” 

Bannon also argued that Licavoli could be ignored because the defendant in that case was not dealing with a president’s assertion of executive privilege. There too, however, Nichols was unpersuaded, noting Bannon gave him “no reason to believe the [intent] element [for contempt of Congress] can or should be different depending on the circumstances of specific cases.”

As a district court judge, Nichols is indeed duty-bound to follow D.C. Circuit precedent. But there’s reason to believe the D.C. Circuit could, on Bannon’s appeal, overturn Licavoli and force DOJ to try Bannon all over again. And given that possibility — and Nichols’ own admission that if he were deciding the issue from scratch, he would have sided with Bannon — I just don’t see Bannon locked up any time soon.

I can’t help but think Bannon, who seems maniacally self-obsessed and has had a rather underwhelming career as a film financier, is enjoying this time as the center of attention — even if it does mean he’ll be serving time behind bars.

Let's hope it's his punishment isn't that "Goodfellas"-style, let-him-eat-lobster-while-incarcerated type of time behind bars. I send no well wishes to the conservative movement’s pied piper, who’s never encountered a camera he didn’t like.

The Justice Department has recommended Bannon serve six months behind bars and pay a $200,000 fine for his contempt of Congress conviction.

In a 24-sentencing memo, the DOJ outlined Bannon's "bad-faith strategy of defiance and contempt" since the moment he accepted service of the subpoena from the House Jan. 6 committee in September 2021. The DOJ noted its recommendation is at the "top end" of the sentencing guidelines range

"To this day, he continues to unlawfully withhold documents and testimony that stand to help the Committee’s authorized investigation to get to the bottom of what led to January 6 and ascertain what steps must be taken to ensure that it never happens again," the DOJ wrote in its memo. "That cannot be tolerated."

Click here to read the full sentencing memo.