Bannon Lawyer May Have Made One Or Two Oopsies In Conversation With FBI
Robert Costello, this is your life.
(Photo by Stephanie Keith/Getty Images)
There were fireworks last week in Steve Bannon’s contempt of Congress case. Again. In advance of an evidentiary hearing this Wednesday, prosecutors and the putrefying podcaster each filed a motion accusing the other of acting in bad faith and misconstruing the law.
Bannon demands expansive discovery as to how the government came to collect non-content phone and email data on his attorney Robert Costello, who told the January 6 Select Committee that Bannon wasn’t going to comply with the subpoena for documents and testimony.
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There was great sturm und drang about the government hoovering up data for random dudes named Robert Costello, but, as independent journalist Marcy Wheeler points out, prosecutors had ample reason to suspect that Bannon’s lawyer was less than fully candid in a pair of meetings with the Justice Department in November of 2021 as he attempted to keep his client from being charged with contempt of Congress.
Costello admitted that he had told Bannon that seven of the 17 categories of information subpoenaed by the Committee were not covered by any plausible claim of executive privilege, but that he had advised his client not to cooperate anyway. He also seems to have some odd ideas about privilege, insisting that Bannon’s conversations with Rudy Giuliani and Jenna Ellis were attorney work product, although no one associated with the campaign has ever made that assertion. Similarly, Costello claimed privilege over a conversation he had with his client, despite the fact that former National Security Advisor Michael Flynn was in the room when it took place.
But Costello’s claims about contacts with lawyers for Donald Trump seem the most suspect. Because, as prosecutors point out in their reply brief, Trump never actually asserted executive privilege over his conversations with Bannon, instead making generalized gestures toward any privilege that Bannon might be able to assert. Which makes sense, since Bannon was fired from his White House job in 2017, long before the events leading up to the Capitol Riot. And by November, Costello was crystal clear on the former president’s position, having doggedly but unsuccessfully lobbied Trump’s counsel to change it.
When his client got subpoenaed on September 23, Costello made no move to gather documents or prepare a privilege log. Instead he spent a week trying to figure out which Trumpland lawyer would dummy up an excuse for his client not to cooperate. He did eventually get a letter out of attorney Justin Clark conveying instructions from the former president that Bannon should “where appropriate, invoke any immunities and privileges he may have from compelled testimony in response to the subpoena” and “not produce any documents concerning privileged material.”
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Notably, the letter did not say “Give Bennie Thompson the finger and refuse to show up at all or produce a single document.”
And when Clark found out that Costello was using his boilerplate rage-sturbation to claim a blanket assertion of executive privilege over events that took place three years after Bannon got “You’re fired” from the White House, Clark sent two emails insisting that this was not the former president’s position.
“To be clear, in our conversation yesterday I simply reiterated the instruction from my letter to you dated October 6, 2021, and attached below,” he wrote on the 13th, refusing to intercede with the Committee or even to specify what topics might potentially be covered by privilege.
And on October 16, he was even more clear:
Just to reiterate, our letter referenced below [the October 6 letter] didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call. But as I also indicated the other day other avenues to invoke the privilege – if you believe it to be appropriate – exist and are your responsibility. If you haven’t already I’d encourage you again to contact counsel for the committee to discuss it further.
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And yet Costello told his client not to show up and continued to claim in November that he’d done it at the behest of Trump’s lawyers. Ooopsie!
All of which might make an advice of counsel defense difficult, but the government argues that this isn’t even available to Bannon because the “willfulness” requirement is satisfied if the defendant knew he was ignoring a legislative order — i.e. he didn’t accidentally show up on Thursday for a Tuesday hearing. There’s no scienter requirement that he understand that the conduct was illegal, and thus no defense in mistake of law or advice of counsel, no matter how, ummm, confused that counsel may be.
And so Bannon’s lawyers argue briefly that the precedential case for the scienter requirement has been overruled, whine that the government is trying to turn contempt of Congress into a strict liability offense, and then go back to yelling about “this outrageous misconduct by the Government – misconduct designed to intimidate and chill the attorney-client relationship and without any legitimate basis in law or fact in this case,” by which they mean collection of Costello’s pen register data.
Because Steve Bannon promised to turn this case into “the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden,” and he’s going to get rich or die tryin’.
It’s not clear whether prosecutors will tip their hand in open court about the reason they were interested in Costello’s communications data. But they’re certainly pulling no punches for Costello, the former Deputy Chief of the Criminal Division in the Southern District of New York.
“That the Defendant in his particular case refused to comply on spurious claims of executive privilege has no bearing on the applicable intent standard,” they write. “Nor can the regret the Defendant’s attorney may feel in leading him down this path change the intent standard.”
Woof. This hearing is going to be nuts!
US v. Bannon [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
