The Trump Justice Department can’t get rid of Steve Bannon’s contempt-of-Congress indictment just yet, because it hasn’t adequately explained why it wants to do so.

The denial of the DOJ’s motion to dismiss came Wednesday from U.S. District Judge Carl Nichols, a Donald Trump appointee who presided over the Trump ally’s criminal case.

Bannon was convicted in 2022 for not complying with the House Jan. 6 select committee. He served a four-month sentence after the Supreme Court refused to let him stay free while he appealed. He continued his legal challenge after serving time, filing a petition with the Supreme Court after he lost in the appeals court. While his petition was pending, the DOJ moved to dismiss the case, and the justices sent it back to the lower courts for the next steps to play out.

Denying the dismissal motion on Wednesday, Nichols said it failed to meet the requirements of a procedural rule that lets the government dismiss an indictment “with leave of court.” That “leave of court” language gives judges discretion over whether to grant such motions. Nicholas noted that the government’s sole explanation in this case was that it “has determined in its prosecutorial discretion that dismissal of this criminal case is in the interests of justice.” He said that was the sort of conclusory statement deemed insufficient to justify dismissal.

Nichols said the DOJ can try again with a new motion that meets legal requirements. But he also flagged court precedent in Washington that says the government can only dismiss a case while a prosecution is pending. He said that if the government files another dismissal motion, it should address how that precedent factors into its attempt to dismiss Bannon’s indictment at this stage in the proceedings.  

The underlying legal issue that Bannon had been pressing in his appeal centered on the government’s burden of proof in contempt cases. He claimed that he reasonably believed, based on legal advice, that he didn’t have to respond to the committee’s subpoena. A Trump ally who faced a similar prosecution, Peter Navarro, is still pressing an appeal that could make its way to the justices.

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