Judge Blocks Bannon Attempt To Argue His Lawyer Said It Was Very Cool, Very Legal To Flip Off Congress
Don't do the crime if you can't do the time.
(Photo by Stephanie Keith/Getty Images)
Steve Bannon’s contempt of congress case took a major hit yesterday when US District Judge Carl J. Nichols blocked him from asserting an advice of counsel defense.
The putrefying podcaster claims that he defied the subpoena for documents and testimony from the January 6 Select Committee based on the advice of his lawyer, Robert Costello, who was once Deputy Chief of the Criminal Division at the Southern District of New York, but achieved wider fame as part of an alleged pardon dangle via Garth Brooks lyric to Trump fixer Michael Cohen if he’d just agree to double cross Special Counsel Robert Mueller. (Who misses 2018? Oh, nobody? Right.)
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Costello’s signature good judgment was on display in this case when he steered his client into the current predicament, managing to make multiple apparent misstatements to the FBI along the way. Like when he claimed that Donald Trump had made a blanket assertion of privilege over Bannon’s testimony, when in fact Trump’s lawyer Justin Clark had been very clear that the former president was not going to assert executive privilege over the communications of someone who had been out of government for three full years, because that would be f*cking crazy.
“Just to reiterate, our [October 6, 2021] letter referenced below didn’t indicate that we believe there is immunity from testimony for your client,” Clark wrote on October 16. “As I indicated to you the other day, we don’t believe there is,” he said. [Emphasis added.]
Costello also appears to have told his client, who, again, got fired from the White House in 2017, that Office of Legal Counsel memos opining that it is inappropriate to prosecute current and former executive branch employees for refusing to testify about their executive service when privilege has been invoked would protect Bannon from having to testify, or even show up in person to assert privilege, about events in 2021.
But the government argued and the court agreed that Bannon’s good faith belief in Costello’s wacko advice is of no moment under the relevant precedent, Licavoli v. United States, in which the court held that “Advice of counsel cannot immunize a deliberate, intentional failure to appear pursuant to a lawful subpoena lawfully served.”
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Not even if Trump had asserted executive privilege. Which, again, he did not.
But never fear, because when God closes a door, she opens a window. The Bannon legal team has plenty more wackadoodle arguments in the hopper. Just yesterday they promised that they will assert both public authority and entrapment by estoppel in their April 15 motion to dismiss, essentially arguing that the government told Bannon it was totally cool to blow off a congressional subpoena, not even bothering to show up and assert privilege or plead the Fifth. They’re also demanding that the government pony up any secret OLC memos, so that Bannon can argue he relied on them when he failed comply with the subpoena.
“We believe the prosecution is constitutionally barred and that in any event, the OLC opinions and reliance on them provides a complete defense,” Bannon’s attorney David Schoen told Politico, adding that a different memo which says an executive branch employee is entitled to bring a government attorney with him when testifying provided a “complete defense to the subpoena’s demands” because the Committee only allowed Bannon to appear with his personal counsel.
These guys can do this all day, and in totally pugilistic fashion, continuing to claim that Trump asserted privilege and arguing that it’s inappropriate for prosecutors to even point out that Bannon hadn’t worked for the government since 2017.
Whether it’ll work, is a different question.
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And PS, Bannon still wasn’t an executive branch employee in 2021, and Trump still didn’t make a blanket assertion of privilege over Bannon’s testimony.
US v. Bannon [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
