Deadline Legal Blog-Trump DOJ seeks Bannon contempt dismissal instead of opposing him at SCOTUS

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The timing of the extraordinary litigation move backing the Trump ally follows the high court’s request for the DOJ to weigh in on the appeal.

Trump DOJ seeks Bannon contempt dismissal instead of opposing him at SCOTUS - MS NOW

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— (@oc88.bsky.social) 2026-02-09T23:05:09.473Z

https://www.ms.now/deadline-white-house/deadline-legal-blog/trump-doj-seeks-bannon-contempt-dismissal-instead-of-opposing-him-at-scotus

Back in November, I noted that Steve Bannon got a boost in his appeal when the Supreme Court asked the Justice Department to respond to the Donald Trump ally’s petition. Bannon was seeking high court review of his contempt of Congress conviction, which he got in 2022 for not complying with the House Jan. 6 committee.

The Trump DOJ had initially waived its right to respond to Bannon’s petition, which would’ve likely led to its outright denial if the high court didn’t request a response. The appeals court had ruled against Bannon, so a Supreme Court denial would’ve effectively upheld his conviction.

But the high court did request a response, and what followed was quite the boost for the Trump ally, who’s been in the news lately less for his contempt appeal than for his midterm polling place threats and Jeffrey Epstein ties.

On Monday, the day that the DOJ’s high court response was due, it didn’t file a brief opposing Bannon’s petition, as the government routinely does when criminal defendants petition the court. Rather, the DOJ told the justices that it was making a motion in the trial court to dismiss Bannon’s case, and it asked them to vacate the appeals court ruling against him and to send the case back so it can be dismissed in the lower court.

“The government has determined in its prosecutorial discretion that dismissal of this criminal case is in the interests of justice,” the Trump DOJ’s Supreme Court filing said. It didn’t explain why it thought that justice required dismissal. ....

The timing of the DOJ’s action in Bannon’s favor seems to line up with the latest due date for its response to the justices. Its response was initially due in December, but it requested extensions, ending on Monday. Of course, if this move was the plan for Bannon all along, the DOJ could have made it earlier and not waived its response to start with. And no matter how this litigation proceeds and concludes, Trump could always pardon Bannon.

The next moves for Bannon are up to the justices and the judge presiding over his case in the lower court. In a typical case at the Supreme Court, the defendant would next file a final reply brief attempting to make a last pitch to the justices for why they should grant review and shouldn’t listen to the DOJ’s arguments in its opposition brief. Here, of course, the DOJ didn’t file an opposition brief, though Bannon could still file a final reply before the justices put the case on for an upcoming private conference to consider the matter alongside other pending petitions.

In the summer of 2024, the justices rejected Bannon’s bid to stay free pending his appeal, and he served a four-month sentence but continued to press his appeal.

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1. MaddowBlog-As the DOJ tries to undo Steve Bannon's conviction, a two-tiered system comes into view

Republicans used to be concerned about the idea of a justice system that favors White House allies. They had the right concern about the wrong president.

As the DOJ tries to undo Steve Bannon’s conviction, a two-tiered system comes into view

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— Mike Walker (@newnarrative.bsky.social) 2026-02-10T20:25:14.914Z

https://www.ms.now/rachel-maddow-show/maddowblog/as-the-doj-tries-to-undo-steve-bannons-conviction-a-two-tiered-system-comes-into-view

Bannon’s other serious legal problem came to the fore a year earlier when the podcast host and former White House strategist reported to a federal prison after having been found guilty of two counts of contempt of Congress as part of the investigation into the Jan. 6 attack. After serving a four-month sentence, he was released shortly before Election Day 2024.

In theory, that represented the end of the dispute, but in practice, it wasn’t quite that simple: Bannon and his lawyers continued to challenge his conviction, taking the case to the U.S. Supreme Court, hoping to have the case overturned. After the high court justices asked the Justice Department to weigh in, my MS NOW colleague Jordan Rubin highlighted the unusual developments that followed:

On Monday, the day that the DOJ’s high court response was due, it didn’t file a brief opposing Bannon’s petition, as the government routinely does when criminal defendants petition the court. Rather, the DOJ told the justices that it was making a motion in the trial court to dismiss Bannon’s case, and it asked them to vacate the appeals court ruling against him and to send the case back so it can be dismissed in the lower court.

“The government has determined in its prosecutorial discretion that dismissal of this criminal case is in the interests of justice,” prosecutors said in their Supreme Court filing.

In other words, Bannon wants his conviction overturned; the justices asked the DOJ for its perspective; and Justice Department officials effectively replied, “Sounds good to us.”....

And therein lies the larger point. Bannon had his day in court, he lost and he was held accountable. Trump’s Justice Department is on board with undoing his conviction, apparently for the most obvious of reasons: The defendant is allied with the president.

This keeps happening. If you’re a convicted criminal whom Trump likes, you get a pardon. If you’re an accused criminal whom Trump likes, the charges against you evaporate. And if you’re a criminal who wants an earlier conviction overturned, and Trump looks favorably on you, the president’s Justice Department will endorse your endeavor.

For years, Republicans were obsessed with the idea that the United States had entered an era of a “two-tiered” system of justice. As it happens, they had the right concern about the wrong president.

I am glad that Bannon had to serve his prison sentence