Steve Bannon’s Lawyer Nopes Out In Hopes He Can Get Promoted To Witness

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(Photo by Stephanie Keith/Getty Images)

It’s been a wild week in Steve Bannon’s case, with his lawyers teaming up with federal prosecutors to re-enact the movie Gladiator in Judge Carl J. Nichols’s courtroom. Indeed, we are highly entertained.

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And just under the wire, the defense team lobbed another motion cum flaming sack of batguano at the docket, with Bannon’s lawyer Robert Costello seeking to withdraw his appearance in the case. The issue is not that it will leave the podcaster unrepresented — he’ll still have Evan Corcoran and David Schoen, who are plenty capable of delivering the histrionics that Bannon’s defense relies on. However, Costello’s rationale for bailing out at the last second indicates that the legal team may anticipate raising defenses which the court has already rejected.

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To wit, Judge Nichols ruled in April that Bannon could not assert advice of counsel and good-faith reliance on the law as defenses to the charge of contempt of congress. Had they been allowed, Bannon would have been able to waive attorney-client privilege and call Costello to testify that he advised his client to respond to a subpoena from the January 6 Select Committee by extending two middle fingers and telling Chairman Bennie Thompson to get bent. But since the court put the kibosh on that plan, it’s a bit odd that Costello is noping out on the grounds that “this Court has yet to determine if I will be permitted to testify if offered as a witness on behalf of Steve Bannon.”

Or maybe it was entirely predictable. As we’ve noted, the defense team seems to want to slap a little lipstick on that pig and reintroduce the rejected defenses by recasting them as public authority and/or entrapment by estoppel. Hence the weeks of bickering about Office of Legal Counsel memoranda which Bannon claims he relied on when he blew off congress, and which he insists must bar the government from prosecuting him.

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But now Bannon’s team seems to be reaching for another way to get Costello on the witness stand, relying on the government’s, umm, unorthodox decision to seek a warrant for non-content data from Costello’s phone and email in the lead up to the prosecution. The warrant, which raised a lot of eyebrows, was first reported by the Daily Beast’s Jose Pagliery.

Prosecutors defended the move, saying that they needed the email to establish that Costello had indeed conveyed the summons to Bannon, and thus that his disregard of it was willful. Bannon’s lawyers tried to get the case tossed on the basis of prosecutorial misconduct, but the court declined, instead promising to deal with the issue post-trial. Nonetheless, Costello’s withdrawal motion indicates that Bannon intends to bring it up in front of the jury:

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If the Court decides to prevent me from testifying, there will be no pathway to inform the Jury about the communications with the Select Committee or the three prosecutors in this case, who interfered with Mr. Bannon’s attorney -client relationship by attempting to turn me into a witness against my client by surreptitiously subpoenaing my home, office direct line and cellphone records while at the same time failing in their attempts to obtain my social media information. If that were not enough, those same prosecutors turned what I believed to be a declination discussion into an FBI 302 interview of me to be used against Mr. Bannon. The fact that these prosecutors failed in their attempt to gain meaningful evidence against Mr. Bannon should not be their salvation, particularly since they clearly do not recognize or acknowledge the error of their ways.

It’s not clear how the government’s subpoena would be relevant to a contempt of congress charge. But Costello is going to resign anyway, just in case the court wants to do Bannon a solid and let his lawyer hop on the witness stand and let ‘er rip.

Can’t wait for that Monday morning motion hearing. Maximus! Maximus!

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US v. Bannon [Docket via Court Listener]

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

Topics

Carl Nichols, Courts, Robert Costello, Steve Bannon