When Lawyers’ Lawyers Need Lawyers: The Import of Robert Costello’s Toll Records — for Bannon, for Rudy, and for Donald Trump

As I explained in this piece, the lawyer who represents both Rudy Giuliani and Steve Bannon — and who has been at the center of Trump’s pardon-dangling for almost three years — had two meetings with the Bannon prosecution team, where he made a number of claims that could not all be true. The first meeting Robert Costello had with DOJ was on November 3, with a follow-up on November 8, 2021.

Just two of the sets of mutually contradictory claims Costello made in his first interview are:

COSTELLO had not had communication with attorneys for TRUMP prior to that date. [October 18, 2021, when Trump filed a lawsuit challenging Executive Privilege waivers for the January 6 Committee]


COSTELLO first had contact with [Attorney for Donald Trump Justin] CLARK on approximately October 4 or October 5, 2021.


COSTELLO did not discuss disposing of any documents requested in the Select Committee subpoena with any attorneys who represented former President TRUMP.


Even though MICHAEL FLYNN was not an attorney, he was present during attorney-client-protected discussions. Those particular attorneys represented former President TRUMP and CLARK informed COSTELLO not to respond to item 17.

I would imagine there’s no better way to get the FBI to start investigating you for false statements then by making a bunch of mutually contradictory claims in one interview.

There were certainly other claims Costello made which he should have known to be false. For example, given that his other client, Rudy Giuliani, put out a statement asserting that Sidney Powell did not work for Trump, Costello likely knows that Powell’s presence at a meeting, along with non-lawyer Mike Flynn, would not implicate Trump’s privilege, even if a meeting between Costello client Bannon and Costello client Rudy could itself be considered privileged, which is a fantastic stretch in any case. But that’s a claim, he told the FBI, that he advised Bannon to make in refusing to respond to the January 6 subpoena by invoking Executive Privilege.

Nevertheless, the FBI did not have to obtain the content of Costello’s communications to test whether he lied at that meeting on November 3, given that so many of his fact claims could be tested simply by obtaining his call and email records to see whether he was speaking with Trump lawyers (and those for Mark Meadows, Dan Scavino, and Kash Patel) and if so, when, about which Costello made affirmative denials in his meeting with DOJ. If he was discussing with other lawyers how to deal with the Select Committee investigation at a time he claimed he was not, the FBI would have deemed that a suspected lie worthy of more investigation.

And that’s what the FBI did, making eight requests for records (four for phone records, four for Internet records, apparently covering his work and personal emails and phones) resulting in 790 pages, total.

Given the abundant detail included in the Motion to Compel (undoubtedly included to provide hypothetical co-conspirators some idea of the extent of the record seizure, including that no content was obtained), Bannon’s claims seem to be predictably overblown. There appear to be three grand jury subpoenas and just one 2703(d) order (to an Internet provider, likely someone like Google). That is, some of the eight requests appear to be an effort to figure out which phones and email were of interest, in advance of obtaining toll record themselves. Indeed, Bannon makes much out of the fact that DOJ obtained payment method associated with Costello’s phone, available with a basic subscriber request. And unless Costello is a remarkably stingy user of SMS texting, the request for those toll records appears to be narrowly tailored either by time or interlocutor; there are just two pages of SMS text toll records.

Here’s a summary of what the government appears to have obtained:

Bates stamp range: US 001093-001883

US 001093: Grand jury subpoena

US 001145-001768: 623-page return from Internet provider showing IP activity, status (read or unread, inbox, etc.) and other details concerning emails and other activity offered by the carrier obtained with a Section 2703(d) Order on November 11, 2021 [US 001733] that includes a case number [US 001732-001735] and returned on December 7, 2021.  Returns include:

  • US 001151-001249: 98 pages showing IP activity for the email account sought from March 5, 2021 through November 12, 2021, as well as a report on what other services from the provider Costello uses
  • US 001733, 001735, 001740, and 001742: Several references to a 2703(d) order or equivalent
  • US 001765: Grand jury subpoena

US 001769-001789: Costello’s 302s

US 001834: Case number

US 001842: Case number

US 001863: Subscriber record showing payment method for Costello’s cell phone

US 001866: Costello’s data usage

US 001872; Grand jury subpoena

US 001874-001875:  SMS (text messaging) information, including the numbers to which texts were sent and from which they were received

The government doesn’t appear to be treating these records as evidence in their contempt case against Bannon. As the  Bannon filing notes, the government only turned them over on January 4, after stating (before they had obtained the bulk of these records) that the evidence in their case-in-chief against Bannon only consisted of 200 documents.

It is curious that Government counsel delayed producing these documents until January 4, 2022. On November 18, 2021, the parties appeared before this Court. At that proceeding, Government counsel insisted that the Government was ready for trial, that this is a simple and straightforward case, and that it was ready immediately to provide Mr. Bannon with the discovery in the case, which it described as “less than 200 documents,” with “most of” it purportedly comprised of “materials the defendant already has ….” [11/18/2021 Hearing Tr. at 3].

Costello first joined Bannon’s criminal defense team over two weeks after Bannon was indicted, and after DOJ pointed out that Costello’s representation would pose a problem for any Advice of Counsel defense. Given that DOJ obtained toll records from Costello’s firm, it’s possible they tipped him off and he joined the Bannon team to create this problem after that.

Bannon’s filing also notes that the government hasn’t provided the subpoenas obtaining this material, as they would have if the subpoenas targeted him, personally.

Nowhere in the Government’s production was a copy of a court order authorizing the Government’s actions, nor was there a copy of any subpoena for the records, nor was there even any application for a court order or for authorization from the Department of Justice for subpoenas intended to obtain defense counsel’s personal and professional telephone and email records.

That makes sense: Bannon can’t be held responsible for the things his (and Rudy’s) lawyer says while sitting with the FBI. Costello is the one who made mutually contradictory claims, not Bannon.

But, at least as Bannon tells it, the team that seized these records appears to have taken little care to protect Costello’s other clients.

Furthermore, there was nothing in the production that indicated any effort to limit the access of the prosecutors assigned to this case to defense counsel’s personal and professional records, nor was there any indication of any filter in place to distinguish between attorney-client privileged or work-product privileged information that could be garnered from the records the Government obtained and non-privileged materials, nor was there any indication of any filter intended to protect confidential and privileged related to other clients of Mr. Costello and his law firm or intended to keep the prosecutors handling this case from access to any such privileged material.

Indeed, after wailing a bit about DOJ’s oblique response when asked about this seizure, the Bannon filing returned to Costello’s other clients and “witnesses” consulted in those representations.

Beyond all of the above, the Government’s response ignores the damage its actions risked causing for other clients of Mr. Costello and his law firm, for telephone calls and emails to and from other clients and witnesses consulted in relation to their cases would now be exposed by the Government’s efforts to obtain records for all of the attorney’s emails and telephone records.

And in fact, in a letter responding to Bannon’s questions about these records, DOJ made no representations about work product related to Costello’s other clients, even while emphasizing what the prosecution team (which is different from DOJ as a whole) has in its possession.

Aside from the information that Mr. Costello voluntarily disclosed on behalf of Mr. Bannon during the investigation of this matter, the Government has not taken any steps to obtain any attorney work product relating to any attorney’s representation of Mr. Bannon or to obtain any confidential communications between Mr. Bannon, Mr. Costello, and Mr. Katz, or between Mr. Bannon and any other attorneys.

We have provided all discoverable material in the prosecution team’s possession, custody, or control relating to Mr. Costello’s and Mr. Katz’s involvement in the conduct charged in the Indictment. The Government understands its discovery obligations under Federal Rule of Criminal Procedure 16; the Jencks Act; and Brady, Giglio, and their progeny, and will continue to comply with them should additional discoverable material come into the prosecution team’s possession, custody, or control.

That’s significant because of the temporal scope of the email metadata obtained: from March 5 through November 12, 2021, basically the last event for which Costello was representing Bannon in the Build the Wall criminal prosecution and his indictment on these new charges (though, again, Costello didn’t join his defense team for over two weeks). These records don’t include any period when Costello was criminally representing Bannon.

But they do cover a far broader period than would be necessary to understand what communications Costello had with lawyers for Donald Trump after Bannon was subpoenaed by the January 6 committee on September 23. Indeed, they cover a broader period than the entire January 6 Committee, which was created by House Resolution 503 on June 30, 2021.

Presumably, DOJ saw something in the initial records they were seeking — or in records obtained by others, or in another unseen ongoing investigation — to scope the Internet request for the entirety of the period between Costello’s past and current criminal representation of Bannon. Or they were already interested in Costello (for whom there was a possible referral in the Mueller investigation), and his interview with the FBI extended that interest.

That suggests this really isn’t about Bannon.

But the seized records do include the entirety of the period when Costello was helping Rudy review the contents of 16 devices seized by SDNY. Of note, Trump could have, but chose not to participate in that Special Master process. Because he moved to intervene, Dmitry Firtash is permitted to review the records seized from Victoria Toensing to protect his own interests, but Trump’s lawyers should not be getting notice of what was seized from Rudy.

Indeed, the conversations of interest regarding the Bannon representation happen to have taken place during a period during which Costello had gotten an extension to review the contents of the first seven devices seized from Rudy.

On September 28, 2021, I directed that Mr. Giuliani complete his review of the data contained on seven of these devices by October 6, 2021, which was later extended to October 12, 2021. These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

Costello told the FBI he had no conversations with any Trump lawyers for this period. Even if he had conversations with other Trump lawyers during this review problem, it would conflict with what he told the FBI in his Bannon-related meeting.

It’s certainly possible that the only warrants at issue in the Special Master review are the Ukraine-related ones overtly used to seize Rudy’s devices, and that the SDNY team is completely excluded from accessing these records; if that’s the case, it would suggest there’s no investigation into Rudy out of DC, particularly not one in which JP Cooney or Molly Gaston are participating, both senior prosecutors at DC USAO.

Or there’s something far more interesting going on.

Update: I realized after I posted this that Costello’s 302s were included in the 790 pages Bannon complained about, meaning he claimed things were call records when instead they were the obvious justification for the call records. I’ve added and bolded those pages above.

25 replies
      • BobCon says:

        I wonder if this doesn’t reflect a broader point of view on the right (at least in November) that undervalued what DOJ was up to.

        The PR side of the right has been banging the drum for the mainstream press that DOJ is dawdling, and they have significant collaborators — Michael Schmidt’s messed up article today makes the weird claim that the 1/6 Committee is trying to push DOJ to act, which shows major analytical and fact gathering problems with his reporting probably due in part to his immersion with right wing PR voices.

        I wonder if Costello’s apparent cluelessness and lack of preparation in these interviews reflect a lack of concern about DOJ as well. He went in just prior to Bannon’s indictment for contempt of Congress, and he may have been thinking of this as a push by a Committee which wasn’t in sync with DOJ.

        I suspect the right is privately much more concerned, especially after the seditious conspiracy arrests. But they may still be expecting this to be more of a two stage affair than it may be — they may, like Schmidt, think they’ll see a sidelined DOJ only mobilizing after the 1/6 Committee reports, rather than acting in concert.

    • emptywheel says:


      I’ll correct. I used pages with the Bannon number bc we have Bates stamps.

      But you’re right, re DOJ’s number.

  1. Riktol says:

    I tend to view all their antics through the lens of delay. Could providing more crimes potentially cause prosecutors to delay charging, while they build evidence covering the new conduct? (The opposite of Durham who charges before gathering all the evidence)
    If Costello gets charged for false statements, would he have to be removed from Bannon’s defence team?
    Might Costello’s removal have the effect of delaying Bannon’s trial while he gets a new lawyer?
    Maybe Sydney Powell would like to represent Bannon next?

    • Al Ostello says:

      What’s the difference between a good lawyer and a bad lawyer? A bad lawyer might let a case drag on for several years. A good lawyer knows how to make it last even longer.

  2. earlofhuntingdon says:

    Even though MICHAEL FLYNN was not an attorney, he was present during attorney-client-protected discussions. Those particular attorneys represented former President TRUMP and CLARK informed COSTELLO not to respond to item 17.

    Textbook way to lose A-C privilege. Textbook way Not to foment a rebellion. Well-earned guffaws aside, they haven’t stopped trying. And we can’t assume that the billionaire money behind much of this does not use better resources to do things we haven’t seen yet.

  3. Savage Librarian says:

    The article I cite below covers a lot of territory, some of which may be relevant to that conversation Costello said he had about item #17 (about Flynn) that Justin Clark may have instructed Costello (and Bannon) to ignore.

    Although it may not be particularly important to item #17, one thing that caught my eye in the article was Jared’s reaction to Trump’s firing of Flynn:

    “Michael Flynn Is Still at War” – Robert Draper, 2/4/22, Updated 2/6/22, 10:51 a.m. ET

    “The general tried to persuade Donald Trump to use the military to overturn the 2020 election. A year later, he and his followers are fighting the same battle by other means.”
    “…As one of Trump’s senior advisers told me, Flynn “had no chemistry with Trump and didn’t come across as a guy who had it together.” But according to another adviser, the firing of Flynn constituted an early show of weakness in the eyes of the president’s son-in-law and consigliere, Jared Kushner, who confided to this individual in 2020 that throwing Flynn to the wolves was “the biggest mistake we ever made.”


    • Rita says:

      I think that Jared equates weakness with complying with the laws and adhering to the norms of the Presidency.

      • OldTulsaDude says:

        Trump in the WH was like inviting a grizzly bear to Thanksgiving dinner: he won’t care which is the salad fork and you can’t be surprised when he eats the other guests. And don’t expect the law to rush in and make an arrest.

  4. Oldguy99 says:

    In reviewing Costello’s contradictory statements to the FBI regarding talking to Trump’s attorneys, it made me think about all the dissembling Trump, his spokespeople, and various attorneys have engaged in regarding representation of Trump. They seem to operate without direct compensation, in many cases raising money from donors as a grift. They seem to operate without representation letters. They are deemed to be counsel when required for privilege claims, deemed not to be counsel when tied to apparent criminal activity. In many ways they are Schrodinger’s lawyers. I wouldn’t be surprised if Costello used the analogy in defense of making false statements.

    • bmaz says:

      Rudy appeared in exactly one court proceeding, PA I think. It very much did not go well. Powell and Wood a few more, and they did not go well either. Not sure how you do that without a representation letter/fee agreement. It is basically unethical to do that in many jurisdictions. More and more stories on this insanity will dribble out over time.

      • Oldguy99 says:

        Shortly after 1/6, WaPo ran this article: https://www.washingtonpost.com/politics/trump-isolated-impeachment/2021/01/13/0595675a-55b6-11eb-a931-5b162d0d033d_story.html

        In it, there seemed to be real ambiguity (and lack of a clear representation agreement) between Trump and “his personal attorney” Rudy.

        I really believe there were attorneys doing Trump’s work who were not, by normal definition, Trump’s attorneys. I have to believe the lack of clarity was intentional in many cases.

        • emptywheel says:

          I agree. The easy way out of the conflicts in the interview would be to say that Justin Clark wasn’t really representing Trump when Justin Clark was giving Bannon orders about invoking privilege.

          Except that he was on the appeal of the Jan6 challenge.

        • Leoghann says:

          Sidney Powell is an excellent example of this. Rudy G stated, publicly, that she was not acting as counsel for Trump. Trump, the same day, said she was.

        • Rita says:

          The ambiguity works in Trump’s favor as long as he doesn’t have to pay the attorneys.

          He gets to have them claim attorney-client privilege when needed and he can prevent them from working for others who might have conflicting interests.

          The attorneys who work for a notorious client often feel it is good for business development, even if the client stiffs them.

        • nord dakota says:

          Oh, like “sometimes it depends on how I’m feeling” (Trump’s deposition on how he assesses value of assets).

          Maybe you can “feel like” someone is representing you?

    • earlofhuntingdon says:

      Needless to say, Trump and all his entities should be audited yearly. One reason among dozens, as you point out, is that he routinely pays for personal expenses through payments made by others. That’s income to Trump, which he probably never declares. It’s a lifelong game to Trump, it’s a crime for everyone else.

    • Peterr says:

      I’d love to see the DOJ ask Trump to provide a formal sworn statement that provides a timeline showing who was representing him at any given time, as well as any documentation (representation agreements, payments for services, etc.) that supports the timeline.

      • Bobby Gladd says:

        Yes, but I can see him stonewalling any such DOJ demand just like he’s done with everything else. Absent the prospect of immediate, tangible, substantive consequences, why not? It has certainly worked for him elsewhere. “How DARE you continue to harass a president for corrupt, unconstitutional partisan purposes?”

  5. Vinnie Gambone says:

    Still I wonder-have Pappa Dick and Baby Dick had a plan all along? Thinking back to House a Saud , House of Bush, there’s little doubt Cheney was what they call in the mafia, an earner. This is no buffoon muddling through the storm picking up pieces in the aftermath. They were the storm. It’s said he and his minions were briliant strategist.
    Haliburton made a lot of money, The Saudies and others got a lot of benefits. Many in both camp’s must have cringed to watch as Trump took office.
    Bill Barr was a go to go guy Cheney and Bush counted on for paticular assignments. Could Barr’s insertion in the Trump administration been a set-up? Could Barr have been a Chenney sleeper cell who would wait until the exact pyschological moment to destroy Trump?

    First we had Barr tell Trump DOJ found no evidence of widespread election fraud. Then Pence revolted and refused to overturn the election. We will soon find out, I hope, that Barr told Trump it was illegal to try any of these stunts to overturn the election.

    Now Baby Dick is hadling the scapel cutting away Trump’s
    treachery. Were there knowing smiles when Liz asked Questions of Barr when he testified before the Jan 6 committee?
    Seems something is simmering under the surface with the old deeply entrenched GOP warriors.

    My, my , my, said the spider to the fly, come into my web and you’re dead.

    Total speculation, of course. But I do wonder if Papa Dick and Barr maintained any kind of relationship over the years.

  6. timbo says:

    “The Government understands its discovery obligations under Federal Rule of Criminal Procedure 16; the Jencks Act; and Brady, Giglio, and their progeny, and will continue to comply with them should additional discoverable material come into the prosecution team’s possession, custody, or control.” sounds a lot like weasel words when it comes to materials that the government “might” be aware of that may well exist though and could well be purtinent to the case and the defendant’s case though—at least that’s one very easy inference to make based on the DOJ’s phrasing.

    Ugh. At what point is the DOJ obligated to admit that some material that it doesn’t directly possess, doesn’t have custody of, and does not directly control might be in the possession of other government agencies and/or other entities? Who decides what is discoverable in that case and what is not? The President? Agency heads? Is there a written definitive policy about any of that that is subject to public disclosure so as to ascertain what the official policy is with regard to DOJ and the Federal Courts learning of such information that other than odd statements from DOJ itself?

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