8/20/20
Thursday's federal indictment of Steve Bannon, former campaign adviser to President Donald Trump, is very bad news for Bannon -- and potentially for many others. From Bannon's perspective, it's one thing to defend a case that turns on subtle issues of subjective intent, or that rest on testimony from other co-conspirators. But it's much harder to defend a case based on black-and-white financial documents. A good defense lawyer can cross-examine a witness and try to take apart his story -- but it's much harder to argue with phony invoices and forged receipts. The outlook for Bannon is bleak. He can go to trial, of course, but the vast majority of federal trials result in conviction. He can plead guilty and hope for a slightly lower sentence than if he is convicted by a jury. Largely because of the amount of the alleged] fraud -- here, prosecutors say, over $25 million -- Bannon, if convicted, is looking at a sentence of at least approximately seven to nine years under the federal sentencing guidelines (which are important but not binding on a judge), or slightly less if he accepts responsibility and pleads guilty.
Or Bannon can try to cooperate with the SDNY -- which could offer him his best chance at a significant sentencing reduction. In my experience, the SDNY handles cooperation differently than many other prosecutors' offices. in the SDNY, cooperation is all-or-nothing. An SDNY cooperator must admit to every crime he has committed. And the cooperator must give up everything he knows about what others have done -- even if the conduct, or the other people, go beyond the original charges in the indictment. If Bannon goes the cooperation route and fully comes clean, he stands to minimize his own potential prison time. But, to save himself, Bannon will very likely need to give the SDNY the ammunition it needs to take others down too.
