Bannon Lawyer Complains That Prosecutors Tricked Him Into 'Surreptitious' Interview With 3 Lawyers, 4 FBI Agents, And His Own Associate
You tried.
(Photo by Ben Jackson/Getty Images for SiriusXM) Stephen K. Bannon
Donald Trump did not invoke executive privilege with regard to Steve Bannon’s testimony to the January 6 Select Committee.
It seems important to begin every post about Bannon’s contempt of Congress case with that caveat, as well as this letter Trump’s lawyer Justin Clark wrote to Bannon’s lawyer Robert Costello on October 16, 2021:
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.
Bannon’s entire defense is predicated on the lie that Trump made a blanket invocation of privilege to block his former adviser’s testimony and production of documents to the Committee. Indeed, Costello took two meetings with the DOJ where he stated it as fact. But the reality is that Clark only indicated 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.” And those two things are not the same.
With that out of the way, let’s turn to the latest round of motions in the DOJ’s case against the putrefying podcaster.
On Friday, Bannon filed a motion to dismiss the government’s case on the ground that blowing off the Committee is very cool and very legal — i.e. a public authority defense — because some weirdo on a golf cart in Florida said he ought to. (He didn’t.) And also because the Office of Legal Counsel says executive branch employees won’t be prosecuted for refusing to testify if there’s been a valid invocation of privilege (there wasn’t), and thus it is entrapment and a violation of due process to charge Bannon for blowing off a congressional subpoena.
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If you think it about it — after eating like three weed gummies — it makes complete sense.
Bannon makes the same stupid arguments that every other January 6 litigant has made: that the Committee has no legitimate legislative purpose; that it is illegally constituted because it lacks a Republican member appointed by Minority Leader Kevin McCarthy; that it lacks authority to issue subpoenas; that forcing him to produce a privilege log is itself an abrogation of privilege, etc. The DC Circuit already rejected these arguments in a holding which the Supreme Court declined to overrule when it came to Trump’s presidential records in the custody of the National Archives. And US District Judge David O. Carter unceremoniously garroted them in John “Coup Memo” Eastman’s California case.
What’s more interesting is Bannon’s insistence that OLC memos “reflect the OLC’s legally binding, authoritative position on matters directly related to its own agency” and he had a right to rely on them. Or it would be interesting to find out if the federal courts are going to construe OLC opinions as such, but Bannon’s case is a terrible vehicle for that, since the opinions he cites pertain to current and former federal employees being questioned about their government service (which he wasn’t) in circumstances where there has been a legitimate invocation of privilege (again, no).
Bannon’s lawyers appear to concede that Costello’s interpretation of the OLC memos, not to mention Clark’s supposed invocation of executive privilege, might have been somewhat wide of the mark. But they insist this is of no moment since “Mr. Bannon’s reliance need not be correct, nor need the OLC opinion be a correct statement of the law for entrapment by estoppel or apparent authority purposes.”
As the government points out in its motion to exclude the OLC memoranda and other internal DOJ documents, this is functionally a backdoor means to assert advice of counsel as a defense to contempt of Congress, which the court has already rejected.
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Given that none of the opinions or writings address the Defendant’s specific conduct, that both the current White House Counsel’s Office and the former President’s counsel informed the Defendant he was not being directed to completely disregard Congress’s demand for testimony and documents, and that the opinions and writings cabin their conclusions to the specific circumstances of the cases they address, at best the Defendant was on notice that further inquiry was required before he could conclude the government viewed his default as falling outside the bounds of Section 192.
What’s more interesting, or at least amusing, is Bannon’s attempt to get Costello’s discussions with the DOJ tossed out.
Costello approached the DOJ in late October and requested a meeting to persuade the Department not to charge his client with contempt of Congress. He had two teleconferences with the agency at which he made the dubious claims about Trump’s invocation of executive privilege, and he subsequently turned over the very documents which disproved it.
For reasons that are not entirely clear, and unbeknownst to Costello, the DOJ got a subpoena for the attorney’s metadata right around the time he requested the meeting. Prosecutors claim that they needed to prove that Costello actually gave notice of the Committee subpoena to Bannon, which does seem a bit dubious. But regardless, metadata is not generally considered within the ambit of attorney-client privilege.
Costello, who still represents Bannon in this case, would now like to exclude those interviews and the documents he himself handed over to prosecutors on the theory that “if he had been made aware that he was viewed as a witness against Mr. Bannon, not Mr. Bannon’s advocate,” he would have behaved differently.
This theoretically transforms a teleconference with three DOJ lawyers, four FBI agents, a paralegal, and Costello’s own associate on the line into a “surreptitious interview” which must be suppressed. And while the court’s at it, Costello would like the government to return “more than 100 pages of documents – including attorney work product produced during the representation of Mr. Bannon.”
Apparently Costello, who worked at SDNY earlier in his career, is under the impression that law enforcement is obliged to shoot straight and lay all their cards on the table. And if you ask an undercover agent if he’s a cop, he has to admit it. Probably.
Shine on you crazy, crazy diamonds.
US v. Bannon [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
