Bannon’s lawyers want a hearing on alleged government misconduct in case, judge has yet to grant it

Months after the federal district court expressed concern about the government conduct during its investigation in Steve Bannon’s contempt of Congress case, the court has yet to hold a hearing on the claims that the prosecuting attorneys invaded the privacy of Bannon’s lawyer by subpoenaing his phone records and emails and potentially damaging the attorney-client relationship. 

The accusations against the prosecutors were detailed in several court filings over a year ago and Bannon had previously invoked them in a failed attempt to have the charges against him dismissed. According to the filings, defense attorneys argued prosecutors improperly obtained phone and email records and social media account information from Bannon’s then lawyer, Robert Costello. 

Bannon—the one-time political advisor to Donald Trump and popular media figure—was charged with contempt of Congress for failing to comply with a subpoena from the January 6 Select Committee, citing Trump’s executive privilege. 

In a June 15, 2022, court session, the judge presiding over Bannon’s trial declined to dismiss the charges, but expressed concerns about the prosecutors’ conduct that were alleged by the defense. 

“I do continue to have serious issues with how the government treated the situation of Mr. Bannon’s counsel and also how the government does not appear to have any issue with its conduct,” Judge Carl Nichols said, according to a transcript.

“But, in my view, those issues are better left to be addressed at a later date after the trial,” he added. “In particular, I do not conclude that Mr. Bannon has made the showing necessary that he was prejudiced by this conduct, such that dismissal is warranted.”

Bannon’s trial concluded in summer 2022 after a jury found him guilty of two counts of contempt of Congress, one for refusing to appear for a deposition and another for refusing to produce documents under a subpoena, according to the Justice Department. However, the judge has not yet held a hearing on those “serious issues.” 

“It’s just bizarre,” Costello told Just the News, referring to the lack of a hearing. “I don’t get it.” 

Bannon’s current lawyer, David Schoen, told Just the News: “The court has said it is concerned by the government's conduct and by the prosecutors' lack of concern that the court is concerned and lack of concern about what they did here. Why won't it hold a hearing?”

Schoen requested a hearing over the allegations of government misconduct more than a year ago since the trial concluded. The post-conviction motion focused on the core fact that government attorneys used subpoenas during the investigative process to obtain the phone records, email records, and social media account information of the attorneys who represented the media personality before the Jan. 6 committee.

“These prosecutors’ efforts yielded literally hundreds and hundreds of responsive private records – some of which were Mr. Costello’s personal and professional records and some of which belonged to Robert Costello bearing no relationship to Mr. Bannon’s defense counsel,” Schoen wrote in the May 2023 motion. 

Additionally, using the “particularly intrusive” Stored Communications Act, prosecutors and FBI investigators assisting them requested communications records from emails entirely unaffiliated to Robert Costello, in some instances from individuals with the same first and last name, but a different middle name. Yet, the investigators did not request the records from the email they knew for sure belonged to Costello, the one he was using to communicate with them. 

“Not one of the seven of them had the ability to discern among people around the country named Robert Costello, with different middle names, when using the particularly intrusive Stored Communications Act or the grand jury subpoena process? Or did they just not care about the intrusions and the damage they caused?” Schoen asked in the filing. 

You can read the May 30, 2023, motion below: 

Bannon’s attorney also said in the court filing that government lawyers failed to follow Justice Department policy in their use of the Stored Communications Act to obtain Costello’s records by included the unassociated emails. 

As Schoen pointed out in the filing, according to Rule 3.3 (a)(1) of the D.C. Rules of Professional Conduct, lawyers are required to disclose information to correct false statements of material facts or law, which in this case was associated those emails with Robert Costello the lawyer. 

“[T]here is no indication in the materials provided to Mr. Bannon that would indicate that even as of today, the prosecutors ever advised the court that the representations in their Stored Communications Act Application were false, as they were ethically bound to do,” Schoen wrote. 

Additionally, Schoen argues there is no reasonable justification for why the government sought these records because they were ostensibly gathered to prove something Bannon had already established as agreed fact.

Costello, who no longer represents Bannon, agrees. “I have never heard of any prosecutors” doing what they did, Costello told Just the News. “What are they interested in with my home phone, office phone?” he questioned. 

“It is a serious constitutional and ethical issue worthy of a hearing and further consideration,” Harvard Law professor emeritus Alan Dershowitz told Just the News. 

The lead prosecutor in the case did not respond to a request for comment from Just the News.

In its response to the defense motion, the government disputed the claims of Bannon’s attorneys, arguing that its efforts to obtain Costello’s communications and records were consistent with its investigative purpose and done “in accordance with its discovery and ethical obligations.” 

“The government never sought the contents of any communications, much less communications that implicated the attorney-client privilege,” the prosecuting attorneys wrote in a June 13, 2023, filing. 

Specifically, the government said it sought Costello’s communications because it believed it would have to prove that Bannon “willfully” failed to comply with a subpoena. “In order to prove contempt of Congress, the government was required to show that the defendant willfully failed to comply with a Congressional subpoena,” the prosecutors explained in their filing. 

Since Costello was Bannon’s point of contact with the Jan. 6 Committee, prosecutors say his communication records were vital to proving that Bannon had knowledge of the subpoena. The government said it conducted this part of the investigation before Bannon acknowledged to the court that he knew of the subpoena. 

The government also disputed the defense’s characterizations of DOJ policy, arguing that they followed internal guidelines for requesting the communications.