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Lawyers representing Steve Bannon believe they may have found a way to blow up the government’s case against the former Trump advisor – and now say the government breached attorney-client privilege by subpoenaing phone and email records for Bannon’s lawyer, Robert Costello, amid their probe.
The lawyers say in an explosive new filing they learned of the efforts to get Costello’s phone and email records when the government produced 790 documents as part of the case against Bannon, part of the normal document production in a criminal case.
The snooping, in the form of a grand jury subpoena, happened at a time when Costello was meeting with prosecutors ‘as Mr. Bannon’s attorney, in what he thought were good-faith pre-indictment discussions’ – and without indication of any ‘taint team’ to vet sensitive information.
Their filing includes notes from an FBI agent following two separate meetings the lawyer had with prosecutors while the House Jan. 6th Committee was seeking to obtain Bannon’s testimony.
While serving as key evidence of Bannon’s case on the privilege issue, the FBI documents also map out Costello’s back-and-forth with the House Jan. 6th committee amid its demands for testimony and documents from Bannon.
The FBI agent’s notes memorialize detailed conversations with Costello about his contacts with the panel as it pursued Bannon’s testimony – including over some materials where Costello purportedly did not want to assert a privilege.
Former President Trump would ultimately weigh in with his own claim of executive privilege.
Those notes also reference work Costello has done for another famous client from Trump world, former lawyer and longtime advisor Rudy Giuliani. One brief FBI comment briefly references information Costello provided to the U.S. Attorney’s Office ‘related to activities on January 6, 2021.’
Giuliani himself was subjected to an FBI raid in April 2021 in connection to an investigation of his dealings in Ukraine. No charges have been brought against the former New York mayor.
Lawyers for Steve Bannon blasted prosecutors in a court filing for gaining access to phone and email records belonging to Bannon’s lawyer, Bob Costello. Bannon is charged with criminal contempt for failing to comply with a congressional subpoena
Bannon’s lawyers say that at a time when the government appeared to be having ‘good-faith pre-indictment discussions’ about Bannon, ‘the Government was busy seeking detailed information concerning defense counsel’s personal and professional email and telephone records.’
Bannon’s lawyers blast the information-gathering effort as ‘outrageous and inappropriate Government conduct,’ and are demanding the feds provide further information – including sharing the subpoena used to obtain the information, and revealing who at the main Justice Department signed off on the effort.
Sources familiar with the case said it was a potential trap for defense counsel to be negotiating with government lawyers with a possible indictment looming, while lawyers are surreptitiously using the process for evidence-gathering in the case, while at the same time using subpoenas to glean information about a lawyer’s communications with a client.
The effort appears to have targeted four email accounts and four phone numbers, including the personal cell phone of Costello, who also represents former Trump lawyer Rudy Giuliani.
Bannon’s lawyers are now seeking to compel the government to provide further information about grand jury proceedings that resulted in criminal contempt charges against Bannon for failing to appear before the House Jan. 6th committee.
The government gained access to lawyer Robert Costello’s phone and email records, according to information in a new court filing
The Jan. 6th Committee subpoenaed Bannon as part of its investigation
They want all documents in support of any subpoena or investigative request relating to Bannon ‘and/or any person acting on his behalf or associated with him.’
Bannon’s filing is signed by lawyers Evan Corcoran, David Schoen – and Costello, a lawyer with Davidoff Hutcher & Citron. Schoen represented Trump during his second impeachment trial.
The DailyBeast reported on the filing Friday night. New details of the FBI notes referenced by Bannon’s lawyers are only now emerging.
The U.S. attorney’s office declined to comment, saying it ‘does not comment on pending cases beyond its filings and statements to the Court, and has no comment on this particular matter.’ A January letter by the U.S. attorney’s office referred to Costello as a ‘witness.’
Bannon’s team claims there ‘may’ be grounds to dismiss the indictment because of the matter, and says it ‘may constitute an impermissible interference with the attorney-client privilege.’
Costello is a former federal prosecutor who represented Bannon in the ‘We Build the Wall’ case, for which Trump later pardoned him.
The timeline for the episode is not entirely clear. Costello told the Jan. 6th Committee on Oct. 7, 2021 that Bannon was ‘unable’ to comply with its subpoena.
Trump filed his own lawsuit against the committee claiming executive privilege, and sought a one-week adjournment. On Oct. 19th, the panel sent a resolution to the full House to hold Bannon in contempt.
But a longer filing by Bannon’s team also provides a first glance at information provided by Costello in his efforts to keep his client from being criminally charged, as memorialized in FBI 302 reports.
Those reports cover two separate interviews, Nov. 3rd and Nov. 8th, 2021 – days after the panel acted and before Bannon was indicted on Nov. 12th.
A subpoena for Costello’s phone records came in late October, amid the fast-moving developments.
FBI 302 documents summarizing a meeting with federal prosecutors and Costello. Costello initiated the conversation, according to the FBI
The 302s state that Costello ‘had not had communication’ with lawyers for Trump at the time, and detail some of his reasoning while arguing about information to hold back, including a Bannon meeting that took place in the presence of two of Trump’s attorneys, Rudy Giuliani and Jenna Ellis.
The Jan. 6th committee’s Sept. 23 subpoena of Bannon sought information on his contacts with Giuliani, Ellis, Trump lawyer John Eastman, lawyer Sidney Powell, and former National Security Advisor Mike Flynn about a range of activities before the Capitol riot.
One passage states that Costello believed 10 items being sought by the panel were protected and 7 were not, and that he advised Bannon ‘not to respond to the Select Committee subpoena.’ It stated that Bannon was ‘fully engaged’ with Costello during the subpoena process. The notes also state that Costello believed privilege ‘belonged to former President Trump.’
Costello initiated the interview, according to the FBI document.
The notes on the Nov. 3 interview of Costello also say: ‘COSTELLO stated he also represented RUDOLPH GIULIANI and on January 7, 2021, COSTELLO sent documents to the USAO [US Attorney’s Office] related to activities on January 6, 2021. However, COSTELLO did not know who at the USAO had received those documents.’
It provides no further information on any material Costello provided.
An agent’s note says it was a ‘scheduled, voluntary interview.’
The interview also provides information that could provide clues about Bannon’s legal strategy to prosecutors. ‘Costello stated their defense was not solely advice of counsel’ but that it was ‘based on legal opinions of the Office of Legal Counsel,’ it states.
Costello ‘admitted he would not have handled the situation the way he had if he had known in advance of the lawsuit filed on behalf of former President TRUMP,’ according to the document.
The government in its own Friday filing said Bannon’s ‘disregard of the subpoena was purportedly justified by legal privileges and his attorney’s advice regarding them.’
The prosecutors argue that the deliberate failure to comply ‘regardless of motivation – constitutes the crime of contempt,’ and that a lawyer’s advice is not relevant.
Last year, Costello blasted federal prosecutors probing Giuliani as choosing to treat ‘a distinguished lawyer as if he was the head of a drug cartel or a terrorist, in order to create maximum prejudicial coverage of both Giuliani, and his most well-known client — the former President of the United States.’
The 2nd 302 of FBI notes says: ‘Costello stated he advised Bannon not to appear before the Select Committee. The fault lies with him, not Bannon; however, he did not believe there was fault … He did write, at the conclusion of an email to Bannon, “beware” in capital letters to warn Bannon his failure to comply could result in referral to DOJ.’
‘Costello stated Bannon was innocent, as Bannon was following directions from him,’ it says.
The agent’s summary indicates the government spoke with Costello about his contacts with representatives for Trump.
He ‘stated [Trump lawyer] Justin Clark (Clark) was trying to be intentionally vague [in his statement about privilege]; however, Costello was clear former President Donald Trump (President Trump) asserted executive privilege with regard to Bannon,’ it says.