EDITORIAL: Is Steve Bannon giving DOJ all the rope it needs? – Washington Times

OPINION:

Congressional investigations dont often evolve into criminal cases, especially when misdemeanor contempt charges are concerned. In fact, former high-ranking Justice Department officials from its Office of Legal Policy have testified that the contempt of Congress statute does not apply to executive officials asserting executive privilege.

But in cases where Jan. 6 and Stephen K. Bannon are concerned, the Department of Justice seems to be making a rare exception. If the departments own guidelines and internal rulings mean anything, it is an exception that could damage the departments integrity and create a dangerous chilling effect within the criminal court system.

Last week, news broke that federal prosecutors in the U.S. Attorneys Office for the District of Columbia got a court order in November to obtain the phone and email records of Robert J. Costello, an attorney representing Mr. Bannon, who is fighting two misdemeanor charges for not complying with a subpoena from the House Select Committee on the January 6 Attack. There are reportedly three federal prosecutors and four FBI agents assigned to the matter.

Prosecutors justified the act by insisting the move was not an attempt to breach attorney-client communications, but rather because Mr. Costellos appearance before the Jan. 6 committee on behalf of Mr. Bannon, made him fair game as a witness. This rationale is questionable however since another of Mr. Bannons attorneys, Adam Katz, who did not appear before the committee is also considered a witness.

More concerning, however, is the fact that the DOJs own guideline, 9-13.410, which touches upon issuing subpoenas related to the representation of their clients requires approval from the assistant or deputy attorney general of the criminal division at the main component of the Justice Department.

This suggests that if the subpoena was related to Mr. Bannons case, someone high up possibly even a Biden political appointee would have approved the decision. If they did not, it could mean a career prosecutor disregarded DOJ guidelines.

According to a 28-page Feb. 4 filing by Mr. Bannons legal team, one federal prosecutor told them, the Government has not taken any steps to obtain any attorney work product relating to any attorneys representation of Mr. Bannon or to obtain any confidential [attorney client] communications Federal prosecutors may sincerely believe this since the records obtained were reportedly not actual substantive content or attorney client communications, but we disagree.

The effect of the governments move creates an unfair advantage by providing prosecutors a rare glimpse into an otherwise secret realm that typically only exists between an attorney and their client. By reviewing Mr. Costellos phone and email logs, the Justice Department now knows who Mr. Bannons lawyer contacted after otherwise protected client communications took place, including potential witnesses who the prosecution can now interview, subpoena or target.

This type of information would otherwise be protected under the attorney-client privilege or work-product privilege, as it is considered a confidential under D.C. Bar Rule 1.6. Confidential material is so broad that it often includes attorney-client fee agreements and billing statements.

For avoidance of doubt, Rule 1.6 in the District of Columbia is arguably broader than other jurisdictions since it not only prohibits attorneys from revealing confidences with clients, but also their secrets. The Bar broadly defines secrets as other information gained in the professional relationship the disclosure of which would be embarrassing or likely to be detrimental, to the client. In other words, just about anything and everything.

Attorneys are also prohibited from contacting opposing parties without communicating through their legal representative. In criminal cases, this covenant falls under the Fifth Amendment. The purpose of this rule and the aforementioned are to ensure the sanctity of confidentiality and secrecy between a lawyer and their client without intrusion from the government. It creates a protected zone for a defendant facing criminal charges so the government cannot get into their head in the Orwellian fashion of the Thought Police.

The ultimate result of DOJs recent rare hardball tactics is a chilling effect in which defendants have to fear prosecutors seeking creative workarounds to the Constitution, and legal clients need to fear a flagrant lack of respect for the spirit of the rules of confidentiality enshrined in the Bar. This is most likely why the Justice Department created 9-13.410, as a guideline, so its own prosecutors do not cross this sacred line in a rogue capacity.

For the moment, it appears someone in DOJ felt crossing such a line for a misdemeanor case against one embattled journalist was worth the long-term reputational damage it could cause to DOJ. Perhaps over time, evidence will surface to justify the departments decision and demonstrate that the risk was well worth the potential cost.

For now, the appearance of overreach is troubling and should raise concerns with any lawyer, defendant or American who cherishes their civil rights.

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EDITORIAL: Is Steve Bannon giving DOJ all the rope it needs? - Washington Times