In a shocking development in the criminal contempt case of Steven K. Bannon, the defense has brought forth a series of motions proving that the Department of Justice and U.S. Attorneys office sought out and received the emails and phone records of one of Bannon's attorneys, Robert Costello, and asserts that there is reason to believe it also sought out and received the same for another of his counsel. The filings also document that innocent citizens, who also just so happen to share a name with Costello, also had their email and other information, including financial information, dispersed to the government by Google and numerous other providers, in what can be described as a fishing expedition by the DOJ.
Bannon was arrested on November 15, 2021, for failing to appear for testimony in front of the widely controversial J6 committee in the U.S. House of Representatives. At issue in his appearance were assertions of privilege by President Donald J. Trump against records and information the committee was seeking. Attorney Costello advised Bannon not to appear for the hearing and was in communication with the committee seeking an adjournment as a legal case debating the privilege claims played out in court. After communication ceased, the committee held a press conference in which they announced their intent to prosecute Bannon.
As asserted in a reply to the government's opposition to a motion, attorney Costello states that the DOJ used a Grand Jury subpoena as well as an order from a federal judge to obtain the information, merely guessing at the email address that Costello may have used on various email services including Google, Comcast, and Yahoo. Additionally, the government sought and obtained phone records for Mr. Costello at his home, work office and also for an unrelated number belonging to a private citizen from carriers Verizon and T-Mobile.
The broad, sweeping and seemingly unconstitutional subpoenas send a chilling effect for defendants everywhere, as well as the attorneys they retain—there is no evidence that the Department of Justice employed a taint team to ascertain privilege on the materials it received. After the judge ruled the defense be granted information regarding the approval of the sweeping request as it was presented to a federal judge, it was revealed that the DOJ argued it had: "articulable facts" that reflected a "reasonable belief" that the email records it sought an Order to obtain were material to the Bannon investigation or prosecution, as required under 18 U.S.C. §2703(d). In truth, there was no reasonable basis for believing that a random email address that included Mr. Costello's name (with a different middle initial and address) met the requisite showing, consistent with the Stored Communications Act's purpose in protecting privacy."
Defense counsel stated:
" By the time the government made whatever representations it made to a federal judge under 18 U.S.C. §2703(d) to get a November 11, 2021 Order for the voluminous Gmail records it obtained for an unrelated private citizen, it well knew that it had abused the grand jury subpoena process by seeking email records for made up email accounts it thought might yield email records for Bannon defense counsel Robert J. Costello."
The government is fighting defense requests to provide all Grand Jury materials, as would typically be provided, in the case.
" The letter sent from Google to the Government concerning these records, makes reference to a "2703(d) Order or Equivalent dated November 11, 2021 (Google Ref. No. 8786657) SC No. 21sc3533; 1:21-sc-03533-ETH." [Exhibit "2"]. It would appear that the Government simply took a shot in the dark that there might be a Gmail account using the name Robert Costello and so it apparently applied for and obtained from a federal judge a Stored Communications Act Order under 18 U.S.C. §2703(d) for all Google records (Gmail, Google Hangouts, etc.) for this person who has an email address of email@example.com. Apparently searches under other email addresses with the name Costello were made as well by Google [Exhibit 2 at Bates 001739]. This was an outrageous abuse of the Stored Communications Act (or whatever procedure the Government used to obtain an Order for Google records. Mr. Bannon must be provided with the application and the Order and all other correspondence concerning this account"
Costello states in the filing "By the time the government made whatever representations it made to a federal judge under 18 U.S.C. §2703(d) to get a November 11, 2021 Order for the voluminous Gmail records it obtained for an unrelated private citizen, it well knew that it had abused the grand jury subpoena process by seeking email records for made-up email accounts it thought might yield email records for Bannon defense counsel Robert J. Costello."
The conclusion of one of the motions reads, in part:
"This Motion is not just about the abuse of the grand jury subpoena process and the Stored Communications Act or the complete breach of Department of Justice policy and the underlying reasons behind that policy that reflect our Government's recognition of the sanctity of the attorney-client relationship in our criminal justice system. Nor is it just about the effort by overzealous prosecutors to intimidate Mr. Bannon or make an example out of him or "gain leverage" as the President and members of Congress have demanded 15 by obtaining his attorney's email and telephone records without any lawful basis or legitimate reason. It is far worse.
In their reckless zeal, these 3 prosecutors and their staff and the 4 FBI agents in this misdemeanor case just made-up email addresses with a variety of carriers and served subpoenas and court orders on those carriers, without regard to the consequences of their actions. They did not stop even after they learned beyond any question that these were not email addresses for Mr. Costello; instead, they apparently made representations to a federal judge that could not have been true or accurate in order to get an Order for more emails from an account they had no reason to believe really belonged to attorney Robert J. Costello. It was just made up; they hoped they would get lucky and it would pan out, no matter the invasion of privacy it caused for another private citizen. They obtained hundreds and hundreds of pages of confidential email records from this private citizen and went beyond that to his records on other Google sites, all the while ignoring the fundamental principles underlying the Stored Communications Act and the requirement for supervisory authorization for such subpoenas."