Pardon could increase risk for Bannon co-defendants

Of all the pardons former President Donald Trump granted in the hours before he left office, perhaps none was as galling to his critics, government watchdog groups and even some of his allies than the pardon of his former chief strategist, Steve Bannon.

Bannon, 67, had been charged with conspiring to swindle donors to a private fund to build a wall along the Mexican border, siphoning off more than $1 million for personal and other expenses, the indictment said.

Even the Wall Street Journal’s editorial page, a conservative bastion, suggested Bannon’s pardon was unseemly and egregious, asserting that, if the charges were true, “Mr. Trump should be furious at his ex-adviser for turning his signature issue into a grift.”

But the pardon also left three other men who were indicted with Bannon in an unusual and unenviable predicament. None of them received pardons and so they still must face a trial in May. What’s more, legal experts said, Bannon could now be called as a government witness to testify against them, potentially increasing their legal jeopardy.

John S. Martin Jr., a retired federal judge and former U.S. attorney in Manhattan, said that, assuming Bannon accepted his pardon and the immunity it conferred, he could not invoke his Fifth Amendment right against self-incrimination if called to testify for the government against his co-defendants.

“He may not have walked as far away as he thought,” Martin said.

Even if a judge allows Bannon to invoke the Fifth Amendment on the theory he still faces possible state charges, his absence at the defense table would doubtless reshape the trial.

Bannon’s three co-defendants — Air Force veteran Brian Kolfage, venture capitalist Andrew Badolato and Timothy Shea — will be left defending themselves without the most prominent figure in the alleged scheme.

“Now, it’s a totally different trial,” said John C. Meringolo, Shea’s lawyer. “Different strategies must apply.”

The three co-defendants have all pleaded not guilty, as did Bannon.

Although Bannon will not be a defendant in the trial, testimony could link him to the fraud scheme, and defense lawyers for the other men may try to deflect suspicion and guilt away from their clients and in his direction.

Bannon’s lawyer, Robert J. Costello, said, “Mr. Bannon is not going to comment on the pardon or any speculation about events that have not happened.”

Bannon had been an architect of Trump’s 2016 general election campaign and emerged as one of the most powerful figures in the White House early in the Trump administration before stepping down in August 2017.

The indictment unsealed in August said Bannon and his three co-defendants had used the popularity among conservatives of Trump’s plan to seal the border to dupe donors to a fundraising effort called We Build the Wall.

The organization had collected more than $25 million and had promised that all donations would go to the project, according to the indictment. The men were accused of using the money to pay for hotel and travel bills, credit card debt and other personal expenses.