I don’t like Steve Bannon. His political views are distasteful, to say the least. There have been credible allegations that he defrauded people. He was the architect of several awful Trump’s policy decisions like withdrawing from the Paris Climate Agreement, the travel ban, and building the wall between the United States and Mexico.
It turns out that there’s something I like less than Steve Bannon: prosecutorial overreach. I particularly dislike prosecutorial overreach when it aims to disrupt the attorney-client relationship. That relationship is crucial to a working criminal justice system.
It appears that in Mr. Bannon’s criminal contempt case, the government has overreached by obtaining arguably privileged information without giving Mr. Bannon or his counsel a chance to object to the efforts.
Mr. Bannon was charged with two counts of criminal contempt of Congress, in violation of 2 U.S.C. § 192, for refusing to comply in any way with a congressional subpoena for documents related to the January 6th insurrection. These are misdemeanors, by the way.
As the case headed to trial, the government produced about 790 pages of documents in discovery. The defense describes those documents as “reflect[ing] efforts by the Government to obtain, telephone records and email records from the personal and professional accounts of defense counsel, Robert J. Costello.” Those records included phone and email records.
The defense filed a motion to compel discovery from the government about its efforts to obtain these documents. In that motion, the defense argued that it had no notice that the government had sought these documents and thus no opportunity to object to their production on privilege grounds. It also claimed that the government had not used a filter team to ensure that the trial team did not review any privileged documents. In addition, DOJ policy requires that prosecutors seek special permission to obtain records from a lawyer, and it was not clear that the trial team had sought this permission.
When the defense raised these issues with the government (before filing the motion), the government responded that Mr. Costello was a witness in the case because he “represented Mr. Bannon before the January 6th Select Committee in relation to the subpoena it issued to Mr. Bannon.”
The government’s brief makes three main arguments.
First, it contends that the information it obtained was not privileged. Rather, it describes the information it sought as “third-party business records and the type of data that would typically appear on a privilege log”:
1) Email header information (which does not include the content or subject line of emails) for one of Robert Costello’s personal email accounts covering the time period September 22, 2021—the date the Committee first reached out to Robert Costello about the Defendant’s subpoena—and October 21, 2021—the date that the U.S. House of Representatives referred the Defendant for contempt.
2) Toll records (which include the dates, times, sender number, and recipient number of phone calls and text messages, but no content of any calls or text messages) for phone numbers believed to be used by Mr. Costello covering the time period September 1, 2021, to October 21, 2021.
3) Subscriber information (which includes, names, addresses, recent login dates, recent login times, recent login IP addresses, payment source information, and other identifiers associated with the account) for phone and email accounts believed to be used by Mr. Costello.
Second, it argues that this information is relevant because Mr. Costello “is certainly a witness to the Defendant’s deliberate decision to ignore the subpoena’s requirements. Mr. Costello served as the Committee’s point of contact for the Defendant, sent letters to the Committee on the Defendant’s behalf, and communicated with former President Trump’s attorney regarding the subpoena. As he informed the Government during his interviews, he warned the Defendant to ‘beware’ in not complying with the subpoena.”
Third, it tries to dodge the issue by claiming that “[t]he nature and steps of the investigation leading to the charges in this case are irrelevant to the Defendant’s factual guilt or innocence at trial.” In a way, that’s always true. A bad investigation is not a defense to criminal charges. Since prosecutorial misconduct is a reason to seek dismissal of an indictment, this argument misses the point. If DOJ did something wrong, it is relevant to the defense, even if it has nothing to do with disproving an element of the offense.
Oops…DOJ Subpoenaed the Wrong Person’s Email Accounts?
It his reply brief, Mr. Bannon says that the government obtained the records of the wrong Robert Costello. As he argues:
The hundreds of pages of email information they obtained from Google, including email addresses (and IP addresses) of the sender and recipient, date and time of the emails, metadata, social media and meeting (Google Hangouts) data, information as to whether each email was read, remained unread, was deleted, or what filing box the recipient put it in, and more were all for another completely uninvolved citizen apparently named Robert Costello or Robert M. Costello. In fact, not one of the email accounts the Government sought access to in this case, intending to get defense counsel’s emails, actually was defense counsel’s email account.
The good news is that this means the government did not obtain any privileged information. The bad news is that the government was so reckless that it represented to a federal magistrate judge that these were (attorney) Robert Costello’s telephone and email accounts when they were not. Since there is generally a sworn agent’s affidavit in support of search warrant application or non-disclosure order, I can’t help but wonder (cue Carrie’s Sex and the City voice), did the agent correct that sworn affidavit? Did the prosecutor who submitted it?
Was the Information Privileged?
The defense has an uphill battle to show that obtaining the call information—as opposed to the content of texts—infringes on the attorney-client privilege. It is possible that these records could reveal defense strategy. For example, they might reveal that defense counsel has called a key defense witness and had lengthy calls. Or that defense counsel has called someone that the government believes is a key government witness.
It’s still tough to show that call information, rather than content of communications, reveals privileged information. But I too would be raising holy hell if the government sought this information about my telephone records related to a client. And I think the government crosses a line when it does so without a compelling reason. At a minimum, it should let the defense know and allow the defense to raise a privilege objection before the trial team obtains and reviews the records.
That said, the defense make the good point that until it sees what the government actually obtained, it does not know whether the government has the content of any messages or not. It also makes the valid point that the government essentially concedes that it sought this information precisely because it would reveal attorney-client communications. As the defense puts it, the government’s argument that these documents are not privileged is undercut in part by the government’s contention that Mr. Costello’s communications with Mr. Bannon “on the very subject matter of this case” are relevant because of “Mr. Costello’s status as a witness, based on his communications with his client.” If the communications are relevant to show what Mr. Costello said to Mr. Bannon, then they are privileged.
No Filter Team = Red Flag
I’m also troubled by the fact that the government did not put a filter team in place. If it was so sure that these records would not reveal anything privileged, then why not take a belt-and-suspenders approach, and instruct a filter team to review the documents first? If the government needed to justify its process, it could have pointed to this process as a genuine effort to ensure that no privileged information was reviewed by the trial team.
A Proffer Is Not an “Interview” of the Lawyer Making the Proffer
It is fascinating to hear the government describe Mr. Costello’s “interviews” with the government. They sure do not sound like “interviews” to me—they were pre-indictment proffer sessions. Attorney proffers, of course, is standard practice. I’ve participated in dozens of proffer sessions in my career, and I would never—in a million years—consider them to be an “interview” of me by the government.
If the government wants to interview a lawyer as a witness, then it needs to identify the person as a witness and seek their (voluntary) interview—explicitly. It should not talk to a target’s lawyer during a standard proffer session and then treat it as an “interview” of the lawyer as a fact witness in the case.
There are two other problems here. First, if Mr. Costello is really a witness, then he likely cannot also be counsel in the case for Mr. Bannon under the rules of professional conduct. Yet, the government did not seek to have him removed from the case as counsel, thus undercutting their claim that he really is a witness.
Second, if the proffer was really an “interview,” then I’d be curious to know if the government disclosed agent notes from that “interview” to the defense. It apparently did produce the 302 for it, according to Mr. Costello’s affidavit. But did it disclose the handwritten notes too?
It seems far more likely that calling Mr. Costello a “witness” was a convenient—and misleading—way to convince a judge to allow the government to obtain a search warrant or a gag order for a subpoena (meaning that the recipient cannot tell its customer about the subpoena).
A “Political” Prosecution?
Mr. Bannon’s lawyers claim that this is a politically-motivated prosecution. Honestly, that sounds like a stretch. The subpoena may have been politically-motivated. I mean, it’s Congress, right?
That said, the Select Committee is conducting a legitimate investigation. It has the power to issue subpoenas. And that means people who get the subpoenas have to respond to them.
He didn’t respond to the subpoena and that is, at least arguably, criminal contempt. His defense seems to rely on a letter from Trump’s lawyer telling him not to comply as a reason to ignore the subpoena.
I don’t know all the facts, so maybe that letter gives him a defense. However, a weak defense doesn’t entitle the government to treat his lawyer as an undisclosed “witness” or to obtain potentially privileged documents without notice to the defense.
There are so many problems here. Do any of them give rise to a colorable argument to dismiss the indictment? Probably not. My political heart may not personally hope for an acquittal here, but my defense lawyer heart applauds Mr. Bannon’s lawyers for pushing back on what happened and forcing DOJ to justify its conduct.