The Biden-era Justice Department portrayed the contempt of Congress case against Steve Bannon as open and shut.
Bannon declined to cooperate with the House committee that investigated the siege on the U.S. Capitol, flouting a subpoena and refusing to show up for an interview. A trial jury in Washington, D.C., deliberated for less than three hours before delivering a guilty verdict. A federal appeals court upheld that verdict.
Now, four years later, the DOJ is asking a court to drop the case and erase the conviction "in the interests of justice." Bannon's lawyers do not oppose the move.
Legal experts said it follows a pattern where the Justice Department is helping to wipe the slate clean for allies of President Trump—with no one defending the cases, and without courts hearing arguments to the contrary. That violates the U.S. legal system's tradition of hearing views from opposing parties and comes as the Justice Department has also pursued investigations of Trump's perceived enemies.
"No adversity remains in this serious and high-profile criminal matter between, on the one hand, the U.S. Department of Justice overtly acting at the behest of the president of the United States, and on the other hand, Bannon, the defendant, who is a close political ally and adviser to the same president," said Bruce Searby, a defense attorney in Washington and a former federal prosecutor.
The Justice Department did not respond to a request for comment about its decision to walk away from the conviction and the lack of adversity, or truly opposing parties, in the case. Bannon's lawyers did not return messages seeking comment.
Vacating convictions, issuing pardons
Searby first noticed the issue in April, when the DOJ asked to vacate the convictions of about a dozen leaders and deputies of the far-right Oath Keepers and Proud Boys groups.
Those seditious conspiracy trials took months to unfold, as juries heard details about how some of those extremists gathered weapons, recruited followers and even breached the Capitol in the worst attack since the War of 1812.
Trump pardoned the vast majority of Jan. 6, 2021, defendants on his first day back in office, calling them "patriots."
In a recent interview with the CBS newsmagazine 60 Minutes, Trump took credit for those pardons. "I don't think any group's been treated more unfairly than them, and to this day, when they see me they cry," he said.
The administration took another route in seeking to drop the cases of more senior members of the Oath Keepers and Proud Boys—telling judges the move was in "the interests of justice." That was the same rationale it went on to use in the Bannon case.
Lawyers for Representative Jamie Raskin, D-Md., who served on the House Select Committee investigating the events of January 6, told a federal appeals court last spring this was not an ordinary set of cases—and that it should exercise its power to appoint a friend of the court, or amicus, to defend the convictions.
"The established path forward is for this Court to appoint an amicus to present opposing argument and defend the judgment being ambushed," wrote attorneys Justin Sher and Douglas Jensen.
Their court filing said judges have authority to take that step. And they pointed out two other controversial times that judges named outside lawyers to evaluate a bid to dismiss criminal charges: one in the case of former Trump national security adviser Michael Flynn; and another in the case of former New York City Mayor Eric Adams.
Ultimately, judges reluctantly dismissed the Jan. 6 charges without appointing a friend of the court.
"Today's epilogue diminishes the gravity of that day, denigrates the work of the prosecutors and law enforcement officers who secured these convictions, and excuses criminal acts that caused a centuries-long pillar of our democracy—the peaceful transfer of presidential power—to buckle," wrote U.S. District Judge Amit Mehta.
Leeway for prosecutors
Now, the issue has resurfaced in the courtroom of U.S. District Judge Carl Nichols, who presided over Steve Bannon's trial in 2022.
In a court filing last week, DOJ said it would exercise its prosecutorial discretion to dismiss Bannon's indictment. Courts have recognized wide leeway for prosecutors in making decisions about their resources.
Deputy Associate Attorney General Michael Weisbuch wrote it was not appropriate to pursue the contempt case against Bannon because Bannon said he believed he was protected by executive privilege.
Weisbuch said the judge lacked authority to reject the unopposed motion to dismiss. "But even assuming any review could be proper, the policy-laden grounds for dismissal asserted above are not susceptible to judicial second-guessing," he added.
Searby, the former prosecutor, said the judge should not accept the DOJ argument "at face value" and dismissing the case should not be a "foregone conclusion."
An outside lawyer, he said, could assess whether the Justice Department's actions amount to an abuse of prosecutorial discretion: if they are taken in bad faith, tainted with impropriety or contrary to public interest.
Critics and good government groups said the Trump administration has been exploiting the legal system, which is designed to hear views from two opposing parties. The president famously sued his own government over the leak of his tax returns, and then negotiated a settlement with the Justice Department that handed him and his sons immunity from tax audits.
Attorney General Todd Blanche, who previously served as a defense attorney for Trump, confronted serious questions about that deal and his sign-off during a confirmation battle in August. The Senate went on to approve his nomination by a single vote.
Copyright 2026 NPR
