U.S. District Court Judge Carl Nichols has scheduled a hearing on the issue, and others in Bannon’s case, for Wednesday morning. Bannon’s trial on two misdemeanor counts of contempt of Congress is set for July 18, but his attorneys are battling to have the charges thrown out.
Bannon’s legal team used a court filing last week to call attention to the apparent dead-ends investigators encountered as they tried to identify Costello’s phone and email accounts. Costello said he’s never used some of the accounts authorities obtained details about.
Prosecutors suggested that investigators had not simply guessed at various possible email addresses, but consulted databases to get those leads.
“The three email addresses about which the Defendant complains … are addresses that law enforcement databases identified as being associated with Mr. Costello and one of his known addresses in Manhasset, New York,” prosecutors from the U.S. attorney’s office in Washington wrote.
Investigators concluded that two of the accounts didn’t belong to the correct Robert Costello, but they believed one Gmail account could pertain to him, the Monday night filing said.
However, the investigation proceeded to seek and obtain details on emails from that account and logs of calls from a related phone number, even though the initial details on the Gmail account showed a middle name that should have signaled the account belonged to a different Robert Costello, prosecutors conceded.
“The Government acknowledges that in reaching this conclusion, it did not recognize the inconsistent middle name in the billing information,” prosecutors wrote. “These were appropriate investigative steps. Phone records and orders issued under Section 2703(d) are regularly used to help Government investigators confirm use of accounts and means of communication and to exclude accounts ultimately determined to be irrelevant.”
Prosecutors, though, added that a Daily Beast story chronicling the error — which included details that went beyond what was revealed in Bannon’s court filing — appeared to have been posted online more than an hour before Bannon’s claims about DOJ went live on the court docket. The government asked Nichols to question Bannon about whether he provided the information to the reporter, a potential violation of a court order governing the evidence in the case.
“The Government does not know how the reporter obtained the uninvolved individuals’ information,” Assistant U.S. Attorney Amanda Vaughn and other prosecutors wrote in the filing, “but the subscriber information provided in this case was provided pursuant to the Protective Order, which prohibits the Defendant or his counsel from using the materials for any purpose other than ‘in connection with the defense of this case … without further order of this Court.’”
Despite the dust-up over the mistakenly obtained phone and email records, prosecutors insist that the issue is ultimately unrelated to the underlying criminal prosecution of Bannon.
“The records relating to accounts that do not belong to Robert Costello have nothing to do with this case. They are irrelevant,” prosecutors wrote. “The Defendant … does not explain how the Government’s internal deliberations, grand jury subpoenas, and ex parte submissions in attempting to establish Mr. Costello’s means of communication go to proving or disproving any element of the offense.”