Criminal defense attorney Robert J. Costello claims that prosecutors are doing grave injustices to his client, Stephen K. Bannon. Bannon, 68, is the right-wing media entrepreneur turned podcast host who, for a period of seven months in 2017, served as chief strategist and senior counselor to President Trump.
In the days leading up to the Jan. 6, 2021, Capitol insurrection, Bannon was reportedly a member of a “war room” command center at the Willard Hotel in Washington, D.C.—which consisted of a group of pro-Trump operatives, including Trump lawyer Rudolph Giuliani and Professor John Eastman, who were trying to overturn the 2020 election. The night before the attack on the Capitol, Bannon predicted on his podcast—titled, coincidentally, War Room: “All hell is going to break loose tomorrow. It’s gonna be moving. It’s gonna be quick. And all I can say is, strap in, the War Room, a posse. You have made this happen and tomorrow is game day.”
Citing these circumstances, among others, the Select House Committee to Investigate the January 6th Attack on the United States Capitol issued Bannon a subpoena on Sept. 23. It ordered him to produce 17 categories of documents and communications on Oct. 7 and to appear for a deposition on Oct. 14.
Following Costello’s legal advice, Bannon did neither. Instead, he told the committee, through Costello, that former President Trump had instructed him to invoke executive privilege and that he was therefore “legally unable to comply with [the] subpoena requests.”
Accordingly, Bannon did not produce a single document. Nor did he provide a privilege log—as the subpoena prescribed—laying out claimed privileges for specific responsive records. Similarly, although the subpoena’s terms allowed Bannon to assert privileges at his deposition on a question-by-question basis, he failed to show up.
On Nov. 12, Bannon was indicted on two counts of contempt of Congress, one for failing to produce documents and the other for failing to provide testimony. The pertinent statute says that anyone who, having been subpoenaed, “willfully makes default” or “refuses to answer any question,” commits a misdemeanor carrying a maximum one-year jail term.
Costello and two co-counsel—added to the defense team after Bannon’s indictment—have now moved to dismiss the charges based on a series of internal Department of Justice memoranda that stretch back decades. They claim these memos support the advice Costello gave his client. If the motion is denied and Bannon proceeds to trial in July, as scheduled, Bannon’s lawyers also want to present those memos to the jury as part of an “entrapment by estoppel” defense. That’s an affirmative defense in which the defendant tries to prove, by a preponderance of evidence, that he reasonably relied on the advice of law enforcement officials—in this case, the authors of those memos, who were mainly past heads of the Justice Department’s Office of Legal Counsel (OLC)—who led him to believe that his conduct was lawful. Bannon’s counsel had also hoped to present an “advice of counsel” defense—arguing to the jury that Bannon had relied in good-faith on Costello’s advice—but U.S. District Judge Carl Nichols of Washington, D.C. barred them from doing so earlier this month. Nichols cited longstanding, binding precedents forbidding “advice of counsel” defenses in either contempt of Congress or contempt of court cases.
The gist of the injustice Bannon’s team posits is captured in the following passage in their initial brief on the “advice of counsel” issue:
Picture this. You are a former top advisor to the President of the United States. You receive a subpoena from a congressional committee. The subpoena includes 10 pages of arcane instructions. It seeks testimony and documents about communications with your former boss while he was President. You are not a lawyer. You retain a lawyer. He is a seasoned former federal prosecutor who has experience with subpoenas. He explains that the former President has asserted executive privilege, and that based on long-standing U.S. Department of Justice authority, you should not appear for deposition or provide documents. He tells you that he will try to reach an accommodation with the Select Committee. You follow the advice of your attorney. Shortly thereafter you are charged with a crime and face up to two years in jail.
That’s a compelling narrative—at first blush. But it omits at least three important and countervailing points. First, the seasoned lawyer’s advice was dubious on its face insofar as a great deal of the material covered by the subpoena was not plausibly privileged under any reading of the law of executive privilege. (I sent Costello a brief summary of my views, seeking comment. In response, one of his co-counsel in the Bannon case, David Schoen, sent an eight-paragraph rebuttal. He writes that “the premise of your assertion mixes concepts and at least implies one erroneous premise,” and that “any reading of the relevant OLC opinions would demonstrate the error of that premise.” His full response can be found here.
To be sure, the OLC has issued, over the decades, several opinions which do claim that high-level presidential advisors enjoy an “absolute immunity” from congressional subpoenas that would allow them to refuse even to show up for a deposition. Lawfare has had occasion to analyze these and related OLC memoranda in several in-depth posts and podcasts in recent months. As Lawfare’s commentators have noted, however, these opinions lack the force of law outside of the executive branch and have been repeatedly and caustically rejected by U.S. district judges whenever they have been tested in court.
Far more important, no OLC opinion has ever claimed that a private citizen, subpoenaed in connection with his or her conduct as a private citizen, was totally immune from a congressional subpoena. That was Costello’s novel claim. While there was precedent for allowing a president to assert executive privilege over specific communications he or his advisors have had with private citizens, that’s different from claiming that a private citizen subpoenaed to provide information about actions taken in his private capacity has absolute “immunity” to stonewall.
Second—and I won’t spend much time on this because, again, Lawfare has recently and repeatedly addressed this issue at length—none of these OLC opinions gives guidance about a situation, like Bannon’s, in which the current president has actually waived executive privilege, as President Biden did in this letter, and it was a former president that was purporting to assert it.
But third—and most remarkably—it’s not even clear that former President Trump ever properly asserted executive privilege over Bannon’s documents or testimony. As explained in greater detail below, Justin R. Clark, Trump’s counsel, played an elusive cat-and-mouse game when it came to invoking privilege. He refused Costello’s repeated entreaties to directly engage with the select committee. Moreover, Clark repeatedly told Costello that Costello was mischaracterizing Trump’s stance in Costello’s own letters to the committee. And he specifically told Costello that Trump was not claiming that Bannon enjoyed any broad immunity from responding to the subpoena at all.
On Oct. 16, for instance, three days before the House of Representatives voted to hold Bannon in contempt, Clark emailed Costello the following:
Just to reiterate, our [letter to you on Oct. 6] didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call. But as I also indicated the other day other avenues to invoke the privilege – if you believe it to be appropriate – exist and are your responsibility. If you haven’t already I’d encourage you again to contact counsel for the committee to discuss it further. (Emphasis added.)
Costello didn’t contact the committee. Instead, he wrote back to Clark to dispute Clark’s characterization of the position of Clark’s own client, Trump. In fact, even as Costello was instructing Bannon to assume the most truculent conceivable posture vis-à-vis Trump’s purported assertion of privilege, he was engaged in heated arguments with Trump’s counsel, Clark, over whether Trump was really taking the positions Costello was attributing to him.
On Oct. 14, for instance—about eight hours after Bannon failed to show for the deposition—Clark emailed Costello. He asserted that Costello had misstated Trump’s position in a letter Costello had written to the committee. Costello reacted by firing off an email to Bannon attaching Clark’s note and casting aspersions on Clark’s trustworthiness: “This is not accurate. He definitely stated that Trump was invoking the executive privilege. . . . I don’t know what game Clark is playing but it puts Steve Bannon in a dangerous position. Beware.”
Why would Trump’s counsel be so cagey and oblique about asserting executive privilege? (Clark did not return an inquiry for this article.) One possibility is that—as a matter of shielding Trump from political or even criminal liability—he wanted to distance Trump from whatever Bannon and his cohorts were up to at the Willard Hotel. Unambiguously asserting executive privilege over those communications would tend to admit that the people at the Willard Hotel were acting for Trump in some way.
Viewed in light of all these circumstances, different lessons may emerge from the Bannon team’s “picture this” scenario than those they invite. Rather than illustrating the injustice of barring “advice of counsel” defenses in these circumstances, this case illustrates the wisdom of the legal rule forbidding that type of defense.
If such defenses were permitted, creative counsel with a limitless tolerance for brinkmanship could always concoct contorted reasons for resisting subpoenas and diverting their enforcement into years-long litigations, effectively thwarting the investigations that prompted the subpoenas. That’s exactly why the seemingly harsh rule against “advice of counsel” defenses to contempt charges has evolved the way it has.
In the famous words of Chief Justice Vinson, writing for a unanimous U.S. Supreme Court in 1950:
A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity. We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.
As noted, numerous Lawfare posts have already analyzed the OLC opinions that unquestionably loom large in this dispute. This post, however, will focus instead on the unique factual backdrop against which the Bannon contempt prosecution is playing out. The legal questions remain difficult, and it’s still possible that Costello might win his audacious wager. If he loses his bet, however, his client will likely go to jail.
And that’s admittedly disconcerting: The lawyer is playing a game of chicken and yet his client will pay the price. On the other hand, Costello kept Bannon apprised of his alarming correspondence with Clark—as his “beware” email illustrates. In the end, it’s hard to see any alternative way of handling this lawyer-made quagmire that won’t reward attorneys for disingenuous recalcitrance.
Robert J. Costello, 74, was an assistant U.S. Attorney in the Southern District of New York for six years, from 1976 to 1981, rising to deputy chief of the criminal division. He then went into private practice where he has represented a number of larger-than-life New York figures, including New York Yankees owner George Steinbrenner and hotel magnate Leona Helmsley. Since late 2019, he has been representing Rudolph Giuliani in connection with federal inquiries into whether Giuliani’s business and political dealings in Ukraine violated federal law, including the Foreign Agent Registration Act.
Earlier in 2019, Costello played a cameo role in Volume II of Special Counsel Robert S. Mueller III’s report—the section that details potential obstruction of justice charges against Trump. In April 2018, when federal agents raided the home, office and hotel room of then Trump lawyer Michael Cohen, Cohen went to see Costello. Costello was close with Giuliani, who was then also one of Trump’s personal lawyers. After speaking to Giuliani, Costello emailed Cohen: “Sleep well tonight, you have friends in high places.” Some critics later saw this incident as “pardon-dangling.” (Neither Costello nor his co-counsel, Schoen, responded to an inquiry seeking comment.)
Mueller did not mention Costello in his conclusions, but did write that the totality of Trump’s conduct toward Cohen—including incidents not involving Costello—“could support the inference that the President intended to discourage Cohen from cooperating with the government because Cohen’s information would shed adverse light on the president’s campaign-period conduct and statements.”
In August 2020, Manhattan federal prosecutors indicted Stephen Bannon and three co-defendants allegedly swindling donors to a charity they ran, called We Build the Wall, Inc. Bannon initially retained a top litigator at Quinn Emmanuel Urquhart & Sullivan for his defense. But in December 2020, Bannon swapped counsel, hiring Costello. Just over a month later, on the last full day of the Trump administration, Trump granted Bannon a full pardon. (Today, the case against Bannon’s three co-defendants continues, with two having pleaded guilty this month.)
On Sept. 23, the select committee served subpoenas on four key figures in the Capitol riot investigation: former White House Chief of Staff Mark Meadows; former deputy White House Chief of Staff for Communications Daniel Scavino, Jr.; former Defense Department official Kashyap Patel; and Bannon. (Though the House voted to hold Meadows in contempt in December 2021, he has not been indicted. Lawfare has addressed the Meadows situation here.)
As mentioned, Bannon’s subpoena called for production of 17 categories of documents by Oct. 7 and for a deposition on Oct. 14. In no case did it seek documents dating any earlier than April 1, 2020—more than two-and-a-half years after Bannon left his White House post on Aug. 18, 2017.
Today, we have some insight into what Costello did during the period between formally accepting service of the subpoena, on Sept. 24, and the passage of the two deadlines. This comes from two conversations Costello had with prosecutors after the House of Representatives held Bannon in contempt on Oct. 19, but before the grand jury handed up an indictment on Nov. 12. These conversations, initiated by Costello and conducted via Webex, occurred on Nov. 3 and Nov. 11, according to the FBI FD-302 reports commemorating them. The assistant U.S. attorneys present—who are also now handling Bannon’s prosecution—were J.P. Cooney, Molly Gaston and Amanda Vaughn, all of the Washington, D.C. office.
According to the FBI summaries, Costello admitted to prosecutors that, as of Oct. 7, the due date for turning over Bannon’s documents, he still did not even know “what Bannon possessed that would have been responsive to the . . . subpoena.” He also admitted that he did not see how at least seven categories described by the subpoena—like those seeking Bannon’s communications with “Proud Boys, Oath Keepers, Three Percenters, and Alex Jones”—could possibly have been privileged. He also told them that, according to Bannon, no responsive documents existed for at least five of those categories.
At first, Costello had trouble learning who was representing Trump, according to the FBI summary. Eventually, he found the right person, Justin Clark, and reached out to him on either Oct. 4 or 5. It may have been Costello who first brought up the subject of executive privilege, Costello said. Costello never sent any Bannon documents to Clark for him to review. On Oct. 6, the day before the documents were supposed to be produced, Clark wrote Costello a letter referencing executive privilege.
Clark, 46, had been involved in both Trump campaigns, including as deputy campaign manager in 2020. He now leads a Washington, D.C., law firm called Elections, LLC.
For an attorney-to-attorney communication, Clark’s letter to Costello bore an odd preface:
While it is obvious that the Select Committee’s obsession with President Trump is merely a partisan attempt to distract from the disastrous Biden administration (e.g., the embarrassing withdrawal from Afghanistan, the overwhelming flood of illegal immigrants crossing our southern border, and growing inflation), President Trump vigorously objects to the overbreadth and scope of these requests and believes they are a threat to the institution of the Presidency and the independence of the Executive Branch.
Clark’s letter then purported to invoke executive privilege, but in the following, seemingly limited fashion:
Through the Subpoena, the Select Committee seeks records and testimony purportedly related to the events of January 6th, 2021, including but not limited to information which is potentially protected from disclosure by the executive and other privileges, including among others presidential communications, deliberative process, and attorney-client privileges. President Trump is prepared to defend these fundamental privileges in court.
Therefore, to the fullest extent permitted by law, President Trump instructs Mr. Bannon to (a) where appropriate, invoke any immunities and privileges he may have from compelled testimony in response to the Subpoena; (b) not produce any documents concerning privileged material in response to the Subpoena; and (c) not produce any testimony concerning privileged material in response to the Subpoena. (Emphasis added.)
The next morning, at the deadline hour of 10 a.m., Costello produced no documents and no log for withheld documents. About seven hours later, he sent the committee’s chief counsel, Kristin Amerling, a letter quoting the above two paragraphs from Clark’s letter to him. He then asserted: “Since these privileges belong to President Trump and not to Mr. Bannon, until these issues are resolved [in court], Mr. Bannon is legally unable to comply with your subpoena requests for documents and testimony.” The letter cited no precedents and no OLC opinions.
The next day, on Oct. 8, committee Chairman Bennie Thompson sent Costello a three-page response. He protested that Bannon’s blanket failure to produce any of the 17 categories of documents was based “on an apparent instruction from former President Donald Trump that appears limited to requesting that Mr. Bannon not disclose privileged information.” Thompson continued:
First, virtually all the documents and testimony sought . . . concern Mr. Bannon’s actions as a private citizen and involve a broad range of subjects that are not covered by executive privilege. . . .
Second, the Select Committee has not received any assertion, formal or otherwise, of any privilege from Mr. Trump. Even assuming that, as a former President, Mr. Trump is permitted to formally invoke the privilege, he has not done so. . . .
Third, . . . [e]ven if your client had been a senior aide to the President during the time period covered by the contemplated testimony . . . he is not permitted by law to the type of immunity you suggest that Mr. Trump has requested he assert. . . .
After referencing two of the U.S. District Court rulings rejecting blanket invocations of privilege even when asserted by high-level executive branch officials in inquiries into their official duties, Thompson warned Bannon that if he failed to turn over at least a privilege log his “willful non-compliance . . . could result in a referral . . . to the Department of Justice for criminal charges.”
Costello responded to Thompson’s letter with four days of radio silence—and no privilege log.
On the same day that Thompson wrote Costello, there was another ominous development for Bannon. White House counsel Dana Remus informed the Archivist of the United States David Ferriero that President Biden would not be invoking executive privilege over any of the Trump administration documents being sought by the select committee via a separate subpoena. Though Costello never reached out to the White House (as he later acknowledged to prosecutors), he was now on notice as to what its position would likely be as to whether executive privilege protected any of Bannon’s documents or testimony.
At 7 p.m. on Oct. 12, two days before Bannon’s scheduled deposition, the committee’s senior investigative counsel, Sean Tonolli, reached out to Costello. In case Bannon was going to appear, Tonolli later explained to the prosecutors, Tonolli wanted to discuss logistics with him, including coronavirus-related issues. Costello told Tonolli that Bannon’s appearance was “highly unlikely,” but he’d be sending a letter.
At 12:35 p.m. on Oct. 13—one day before the scheduled deposition—Tonolli emailed Costello again to follow up. That same minute, Costello emailed Trump counsel Clark, attaching a copy of Thompson’s October 8 letter rejecting Bannon’s assertions of executive privilege. He drew Clark’s attention to the fact that the committee did not regard Clark’s earlier letter to Costello as adequate invocation of the privilege. “I would strongly suggest that a direct communication from you on behalf of President Trump would clarify the President’s position with respect to the document request and deposition requests,” Costello wrote.
Costello then called investigative counsel Tonolli back. Costello was “very aggressive,” Tonolli told prosecutors, informing Tonolli that neither he nor his client were going to appear. Costello “also expressed frustration that President Trump’s legal team would not speak to him, mentioning Justin Clark specifically.”
At about 4:10 p.m.—18 hours before the deposition was due to start—Costello called Tonolli again. He reiterated that Bannon would not be showing up. Then Costello “raised two issues,” according to the FBI report of Tonolli’s account. “Costello asked Tonolli if there would be any way for a third party attorney to attend the deposition to assert executive privilege on behalf of former President Trump. Costello was aware that the Select Committee’s rules prohibited third party attorneys. Costello also inquired about conducting the deposition remotely.”
Tonolli “did not provide answers” to either question, he told prosecutors. “Costello was clear that he did not expect immediate answers because neither he nor Bannon would be appearing for the deposition regardless,” according to Tonolli’s account. (Emphasis added.)
In retrospect, it now appears that Costello was laying the foundation for mounting a second argument for Bannon’s refusal to respond to the subpoena. A May 2019 OLC opinion—relating to subpoenas to a sitting Justice Department official and a sitting White House official—had asserted that when an executive branch official is subpoenaed to testify about matters that may implicate executive privilege, Congress must allow an attorney from that official’s agency to attend in order to protect the privilege. Costello apparently wanted to be able argue—as he would argue after his client’s indictment—that without this accommodation, the subpoena was “illegal, unlawful, unconstitutional and incapable of being enforced either civilly or criminally.” (The May 2019 OLC opinion eventually became a crucial element of the “advice of counsel” defense that Bannon’s team later tried to mount.)
But, as Costello also admitted to prosecutors in his interview on Nov. 3, he never asked Trump’s counsel, Clark, whether Clark would be willing to attend the deposition. On the contrary, according to the FBI summary, “Costello did not ask Clark to attend the Select Committee hearing since Clark wouldn’t even contact the Select Committee on Costello’s behalf.”
At 5:19 p.m. on Oct. 13, Costello emailed Chairman Thompson a two-page letter explaining that Bannon would not be appearing the next day. “As recently as today,” he wrote, “counsel for President Trump, Justin Clark Esq., informed us that President Trump is exercising his executive privilege; therefore, he has directed Mr. Bannon not to produce documents or testify until the issue of executive privilege is resolved.”
In his letter, Costello did not mention the May 2019 OLC opinion about “agency counsel” being present for depositions of executive branch officers nor did he ask Chairman Thompson to make any accommodation to permit Trump’s counsel to appear.
Months later, after Bannon’s indictment, when Bannon’s defense team would raise the May 2019 OLC opinion as a crucial part of Bannon’s “advice of counsel” defense, they argued that it was irrelevant that Costello had never raised the matter with the committee. Rather, they wrote:
Mr. Costello did not did make that request of Staff Counsel for several reasons: Costello was under no obligation to reveal to Staff Counsel that Mr. Bannon had a complete defense to the subpoena’s demands based upon the OLC opinions; Costello was well aware that it was fruitless to make a request for a change of rules to the Staff Counsel, because Staff Counsel had no authority to so act.
Returning to the chronological narrative, on Oct. 14 the deposition deadline passed with no appearance by Bannon. That evening, at 4:48 p.m., Clark emailed Costello:
Bob—I just read your letter dated October 13, 2021 to Congressman Benny [sic] Thompson. In that letter you stated that “[a]s recently as today, counsel for President Trump, Justin Clark Esq., informed us that President Trump is exercising his executive privilege; therefore, he has directed Mr. Bannon not to produce documents or testify until the issue of executive privilege is resolved.”
To be clear, in our conversation yesterday I simply reiterated the same instruction from my letter to you dated October 6, 2021, and attached below.
Fifteen minutes later, Costello forwarded Clark’s email to Bannon with the remarkable note I excerpted toward the top of this post:
This is not accurate. He definitely stated that Trump was invoking the executive privilege because I told him the House in Bennie Thompson’s letter to me stated they did not believe that Trump had formally invoked executive privilege. I sent him Thompson’s letter stating that. I also told him to not leave anyone guessing he should send an email to the House stating Trump’s invocation of privilege.
I don’t know what game Clark is playing but it puts Steve Bannon in a dangerous position. Beware.
The next day, Oct. 15, Thompson responded to Costello’s letter. He reminded him that Trump had still not communicated any assertion of privilege to the committee; that Bannon had no “absolute immunity” from testifying; and that many of the topics the subpoena inquired about, including “communications with Members of Congress, presidential campaign representatives, and other private parties . . . could not conceivably be barred by a privilege claim.” He warned Costello that if he submitted nothing new by 6 p.m. on Oct. 18, the committee would initiate contempt of Congress procedures the following morning.
At 5:59 p.m. on Oct. 18—one minute before the latest deadline Thompson had given him—Costello emailed the committee asking for a week’s delay. He said he wanted to review the lawsuit Trump had just filed that day against the select committee and the National Archives and Records Administration, seeking to enjoin the archivist from turning over certain Trump White House documents to the committee on executive privilege grounds. (Trump’s suit rapidly failed at all levels, being dispatched by the U.S. Supreme Court in January 2022.)
At 6:55 p.m., deputy White House counsel Jonathan Su sent Costello an unsolicited letter. He reminded Costello that President Biden had determined—in case there had ever been doubt—that, even assuming any executive privilege ever could have applied to Bannon’s testimony or documents, it was “not in the public interest” to invoke it given the importance of the topics the select committee was investigating.
The next morning, committee chief counsel Amerling denied Costello the delay he’d sought in a one-paragraph letter. Later that day the committee recommended that the full House find Bannon in contempt. Two days later, Oct. 21, it did so by a 229-202 vote—largely along party lines.
In early November 2021, prosecutors interviewed many of the players involved in the standoff, including Tonolli, Amerling, House general counsel Douglas Letter, and, as noted, Costello twice. During Costello’s second interview, on Nov. 11, Costello forcefully argued, as he had previously, that Bannon was simply acting on advice of counsel.
“I made the decision, not Bannon,” the FBI summary quotes him as having said. Costello also complained repeatedly about Trump counsel Clark. “Costello stated Justin Clark was trying to be purposefully intentionally vague. . . . Clark was not cooperative and cut-off [sic] communication. . . . Costello stated Clark was playing some games. Clark placed Bannon in an awkward position.”
At one point, Costello referred to his “beware” letter to Bannon, according to the FBI summary. “[Costello] did write at the conclusion of a letter to Bannon, ‘beware’ in capital letters to warn Bannon his failure to comply could result in a referral to DOJ.”
The next day, Nov. 12, Bannon was indicted. At that point, Bannon added two lawyers to his defense team: David Schoen, one of Trump’s lawyers during his second impeachment, and M. Evan Corcoran, a Baltimore lawyer who was formerly an assistant U.S. attorney in both Washington, D.C., and the Eastern District of Virginia. (Since Costello may become a witness at trial, it was necessary to retain co-counsel.)
Since the indictment, Bannon’s team has taken sharp issue with the above-quoted line from the FBI summary relating to Costello’s “beware” warning to Bannon. Bannon’s defense team calls it a “Big Lie” that Costello was warning Bannon that his “failure to comply could result in a referral to DOJ”: “The government’s claim is false. The warning was to Mr. Bannon to beware of Justin Clark. The email of October 14, 2021 actually stated: ‘I don’t know what game Clark is playing, but it puts Steve Bannon in a dangerous position.’”
But the argument is opaque to the point of unintelligibility. What was it about Clark that Bannon was supposed to beware of, if not the “dangerous position” Clark was putting him in? And what was that “dangerous position” if not the possibility of indictment for contempt of Congress? The brief doesn’t say.
Looking back at Costello’s representation of Costello, it’s obvious that he was understandably eager to invoke, on Bannon’s behalf, the multiple OLC opinions that have, indeed, hamstrung enforcement of so many Congressional subpoenas in the past. As Lawfare has recently observed, those opinions have almost certainly played a key role in delaying—if not torpedoing—any contempt indictment of Mark Meadows. But to get to those OLC rulings he had to vault over gaping canyons of adverse and distinguishing facts. Now the courts will decide if Costello’s client pays the price for Costello’s high-stakes game of “hare and hounds.”