Investigators working on the contempt-of-Congress case against Steve Bannon said Monday that they inadvertently ensnared similar records of other individuals bearing the same name as Robert Costello, Bannon’s lawyer, in their search.
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The error was not relevant to the broader case, they argued in a 10-page court filing Monday night – which came as the Justice Department sought evidence of Costello’s communications with Bannon in response to a subpoena issued by the select committee on Jan. 6.
Prosecutors accuse Bannon’s lawyers of twisting “relatively common investigative steps” into a scandal and releasing the personal information of the other “Robert Costellos,” exposing them to “harassment.” They also suggest Bannon’s legal team leaked information from discovery materials to a journalist.
On Wednesday, U.S. District Court Judge Carl Nichols will hold a hearing to address these issues and others in Bannon’s case. The trial of Bannon on two misdemeanor counts of contempt of Congress is scheduled for July 18. However, his lawyers are trying to have the charges dropped.
The legal team for Bannon raised concerns about the apparent dead ends investigators encountered as they investigated Costello’s phone and email accounts in a court filing last week. Despite authorities finding details about his accounts, Costello says he hasn’t used some of them.
Prosecutors claimed that investigators weren’t just guessing emails to look for, but they also consulted databases for the 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 wrote.
It was determined that two of the accounts did not belong to Costello, but investigators believed that one Gmail account belonged to him, the Monday night filing stated.
Even though the initial email details showed a middle name that should have indicated the account was for a different Robert Costello, prosecutors conceded that the investigation proceeded to seek and obtain details about emails from that account, as well as a log of calls from a related phone number.
“The Government acknowledges that in reaching this conclusion, it did not recognize the inconsistent middle name in the billing information,” prosecutors admitted. “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.”
The prosecution added, however, that a Daily Beast story detailing the error – which had additional details beyond those specifically included in Bannon’s court filing – was posted online more than an hour before Bannon’s claims about DOJ were presented in court. Nichols was asked by the government to interview Bannon about whether he provided the material to the reporter, which would perhaps violate a court order governing the evidence.
“The Government does not know how the reporter obtained the uninvolved individuals’ information,” Amanda Vaughn, an Assistant U.S. Attorney and others prosecutors stated, “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.’”
Though the issue of Bannon’s phone and email records has caused some controversy, prosecutors insist it has no bearing on the underlying criminal investigation.
Prosecutors argue that “The records relating to accounts that do not belong to Robert Costello have nothing to do with this case. They are irrelevant. 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.”
The Justice Department and Bannon are in disagreement over the extent to which Bannon will be allowed to cite his refusal to cooperate with the House committee investigating the events of January 6th at the Capitol to his defiance of Congress.
An argument over how the Justice Department conducted its inquiry into the counsel Bannon received will be heard by a federal judge on Wednesday in Washington, DC.
Both sides have already filed briefs that contain a lot of snipes and accusations.
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Bannon claims the prosecutors exhibit “unparalleled arrogance” and that they “are in a deep hole already, yet they continue to frantically dig.” The Justice Department says that some of Bannon’s allegations are “hyperbolic,” adding that his arguments are “erroneous” and “without merit.”
The case of Bannon, brought after he refused to comply with a subpoena from the House select committee, presents a test of the power of the government as Congress tries to force penalties on witnesses who don’t obey subpoenas.
Among the witnesses, only Bannon faces criminal charges of contempt of Congress. Members of Congress have referred another uncooperative witness, former White House chief of staff Mark Meadows, for prosecution. They have indicated that others may be facing legal troubles if they refuse to comply with subpoenas related to the January 6 incident.