Gap in Trump's pardon could allow DOJ to prosecute Bannon anyway

On the last day of his presidency, Trump issued a pardon to Steve Bannon, who was under indictment in federal court in New York, and was awaiting trial. The pardon has similar flaws as that noted above: it applies to the pending “offenses charged,” and not the underlying conduct, as it pardons Bannon for the specific counts charged. It also pardons crimes that could be charged for the underlying conduct under chapter 95 of title 18 of the United States Code (basically racketeering type charges). But that clearly leaves — unpardoned — numerous potential federal charges, such as mail and wire fraud. It is rare that a prosecutor charges all such counts that could be charged, as it would overwhelm a jury and is unnecessary to increasing a sentence upon conviction. (In Enron, for instance, we could have charged hundreds of such charges against certain participants, but we opted to charge representative examples.)

It is thus highly likely that local federal prosecutors will be scouring their evidence to determine what other charges can be brought. The decision about whether to charge these new counts, however, is relatively easy, if there is sufficient evidence, since the decision about whether this defendant should be charged with in connection with the conduct at issue had already been answered in the affirmative. Finally, whether or not the federal authorities take this step, the state prosecutors are free to charge this scheme under New York law, for which a pardon has no effect.

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