Back in November, I noted that Steve Bannon got a boost in his appeal when the Supreme Court asked the Justice Department to respond to the Donald Trump ally’s petition. Bannon was seeking high court review of his contempt of Congress conviction, which he got in 2022 for not complying with the House Jan. 6 committee.
The Trump DOJ had initially waived its right to respond to Bannon’s petition, which would’ve likely led to its outright denial if the high court didn’t request a response. The appeals court had ruled against Bannon, so a Supreme Court denial would’ve effectively upheld his conviction.
But the high court did request a response, and what followed was quite the boost for the Trump ally, who’s been in the news lately less for his contempt appeal than for his midterm polling place threats and Jeffrey Epstein ties.
On Monday, the day that the DOJ’s high court response was due, it didn’t file a brief opposing Bannon’s petition, as the government routinely does when criminal defendants petition the court. Rather, the DOJ told the justices that it was making a motion in the trial court to dismiss Bannon’s case, and it asked them to vacate the appeals court ruling against him and to send the case back so it can be dismissed in the lower court.
“The government has determined in its prosecutorial discretion that dismissal of this criminal case is in the interests of justice,” the Trump DOJ’s Supreme Court filing said. It didn’t explain why it thought that justice required dismissal.
It takes at least one justice to request a response to a petition, but it’s not public which justices make such requests.
As noted in the Supreme Court filing, the DOJ on Monday also moved to dismiss Bannon’s indictment in the Washington, D.C., district court. “The government has determined in its prosecutorial discretion that dismissal of this criminal case is in the interests of justice,” that filing likewise said, signed only by Trump’s U.S. attorney for that district, Jeanine Pirro.
The Trump DOJ’s move to dismiss former New York City Mayor Eric Adams’ corruption case led career prosecutors to resign over the action that was apparently designed to maintain political leverage over Adams. Unlike Adams’ case, in which the DOJ sought only a temporary dismissal pretrial, the Trump government is seeking a permanent dismissal of Bannon’s case years after his conviction. In Adams’ case, the district judge didn’t rubber-stamp the dismissal request but instead scrutinized it and ultimately agreed to dismiss the case last year, but only permanently, not temporarily, as the Trump DOJ had fought for.
The timing of the DOJ’s action in Bannon’s favor seems to line up with the latest due date for its response to the justices. Its response was initially due in December, but it requested extensions, ending on Monday. Of course, if this move was the plan for Bannon all along, the DOJ could have made it earlier and not waived its response to start with. And no matter how this litigation proceeds and concludes, Trump could always pardon Bannon.
The next moves for Bannon are up to the justices and the judge presiding over his case in the lower court. In a typical case at the Supreme Court, the defendant would next file a final reply brief attempting to make a last pitch to the justices for why they should grant review and shouldn’t listen to the DOJ’s arguments in its opposition brief. Here, of course, the DOJ didn’t file an opposition brief, though Bannon could still file a final reply before the justices put the case on for an upcoming private conference to consider the matter alongside other pending petitions.
In the summer of 2024, the justices rejected Bannon’s bid to stay free pending his appeal, and he served a four-month sentence but continued to press his appeal.
Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
