The Washington PostDemocracy Dies in Darkness

Manhattan district attorney considering prosecuting Stephen Bannon following his pardon by Trump in federal fraud case

Former White House strategist Stephen K. Bannon exits federal court in Manhattan on Aug. 20, 2020.
Former White House strategist Stephen K. Bannon exits federal court in Manhattan on Aug. 20, 2020. (Andrew Kelly/Reuters)

NEW YORK — The Manhattan District Attorney's Office is weighing whether to bring a state court case against Stephen K. Bannon, who was indicted on federal fraud charges for his role in a fundraising scheme to build a border wall but received a last-minute pardon from President Donald Trump, according to people familiar with the matter.

Bannon, one of the architects of Trump's 2016 election victory and briefly a White House adviser, was among 143 people who received pardons from Trump in his last 24 hours in office. Bannon left the White House early in Trump's term after he fell out with the president, who wavered until the last minute on issuing his former strategist a pardon, The Washington Post reported.

Bannon and three others were charged by federal prosecutors in Manhattan with falsely claiming that they would not take compensation as part of their "We Build the Wall" fundraising campaign to underwrite part of the construction of a wall on the U.S.-Mexico border.

The three others charged with Bannon were not pardoned by Trump.

[Trump pardons Steve Bannon after ugly falling out early in his presidency]

Investigators working under District Attorney Cyrus Vance Jr. in his office’s Major Economic Crimes Bureau are in early-stage discussions to determine if there’s a state case to be brought against Bannon for his actions in the fundraising campaign, according to two people with knowledge of the matter who spoke on the condition of anonymity to discuss the office’s deliberations.

It was not clear whether the U.S. attorney’s office in Manhattan, which is still handling the case against Bannon because it has not yet been formally dismissed, is assisting the state prosecutor’s office in its preliminary investigation. A judicial “sharing order” is required for swapping evidence between the agencies, and it was unclear if one had been obtained.

President Trump on Jan. 19 pardoned his former adviser Stephen K. Bannon, who was charged with fraud in a fundraising effort for a border wall. (Video: Reuters)

A spokesman for Vance declined to comment, as did the U.S. attorney’s office in Manhattan. A lawyer for Bannon did not respond to requests for comment, and a spokeswoman for Bannon had no immediate comment.

Bannon’s pardon — which applies only to federal crimes — was among actions Trump took to resolve or reverse the cases of former associates accused or convicted of federal crimes, including Paul Manafort, his former campaign chairman, and Roger Stone, a longtime friend and adviser.

Trump also pardoned former national security adviser Michael Flynn, who like Manafort and Stone was convicted as a result of the investigation by special counsel Robert S. Mueller III into Russian interference in the 2016 election — a probe Trump routinely called a “witch hunt.”

In August, Bannon was accused of personally taking more than $1 million from people who had donated to the “We Build the Wall” campaign and hoped to help secure one of Trump’s signature promises from the 2016 campaign. Construction of the wall was not near completion by the time Trump left office. It had been hailed by the former president as the centerpiece of his effort to curtail illegal immigration.

Steve Bannon charged with defrauding donors in private effort to raise money for Trump’s border wall

Bannon, along with Brian ­Kolfage, a disabled Air Force veteran, Andrew Badolato and Timothy Shea, raised more than $25 million in an online crowdfunding push while promising donors that all of the proceeds would go to support the wall's construction, according to federal prosecutors.

Bannon had been free on a $5 million bond. As he left the courthouse after his arraignment, he ripped off a pandemic mask and told reporters that the “entire fiasco is to stop people who want to build the wall.”

All four men pleaded not guilty to conspiracy to commit wire fraud and money-laundering charges. The next court appearance is scheduled for Feb. 22.

A trial for the three other defendants is scheduled for later this year, although pandemic restrictions may delay the proceeding.

Vance’s office previously brought a case against Manafort, but it was dismissed on “double jeopardy” grounds because he had already been tried in federal court. Vance is trying to appeal the decision to the state’s highest court, with his office claiming a misreading of the law by lower-court judges.

While talks among investigators in Vance’s office are preliminary, the focus is on whether a state case against Bannon covering the same criminal conduct from his federal case would be an option once a judge formally ­dismisses it. Unlike in Vance’s attempted prosecution of Man­afort, double jeopardy probably would not apply given that Bannon has not been convicted at the federal level.

Paul Manafort’s fraud case in New York was dismissed, blocking local prosecutors’ effort to undercut a potential Trump pardon

According to the federal indictment, victims in the case reside in the Southern District of New York, which covers Manhattan, potentially giving the district attorney jurisdiction. Financial transactions also routinely give jurisdiction to the Manhattan district attorney because most major banking institutions are based or have operations in New York.

Vance’s office is also investigating Trump and the Trump Organization for possible tax and insurance fraud. The probe, which began in 2019, resulted in a Supreme Court hearing over whether Trump could assert presidential immunity to prevent Vance from obtaining tax returns and other records from the accounting firm Mazars USA. The Supreme Court sided with Vance.

Prosecutors have yet to receive the eight years’ worth of records requested through their grand jury subpoena to Mazars because Trump’s legal team has another pending application to the Supreme Court, arguing that Vance’s office acted in bad faith and that the subpoena was too broad.