Prosecutors are arguing against dismissing a federal fraud and money-laundering indictment against former White House strategist Steve Bannon — even though Donald Trump pardoned him before the president left office.
The battle comes as CNN reported Wednesday that Manhattan District Attorney Cyrus Vance Jr. had subpoenaed records related to the same criminal allegations against Bannon. Trump can only issue pardons for federal, not state or local, criminal cases.
Assistant U.S. Attorney Nicolas Roos argued in a two-page letter Thursday to Judge Analisa Torres of the Southern District of New York that Trump’s pardon eliminated punishment for Bannon in the federal case against him — but not the criminal indictment. The argument was in response to Bannon’s move earlier this week to dismiss the federal case.
Bannon was indicted for allegedly pocketing about $1 million from the nonprofit charity We Build the Wall. The group raised close to $25 million, mostly in small-dollar donations from Trump supporters, promising it would all be used to help construct the wall on the Mexican border.
The charity’s officers Brian Kolfage, Andrew Badolato and Timothy Shea did not get a presidential pardon and are awaiting trial on similar charges.
A pardon is “an executive action that mitigates or sets aside punishment for a crime,“ Roos wrote. But the indictment should stand, he said.
“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,” the letter says.
“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.”
Presumably, the federal indictments and evidence against Bannon could be recycled in a state action, which isn’t blocked by Trump’s pardon.
But the strategy to protect the federal indictments for the time being could also end up being a trap for Bannon, who has proclaimed his innocence.
If he officially accepts Trump’s pardon, it’s essentially an admission of guilt in the We Build the Wall case, former U.S. District Judge John S. Martin and former counselor to the special Watergate prosecutor Philip Allen Lacovara wrote last month in The Washington Post. Not only would that hurt him in a state case, but it could be “financially costly” in lawsuits filed against Bannon to recover funds, they noted.
And with a pardon to protect him in a federal crime, he can be ordered to testify against his former co-defendants — and others who may be identified in the future.
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This article originally appeared on HuffPost and has been updated.