As far-right firebrand Steve Bannon has been hit with new fraud charges for an alleged border wall fundraising scheme, he joined the ranks of several close Donald Trump associates recently prosecuted by the Manhattan district attorney’s office.
In 2019, then-District Attorney Cyrus Vance Jr. mortgage fraud charges against Paul Manafort, Trump’s 2016 campaign chairman. And in 2021, current District Attorney Alvin Bragg charged former Trump Organization CFO Allen Weisselberg with fraud and Ken Kurson with cyberstalking in separate cases.
Taken together, the cases suggest that some of the actions of Trump allies could still create legal headaches long after Trump has left the White House, and even after he has been issued pardons.
Of course, charges do not necessarily lead to convictions, let alone harsh prison terms, as evidenced by the outcome of these previous cases. Manafort, who was convicted in federal court before the New York case unfolded, ultimately did not face state charges because of double jeopardy. Manafort was pardoned by Trump about two months before the decision that he could not be tried in federal court because of double sentencing.
Kurson — who was first charged in Brooklyn federal court with cyberstalking but pardoned by Trump before he left office — pleaded guilty to two misdemeanors and was ordered to perform community service in his state case. Weisselberg, meanwhile, is expected to serve just 100 days in local jail under his plea agreement.
On the surface, some might wonder if Bannon’s case at the state level has the same legal weakness as Manafort’s. Bannon was indicted federally in August 2020 for allegedly obtaining more than $1 million. USD from the “We Build the Wall” online fundraising campaign. Trump also pardoned Bannon before his case was heard.
But longtime lawyers told the Guardian that Bragg’s Bannon case was different from Vance’s Manafort prosecution because, since Bannon was pardoned, state-level prosecutions for the same alleged wrongdoing do not carry the same risk of double jeopardy, they said.
“Under the New York State Constitution, when [federal prosecutors] initiate a prosecution, the state is generally prohibited from charging the same offense,” explained Ron Kuby, an attorney. “But it’s a double jeopardy protection, and Bannon was never put in jeopardy because he never went to trial.”
Kuby also said that pursuing charges against Bannon sends a strong message to right-wing activists and Trump allies. “He’s not getting a federal felony clearance because his buddy the president gave him a federal pardon — and he shouldn’t.
“If you look at it from a political perspective, you can imagine a corrupt president granting blanket pardons to all of his cronies, which makes those cronies appear to be above the law. Now you have elected district attorneys who shows that the comrades are not above the law,” said Kuby.
Neama Rahmani, president of the Los Angeles West Coast Trial Lawyers, 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 conduct a subsequent prosecution after any prosecution has commenced.”
New York’s double jeopardy law applies to Manafort as he had already been prosecuted and convicted. Bannon, on the other hand, was neither convicted nor sentenced, meaning “that New York State law will not apply.”
“No jury was sworn and no witness was sworn, [so] danger was not attached,” Rahmani said. “New York does not consider Bannon to be prosecuted, even though he was charged [federally] in connection with this action.”
Attorney Julie Rendelman explained that New York law was changed in 2019, making it easier for a person to be charged in a state case similar to federal crimes for which they received pardons. That means Bannon’s case can proceed “without the concern of double jeopardy that happened with Manafort.”
Rendelman also said New York prosecutors can pursue 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.”
Since double jeopardy protections likely do not apply, Bannon appears to face significant legal problems.
“I think he could be in serious danger in this situation, because it seems like there was a pretty good case that the federal government had, and I guess the New York prosecutors have a lot of that,” said Carl Tobias, chairman of Williams. in law at the University of Richmond School of Law.
Bannon has denied any wrongdoing, calling the indictment a “false accusation” and “nothing more than a partisan weaponization of the criminal justice system,” according to CNN.
Kuby described a possible defense, though one perhaps unlikely to be mounted 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?” Kuby said. “To the extent that Steve Bannon escaped from his gullible, bigoted, angry followers, I think that’s great.”
He added: “I would actually represent him on the grounds that he was performing a public service: money that should have been used to make the lives of poor immigrants more difficult has been appropriated for other purposes.”
