But those formalities have to be observed; the Federal Rules of Criminal Procedure set out at exhaustive length the correct course of trial, not to mention the huge body of case law that circumscribes how trials must be conducted.
Was watching Glen Kirschner earlier this week and he said Bannon is looking at two counts, each having a minimum sentence of 30 days and a maximum of one year. The judge can decide if the sentences are to be served concurrently or successive. Bannon could in theory serve two years total time in prison. That wouldn’t be a very likely sentence, though. My money is he serves 60 days total.
There are mumbles about procecution asking for a higher sentence. We will see how it shakes out.
I hope they don’t. Much as I loathe the man and as much as I can appreciate the impulse to do it, it’s a bad look if the prosecutors try to treat him in a way different to any other defendant for these charges.
Either way, I think Bannon is safe with this judge.
You can’t impose a penalty greater than what the statute provides, but the sentencing guidelines are just that - guidelines. (There’s a Supreme Court case called Booker which says that’s it’s improper for the judge to not exercise discretion).
Sometimes, then, one side or the other will request a “departure” from the recommended sentence. The defense usually seeks a downward departure, based on mitigating factors. Here, it sounds like the US Attorney may seek an enhanced penalty at the top of the permitted range.
I’m presuming the argument would be based on the high profile nature of the case - “judge, millions of people will be aware of what we do here. So giving him the maximum sentence will send a message that people must comply with a lawful subpoena, no matter how well connected they may be, or they might spend significant time in custody.”
Plus, the judge doesn’t always know how complicated an application by the prosecution or the defence may be. Or if they will even make any applications.
Trials are a very dynamic process, with counsel making procedural descisions on the fly, and then letting the judge know.
For example, the defence might advise the judge before the lunch break that they will call one witness after lunch.
They come back after lunch, and defence counsel advises the judge that they won’t call a witness.
Judge can’t ask “why? what happened over lunch?” because that’s covered by solicitor-client privilege. Maybe the witness backed out. Maybe counsel reviewed the witness’s evidence again and concluded it wasn’t needed, after all. Maybe they concluded that the witness might actually harm their case, in light of other evidence called in the morning. That’s all open and fair, and defence is under no obligation to the court to explain why.
But it means the jury was kept over lunch, and then in the afternoon told that they could go home. Sure, it might have been more convenient for them to be told they could go home before lunch, but the defence gets to change its mind.
(I’m using defence because they tend to be more “on the fly” - prosecutors need to build a case, brick by brick, and in my experience are less likely to make a sudden change in their witness line-up. Defence needs to pull out a couple of bricks from the prosecutions case, and hope it creates reasonable doubt.)
Indeed, the defendant is not expected to decide whether he will testify or not until after the government has rested their case.
The debate (and eventual reading) of jury instructions can also take quite a lot of time - jury instructions are a very important part of a trial, and represent a significant source of argument by the attorneys (although this will be outside the presence of the jury).
And the defense will nearly always make a motion for a judgment of acquittal (again, outside the presence of the jury), where, after the government rests, the defense argues that there’s not enough evidence presented to prove the charges (and, therefore, there’s no reason to send it to the jury - they simply can’t find the existence of the facts needed to convict). This is what is oftentimes called a “halftime motion”, since it’s delivered after the prosecutor is done but before the defense has had their chance to call their witnesses (here, of course, the defense didn’t call witnesses).
today is a “fun” day at the bannon trial. here are some quotes from mr. kirschner’s twitter feed of the trial.
Glenn Kirschner (@glennkirschner2) / Twitter
Prosecutor: This case is not complicated, but it is important. It’s a case about a man - this man - who didn’t show up.
Government only works if people show up.
Government only works if people play by the rules, AND if they are held accountable when they do not.
Defense attorney: ladies and gentlemen, you must give Steve Bannon the benefit of the doubt.
Prosecutor: Objection
Judge: Sustained
Defense attorney just argued that maybe Rep. Bennie Thompson’s signatures on the subpoenas is “not legit.” And for that, the judge just called the parties up to the bench.
The defense’s desperation hangs heavy in the courtroom air . . .
God, is “It’s all fraud!” the only defense they have these days?
You go with what you know.
a bit more from the twitter feed:
Defense attorney just finished, but not until the judge interjected, sua sponte, to shut him down when he tried to make a purely and transparently political argument. On a short break before the prosecution’s rebuttal argument.
Prosecutor in rebuttal: Bannon’s conduct was like “a child who keeps arguing with a parent after being grounded.”
should be going to deliberation soon.
I don’t see deliberations taking very long.
went to jury an hour ago. i’m sure they ordered lunch. i don’t believe it will take long either.
If it does, that’s bad news. Juries love Friday afternoon verdicts, especially in an easy case.
guilty on both counts!!
sentencing oct. 21st.
(plus words for discourse)
The wheels of justice grind slowly…
This is good news for the rule of law.
Three months from now? WTF? Is he in custody until then, or free to continue destroying the nation?
Presumably he was granted bail and that’s how he remained out of custody throughout the duration of his trial. In the ordinary course of such cases, he would remain out on bail pending sentencing.
The prosecution may make a motion for him to be remanded to custody pending sentencing based on, for example, a concern that he may now be a flight risk. But the judge would have to make some strong findings to agree with that assertion. He hasn’t attempted to flee before now, so… good chance he’ll continue on bail until sentencing.
Were I the judge, I’d make him surrender his passport(s) and impose a gag order pending sentencing. That way, he’d probably violate those conditions and could then be remanded into custody – and also face some new charges. But that’s likely wishful thinking on my part.
IANAL, but these seem pretty reasonable based on Bannon’s history.
Thanks for the full explanation!