Bannon Team And Prosecutors Kick The Crap Out Of Each Other In Dueling Motions

In advance of tomorrow morning’s evidentiary hearing, Steve Bannon and prosecutors are already taking wild swings at each other, revving up for what looks to be an ugly slugfest in US District Judge Carl John Nichols’s courtroom.

Last week Bannon pointed to disclosures that the government had collected non-content email and cellphone data from randos who happened to have the same name as his attorney Robert Costello, demanding extensive discovery about internal Justice Department and congressional deliberations.

“Mr. Bannon seeks oral argument and an evidentiary hearing in this case to get to the bottom of 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,” they wrote in a typically over-the-top motion.

Prosecutors fired back with their own brief strongly implying that Costello had misled the government when he claimed that former president Donald Trump was invoking executive privilege as to Bannon’s testimony to the January 6 Select Committee. If so, this might well have given them reason to subpoena his phone records to confirm the timeline.

But last night the DOJ offered a different explanation. Prosecutors claim that they had to seek Costello’s phone and email records “to confirm the Defendant’s knowledge of Congress’s subpoena—an essential element of contempt.”

“The Government has an obligation to ensure every element of the offense is established. And that is exactly what the Government did, including investigating the timing and manner of the Defendant’s contacts with Mr. Costello, the individual communicating the subpoena’s contents to him,” prosecutors huff.

As for the randos whose data got swept up, they argue that Bannon himself has violated the court’s protective order by putting those people’s names on the public record. And, they note, a story about the surveillance of non-parties appeared at the Daily Beast before the filing revealing their identities was even docketed, strongly suggesting that someone leaked it.

“Defendant spends 25 pages attempting to twist relatively common investigative steps and evidentiary dead ends into something that they are not,” they argue, pointing out that surveillance of third parties has nothing to do with Bannon and does not constitute Brady material.

Bannon’s lawyers responded in their usual fashion, which was by SCREAMING BLOODY MURDER.

“[T]he Government’s proposed Surreply reveals an unparalleled arrogance and is extraordinarily disingenuous. The prosecutors are in a deep hole already, yet they continue to frantically dig,” they shout.

“Any attempt to match the Government’s latest assertions with the real facts exposes the Government’s claims as utter nonsense and just more over-reaching,” they add, arguing that prosecutors are turning all attorneys who lobby the DOJ into “witnesses against their clients.”

And while the government’s purported justification may strain credulity, it’s pretty ballsy for Bannon to complain about lawyers being turned into witnesses at the very moment when he’s trying to assert an advice of counsel defense which would by definition turn his lawyer into a witness.

“These prosecutors should be ashamed of themselves for concocting this story to try to justify this outrageous action,”they write, demanding ever greater detail without addressing the government’s allegation that Costello knew full well that Trump never invoked executive privilege for Bannon’s testimony.

Get your front row seats to this fight at 11am by calling 877-873-8017, Access Code: 8692421. In the words of the former president, “Be there, will be wild.”

US v. Bannon [Docket via Court Listener]

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Liz Dye lives in Baltimore where she writes about law and politics.