Nowhere in the Governments production was a copy of a court order authorizing the Governments 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 counsels personal and professional telephone and email records, Bannons attorneys wrote in the filing.

Bannons legal team, which includes Costello, Evan Corcoran and David Schoen one of Trumps impeachment lawyers also appended an exchange of correspondence they had with DOJ in early January seeking details about the efforts to obtain Costellos 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 attorneys 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 Costellos third-party carriers, which were provided to Bannons defense team by DOJ, many of Costellos email logs were provided to prosecutors on Dec. 7 under the auspices of a so-called 2703 order, which doesnt always require notice to the customer. The letters reference a 2703 order dated Nov. 11, a day before Bannon was indicted.

Bannons lawyers say the data prosecutors have sought from Costellos providers include records related to Mr. Costellos 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 firms 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 Costellos 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 Costellos records were presented to a grand jury.

CORRECTION: An earlier version of this report misspelled Judge Carl Nichols’ name.