When the far-right firebrand Steve Bannon was hit with fresh fraud charges for an alleged border wall fundraising scheme, he joined the ranks of several close Donald Trump cronies recently prosecuted by the Manhattan district attorney’s office.
In 2019, then district attorney Cyrus Vance Jr brought mortgage fraud charges against Paul Manafort, Trump’s 2016 campaign chairman. And in 2021, the current district attorney, Alvin Bragg, charged the former Trump Organization CFO Allen Weisselberg with fraud, and Ken Kurson with felony cyberstalking, in separate cases.
Put together the cases suggest that the actions of some top Trump allies can still generate legal headaches long after Trump left the White House and also despite being issued pardons.
Charges do not necessarily lead to convictions, of course, let alone hard prison time, as evidenced by the outcome of these past cases. Manafort, who was convicted in federal court before the New York case unfolded, ultimately didn’t face state charges on double-jeopardy grounds. Manafort was pardoned by Trump about two months before the decision came down that he couldn’t be tried in state court due to double jeopardy.
Kurson – who was first charged in Brooklyn federal court for cyberstalking, but pardoned by Trump before he left office – pleaded guilty to two misdemeanors and was ordered to do community service in his state case. Weisselberg, meanwhile, is expected to serve just 100 days in local jail under his plea deal.
On the surface, some might wonder whether Bannon’s state-level case has the same legal weakness as Manafort’s did. Bannon was charged federally in August 2020 for allegedly siphoning more than $1m from the “We Build the Wall” online fundraising campaign. Trump also pardoned Bannon before his case went to trial.
But longtime attorneys told the Guardian that Bragg’s Bannon case was different from Vance’s Manafort prosecution because when Bannon was pardoned, state-level charges for the same alleged misconduct do not carry the same double-jeopardy risks, they said.
“Under the New York state constitution, as a general matter, when [federal prosecutors] initiate a prosecution, the state is prohibited from charging the same offense,” explained Ron Kuby, an attorney. “But that’s a double-jeopardy protection and Bannon was never placed in jeopardy, because he never went to trial.”
Kuby also said that pursuing charges against Bannon sends a strong message to rightwing activists and Trump allies. “He doesn’t get a pass on the state crimes because his buddy, the president, gave him a federal pardon – nor should he.
“If you look at it from a policy perspective, one can imagine a corrupt president issuing blanket pardons to all of his cronies making those cronies appear to be above the law. Now you have elected district attorneys showing that the cronies are not above the law,” Kuby said.
Neama Rahmani, president of the Los Angeles West Coast Trial Lawyers, also thought that double jeopardy wouldn’t protect Bannon. “New York has a very specific double-jeopardy law,” Rahmani explained. “Basically, it says the state of New York can’t do a subsequent prosecution after any prosecution has commenced.”
The New York double-jeopardy law does apply to Manafort, as he had already been tried and convicted. Bannon, on the other hand, was neither convicted nor tried, meaning “that New York state law will not apply”.
“No jury was sworn, and no witness was sworn, [so] jeopardy had not attached,” Rahmani said. “New York does not consider Bannon prosecuted even though he was charged [federally] for the purposes of this act.”
Attorney Julie Rendelman explained that New York law changed in 2019 which made it easier for a person to be charged in a state case similar to federal crimes for which they received pardons. This means that Bannon’s case could proceed “without the concern of double jeopardy that happened with Manafort”.
Rendelman also said that New York prosecutors can pursue charges for crimes that extend beyond state borders. “If any aspect of the case happened in New York, they have a right to pursue it.”
With double-jeopardy protections probably not applying, Bannon appears to face significant legal woes.
“I think he may be in serious jeopardy in this situation, because it seems like there was a pretty good case that the federal government had, and I assume that the New York prosecutor has a lot of that,” said Carl Tobias, Williams Chair in Law at the University of Richmond School of Law.
Bannon has denied any wrongdoing, slamming the indictment as a “phony charge” and “nothing more than a partisan political weaponization of the criminal justice system”, according to CNN.
Kuby described one possible defense, though perhaps one not likely to be deployed by Bannon’s team.
“What is the crime of stealing from people who want to build a border wall compared with the crime of building a border wall?” Kuby said. “To the extent that Steve Bannon fleeced his gullible, bigoted, angry followers, I think that’s great.”
He added: “I would actually represent him on the grounds that he performed a civil service: money that was going to be used to make the lives of poor immigrants harder has been appropriated for other purposes.”
