- Bannon, 66, received an eleventh-hour pardon from Trump for his federal crimes
- He had been charged by federal prosecutors with defrauding donors to the We Build the Wall fundraising campaign
- He was arrested in August aboard a superyacht owned by a Chinese billionaire
- Presidential pardons only apply to federal crimes, which may allow the DA to file charges against Bannon
- However, if state charges are filed against Bannon, they may face scrutiny under double jeopardy laws
The Manhattan District Attorney's Office is considering prosecuting Steve Bannon in state court after his federal fraud charges received an eleventh-hour pardon from former President Donald Trump.
Bannon, who helped Trump win the 2016 election and briefly served as a White House adviser, was charged by federal prosecutors in Manhattan after he allegedly profited off a scheme to defraud donors to the We Build the Wall fundraising campaign.
Investigators are in preliminary discussions whether to bring charges against Bannon at the state level, sources told the Washington Post. A presidential pardon only applies to federal crimes.
The investigators are working in the Major Economic Crimes Bureau of the office of District Attorney Cyrus Vance Jr.
A judicial 'sharing order' would need to be granted in order for federal and state prosecutors to swap evidence and it remains unclear if one has been obtained, according to the outlet.
Bannon, 66, was arrested in August aboard a superyacht owned by Chinese billionaire Guo Wengui and accused with three others of defrauding hundreds of thousands of people as part of a group pledging to use private donations to build a section of border wall.
He was released on $5million bail, secured by $1.75million in assets and was ultimately the only one of the group to receive the presidential pardon.
The We Build The Wall scheme raised $25million to fund part of the border wall but prosecutors claimed it was a scam: donors' cash was also funneled to its founder Brian Kolfage and to Bannon.
Bannon was accused of getting $1million in the alleged scheme, spending hundreds of thousands of that on 'expenses.'
The group's founder, Kolfage, is also accused of fraudulently pocketing funds. He claimed he did not get a cent from the scheme but instead got $100,000 up front and $20,000 a month salary, prosecutors allege, living a lavish lifestyle at Miramar Beach in the Florida panhandle.
Kolfage, an Iraq war veteran who had both legs amputated and lost his right arm in a rocket attack, was arrested at his home in Florida.
Andrew Badolato and Timothy Shea were also indicted by the federal prosecutors, and all four of them had pleaded not guilty to conspiracy to commit wire fraud and money-laundering charges.
A trial for the three other defendants is scheduled for later this year, the Washington Post reported.
If state charges are filed against Bannon, they may face scrutiny under double jeopardy laws outlined in the Fifth Amendment of the U.S. Constitution and state laws.
The Manhattan DA previously brought a case against Trump ally Paul Manafort, who was found guilty on eight counts including filing false tax returns, bank fraud, and failing to disclose a foreign bank account.
Vance tried to bring state charges for mortgage fraud and other state felonies against Manafort, Trump's former campaign chairman, but they were dismissed by a New York appeals court on double jeopardy grounds.
The court argued that Manafort, who was later pardoned by Trump in December, had already been tried in federal court.
Double jeopardy laws may not apply if charges are filed against Bannon, who had not been convicted at the federal level before his pardon.
In 2019, State Senator Todd Kaminsky helped pass legislation hat closed a loophole in New York State's double-jeopardy law, Business Insider reported.
In December, Kaminsky -a former assistant US attorney in the Eastern District of New York – told the outlet that the state law would have prevented anyone pardoned by Trump from facing state charges.
'If the president pardoned his own family member for something he did running the president's business, or for something he did on the president's campaign ... that would fall squarely into our law and get at the 'corrupt use of the pardon' power we are intending to address,' Kaminsky said.
Vance's office began a probe investigating Trump and the Trump Organization for possible tax and insurance fraud in 2019.
New York Attorney General Letitia James is also currently investigating Trump for possible financial crimes.