The Justice Department has sought phone and email records of a defense attorney who represented Stephen K. Bannon, the former adviser to President Donald Trump, in his dealings with a House committee investigating the Jan. 6 Capitol riots and his subsequent indictment for contempt of Congress, his defense said.
Bannon’s defense team made the new disclosures in a 19-page motion filed Friday night, suggesting it was outrageous for Bannon’s Washington-based FBI and U.S. prosecution team to have sought records of his lawyer’s communications in a misdemeanor contempt case for a period when he was in talks with both the House committee and prosecutors. The House committee referred Bannon for prosecution in October after he refused to appear pursuant to a Sept. 23 subpoena, and he was charged by indictment on Nov. 12.
Costello — who also has represented Trump’s personal lawyer Rudolph W. Giuliani — has said that Bannon would have cooperated if a court ordered him to do so, but was deferring to Trump’s instruction to top allies to refuse to participate. Bannon’s defense urged U.S. District Judge Carl J. Nichols to compel the Justice Department to divulge more details about its pursuit of his records.
“It is beyond disingenuous for the Government to even suggest that a defense attorney is just another ordinary witness, without special attending concerns related to issues of privilege and the defendant’s constitutional rights, that must be assiduously safeguarded and that its actions here bear any semblance of normalcy,” wrote Bannon attorneys M. Evan Corcoran, David I. Schoen, and Costello.
While the data gathering on Costello appeared centered on Bannon’s case, his lawyers said information the government has turned over raises more questions than answers, including why information about Costello’s calls, texts or emails — but not their contents — were sought, who approved the collection, and how much was scooped up. At least one request mentioned in court filings spanned an eight-month period last year when Costello was also representing Giuliani in a criminal probe led by U.S. prosecutors in Manhattan into whether Giuliani’s dealings in Ukraine as Trump’s personal attorney violated federal lobbying laws.
Bannon could not be reached for comment by The Washington Post. Costello declined to comment, referring questions to court pleadings.
Spokesmen for the Justice Department and U.S. attorney’s office in Washington did not comment. But in a Jan. 7 letter to Bannon’s defense the latter filed in court, U.S. prosecutors explained that Costello represented Bannon before the January 6 Committee “and is, therefore, a witness to the conduct charged.”
To their knowledge a second attorney, Adam Katz, also represented Bannon on matters related to the committee, assistant U.S. attorneys Amanda R. Vaughn, Molly Gaston, and J.P. Cooney wrote. Other than what Costello disclosed on behalf of Bannon during the investigation, they added, “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 Bannon and any attorneys.
Bannon attorneys noted that the government apparently obtained at least one court order or its equivalent for records related to Costello’s use of the services of one major Internet “carrier/provider,” including his email activity from March 5 through Nov. 12, excluding their contents but including data such as whether emails were unread, in an inbox, or elsewhere.
That period ends with Bannon’s indictment and coincides with the March 5 filing of a federal lawsuit by former Trump impeachment manager Rep. Eric Swalwell (D-Calif.) naming Trump and Giuliani as co-defendants, and asserting they incited the mob assault on the Capitol, and claiming they and other Jan. 6 speakers should be held liable for injuries and destruction.
Separately, Costello has represented Giuliani in dealings with the U.S. attorney’s office for the Southern District of New York. On April 28, the FBI executed search warrants at the former New York mayor’s home and office in Manhattan, and on his electronic devices in its Ukraine probe. Giuliani has not been charged; Costello litigated on his behalf before a federal judge and a court-appointed special master who reviewed whether seized records included confidential attorney-client material that should be filtered out before turning the rest over to investigators.
The latest developments highlight Costello’s role in Trump’s orbit. A former federal prosecutor and longtime white-collar defense attorney in New York City, Costello, 74, has represented figures such as George Steinbrenner and Leona Helmsley and litigated matters involving the top U.S. professional football, basketball and baseball leagues. Since 2018, he has emerged as a counselor to close Trump aides in politically sensitive investigations.
Before advising Bannon in the House’s probe of events related to the Jan. 6 riot that disrupted Congress’s certification the election of President Biden, Costello in December 2020 joined Bannon’s defense when he was charged in what Manhattan federal prosecutors called a massive fundraising scam targeting the donors of a private campaign to build a wall along the U.S.-Mexico border. Bannon, accused of pocketing more than $1 million from his involvement with “We Build the Wall,” pleaded not guilty before Trump pardoned him hours before leaving office on Jan. 20, 2021.
Meanwhile, U.S. prosecutors investigating Giuliani in New York City also previously sought Costello’s documents regarding interactions he had with another former personal lawyer to Trump, Michael Cohen, shortly after the FBI raided Cohen’s home in April 2018.
“Sleep Well tonight, you have friends in high places,” Costello told Cohen via email at the time, adding that he was in touch with Giuliani, who thanked him for opening a “back channel” to Cohen. Cohen alleged that Trump allies dangled the prospect of a pardon to him, although Cohen also said he directed his own attorney to approach Giuliani about a potential pardon. Costello cooperated, calling Cohen’s interpretation of events “utter nonsense.”
Trump’s onetime self-proclaimed “fixer,” Cohen is now a key witness in criminal and civil probes of the ex-president and allies after alleging in congressional testimony that Trump fraudulently misstated the value of real estate assets for financial gain.
Separately Friday, Bannon’s team released a 14-page FBI summary of two interviews Costello gave prosecutors and FBI agents in his case on Nov. 3 and 8, days before he was indicted. Costello made an array of arguments why Bannon should not be charged, but also at several points described his communications with Trump’s lawyers, stating at one point that they had been “intentionally vague” about whether Trump would assert executive privilege to protect Bannon. Costello also brought up his representation of Giuliani and said that on Jan. 7, 2021, a day after the Capitol was breached, Costello sent documents to the D.C. U.S. attorney’s office “related to activities on January 6,” but he did not know who received them, according to the FBI summary.
Bannon, 67, has pleaded not guilty to two misdemeanor contempt charges after refusing to testify or produce documents to Congress.
Bannon worked in the White House in 2017, but the committee was focused on his activities as an outside adviser after the 2020 presidential election, including his conversations at the Willard Hotel the day before the attack, when hundreds of Trump supporters protesting the election’s outcome turned violent, attacked police and stormed into the Capitol building, forcing lawmakers to flee for their safety. The committee’s subpoena noted Bannon was quoted predicting “hell is going to break loose” the following day.
In court filings, Bannon’s team said this Jan. 4, the government handed over 790 documents as part of its obligation to divulge evidence used to charge Bannon, including information potentially favorable to the defense. Bannon’s lawyers said that they were “shocked” to learn that nearly all the documents reflected efforts to obtain Costello’s data. Records sought related to at least four of Costello’s email accounts and at least four phone numbers, including his home, law firm landline, and personal cellphone. The U.S. obtained payment information and data usage for his cellphone, for example, and asked for the phone numbers of senders and recipients of his text messages. Bannon called on the court to compel prosecutors to produce any orders, subpoenas, or applications for Costello’s records; disclose what companies were served with such requests, who at the Justice Department sought and authorized them, and who was provided such records, including any grand jury.
“Answers to these fundamental questions are material to the instant issue before the Court and more broadly to the integrity of the investigation in this case and to the credibility of the prosecution team and Government witnesses,” Bannon attorneys wrote.
They said the government’s use of subpoenas to obtain a defense attorney’s personal and professional phone records without using a “filter team” to sift out sensitive material infringes on Bannon’s rights and those beyond his case.
Such records can expose potential defense witnesses and experts; “chill” Bannon’s future conversations with his lawyers; and damage Costello’s and his law firm’s other clients, who may fear records of their communications have been exposed.
U.S. prosecutors are expected to respond to Bannon’s motion in the coming days. In their letter, prosecutors said Bannon sought information about internal deliberations and investigative steps relating to attorneys who have represented him, topics whose disclosure is sharply limited. The prosecution team said it had turned over “all discoverable material” in its control relating to Costello and Katz’s involvement in Bannon’s charged conduct, and would continue to do so if it received more.
Separately, prosecutors have noted that Bannon’s defense has said it would argue that he ignored the committee’s subpoena on the advice of counsel.
Email and phone records obtained through grand jury subpoenas do not require a judge’s approval. Federal law does not require the government to notify an individual when it seeks customer or subscriber information from third-party providers that excludes the content of electronic communications, and the Justice Department obtains court approval for such requests after showing they are material to a criminal investigation.
Tom Hamburger contributed to this report.