Critics say courts should hear views from opposing parties
The Justice Department has asked U.S. District Judge Carl Nichols to dismiss Steve Bannon’s conviction for contempt of Congress, saying the prosecution is no longer appropriate because Bannon said he believed executive privilege protected him. In a filing last week, the department told Nichols it would exercise prosecutorial discretion to dismiss the indictment. Bannon’s lawyers do not oppose the motion, leaving the request without an adversarial party in the courtroom.
The case arose from Bannon’s refusal to cooperate with the House committee that investigated the Jan. 6 siege on the U.S. Capitol. He flouted a subpoena and refused to show for an interview. A trial jury in Washington, D.C., deliberated for less than three hours before delivering a guilty verdict, and a federal appeals court upheld the verdict. The Biden-era Justice Department portrayed the case as open and shut; four years later, prosecutors are asking Nichols to erase the conviction “in the interests of justice.”
Legal experts said the Bannon motion follows a pattern in which the Justice Department is helping to wipe the slate clean for allies of President Trump, with no one defending the cases and no courts hearing arguments to the contrary. Legal experts said that approach conflicts with the U.S. legal system’s tradition of hearing views from opposing parties and comes as the department has also pursued investigations of Trump’s perceived enemies.
Bruce Searby, a defense attorney in Washington and a former federal prosecutor, put the concern this way: “No adversity remains in this serious and high-profile criminal matter between, on the one hand, the U.S. Department of Justice overtly acting at the behest of the president of the United States, and on the other hand, Bannon, the defendant, who is a close political ally and adviser to the same president.” The Justice Department did not respond to a request for comment about the decision or the lack of an opposing party. Bannon’s lawyers also did not return messages seeking comment.
Searby said he first noticed the broader issue in April, when the Justice Department asked to vacate the convictions of about a dozen leaders and deputies of the Oath Keepers and Proud Boys. Those seditious conspiracy trials took months to unfold. Jurors heard details about how some of the defendants gathered weapons, recruited followers and even breached the Capitol in what was described as the worst attack since the War of 1812.
President Trump pardoned the vast majority of Jan. 6, 2021, defendants on his first day back in office, calling them “patriots.” Trump said in a recent interview with the CBS newsmagazine 60 Minutes: “I don’t think any group’s been treated more unfairly than them, and to this day, when they see me they cry.” For more senior members of the Oath Keepers and Proud Boys, the administration told judges that the move to drop their cases was in the “interests of justice,” the same rationale it used in the Bannon motion.
Last spring, lawyers for Representative Jamie Raskin, who served on the House Select Committee investigating the events of January 6, told a federal appeals court that this was not an ordinary set of cases. They asked the court to exercise its power to appoint a friend of the court, or amicus, to defend the convictions. “The established path forward is for this Court to appoint an amicus to present opposing argument and defend the judgment being ambushed,” wrote attorneys Justin Sher and Douglas Jensen.
Their filing said judges have authority to take that step and pointed to two other controversial cases in which judges named outside lawyers to evaluate bids to dismiss criminal charges: the case of former Trump national security adviser Michael Flynn and the case of former New York City Mayor Eric Adams. Ultimately, judges reluctantly dismissed those Jan. 6 seditious conspiracy charges without appointing a friend of the court.
In the dismissals of the Jan. 6 seditious conspiracy cases, U.S. District Judge Amit Mehta wrote: “Today’s epilogue diminishes the gravity of that day, denigrates the work of the prosecutors and law enforcement officers who secured these convictions, and excuses criminal acts that caused a centuries-long pillar of our democracy—the peaceful transfer of presidential power—to buckle.”
Critics and good government groups said the Trump administration has been exploiting the legal system, which is designed to hear views from two opposing parties. President Trump famously sued his own government over the leak of his tax returns, then negotiated a settlement with the Justice Department that handed him and his sons immunity from tax audits. Attorney General Todd Blanche, who previously served as a defense attorney for Trump, confronted serious questions about that deal and his sign-off during a confirmation battle in August. The Senate approved his nomination by a single vote.
The Bannon issue has resurfaced in the courtroom of U.S. District Judge Carl Nichols, who presided over Bannon’s trial in 2022. In a filing last week, the Justice Department said it would exercise prosecutorial discretion to dismiss Bannon’s indictment. Courts have recognized wide leeway for prosecutors in making decisions about their resources. Deputy Associate Attorney General Michael Weisbuch wrote that it was not appropriate to pursue Bannon’s contempt case because Bannon said he believed he was protected by executive privilege. Weisbuch said the judge lacked authority to reject the unopposed motion and added: “But even assuming any review could be proper, the policy-laden grounds for dismissal asserted above are not susceptible to judicial second-guessing.”
Searby said Nichols should not accept the Justice Department’s argument “at face value” and that dismissal should not be a “foregone conclusion.” He said an outside lawyer could assess whether the Justice Department’s actions amount to an abuse of prosecutorial discretion: if taken in bad faith, tainted with impropriety or contrary to public interest. The dispute before Nichols is whether a court can test an unopposed dismissal request on those grounds despite the department’s claim of prosecutorial discretion.