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Prosecutors may have been able to obtain court orders authorizing them to access the phone and email records of Steve Bannon’s lawyer. Steve Bannon, who faces criminal charges for defying the select committee’s subpoena, is fighting criminal charges for defying that subpoena.
In a court filing Friday, Bannon’s legal team disclosed that, last month, prosecutors revealed that they provided more than 790 documents, which Bannon’s attorneys allege “reflected efforts by the Government to obtain telephone records and email records from the personal and professional accounts of defense counsel, Robert J. Costello.”
One of Bannon’s three criminal defense attorneys, Costello, also represented Bannon in his negotiations with the select committee on Jan. 6. Bannon has argued that he acted on his attorney’s advice in refusing to appear before the committee.
The information contained in Bannon’s affidavit doesn’t make it clear whether his attempts to obtain Costello’s records are connected to his case. In addition to assisting former President Donald Trump in the subversion of the 2020 election, Costello also represents a number of other clients, including former New York City Mayor Rudy Giuliani, who also faces a federal investigation and is a figure of interest to the Jan. 6 select committee.
“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,” Bannon’s lawyers wrote in their filing.
The legal team representing Bannon, which includes Costello, Evan Corcoran, David Schoen, and one of Trump’s impeachment lawyers, also attached correspondence they exchanged with the Justice Department in January seeking details about the efforts to obtain Costello’s records.
“Mr. Costello represented Mr. Bannon before the January 6th Select Committee in relation to the subpoena it issued to Mr. Bannon and is, therefore, a witness to the conduct charged in the Indictment,” wrote prosecutor Amanda Vaughn in the Jan. 7 reply. She added that another attorney, Adam Katz, might also testify.
“Aside from the information that Mr. Costello voluntarily disclosed on behalf of Mr. Bannon during the investigation of this matter,” Vaughn continued, “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.”
The Department of Justice provided to Bannon’s defense team letters from Costello’s third-party carriers, which indicate that many of Costello’s email logs were handed over to prosecutors on Dec. 7 under the auspices of a 2703 order, which does not always require advance notice to the customer. Bannon was indicted one day before the letters referred to a 2703 order.
Prosecutors are seeking data from Costello’s providers for four different email accounts with different carriers and at least four different phone numbers, including his home phone, the firm’s landline, and his personal cellphone. Bannon’s lawyers say the data includes details related to the emails Costello sent and received from at least four different email accounts with different carriers.
Furthermore, the government sought to obtain telephone records that included text message data – but not the contents – such as “the numbers to which texts were sent and from which they were received.”
Among the items Bannon is asking Judge Carl Nichols to order prosecutors to provide are copies of all subpoenas and court orders regarding Costello’s information, a list of all third-party carriers that were subject to those requests, a list of DOJ officials that authorized the records requests, and information as to whether Costello’s files were presented to a grand jury.
Additionally, Bannon’s team posted summaries of two interviews Costello gave the FBI and Justice Department just a few days before the indictment of Bannon on Nov. 12, 2021.
The interviews, dated Nov. 3 and Nov. 8, disclose that Costello repeatedly advised Bannon not to cooperate with the select committee, saying that their process was flawed and illegal. In addition, he expressed frustration with Trump’s legal team, saying they were “intentionally vague” about whether Trump would assert executive privilege to protect Bannon. Costello said they were “playing some games.”
Costello further stated in the interview that he represents Giuliani and that on Jan. 7, 2021, a day after the attack on the Capitol, Costello sent documents to the Federal prosecutor in Washington, D.C., “related to activities on January 6.”
“However, Costello did not know who at [the U.S. attorney’s office] had received those documents,” according to the interview summary.