That pretrial dispute — and a tangential one, centered on how the Justice Department went about investigating the counsel Bannon received — will be argued Wednesday before a federal judge in DC.
Already, the briefs that have been filed by both sides have featured an extraordinary amount of sniping and accusations.
In Bannon’s telling, the prosecutors suffer from “unparalleled arrogance” and “are in a deep hole already, yet they continue to frantically dig.” The Justice Department has called some of Bannon’s allegations “hyperbolic,” while describing his legal arguments as “erroneous” and “without merit.”
The case could also shed light on how broad Trump’s powers could be in protecting the loyalists who defended his efforts to overturn the 2020 election.
In the run-up to Bannon’s scheduled trial in July, both sides have battled over what they can put before a jury.
The Justice Department is arguing that Bannon should not be able to use the advice he was offered by the attorney representing him in his interactions with the House committee as defense for his noncompliance with congressional subpoenas. Bannon has tied his decision not to testify to what his lawyer had heard from Trump’s legal team about the former President’s interest in shielding certain evidence from the committee. If the DOJ can secure a court order excluding that defense, prosecutors can put on a much simpler case that focuses on Bannon not showing up for the subpoenaed testimony or producing the subpoenaed documents.
As that dispute is being hashed out, the Bannon team has lobbed aggressive accusations of prosecutorial misconduct as it has sought more information about how the department investigated the Bannon attorney in question, Robert Costello, and about other aspects of how the department decided to bring the case. Those fights are a preview for how messy the case against him could get, and they echo the concerns of attorney-client privilege that had arisen in legal disputes concerning several other committee witnesses, including those who served as attorneys and aides to Trump.
Their arguments are being made to US District Judge Carl Nichols, a Trump appointee who has notable experience in legal battles over congressional subpoenas and privilege.
Claims of a ‘beyond reckless’ DOJ effort to obtain Bannon attorney’s phone records
The former Trump adviser was charged in November with contempt of Congress for his refusal to appear for a deposition and to produce documents that had been sought by the committee in its investigation into the effort to disrupt Congress’ certification of President Joe Biden’s win.
Bannon is pleading not guilty and has vowed to make his case “the misdemeanor from hell” for the Biden administration. He and his lawyers have questioned the motive for his prosecution, pressed prosecutors for more intel on their internal deliberations about charging him and argued that more evidence in his case should be publicly available.
Bannon’s team has seized on the government’s pursuit of communications involving Costello, claiming the Justice Department acted inappropriately in interviewing Costello and in its collection of his phone and email logs. Bannon’s team has also insisted the government was overly broad in its efforts, as it swept up records for other unrelated Robert Costellos along the way.
In a court filing last week, Bannon’s lawyers skewered the government, claiming, “This prosecution team, in their zeal to obtain personal and professional email and telephone records for Mr. Bannon’s attorney, Robert Costello, was beyond reckless.”
Additionally, Bannon has accused the Justice Department of withholding evidence the former Trump adviser says he’s entitled to, as his legal team seeks information about what was presented to the grand jury that indicted him along with several categories of internal House committee and Justice Department records.
The department has argued that it has met — and even exceeded — its discovery obligations, as it’s defended its efforts to collect evidence about Costello’s communications.
“The Government, however, has never obtained any records potentially protected by attorney-client privilege,” the DOJ said in a filing, adding that court rules do not “entitle the Defendant to go on a fishing expedition in the Government’s files in the hopes of finding some misconduct.”
Fight over whether Bannon attorney’s advice can be part of his defense
Parallel to the dispute over the DOJ’s tactics is the fight the Justice Department has mounted to stop Bannon from using use the my-lawyer-told-me-to-do-it argument as a defense for defying a subpoena.
The Justice Department claimed that instead of reviewing records that may have satisfied the subpoena or preparing a log for the committee about records that they were withholding, Bannon and his lawyer instead set out to try to circumvent the subpoena.
“[Bannon’s] excuses for noncompliance are without merit, and his erroneous reliance on privileges and purported advice of counsel is no defense to contempt,” the DOJ wrote in a filing.
Prosecutors have also argued that Trump never actually asserted executive privilege and claimed that Bannon’s team privately recognized that.
While Trump attorney Justin Clark sent Bannon a letter directing Bannon not to provide testimony and documents about potentially privileged material, Clark also sent at least two private warnings to Costello.
“Just to reiterate, our letter referenced below 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,” Clark wrote in an October 2021 email to Costello, which was included in a court filing.
In a separate email to Bannon, Costello warned, “I don’t know what game Clark is playing but it puts Steve Bannon in a dangerous position. Beware.”
CNN’s Katelyn Polantz and Paula Reid contributed to this report.