NO! THE SUPREME COURT DID *NOT* JUST RULE THAT STEVE BANNON’S INDICTMENT FOR CONTEMPT IS DISMISSED. HERE’S WHAT ACTUALLY HAPPENED
Today the Supreme Court issued several orders regarding “writs of certiorari” or, as we in the legal biz call them “writs of cert” or just “cert”, because we’re lazy that way. Among them was Steve Bannon’s request for the Supreme Court to direct the lower court to review his request for his conviction for contempt of Congress to be overturned.
It’s *very* important to remember the hierarchy of our court structures, and with what each level deals. The ‘lowest’ in the court hierarchy is the trial court. This is the court that handles the actual trial (hence the term ‘trial court’ :~) ). In other words, this is the court that holds hearings on the *facts* and the *evidence*. If you have to file a lawsuit, this is the court in which you file it. In the federal court system the lowest court is the federal district court.
Once some sort of order or other decision has come out of the lowest court, which is the order dealing with, again, the *facts* of the case and the *evidence* in the case, and the application of the law to those facts and evidence, that order can be appealed to the Court of Appeals (easy to remember, it’s right in the name). The Courts of Appeals in the federal system are also known as the Circuit Courts (the history as to why they are called that is interesting, but I’m not going to go into that here). Because things can also be appealed to the Supreme Court, at the top of the federal hierarchy, the Courts of Appeals are also referred to as “intermediate” courts – they are above the trial level courts, but below the Supreme Court. Both the Courts of Appeals and the Supreme Court are “appellate courts”.
Now, THIS IS VERY IMPORTANT: appellate courts do not, *not*, NOT review or construe the facts. They *only* deal with matters regarding the *application of the law and legal rules*! This can be confusing because sometimes the application of the law is *related* to the facts and evidence, for example if an appellate court decides that certain evidence was improperly excluded during the trial. But it’s *always* about the application of the law and the rules, never about the determination of guilt or responsibility at which the trial court (or the jury if there was one) arrived. The trial judge or jury is assumed to have gotten the decision right based on the facts before them, and appellate courts don’t second-guess verdicts. They don’t get to say “How could that judge have arrived at that decision based on the facts??” In fact, great deference is given to trial level judges and juries. Again, appellate level decisions are *always* about questions of law, never questions of the facts. Got it?
Ok, with that out of the way, here’s what the Supreme Court did this morning with respect to Steve Bannon.
In November of 2021 Bannon was indicted for contempt of Congress for refusing to testify about Jan 6. (That indictment is included for Notes from the Front members.) The trial began on July 18, 2022, and four days later the jury convicted him. He was sentenced to four months in prison, which he appealed to the Court of Appeals, his appeal was denied, he then appealed it to the Supreme Court, and the Supreme Court *also* denied his appeal, and so he went to prison for four months. In other words, *he has already served those four months in prison*, from July to October of 2024. Note those dates. 2024.
In *2025*, so Bannon is already done with his prison sentence, Bannon filed a motion to have the conviction overturned. Why would he do that if he’s already served his sentence? For vindication, and so he doesn’t have a felony on his record.
It will probably surprise nobody that earlier this year Trump’s DOJ filed a motion in *support* of Bannon’s request to have his conviction overturned. In fact, the DOJ filed a motion to *dismiss the 2021 indictment* entirely, and it was signed by none other than Jeanine Pirro (included for Notes from the Front members). That Motion to Dismiss says that the government “has determined in its prosecutorial discretion that dismissal of this criminal case is in the interests of justice,” and requests that it be dismissed *with prejudice*. As a reminder, “with prejudice” means that the case can’t be brought again ever, at all (clearly they are thinking ahead to the 2026 and 2028 elections, and how that could turn the tables). Yeah, it’s weasely as hell, but that’s this administration’s brand.
So, the Supreme Court has this question of law in front of it, along with the Government’s motion to dismiss the indictment.
Here’s what the Supreme Court did today:
“The judgment is vacated, and the case is remanded to the United States Court of Appeals for the District of Columbia Circuit for further consideration in light of the pending motion to dismiss the indictment.”
In plain English: “Hey, Court of Appeals, we now have a motion from the government saying that in its judgement it would be in the interest of justice to dismiss the indictment. Please review it and figure out what to do.”
Now, BEFORE you start in with the “Well it’s Trump’s Supreme Court”, it’s the *exact* same Supreme Court as the one that declined Bannon’s previous appeal. What’s different is that now the government is saying it wants to dismiss the charges. It is the *government* which has changed, *not* the Supreme Court.
While it’s possible that the Court of Appeals will get into rehashing the application of the law and executive privilege to Bannon’s case, I think it’s very unlikely; it’s vastly more likely that they will simply dismiss the indictment based on the government’s motion to do so. But still, I’d love to see the Court of Appeals issue an opinion on the executive privilege thing, even if they do still dismiss the indictment.
Notes from the Front members: the indictment and motion to dismiss are in your inbox now.
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https://annepmitchell.substack.com/p/no-the-supreme-court-did-not-just
P.S. If you actually read all the way to the bottom please leave a comment that includes the word “weasel”. It will show me that my efforts aren’t in vain and that people actually *do* read these things, and it will drive those who just skim crazy wondering why everyone is talking about weasels! ;~)
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