Steve Bannon’s Lawyer Made Himself a Witness and Now Wants To Be Just a Lawyer

Last night, along with a previously scheduled Motion for Discovery, Steve Bannon filed a Motion to Compel disclosure regarding some records requests DOJ made targeting Bannon’s attorney, Robert Costello. In it, he revealed that the government had obtained phone and Internet toll records (that is, metadata, not content) of his attorney spanning the period between the last event in Bannon’s prosecution in the Build the Wall fraud case, March 5, 2021, through the day he was indicted, November 11, 2021.

Predictably, the filing wails a lot about his lawyer being spied on and misrepresents what happened.

While Bannon included two exhibits with his Motion to Compel (a letter asking for information about the Costello material and the government response), Bannon included the most important information pertaining to the Costello records with his Motion for Discovery, not his Motion to Compel: reports of two interviews (302s) he did with DOJ and FBI, one on November 3 and the other on November 8, 2021.

At the time Costello gave the interviews, his representation of Bannon before the January 6 Select Committee was ended and Bannon had not yet been indicted. And as the first 302 notes, “there were no agreements or conditions governing the conversation between COSTELLO and representatives of USAO-DC or FBI.” Effectively, those interviews made Costello a voluntary fact-witness in the criminal case against Bannon, one exacerbated when Bannon belatedly added Costello to his criminal defense team and grew squishy about whether Bannon would invoke Costello’s advice in his own defense.

And Costello made so many contradictory claims in his 302s (to say nothing of providing evidence that Bannon knew well he had no privilege claim with which to refuse to testify entirely), that it is unsurprising that the FBI made records requests to test whether Costello lied in those interviews to the FBI. Among the claims Costello made about communications he had or did not have are:

  • J6 sent the subpoena to Costello (on September 23) before he had been able to consult with Bannon
  • Costello did not know who was representing the other people subpoenaed — Dan Scavino, Kash Patel, Mark Meadows, or Donald Trump — at the time of the subpoena
  • Through the entire subpoena response, Bannon and Costello have “operated independently of the others subpoenaed”
  • Costello was not told who was representing Trump, Meadows, or the others subpoenaed, but he found out on his own who represented Trump and Meadows
  • Costello sent the subpoena to Bannon to review
  • Costello’s advice to Bannon that he didn’t have to respond was verbal
  • Costello was sure he sent the J6 letters to Bannon; he wasn’t sure whether Bannon read the letters but Costello did quote lines from the letters to him
  • Costello sent Bannon an email that he ended with the word BEWARE because defying the subpoena could result in a referral to DOJ
  • Costello’s only contact with J6 Chief Counsel Kristin Amerling came the day before and the day of the subpoena service [the record shows she sent him at least one letter after that]
  • Costello tried to contact the attorney he believed was representing Trump (whom he didn’t name) but that attorney referred Costello to Justin Clark
  • Costello reached out to Clark a few days before October 6, though their first substantive conversation came when Clark responded
  • Costello did not provide any documents to attorneys for Trump for an Executive Privilege review
  • Justin Clark was vague but Costello was sure Trump asserted Executive Privilege with regards to Bannon
  • Clark would not ID for Costello what would be covered under Executive Privilege
  • In spite of Costello’s claims not to have consulted with any Trump lawyer, he also claimed that Clark told him not to respond to item 17 on the subpoena (covering Mike Flynn), because lawyers like Rudy Giuliani might have been present when Bannon communicated with Flynn
  • In spite of his admitted conversations with Justin Clark, Costello claimed he had not had communications with attorneys for Trump prior to October 18, 2021 (when Trump filed a lawsuit challenging the privilege waivers on materials from the Archives)
  • Costello had “an email or two” with Clark, who he believed filed the lawsuit, but he did not learn until later that Jesse Binnall filed the lawsuit
  • Costello sent copies of Bennie Thompson’s letters to the VA lawyer representing Trump (probably Binnall)
  • Costello had no advance knowledge of Trump’s lawsuit and would have handled things differently if he had
  • Attorneys representing Trump (Costello doesn’t name him or describe when this was) told him everyone who got a subpoena would get Executive Privilege
  • Costello did not talk about “disposing of any documents requested in the … subpoena with any attorneys who represented former President TRUMP”
  • Costello said he’d sent to USAO all memorializations of communications he had with the Committee, Clark, and Trump’s attorneys

Effectively, these claims only make any sense if he had extended discussions with an attorney who did not represent Donald Trump, on whose representation he advised Bannon that Trump wanted Bannon to invoke Executive Privilege. But even there, there are still all sorts of temporal problems with Costello’s claims (and probable inconsistencies regarding the timing of events on October 18, though I need to unpack what those are further).

Costello’s interviews were all over the map on other topics as well, topics that affect both Rudy Giuliani (whom Costello also represents) and Bannon: that he could and could not claim Executive or Attorney Client privilege over certain topics, that he advised or did not advise Bannon to do so, that he admits that Bannon provided no response about issues — most damningly, his public podcasts — that could in no way be covered by Executive Privilege.

But the key detail is that Costello’s claims about communications he had and did not have defy belief and (particularly with regards to Justin Clark) may be physically impossible.

So, in response to these interviews (and probably in possession of contradictory evidence from J6), DOJ obtained all the records they would need to test Costello’s claims.

As I’ve noted, Costello has played a key role in past obstruction efforts, going back to 2018. It’s certainly conceivable DOJ has an open investigation into Costello (and Rudy) for those activities.

Whether or not they already did, Costello gave them far more reason to question his role in obstructing investigations into Donald Trump in his two interviews.

Update: Here’s Bannon’s subpoena (h/t Kyle Cheney). It confirms that Item 17, which Clark told Costello to tell Bannon not to respond to, included Mike Flynn.


March 5: Beginning date for Costello records request (last event involving Bannon and Costello in Kolfage)

September 22: First contact between J6 and Bannon

September 23: Bannon subpoena

September 24: Costello accepts service

October 6: Costello claims Clark invoked privilege

October 7, 10AM: Original deadline for document production

October 7, 5:05PM: Costello letter claiming Trump invoked privilege

October 8: Thompson letter to Bannon rejecting non-compliance

October 13: Second Costello letter, demanding accommodation with Trump

October 14, 10AM: Original date for Bannon testimony

October 15: Letter noticing failure to comply with subpoena, warning of contempt meeting, setting response deadline for October 18, 6PM

October 18: Thompson letter to Bannon with deadline; Trump sues Thompson and the Archives on privilege issues

October 19: Bannon claims they intended to respond; Amerling letter to Costello; J6 business meeting to hold Bannon in contempt

October 20: Rules committee meeting to hold Bannon in contempt

October 21 Bannon held in contempt

October 28: Matthew Graves confirmed as US Attorney

November 2: Kristin Amerling interview

November 3: First interview with Robert Costello

November 5: Matthew Graves sworn in as US Attorney

November 8: Second interview with Robert Costello

November 11: Subpoena to Internet provider

November 12: End date for Costello records request

November 12: Indictment

November 15: Bannon arrest; David Schoen and Evan Corcoran file notices of appearance

November 18: At status conference, government says there are just 200 documents of discovery

December 2: Costello moves to appear PHV; Government asks if Bannon intends to rely on advice of counsel defense

December 7: Returns on Internet provider (623 pages)

December 7 to 16: Bannon refuses to submit joint status report

January 4: DOJ turns over 790 pages of records from Costello

January 6: Bannon request for more information on Costello

January 7: Government response to Bannon request

January 14: Bannon discovery request letter; Bannon motion to compel regarding Costello

January 28: Government response to discovery demand

February 4: In guise of Motion to Compel, Bannon complains about “spying” on Robert Costello

38 replies
  1. JohnForde says:

    Trump atty Justin Clark especially wants Costello & Bannon to conceal what is behind door #17. Is it the nastiest, most treason-y work of Michael Flynn?

    • Ginevra diBenci says:

      Flynn has been insurrectioning in public since his pardon, 25 Nov 20. Documents recently brought to light reveal details consistent with his fascistic blather. I have a hard time imagining what *worse* might remain hidden, aside from Strangelovian video of a slobbering breakdown. Any idea what they are/were hiding?

  2. Joe Sommer says:

    I thought that Costello was a real lawyer, not a clown lawyer. Real lawyers, especially criminal lawyers, usually are very careful to avoid personal trouble with the law. (The first rule of criminal lawyering: “If anybody goes to jail, make sure it’s the client, not the lawyer.”) So I’m confused.

    • Desider says:

      Yes, you’re confusing him with his partner Abbott, the straight-man. Inspector Clostello’s there for comic effect. Of course no one can usurp Rudy’s natural talent, so waiting for that set of inconsistencies – Ukraine & funereal landscaping & of course on and about Jan 5.

  3. klynn says:

    “But even there, there are still all sorts of temporal problems with Costello’s claims (and probable inconsistencies regarding the timing of events on October 18, though I need to unpack what those are further).”

    Read that as code for “buy more popcorn!”

  4. Davec says:

    What on earth was Costello thinking voluntarily talking to the FBI? Without his own lawyer? I guess just another case of astounding incompetence & lack of judgment?

    Ref other coverage of Bannon’s filing last night. Proves Mary’s contention that most coverage of J6 prosecutions & investigation is problematic. The 2 “scoops” on this last night completely miss the voluntary, pro se(?) nature of Costello s November FBI interviews.

    Seems likely Costello has some harsh self inflicted ligal probablems.

    • Ginevra diBenci says:

      I thought certain FBI interviews were “informal,” meaning not under oath and without counsel present.

      • earlofhuntingdon says:

        An interview with the FBI is never informal. Talking with them without counsel is not a good idea.

        • Ginevra diBenci says:

          That is what I’d assumed, earl–never talk to law enforcement without a lawyer. I can’t remember where I heard about “informal FBI interviews”; this must be what happens when you leave cable news on while you’re cleaning the house.

      • Riktol says:

        Per Popehat lying to the FBI is almost always a crime, because the standard for materiality is so generous. Whether it was under oath or not has no bearing on this. Whether they call you a suspect or a target or a person of interest has no bearing either. Of course the maximum penalty is *only* 1 year so if you can cover up a bigger crime maybe that’s worth it?

        • YancyFaith says:

          I misread that as “talking to the FBI (without a lawyer) is almost always a crime,” and immediately thought Yep, or it probably will be by the time you finish running your mouth.

    • emptywheel says:

      He was doing something that defense attorneys often do, making a pitch to stave off indictment.

      But he made several factual claims about communications he himself had been in, and they were transparently irreconcilable.

      • I Never Lie and am Always Right says:

        He was (no doubt unsuccessfully) attempting to walk in the shoes of the attorney who helped Karl Rove dodge criminal charges. If Costello’s fact pattern was a Perry Mason novel, you could call it “The Case of the Witless Witness”.

  5. Yogarhythms says:

    “But the key detail is that Costello’s claims about communications he had and did not have defy belief and (particularly with regards to Justin Clark) may be physically impossible.”
    Paully said a lot of nutty things which undermined his successful prosecution. Who doesn’t like the challenge of serial nutty seemingly contradictory things to the said to the FBI?

  6. BobCon says:

    If I’m reading the timeline right, about 72 hours after they finished interviewing Costello they had a subpoena out to his providers.

    I’m wondering how much they had already thought through how the interview was likely to go, and what they were going to want to get from the subpoena, before the interviewing was even over. The quick turnaround suggests they aren’t suffering from problems of getting bogged down analyzing evidence.

    • emptywheel says:

      Possibly even before: The November 11 date is the last one.

      But they presumably already had the call records with the Committee. And as I said, his account of November 18 doesn’t line up. But it’s also possible they had other proof he wasn’t telling the truth, such as if they knew he had been in communication with Meadows’ lawyer.

      • BobCon says:

        If DOJ was already thinking of a subpoena after the November 3 interview, it’s interesting that Costello didn’t seem to get what was happening and went back on November 8.

        Or else he realized he screwed up so badly he thought he might fix it by going back?

        At any rate, I have to wonder if all of the spinning about investigator inaction is having an unintended consequence of putting conspirators at a false sense of ease. Why is someone like Costello not pulling the fire alarm about government spying until Friday 2/4?

        • emptywheel says:

          Please explain how Robert Costello, who has spent the last 8 months doing a privilege review of Rudy’s comms, could POSSIBLY believe the false claims about investigative inaction?

  7. WilliamOckham says:

    Costello’s interviews with the FBI are so weird. He admits to every element of the crime on behalf of himself and his client. If you reconstruct the questions and answers from the 302, the FBI is clearly leading him down the path:
    Did you know that some of the documents couldn’t possibly be covered by executive privilege? Yes. Did you client know that? Yes. Did you tell the Select Committee that? No. Why not? Trump filed a lawsuit claiming executive privilege. Did you get an email from the WHCO telling you that the claim of executive privilege was invalid? Yes.
    Did you tell an attorney for the Select Committee that you and your client weren’t going to show up? Yes.
    [Insert Costello’s specious blathering about OLC memos.]
    How many of the topics listed in the subpoena did you think could be covered by executive privilege? 10.
    blah, blah, blah.
    Then the FBI starts asking questions that sound like “questions that the FBI already knows the answer to”. And Costello’s answers make absolutely no sense. If I were him, I’d start worrying about a false statements charge.

    • Peterr says:

      That assumes he is aware enough to recognize danger when it is staring him in the face, which (as the lawyers say) assumes facts not in evidence.

    • emptywheel says:

      It is quite the read, huh?

      I think he assumed a typical pre-indictment chat would NEVER be subjected to standards of factuality that actual interviews are. Thus the observation at the front that there were no expectations set.

      And he assumed he could immunize Bannon and with it keep Trump insulated.

      Who’s representing whom is another issue. Does anyone believe Doug Schoen is representing Bannon?

      • WilliamOckham says:

        I really get the vibe that Costello was playing the wrong “game” in that first interview. His attitude is all “We’re men of the world, just doing our jobs, and waiting on the political types to come to an understanding” and the FBI guys are like “We’re the G-Men and you’re the mob lawyer and … , wait, you’re admitting to all this? Ok, then, let’s see how many felonies we can get out of this”

      • Leoghann says:

        Although Costello has quite a reputation for obstruction on behalf of his clients, the only thing I can suggest with this demonstration of his is that he’s gotten into John Pierce’s cocaine.

        • bmaz says:

          “Although Costello has quite a reputation for obstruction on behalf of his clients…”

          Most competent criminal defense lawyers do.

  8. WilliamOckham says:

    Also, even though I know they would never (and really should never) charge a false statement for this, is there any more obviously absurd claim than that Bannon is “not a contemptuous person in regards to the Select Committee’s proceedings”?

      • WilliamOckham says:

        To quote Kasper Gutman

        By Gad, sir, you are a character. There’s never any telling what you’ll say or do next, except that it’s bound to be something astonishing.

        That’s by way of saying, you are obviously correct.

    • emptywheel says:

      Nope. But I don’t rule out false statements charges on that first interview for claims about not talking with Trump lawyers he was talking to.

  9. Doctor My Eyes says:

    I’m thinking one day there should be a book of EW headlines illustrated, if one could find a kind of paper that wouldn’t shrivel from the dryness.

  10. sleutherone says:

    There is a running theme among these attorneys and their clients about how they were “tricked” by investigators into saying things they did not mean, or they were “confused”. They have no problem using the same tactics on witnesses just trying to do their job or those who ended up in the wrong place at the wrong time and are forced to come to court.

    Now we have Congressman Fortenberry of Nebraska saying he wants a memory expert because the FBI asked him the same question too many times. Keep in mind he is only 60.

    Hope the judge doesn’t give him what he wants and sets that precedent.

    • Leoghann says:

      Fortenberry and his lawyer(s) seem to be throwing the entire contents of the refrigerator at the wall, to see what sticks. That is usually a tactic of someone who realize they have him, dead to rights.

Comments are closed.