Below is my column on the Steven Bannon case, which was published in the Washington Times. One of the defendants with Bannon in particular is Andrew Badolato, who has repeatedly assisted the government on previous cases. While Badolato pleaded not guilty and has a long relationship with Bannon, his story could pose a serious threat to the defense attorney that he might strike a deal with prosecutors. In such a case, a cooperating witness confirming an intention to conceal transactions would be devastating to the defense. A trial date for May 24, 2021 has been set, although US District Judge Analisa Torres described this date as "optimistic". (Note: This week's posts may be limited due to my duties in a criminal defense case.)
Here is the column:
"This whole fiasco is supposed to stop people who want to build the wall." That was the only response from former White House strategist Steve Bannon after his fraud charges in New York last week.
With up to 20 years in prison, it was perhaps the most ambitious political turn of a man whose creativity was only matched by his boldness. However, if Mr Bannon hopes to turn his profound conspiracy into a criminal defense, he may face his most formidable adversary yet: himself.
In a recent book, "Deep State: Trump, the FBI, and the Rule of Law," by James B. Stewart, Mr. Bannon is quoted as saying, "Deep State conspiracy theory is for nut cases" and that such claims are out of bounds for " America is not Turkey or Egypt. " He is now suggesting that a similar conspiracy is underway to derail his work to build the wall. However, Mr Bannon needs an explanation, not a narration, to address his alleged conduct in the prosecution.
The problem with the deep state conspiracy as a defense is that it only works when prosecutors in the southern New York borough persecute a simple and honest wall builder with bizarre or novel theories of crime. In fact, the 24-page indictment is as simple as sin itself. It knowingly contains false statements made against donors related to the misuse of donations for personal expenses of the four main characters in the Build The Wall campaign.
Mr. Bannon never does anything small and when he decided to dive into the funds of this charity he did it with the enthusiasm of the signature.
The charity raised $ 25 million and Mr. Bannon is accused of taking $ 1 million of that money as personal compensation. His co-defendants Brian Kolfage, Andrew Badolato and Timothy Shea are charged with taking over their own shares, despite having assured donors that all of the money would be used to build the wall along the southern border.
Mr. Kolfage is a double amputee war hero who started the campaign with the ambitious goal of finding $ 1 billion. As part of the pitch, Mr. Kolfage assured donors that the charity administrators "would not take a dime in salary or compensation." Still, he reportedly took more than $ 350,000 and allegedly used the money on everything from boats to plastic surgery.
It is certainly true that charges always look more discouraging before being challenged by the defense. For example, prosecutors love to describe expenses like Mr. Kolfage's purchase of a boat called a "Warfighter" in order to label a defendant as not only fraudulent but also slightly fraudulent. Such purchases could have been made with money unrelated to the alleged fraud, but prosecutors love to display shiny items as some form of loot.
In addition, prosecutors highlight the use of non-profit organizations to distribute funds for the campaign. However, fundraising site GoFundMe had told Mr. Kolfage that it had concerns about a campaign that only promised to give the money to the government. There was an urgent need for Mr. Kolfage to use a not-for-profit organization, and Mr. Kolfage appeared to turn to Mr. Bannon for help.
However, the indictment describes a number of Shell companies and nonprofits that are used to distribute payments. This set of companies is all the more worrying in that they were used to hide the fact that officials actually took significant amounts of money from the charity. The indictment describes how money was sent to a nonprofit controlled by Mr Bannon, which the nonprofit then used to give money to Mr Kolfage through "fake invoices and bogus agreements with vendors."
What stands out about this charge is the boldness and clarity of the allegations made against donors, including the fact that "100% of your donations would go to the government to build a wall" and that if the campaign had not achieved its goal, The Campaign would "refund every penny". Few lawyers would sign such absolute pledges with the fairest of charities.
When GoFundMe forced the organizers to come back to the donors to get them to send the money to the nonprofit, those pledges were repeated on the crowdfunding website and to the donors. This included the assurance that "Kolfage receives no salary" and "personally does not receive a cent in compensation from these donations".
These assurances were not limited to Mr. Kolfage. On social media, Mr. Kolfage declared almost indignantly: “I found it pretty clear. I promised that I would NEVER collect a cent 100% of the donations … Donations only go to the wall. 100% means 100% right? The board won't see any of this money! "
As a criminal defense attorney, I can say that “clarity” is “100%” of a litigation nightmare.
This does not result in a state conspiracy or selective prosecution. Prosecutors can argue that these officials actually withdrew funds that were used to build the wall. The irony is that the rules for nonprofits aren't particularly strict.
As a 501 (c) (4) non-profit, the group was not required by law to disclose its donors or to submit regular financial reports to the Federal Electoral Commission (FEC) for campaigning such as a political committee. Additionally, charities and nonprofits have long had controversy over compensation packages. The key is to be open about the money. Al Sharpton's National Action Network paid him more than $ 1 million in compensation in 2018 and then spent more than $ 500,000 on rights to his life story. However, it was all open and amazingly, nobody seemed to care.
Mr. Bannon could point his fingers at Mr. Kolfage, but he was still taking money donated on false pretenses. He has to sit next to his co-defendant while the prosecutor repeats the mantra: "100% means 100%, right?"
That's why soundbites provide lousy defenses. Steve Bannon et al. Did a terrible job building the wall. What you need to do now is build a defense.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University and a practicing criminal defense attorney.