The mainstream media announced the indictment of Steve Bannon in a chorus of rapturous ecstasy that would make Verdi blush. The reportage has consisted almost entirely of presenting the most damning details of the indictment with little or no attempt to examine potential weaknesses in the charges or consider possible defenses. Predictably, Never Trumpers are offering backup vocals with their own Schadenfreude tune. Andrew Napolitano tells us that “it does not look good” for Bannon without offering even a smidgen of a defense beyond the non-argument, “Well they can argue that charities can pay people, but they explicitly said they would not be paid.” If that’s the best defense, it indeed “does not look good.”
But the strength of the case against Bannon (and the three others indicted) is not anywhere near as clear-cut as the MSM and its enablers would have you believe. More importantly, this is a classic case of selective enforcement of the law.
Let’s start at the beginning here. The indictment of Bannon and the other defendants was sought by the US Attorney’s office for the Southern District of New York. This office has built a reputation as being decidedly anti-Trump. They have targeted many Trump insiders for investigation and prosecution. So, nobody should assume that in going after Steve Bannon, the SDNY is simply motivated by concerns about potential misrepresentations to donors.
Full-disclosure: I know Steve Bannon, and consider him a friend. Fuller-disclosure: I have seen the results of the left-wing politicization of our bureaucracy and courts first-hand. In 2016, the National Organization for Marriage’s donor names were illegally released to the public by the IRS. We sued the IRS but had to settle for a measly $50,000. The facts behind how and why our donor names were released were never made public. I guarantee you, had it been Planned Parenthood’s donor list that was exposed, all hell would have broken loose. Top IRS officials would be forced to resign or be fired, Congressional hearings would be launched and an intense media firestorm would be created.
We also saw our donors in the successful Proposition 8 referendum in California targeted with death threats and harassment. Did the government swoop in to help them out? No. The courts refused to do anything to protect their privacy, even when a suit was filed. And in 2014, we were accused and fined in the state of Maine for something that we did not do. We were brought up on campaign-finance charges related to our referendum efforts to protect marriage in Maine. The charges were bogus and brought by a gay activist, but a campaign finance committee still ruled against us. They were not even all that discreet in their joy. I can imagine them high-fiving one another after the Commission meeting that they “got the anti-gay marriage guys.” I refused to admit guilt where there was none, though there was pressure for us to do so. Ultimately, we had to pay a fine and move on.
The stakes for Bannon are much higher.
Bannon and three other defendants (Brian Kolfage, Andrew Badolato, and Timothy Shea) are each facing one count of conspiracy to commit wire fraud and one count of conspiracy to commit money laundering. Each count carries a sentence of up to 20 years prison time.
What we know about the case comes from only one source: the statements contained in the grand jury indictment. By operation of law, grand jury criminal indictments are an entirely one-sided affair soley focused on claims of the prosecutor. The accused is not afforded an opportunity to present a defense.
The government’s case rests on the alleged facts that Brian Kolfage solicited funds for on GoFundMe account to build a wall on the southern border of the United States with the explicit promise that Kolfage would not be paid. Kolfage is an Iraq war veteran and a triple amputee. The fundraising appeal was extraordinarily effective, with approximately $20 million being raised in a matter of days. However, it appears that Kolfage, who is not an experienced nonprofit executive, did not actually have a nonprofit organization set up to formally receive the donations via GoFundMe or to contract with companies to build a section of the border wall. GoFundMe told Kolfage that unless he immediately created a legal non-profit and got affirmative “opt in” permission of donors to transfer their funds to such a nonprofit group, they would return the money to the donors.
In response, Mr. Kolfage turned to Steve Bannon and the other defendants for help. A new nonprofit group was created, We Build the Wall, a Board of Directors selected, Bylaws approved and bank accounts established. Kolfage and the Board, with Bannon’s involvement, then began the laborious task of re-raising the funds by securing an affirmative “opt in” from the original donors to transfer the funds to the new nonprofit group. The government alleges that statements were made that Board members, including Kolfage and Bannon, would not receive any salary or compensation. Instead, it is alleged that Steve Bannon received a $1,000,000 donation from We Build the Wall into a separate non-profit organization which Bannon controlled. Out of that $1 million Bannon’s non-profit allegedly paid Kolfage’s wife $350,000 for media consulting and it is claimed that Bannon spent the rest of the money on his lifestyle.
On the surface, the facts as presented look troubling.
Again, these allegations are the Southern District of New York’s one-sided presentation of its claims through the grand jury. They do not even attempt to examine potential innocent explanations or legal defenses. For example, what if Kolfage’s wife did do work for Bannon’s non-profit? What if Kolfage himself did? What if Bannon’s non-profit received the $1,000,000 for legitimate services it was performing for We Build the Wall, such as the placement of media advertising? The MSM is fond of examining campaign reports of conservative political companies and claim that they were paid millions of dollars, when the vast portion of those payments actually are for advertising on behalf of the clients who paid them. And what was the status of the financial condition of Bannon’s non-profit before it received the We Build the Wall funds? For example, did this group have other ongoing business with others to the extent that it could be plausible that funds paid to Kolfage or his wife did not in fact come from the We Build the Wall wire transfers? Did Bannon’s nonprofit group have an understanding of services that they would perform with We Build the Wall funds? What portion of funds might have been used for out-of-pocket expenses, travel, or other legitimate expenses for We Build the Wall?
These are all simply legitimate questions. We don’t know anything about the answers to these and other questions because all that has been disclosed so far are the one-sided allegations contained in the government’s indictment.
The purpose of We Build the Wall was to construct, using private funds, part of a barrier on the southern border of the USA. All told, they raised about $25 million for this purpose. The indictment contains a very telling statement about what happened with those funds: “…We Build the Wall spent money on the construction of a border wall…” but it’s alleged that “hundreds of thousands of dollars” were siphoned off by the defendants. This is a tacit admission by the government that somewhere between 96% and 98% of funds were used exactly as donors were told, to further construction of a southern border wall. No matter. They want to make an example of Steve Bannon.
The SDNY makes much of statements made in media interviews and emails that Kolfage and the We Builld the Wall Board would take no compensation for their work. For the sake of argument, even if we assume that the facts are all as the government presents in the Bannon case, if the issue comes down to the false or misleading claims of fundraising emails, what of all of the false and misleading claims I receive from liberal politicians and PACs? Will they be brought up on charges of wire fraud and conspiracy to money launder?
One example out of the hundreds of fundraising emails I receive monthly with exaggerated and potentially false claimes is an innovative PAC email request from Amy McGrath, the Democrat challenger to Senate Leader Mitch McConnell, claiming a 450 percent match. The email further claims that unless Amy receives “$9,203.00 right now,” that they will pull all ads. If they did not receive the $9,203.00 and did not pull these ads, should the Feds investigate? Given the Bannon precedence why would they not?
I’ll tell you why in two words: Selective enforcement.
Even if prosecution were to be even-handed, which it will not be, the reasoning for this indictment could lead to all non-profit, PAC, and social welfare organizations, to potentially devastating and invasive legal discovery. Any group that is sending out what the government deems as “misleading” or “false” claims in their fundraising emails would be open to debilitating discovery that could jeopardize donor confidentiality and sensitive internal discussions and information.
This episode is a window into a fundamentally changed situation in American law. Conservatives have long defended American institutions, and especially our justice system, and I would say rightfully so. When we looked at Communist countries, one of the characteristics that repelled was how unequal justice was before the law. In the Soviet Union laws existed in the books that theoretically applied to everyone, but were often only used to punish those who the regime wished to target. This is not an example that I ever thought America would follow, but unfortunately, we are on that path.
Historically, conservatives believed that while there might be mistakes in the application of the law the US, in general, our courts were fair. Well, you can kiss that idea goodbye for now. Our courts and our prosecutors are increasingly motivated by ideological factors on one side of the political aisle. Although there are many great prosecutors and judges left in this country, there are enough Cultural Marxists that have infiltrated the legal profession that bias and animosity toward one side of the political aisle in the application of the law is increasingly the norm.
You can guarantee, even now in a Trump administration, that if you are a conservative you will have a much more difficult time in courts across the country. From bakers being sued for not baking LGBT cakes to David Daleiden being brought up on charges for exposing Planned Parenthood to people defending their homes from mobs being charged for brandishing weapons while the Jacobins tearing down the gates and trespassing on private property get…nothing. In cities across America, anarchists and violent mobs riot and loot. Mayors and prosecutors do nothing. It is conservatives who see their civil rights to equal justice under the law stripped from them across this country.
So, before piling on Steve Bannon, ask yourself these questions: Do you trust the media and do you trust the equal application of the law to conservatives? If your answer is ‘no’ to one or both of these questions, you should give Steve Bannon the benefit of the doubt. You should refuse to accept the grand jury indictment as definitive proof of wrongdoing, and you should look for plausible reasons to question this indictment.
Conservatives should not let good men down on the field of battle. We should do what we can to stand with those who have stood with us. And at the very least, we should understand that the MSM and the establishment hates Steve Bannon—and that might just have something to do with this indictment.