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Federal Prosecutors Oppose Dismissing Steve Bannon’s Indictment Despite Trump Pardon — Here’s Why

WASHINGTON, DC - NOVEMBER 08: Former White House senior counselor to President Donald Trump Steve Bannon speaks to members of the media as he leaves the E. Barrett Prettyman United States Courthouse after he testified at the Roger Stone trial November 8, 2019 in Washington, DC. Stone has been charged with lying to Congress and witness tampering. (Photo by Alex Wong/Getty Images)

Steve Bannon is seen in a November 2019 file photo.

As the recipient of an eleventh hour pardon from Donald Trump, the 45th president’s former chief strategist Steve Bannon received no protest to closing the case against him, but federal prosecutors opposed dismissing his indictment as a matter of record in a surprise letter on Thursday.

“For the reasons set forth below, while the government does not object to administratively terminating Bannon from the case or exonerating his bail, the government does oppose Bannon’s request that the indictment itself be dismissed as to him,” Assistant U.S. Attorney Nicolas Roos wrote in a two-page motion.

Before Trump pardoned away fraud and money laundering charges against him—but not those against his accused accomplices—Bannon had been awaiting trial on allegations that he pocketed $1 million from a non-profit called We Build the Wall, which crowdfunded some $25 million and vowed that every penny would construct a barrier on the U.S. Mexico border.

The charity’s founder Brian Kolfage and other officers Andrew Badolato and Timothy Shea received no clemency and continue to await trail.

“Similarly, the Government has no objection to the Court entering an order exonerating Bannon’s bail,” the government’s letter states. “However, the government respectfully submits that the pardon granted to Bannon is not a basis to dismiss the Indictment against him. A pardon “is ‘an executive action that mitigates or sets aside punishment for a crime.’”

Citing the case Nixon v. United States for that proposition, prosecutors italicized the punishment to emphasize that the pardon does not wash away the grand jury’s allegations.

“The fact that Bannon was pardoned does not extinguish the fact that a grand jury found probable cause to believe that he committed the offenses set forth in the Indictment, nor does it undercut the evidence of his involvement therein which the Government expects to elicit as part of its presentation at trial,” their letter states. “Were the Court to dismiss the Indictment against Bannon, it could have a broader effect than the pardon itself, among other things potentially relieving Bannon of certain consequences not covered by the pardon.”

Among the flurry of second-order effects, prosecutors itemized precedents finding that a pardon did not wipe out how an indictment would affect a broker application, attorneys’ fees and permits.

“Accordingly, because Bannon does not set forth any legal authority for the proposition that a court should dismiss an indictment following a pardon, and the only stated basis for his request is to “clarify” his status, the court should deny the request,” the letter states.

Prosecutors also asked that Bannon’s letter from Feb. 18, just one week ago, be filed on the public docket.

“Bannon’s counsel submitted the letter to the Court by email—and therefore effectively under seal—because, in his view, ‘Bannon should no longer be a defendant in the case,'” the letter continues. “However, until the defendant is administratively terminated, he remains a named defendant and more important, Bannon’s status in the case is not a basis to make his submission under seal.”

On Wednesday, CNN reported that a state criminal investigation against Bannon is heating up right across the street from the federal court.

Bannon’s counsel did not respond to an email requesting comment.

Read the prosecutors’ letter below:

(Photo by Alex Wong/Getty Images)

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."