When the FBI wanted the email and phone records for Steve Bannon’s lawyer Bob Costello, they didn’t just take the extraordinary and legally questionable step of subpoenaing his records. Bannon’s legal team is now claiming the FBI actually laid down a dragnet that caught the private information of Bob Costellos of all ages across the country.
“This prosecution team, in their zeal to obtain personal and professional email and telephone records for Mr. Bannon’s attorney, Robert Costello, was beyond reckless,” Bannon’s defense lawyers said in a court filing on Tuesday.
They accused the FBI of obtaining “hundreds of pages of email information…for another completely uninvolved citizen apparently named Robert Costello or Robert M. Costello. In fact, not one of the email accounts the government sought access to in this case, intending to get defense counsel’s emails, actually was defense counsel’s email account.”
The Daily Beast previously reported how the FBI potentially crossed a red line by targeting Bannon’s lawyer—a rare step during a criminal case that’s only justified if the lawyer is also involved in a crime.
But the FBI’s supposed dragnet of multiple Bob Costellos also hints at sloppy police work that could draw criticism on investigators already accused of a politically charged prosecution.
“This is alarming but unfortunately common,” said Pennsylvania State University law professor Raff Donelson. “The FBI should not request—and magistrates should not grant—warrants to search every Bob Costello, because that runs afoul of the probable cause and particularity requirements. Unfortunately, the courts have narrowed the paths for other Bob Costellos to receive effective recompense, and that is a great shame.”
Bannon has been criminally charged with contempt of Congress for refusing to testify or turn over documents to the House Jan. 6 Committee, which is investigating the insurrection that illegally tried to keep former President Donald Trump in office.
The high-profile case was inevitably going to be a highly contentious battle between the right-wing provocateur and the Justice Department, especially as Bannon continues to stoke the flame of anti-government sentiment by appealing to the Trump-supporting listeners of his War Room podcast. And it’s a nasty fight, with Bannon’s team trying to use this as a fishing expedition for salacious documents at the Justice Department or the White House.
But by engaging in this kind of surveillance, federal agents could be playing right into Bannon’s hand.
“The bottom line is that the FBI seeking communications from a lawyer is extremely unusual, since law enforcement rarely are allowed (and rarely try) to get communications between a client and an attorney,” said Ric Simmons, a law professor at Ohio State University.
Bannon’s legal team is primed to seize on any potential DOJ missteps—and political fallout. He’s being represented by former federal prosecutor M. Evan Corcoran and David I. Schoen, who represented Trump during his second impeachment trial in the U.S. Senate.
“It is now crystal clear that these three prosecutors and four FBI agents in this misdemeanor case not only obtained the personal and professional telephone records of Mr. Bannon’s defense attorney Robert J. Costello, they sought his email records from 4 different accounts by simply making up email addresses that had some form of the name Robert Costello in them,” the court filing alleges.
The Daily Beast spoke to one Robert Costello in Fredericksburg, Virginia, whose communications appear to have been targeted by the feds. That Costello, who identified himself as an emergency manager at the Federal Emergency Management Agency, said he didn’t mind that his government phone’s call logs may have been sought.
“This is a government phone. I have no right to freedom or any information,” he said.
But when The Daily Beast informed him that the FBI had also sought his personal email account and his home’s cable subscriber information—which included the name of his wife—his tone turned stone cold. He asked to immediately end the conversation.
“I have nothing to hide. and it doesn’t bother me,” he said.
The Daily Beast tried repeatedly to reach another Bob Costello in upstate New York whose records appear to have also been sought by the FBI, but was unable to reach him. That other Costello has a different middle name and is nearly 30 years younger than Bannon’s lawyer.