“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 attorneys wrote in the filing.
Bannon’s legal team, which includes Costello, Evan Corcoran and David Schoen — one of Trump’s impeachment lawyers — also appended an exchange of correspondence they had with DOJ in early 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,” prosecutor Amanda Vaughn said in the Jan. 7 reply, adding that another attorney, Adam Katz, may also be a witness.
“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.”
According to letters from Costello’s third-party carriers, which were provided to Bannon’s defense team by DOJ, many of Costello’s email logs were provided to prosecutors on Dec. 7 under the auspices of a so-called 2703 order, which doesn’t always require notice to the customer. The letters reference a 2703 order dated Nov. 11, a day before Bannon was indicated.
Bannon’s lawyers say the data prosecutors have sought from Costello’s providers include records related to Mr. Costello’s emails for at least four different email accounts with different carriers and telephone records for at least four different phone numbers, including from his personal home phone, his law firm’s landline and from his personal cellphone.
The government also sought telephone record requests that included text message data — but not content — such as “the numbers to which texts were sent and from which they were received.”
Bannon is asking Judge Carl Nichols to force prosecutors to provide copies of any subpoenas and court orders pertaining to Costello’s information, a list of all third party carriers who were the subject of those request, a list of DOJ officials who authorized the records requests and information about whether Costello’s records were presented to a grand jury.
A subsequent set of documents posted by Bannon’s team Friday evening included summaries of two interviews Costello gave to the FBI and Justice Department just days before Bannon’s indictment on Nov. 12, 2021.
In the interviews, dated Nov. 3 and Nov. 8, Costello described repeatedly advising Bannon not to cooperate with the select committee, saying he viewed their process as flawed and illegal. He also described frustration with Trump’s legal team, claiming they had been “intentionally vague” about whether Trump would assert executive privilege to protect Bannon. Costello said they were “playing some games.”
Costello also noted 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 US attorney in Washington DC “related to activities on January 6.”
“However, Costello didn’t know who at [the U.S. attorney’s office] had received those documents,” according to the interview summary.