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case number 22-3086, United States of America versus Stephen K. Bannon at balance.

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Mr. Schoen for the balance, Ms.

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Donnello for the appellee.

[00:00:17] Speaker 04:
Morning, Mr. Schoen.

[00:00:18] Speaker 00:
Morning, Alda.

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You can adjust the podium to suit your comfort level, up or down.

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Proceed when you're ready.

[00:00:34] Speaker 01:
Thank you.

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In his commentaries written between 1765 and 1769, William Blackstone wrote, to constitute a crime against human laws, there must be first a will, a vicious will, and secondly, an unlawful act consequent upon such a vicious rule.

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Moving forward about 300 years, our own Supreme Court in a flurry of cases in the past seven years or so, seven, eight years, focused on the fundamental nature of mens rea under our criminal justice system.

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And they decided the case is cited in Mr. Brandon's brief, the recent cases, 2015, with principles that are remarkably similar to Mr. Blackstone's understanding that were abandoned in the instant case.

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Just last year in Ruan versus United States, court wrote, consciousness of wrongdoing is a principle as universal and persistent in mature systems of criminal law, as belief in freedom of the human will, and a consequent ability of the normal individual to choose between good and evil.

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quoting from the Morissette case.

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It's a fundamental principle in our system.

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I refer to the Alonus decision also in the brief.

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And now for this circuit.

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I don't think I have to tell, Your Honor, what the court said in a wrote in United States versus burden, but I think it's important.

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I don't think I have to tell any of the judges, Judge Pillard, judge in that case.

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This court, the case appears to set the threshold for what willfully means.

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It juxtaposes it knowingly, just as Justice Alito did in his dissenting opinion in Alanis.

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And it said first of all, of course, that it's a word of many meanings.

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And the defendant in that case, like many other defendants, claimed that they should have to be required to be aware of the specific law they violated.

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This court rejected that.

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And they said, though, they set a baseline for what mens rea means in relationship to the charged actus rea.

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The court found that a requirement that the defendants have the prescribed conduct, know the prescribed conduct, was unlawful.

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That's the baseline.

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And the court gave examples of how it's applied in other cases, the more complicated cases like Cheek with a more stringent standard.

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But at a bare minimum, that it's required that the defendant know or understand that his or her conduct was unlawful or wrong.

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In this case, of course, the undisputed record, Mr. Bannon's perspective based on the Bannon proffer and the Costello declaration is that Mr. Bannon acted in the only way he believed and understood from his lawyer that the law permitted him to believe that to behave in response to the subpoena.

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So council.

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I appreciate those arguments, but I just, could you focus on our 1961 decision, like a volley and what your best argument is that that case simply doesn't tie our hands.

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And just to set the stage, as you know, that decision addressed this statute and squarely held in an advice of council defense is not relevant.

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All that you need is a deliberate and intentional failure to respond to a subpoena.

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And the cases that you've relied on discuss the meaning of the term willfully generally, but they're not about this statute.

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So I think the key question is, what is your best authority that we as a panel can depart from that 1961 decision?

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Yes, your honor.

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I think there are a number of reasons why that decision is not binding on this court in this case.

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And I'd like to go through them quickly.

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But first of all, what I'd like to say is, in Likavoli and in Sinclair, there's not a very rich analysis of why the advice of counsel wouldn't apply.

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In contrast, this court's decision in Townsend versus United States 1938 decision, the court comes to a very different conclusion.

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So when we're applying the panel rule, I think one fairly has to ask, why isn't the panel rule applied to the Townsend decision?

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In the wake of all this, let me give an example.

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This is an appeal from a conviction under this statute to USC 192, well after Sinclair, and the panel cites Sinclair in its decision.

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They noted Sinclair's holding, and then this court wrote, however, the Supreme Court has also held, perhaps on the theory that willfulness is a type of specific intent,

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that where the crime involves willful intent, an accused may show justification by proving that he honestly and in good faith seeks the advice of counsel as to what he may lawfully do, and fully and honestly lays out all of the facts before his counsel, and in good faith and honestly follows such advice, relying on and believing it to be correct, and only intends that his act should be lawful, even if such advice by the lawyer was an inaccurate construction of the law.

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Court then went on to find that in that case, they wouldn't apply it because there was nothing in the record to show that the defendant had sought the advice of counsel or, of course, had then followed it.

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But Townsend offers a much richer and more comprehensive analysis of the idea than either Sinclair or Liccavoli.

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And it's certainly a decision from a panel of this court that if we apply the panel rule, ought to have been binding authority on the Liccavoli pool.

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Let me just ask you, Mr. Bannon has relied on executive privilege in this case, both here and in the district court, only to argue that he did not act willfully under Section 192.

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There's not any issue before us here as to whether there is, in fact, a valid assertion of executive privilege

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that would be a defense that would itself be a defense.

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I think that's the contempt charge.

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It's through the it's through the 192 willfulness.

[00:06:15] Speaker 01:
I think that's right, Your Honor, with two caveats.

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Number one, one is not a caveat.

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One, I would go even further and say, it doesn't matter to this defense whether executive privilege was properly invoked, what the parameters were of it, or otherwise, for the willfully part of it.

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The only caveat I had to Your Honor's question is, it also applies, the invocation of executive privilege and his understanding of the consequences of that also applies to the due process defense of entrapment by estapa.

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That's what triggers it, because that's what the Office of Legal Counsel opinions, which again, I know at least two members of the panel are very familiar with that process.

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That's what those go to.

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And so I can get into that.

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Happy to get into that if you like.

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But right now, I'm going to focus on the Likavoli question of why this case

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I take your attention to the Enos that were quashed by the district report.

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You know what I'm talking about?

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Yes, OK.

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Take the document that.

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That you requested.

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That is most relevant to.

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The case.

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Well, for example, I list out a number of examples in the record and in the appendix and the brief.

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And I also made a very detailed proffer to the district court.

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But if I were to have to pick one at this point, I would say there's a Chairman Thompson's testimony.

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Frankly, Chairman Thompson's testimony on issues that became issues in this case, the court in this case barred all defenses.

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What's the question that you wanted to ask Chairman Thompson?

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Chairman Thompson continued writing letters after the date of the subpoena that urged Mr. Bannon to continue to comply with the subpoena.

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Those were his words.

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That would indicate that the subpoena was still alive.

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Judge Nichols said the only defense that the defendant could pursue in this case was whether the defendant had reason to believe that dates were malleable or were fixed dates in time.

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Ms.

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Ammerling wasn't qualified to testify as to what Chairman Thompson meant when he said, I urge you to continue to comply.

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Even after former President Trump wrote the letter saying, confirming that he had invoked privilege and withdrawing privilege now so that Bannon could testify,

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July 14th, 2022, Chairman Thompson wrote another letter saying, I urge you to comply with the subpoena.

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So that's one thing.

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Other would be the authority of the committee to issue the subpoena.

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Remember, these committees are, as you well know.

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That's the topic.

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What's the document or what's the question that you wanted to ask Chairman Thompson?

[00:09:11] Speaker 01:
There are many of them.

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One question that would have been relevant would have been on the sole defense that the court allowed, whether the subpoena was still open.

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And why, if these dates that were in the indictment were fixed dates, why did it continue on?

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I'm not sure I follow that, because there's a lot of activities in life where someone might have a deadline, and they might be punished for missing it, but then they might still have an obligation.

[00:09:40] Speaker 04:
I mean, tax returns, you know, there's all kinds of things where there are consequences for missing a deadline, but the duty to comply and the utility in this case, the utility to the committee of having the testimony persists, even though there may have been a default.

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So I'm not sure that I follow that.

[00:10:01] Speaker 04:
First of all, it's in the record that that Thompson

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continue to want, uh, the testimony.

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So I'm not sure why you would need any for everybody's really denying that.

[00:10:11] Speaker 04:
But, but it's more you're, you're raising a, an inference or you're, you're drawing an inference from that that I'm not sure it supports.

[00:10:19] Speaker 01:
Your honor, a related question would be why the committee refused to accommodate.

[00:10:24] Speaker 01:
There's a constitutional mandate under US versus AT&T to try to reach an accommodation.

[00:10:30] Speaker 01:
In this case, what Bannon said through Costello to the committee was, Costello said Bannon's hands are tied.

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Privilege has been invoked.

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He cannot comply.

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However, if you resolve privilege with Trump or get a court to order Bannon to comply, he will comply in full.

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Secondly.

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Does it matter under that theory?

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whether the former president or the incumbent president had communicated any assertion of privilege to the committee?

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No, Your Honor, it does not.

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It doesn't matter.

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So any lawyer can say, I'm speaking for the president here.

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I don't have anything to show you, but talked on the phone to someone, and they're asserting privilege.

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I mean, when you look at the past cases, like take the Myers case, where there's a detailed

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district court opinion by Judge Bates, there typically is a formal assertion.

[00:11:25] Speaker 01:
Typically, Your Honor, yes.

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In this case, we also have, by the way, the ratification, let's say, the confirmation by President Trump in a letter later confirming- It's not available.

[00:11:33] Speaker 04:
When you're talking about the sort of ex-ante obligation- Sure, Your Honor.

[00:11:37] Speaker 01:
Yes, Your Honor.

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... to accommodate, and I'm thinking about whose burden is it to make the next

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a foray into a process of accommodation.

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And the committee has served a subpoena.

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And typically, I think the deponent would then turn around and proffer some kind of, well, I'll answer all these other questions, but can we reserve questions about my communication with the former president?

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Or something.

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But I don't see in the record that there was any response other than no.

[00:12:15] Speaker 01:
answers your honor i think there was more than no frankly he said if you work if a court orders me to comply i will he explained what he was relying on but a more broad answer i suppose is this is all castello there's no contact between bannon and the committee at any point in time and so and that was at the committee's behest the committee asked castello to accept the subpoena and he did

[00:12:36] Speaker 01:
But Mr. Bannon only knows what Costello tells him.

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This is part of the defense, relying on advice of counsel.

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And by the way, the lack of communication or accommodation didn't turn on whether Justin Clark had the authority of the president.

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It's whether executive privilege could apply because he's a former president and because he's a former advisor.

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All of those issues, which Costello assured Bannon, were not real issues.

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But at the end of the day,

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When after the deadline had passed, President Biden had a representative come in, Jonathan Su, and put a letter saying, I've reviewed this, and I don't think that President Trump was right and that privilege really applied, and therefore, Bannon, you're free to testify.

[00:13:12] Speaker 01:
That's on the 18th of October.

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Hostel writes to the committee and says, I understand this is case Trump versus Thompson out there.

[00:13:19] Speaker 01:
It's dealing with the issue of whether an incumbent president overrides the invocation of privilege from the previous president.

[00:13:28] Speaker 01:
I'd like to be able to study that.

[00:13:31] Speaker 01:
President Biden has just said he could go forward with the testimony.

[00:13:35] Speaker 01:
Chairman, he asked for a one-week extension.

[00:13:36] Speaker 01:
Chairman Thompson said no.

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The committee is going forward tomorrow with a vote, and they did.

[00:13:41] Speaker 01:
That's part of what I call the accommodation process being violated.

[00:13:45] Speaker 01:
I just have to return just quickly.

[00:13:47] Speaker 01:
I know I'm up with my rebuttal time already, but I was asked the question earlier about reasons to distinguish this case.

[00:13:53] Speaker 04:
You can proceed.

[00:13:54] Speaker 04:
Our practice is that as long as we're asking questions, you get extra time.

[00:13:59] Speaker 01:
Thank you.

[00:13:59] Speaker 01:
There are many answers, but one at Brewster from this court talks about applying the panel rule.

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And it's clear that it's only applied firmly in cases that are factually indistinguishable.

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This case, for a major reason, is factually distinguishable.

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And that is the invocation of executive privilege.

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That changes everything, the entire dynamic in the case.

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And as I say in the brief, if this court were to treat a person who gets this subpoena and believes executive privilege has been invoked and his or her hands are tied and cannot comply,

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First of all, when the privilege is invoked, it's presumptively valid.

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Secondly, it's the president's prerogative, or a former president's prerogative entirely, as to the parameters of that privilege, subject to what a court says the parameters were.

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Counsel, can I just ask one question about this, the narrative there?

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So what Mr. Bannon claimed, and at least what he did on October 18th, was essentially to claim a complete immunity from responding to the subpoena.

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And I believe that was October 18th.

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And I just want to read to you from the October 16th letter from Justin Clark to Mr. Costello.

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And what that says is, just to reiterate, our letter referenced below didn't indicate that we believe there is immunity from testimony for your client.

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As I indicated to you the other day, we don't believe there is.

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So how do you reconcile that communication with your argument today?

[00:15:35] Speaker 02:
A couple of ways.

[00:15:36] Speaker 01:
Number one, use of the term immunity is just wrong there.

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Justin Clark couldn't confer immunity.

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President Trump couldn't confer immunity on anyone.

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We know that from the McGahn case and otherwise.

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Secondly, anecdotally, Costello has said Justin Clark was telling him a completely different story.

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Justin Clark was making clear to him in his declaration, was making clear to him that Bannon could not apply with a subpoena because this was a protective assertion of the privilege.

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Bannon was in a position to know what documents, testimony would be covered by it and what wouldn't be covered by it.

[00:16:08] Speaker 01:
So at no point did he claim immunity except to refer to the way that term is used in the 1984 OLC opinion, for example.

[00:16:18] Speaker 01:
But the idea is the Congress can't decide whether the privilege was properly invoked or not.

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When the privilege is invoked, it's up to a court as the only arbiter, not Congress.

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And quite frankly, the government told the jury a different thing.

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The government likened Congress in this case to the referee in a soccer game and Mr. Bannon's failure to comply with telling that referee in a kid's soccer game not obeying that referee.

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Never in our system is Congress the arbiter of a subpoena.

[00:16:46] Speaker 01:
That's McGann unbunked.

[00:16:48] Speaker 04:
But why isn't the retort that in your view the former president or even more removed

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someone that talked to a representative of the former president and advises his client is the arbiter of the privilege.

[00:17:06] Speaker 04:
In other words, you're basically, if we were to accept your position in this case, why wouldn't we be basically saying Mr. Costello's representation overrides

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the ability of the congressional committee to investigate.

[00:17:23] Speaker 01:
Two reasons, John.

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I don't think it overrides that.

[00:17:24] Speaker 01:
But two reasons.

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One, he is his lawyer.

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Advice of counsel is the defense.

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And secondly, the privilege is presumptively valid.

[00:17:32] Speaker 01:
And so when Clark writes in his letter, a vigorous assertion of the privilege to cover deliberative processes and communications,

[00:17:41] Speaker 04:
Well, that's so broad to say it's presumptively valid.

[00:17:45] Speaker 04:
Even at its broadest, where OLC has written, for example, that a former senior official can assert absolute testimonial immunity, it only covers communications within the scope of that former senior official's service in the White House.

[00:18:04] Speaker 04:
And none of the conduct at issue here

[00:18:07] Speaker 04:
was during Mr. Bannon's service in the White House, was it?

[00:18:10] Speaker 04:
None of it.

[00:18:11] Speaker 01:
Right, Judge.

[00:18:12] Speaker 01:
It was during the presidency.

[00:18:13] Speaker 04:
But not during Mr. Bannon's service.

[00:18:16] Speaker 04:
And do you have any authority that suggests, any authority at all, that suggests that some kind of executive privilege or immunity would apply to conduct that post-dates the person's

[00:18:28] Speaker 01:
First of all, Your Honor, the OLC opinion that I've cited in the brief on the termination about choosing U.S.

[00:18:35] Speaker 01:
attorneys doesn't require it.

[00:18:37] Speaker 01:
The Myers.

[00:18:38] Speaker 01:
Yes.

[00:18:38] Speaker 01:
Doesn't it require to be an employee of the executive branch at all?

[00:18:42] Speaker 01:
And that makes sense if the former or otherwise.

[00:18:45] Speaker 01:
And if the president wants to consult, let's say the president determines doesn't think he or she

[00:18:50] Speaker 01:
They doesn't think the economy is doing so well.

[00:18:53] Speaker 01:
And so the president calls in the head of Texaco has never worked in the government and wants to have private confidential communications and be able to assure the head of Texaco that those conversations will remain confidential.

[00:19:04] Speaker 01:
The president has that prerogative solely his prerogative.

[00:19:07] Speaker 04:
What about the 15 different numbered topics out of the 18 or I might have the numbers wrong, you know,

[00:19:13] Speaker 04:
for 14 out of 17, there's a whole list of topics on the subpoena.

[00:19:18] Speaker 04:
And I think only three of them even mention communications with the former president.

[00:19:23] Speaker 01:
So a number of answers to that.

[00:19:24] Speaker 01:
This starts with Bannon is subject to what Costello has told.

[00:19:28] Speaker 01:
He did what a lay person should do.

[00:19:30] Speaker 01:
He hired a lawyer, period.

[00:19:32] Speaker 01:
But Costello's theory on that issue that he, as the lawyer, told to Bannon is this subpoena under the

[00:19:38] Speaker 01:
OLC opinion that says, if the committee refuses to allow the privilege holder's representative to be present during a deposition, the subpoena is unconstitutional and invalid.

[00:19:48] Speaker 01:
This was one subpoena.

[00:19:49] Speaker 01:
It required testimony and documents.

[00:19:51] Speaker 01:
Therefore, Costello, the lawyer, told Bannon, the layperson, this subpoena is absolutely unconstitutional and invalid.

[00:20:00] Speaker 01:
Not only can't you comply with it, you have no obligation to comply with it for that reason in addition to the others.

[00:20:05] Speaker 01:
He made very clear in his declaration.

[00:20:07] Speaker 01:
And again, I asked the court to consider in the broader picture, how should a lay person respond when a lay person gets a subpoena from a committee?

[00:20:15] Speaker 01:
All of communication is through the lawyer and the lawyer tells him or in definitive terms.

[00:20:20] Speaker 01:
They may not comply.

[00:20:21] Speaker 01:
Their hands are tied.

[00:20:22] Speaker 01:
At least let a jury decide whether that was reasonable or appropriate advice, whether the lawyer had all of the facts.

[00:20:28] Speaker 01:
But let a jury decide.

[00:20:30] Speaker 01:
We don't treat a person who believes he or she is acting in full compliance with the law and in the only way the law applies, only complies with the law.

[00:20:38] Speaker 01:
We don't treat that person the same as a wrongdoer, as a liquefied, a mobster who just didn't show up.

[00:20:46] Speaker 03:
I want to return with maybe just one question to the subpoenas that were quashed on speech and debate grounds.

[00:20:57] Speaker 03:
You submitted a 28-J letter about a recent opinion from this court in a resealed case.

[00:21:02] Speaker 03:
And in that case, there's some suggestion that the district court needed to kind of go document by document in a way that it hadn't.

[00:21:14] Speaker 03:
I think that that case did not purport to be breaking new ground or establishing a new rule.

[00:21:21] Speaker 03:
And so my question to you is,

[00:21:24] Speaker 03:
To the extent that we think something like that should have happened here but didn't, I'm not saying we do, it seems like you have not made that argument or you did not make that argument in your briefing.

[00:21:42] Speaker 03:
And so isn't it forfeited?

[00:21:45] Speaker 01:
I don't think so.

[00:21:46] Speaker 01:
In the briefing I discussed the very specific proffer that I made to the court about each reason for each subpoena that I believe were narrowly tailored to each of those defendants.

[00:21:56] Speaker 01:
But I really filed the 28J letter because it specifically speaks about things that aren't covered.

[00:22:03] Speaker 01:
The court in this case

[00:22:04] Speaker 01:
Mr. Letter's position in this case was you should have a blanket speech and debate clause.

[00:22:09] Speaker 01:
This court made clear in the, in Racefield case, case that, that that's not the way to approach it.

[00:22:16] Speaker 01:
We don't have a blanket thing.

[00:22:16] Speaker 01:
And my objection was that the court treated it in blanket fashion, but also it specifically spoke about press releases.

[00:22:22] Speaker 01:
And that's something I emphasized in the, in my papers is that these members of the committee

[00:22:28] Speaker 01:
evidence, in my view, at least in their press releases and press statements, decision to get Bannon rather than accommodate and to pursue that course to get Bannon.

[00:22:38] Speaker 01:
And so I thought that this case made clear in there when they say things like statements of the press and so on may not have broken new ground, but it's a recent decision since the briefing that I thought made that point.

[00:22:51] Speaker 04:
you see any need, the government has asked for a remand to correct the judgment.

[00:22:54] Speaker 04:
There's some, they see some $50 discrepancy.

[00:22:57] Speaker 04:
That's something that I think is requires a remand.

[00:23:01] Speaker 01:
I don't think so, but I don't think my position won't turn on that.

[00:23:08] Speaker 04:
Right.

[00:23:08] Speaker 04:
Thank you.

[00:23:09] Speaker 01:
Thank you.

[00:23:09] Speaker 04:
You have sought to reserve time for rebuttal.

[00:23:12] Speaker 04:
We've used your time, but we'll give you a couple of minutes.

[00:23:14] Speaker 01:
Thank you.

[00:23:26] Speaker 04:
Good afternoon.

[00:23:26] Speaker 00:
May it please the court, Elizabeth Dinella for the United States.

[00:23:34] Speaker 00:
Stephen Bannon deliberately chose not to comply in any way with a lawful congressional subpoena, not to provide a single document, not even to show up for his deposition.

[00:23:46] Speaker 00:
That was the contempt of Congress, and he was properly convicted.

[00:23:51] Speaker 00:
Before getting into the mens rea issue, I'd like to address a theme that Judge Pillard, you touched on, that runs through some of Bannon's arguments, and that's the notion that President Trump asserted executive privilege.

[00:24:06] Speaker 00:
In fact, there was no assertion of executive privilege over the contents of the subpoena, much less one that would justify Bannon's complete default.

[00:24:16] Speaker 04:
My understanding is that it matters neither to your position nor to Mr. Bannon's position.

[00:24:22] Speaker 04:
Is that right?

[00:24:23] Speaker 00:
He has suggested it is relevant to his due process claim.

[00:24:28] Speaker 04:
I don't think so.

[00:24:29] Speaker 04:
I think he suggested that Mr. Bannon's, that the advice of counsel

[00:24:35] Speaker 04:
referencing executive privilege is all that matters.

[00:24:40] Speaker 00:
Certainly on the mens rea issue, I understand his assertion with respect to executive privilege to be relevant to his claim of entrapment by unstoppable public authority.

[00:24:52] Speaker 00:
But let me put that aside for the moment and talk about mens rea.

[00:24:57] Speaker 00:
Because the district court did not err in barring Bannon from putting on evidence or argument

[00:25:05] Speaker 00:
relating to his claim that he acted in good faith on advice of counsel based on the alleged assertion of executive privilege.

[00:25:15] Speaker 00:
The Supreme Court and this Court have held that the mens rea element for contempt of Congress requires only that the defendant acted deliberately and intentionally.

[00:25:27] Speaker 00:
Good faith, including advice of counsel, is not a defense.

[00:25:31] Speaker 00:
Cases interpreting other statutes do not change the established mens rea for contempt of Congress.

[00:25:38] Speaker 00:
Now, we recognize that for many cases, the government has to prove that the defendant did act with a wrongful intent.

[00:25:46] Speaker 00:
But for Section 192, the Supreme Court has held that no moral turpitude is required.

[00:25:53] Speaker 00:
Intentional violation is sufficient to constitute guilt.

[00:25:56] Speaker 00:
That was a holding in Sinclair, where the defendant had claimed that the judge erred and he was entitled to a new trial.

[00:26:04] Speaker 00:
because he was precluded from putting on evidence that he acted in good faith on the advice of counsel.

[00:26:10] Speaker 04:
So what about Mr. Shone's position that you have a client who's not a lawyer?

[00:26:15] Speaker 04:
His lawyer tells him full absolute testimonial privilege here and in any event, it's flexible, the accommodation process, you know, and in fact, this layperson has testified before Congress

[00:26:33] Speaker 04:
in the past, and maybe that adds credibility to the notion that there's going to be some kind of accommodation process.

[00:26:39] Speaker 04:
So the only recourse for this defendant is malpractice claiming he's a former lawyer.

[00:26:48] Speaker 00:
The Supreme Court said in Watkins that a defendant who acts on a good faith but mistaken view of the law acts at his peril.

[00:26:59] Speaker 00:
That's page 208 of that opinion.

[00:27:01] Speaker 00:
And Bannon here certainly had reason to be questioning his lawyer's advice.

[00:27:06] Speaker 00:
given that not only did Chairman Thompson make clear that his executive privilege excuse wasn't going to apply and that he would be held in contempt of Congress if he continued in his to fail to comply, but also where the president's own lawyer admonishes Costello and Costello admits that he shares his correspondence with Bannon

[00:27:31] Speaker 00:
And Clark says, as you've pointed out, Judge Garcia pointed out that the defendant in this case, Bannon, was not immune from testifying.

[00:27:45] Speaker 00:
I don't understand the distinction that counsel has made here.

[00:27:50] Speaker 00:
Clearly, the point

[00:27:51] Speaker 00:
that Clark was making was that Bannon was required to show up.

[00:27:56] Speaker 00:
And that's consistent with both the procedures that the committee outlined for raising objections.

[00:28:03] Speaker 00:
And Judge Pillers, you've pointed out the number is 14 out of 17.

[00:28:08] Speaker 00:
The vast majority of topics covered by the subpoena could not conceivably have implicated executive privilege, as Chairman Thompson explained in plain English in the correspondence

[00:28:21] Speaker 00:
with Costello, which we know got forwarded to Bannon.

[00:28:24] Speaker 00:
So in terms of fairness, the Supreme Court has said this is what the law is.

[00:28:30] Speaker 00:
And even apart from this court's binding decisions in cases like Fields and Dennis and Liccavoli, there is controlling Supreme Court authority that required the district court to exclude Bannon's good faith defense.

[00:28:48] Speaker 03:
Uh, uh, your opposing council mentioned, um, a United States feed Townsend case.

[00:28:55] Speaker 03:
Um, and I think maybe it wasn't, uh, mentioned in his briefing until the library, um, when I replied to that.

[00:29:07] Speaker 00:
Did not.

[00:29:08] Speaker 00:
Hold or even suggest that if the defendant had been able to show good faith that would have been a defense and it certainly isn't inconsistent with the later rulings of this court in Dennis and fields and look of only.

[00:29:24] Speaker 00:
Also Townsend at page 359 cites with approval the page of Sinclair where the Supreme Court said that intentional violation is sufficient to constitute guilt.

[00:29:36] Speaker 00:
So Townsend cannot be read as somehow being in conflict with this court's later ruling.

[00:29:43] Speaker 03:
Do you think it was appropriate for the prosecutor in the case, a closing argument, to tell the jury that Bannon had, quote, no justification for doing what he did?

[00:29:57] Speaker 00:
There, given that there was no actual assertion of executive privilege, given that the subpoena on its face included a number of topics that could not possibly have included executive privilege, given that the committee laid out the procedures and repeatedly told Bannon he needed to follow them for risk contempt,

[00:30:19] Speaker 00:
And given the case law that does not recognize good faith as a defense, then yes, that was a correct statement.

[00:30:26] Speaker 00:
He did have no justification for acting as he did.

[00:30:29] Speaker 03:
It seems a little weird.

[00:30:32] Speaker 03:
I'm not saying it's just positive in this case by any means, but it seems like if you're right,

[00:30:39] Speaker 03:
I think you probably are the district court.

[00:30:41] Speaker 03:
Properly kept out.

[00:30:44] Speaker 03:
Any and fences about this kind of subjective state of mind with the reasons why Bannon did what he did.

[00:30:54] Speaker 03:
You know if the district court tells Ben and you're not allowed to tell the jury your reasons it's a little odd for the government to be able to tell the jury he had no reasons.

[00:31:04] Speaker 00:
Again, given the state of the case law, that was a legally correct argument.

[00:31:09] Speaker 00:
He did not have a legal justification for acting as he did.

[00:31:14] Speaker 00:
Bannon had a choice.

[00:31:16] Speaker 00:
When the committee overrides his executive privilege excuse, he could either at that point comply or not comply and risk contempt.

[00:31:26] Speaker 00:
He was aware of that risk.

[00:31:28] Speaker 00:
He took it and he was properly prosecuted.

[00:31:31] Speaker 04:
I think when you were first started addressing the court and you said that there was no executive privilege assertion in this case, and I interrupted you and said, you know, that's not something that we need to reach.

[00:31:44] Speaker 04:
Do you think it would be appropriate for us to reach it?

[00:31:47] Speaker 04:
Do you think it should reach that question or not?

[00:31:52] Speaker 00:
To the extent the court considers the argument that he was somehow entrapped into committing this offense based on the opinions of the Office of Legal Counsel, the fact that we do not actually have an assertion of

[00:32:10] Speaker 00:
executive privilege is an additional basis to distinguish those opinions.

[00:32:17] Speaker 02:
I say additional because there are other facts that... Could you tell us what you think the best reason is to distinguish the OLC opinions for his entrapment defense?

[00:32:26] Speaker 00:
I think probably the easiest one, Judge Garcia, would be that he is a private citizen who has been subpoenaed to provide information about his activities as a private citizen.

[00:32:37] Speaker 00:
That none of the OLC opinions address that.

[00:32:41] Speaker 00:
There's also the fact that the OLC

[00:32:44] Speaker 00:
does not provide guidance to private individuals.

[00:32:48] Speaker 00:
It makes that clear on the website.

[00:32:50] Speaker 00:
It provides guides to the Department of Justice and to the executive agencies.

[00:32:53] Speaker 02:
So is there a next reason?

[00:32:55] Speaker 02:
Because the 2007 OLC opinion has at least some general language about the need to contact private citizens in the context of U.S.

[00:33:03] Speaker 02:
attorneys.

[00:33:03] Speaker 02:
So I'm curious what the next reason would be.

[00:33:05] Speaker 00:
Well, a couple responses with that.

[00:33:08] Speaker 00:
One, the 2007 opinion is not talking about prosecution.

[00:33:13] Speaker 00:
It's just talking generally about executive privilege.

[00:33:16] Speaker 00:
So it doesn't suggest that necessarily a private citizen who engages in a conversation with the president could then assume that he wouldn't be prosecuted.

[00:33:25] Speaker 00:
But also that decision was in the context of a president's official decision making.

[00:33:32] Speaker 00:
It doesn't address the issue, which is an open issue.

[00:33:35] Speaker 00:
We're not taking a position on it.

[00:33:37] Speaker 00:
Whether communications regarding a political campaign and its aftermath would also be within the scope of executive privilege.

[00:33:48] Speaker 03:
Why does your answer involve all these open questions?

[00:33:50] Speaker 03:
I would have thought the answer to Judge Garcia's question is that the OLC opinions are about the assertion by the president, former president even, of executive privilege.

[00:34:01] Speaker 03:
And here, President Trump didn't assert executive privilege.

[00:34:05] Speaker 00:
Well, this goes back to Judge Hillard's question, and perhaps Judge Garcia's too, as to which is our best argument.

[00:34:12] Speaker 00:
There are several ways home.

[00:34:13] Speaker 00:
And one of the reasons I let off with the lack of an assertion of executive privilege here is that is also a strong reason why any reliance on the OLC opinion didn't make sense in this case.

[00:34:30] Speaker 02:
Just one question.

[00:34:33] Speaker 02:
I think it's clear based on the arguments today, this is very much a hypothetical question.

[00:34:36] Speaker 02:
But I do want to understand the government's position on how, if there is an invocation of executive privilege and the defendant, for whatever reason, is still prosecuted in a case like this, how should the executive privilege claim be raised and litigated in the criminal case?

[00:34:52] Speaker 02:
Is the answer simply to be raised as an affirmative defense rather than through the lens of mens rea?

[00:34:58] Speaker 00:
Let me just back up and also clarify, if I may, your hypothetical.

[00:35:04] Speaker 00:
To clarify, let's assume that your assertion of executive privilege is with respect to a private citizen rather than an executive branch employee.

[00:35:14] Speaker 00:
Because it's the executive branch employee and we actually have an assertion of executive privilege, that case wouldn't get prosecuted.

[00:35:20] Speaker 00:
But let's assume that that doesn't matter and that we have someone who is prosecuted.

[00:35:25] Speaker 00:
Again, I want to back up.

[00:35:27] Speaker 00:
If there is an assertion of executive privilege, there are procedures for asserting that before the committee to identify which documents are privileged and at the deposition, assert any privilege on a question by question basis.

[00:35:42] Speaker 00:
Again, that's not this case.

[00:35:43] Speaker 00:
I understand you're talking more adrenaline.

[00:35:46] Speaker 00:
the committee overrules the executive privilege claim.

[00:35:52] Speaker 00:
At that point, the president or former president, again, assuming that that doesn't matter, can assert that claim himself by filing suit against the witness, which is similar to what happened in the Mazar's case, where President Trump sued a third party to enjoin that third party from complying with a congressional subpoena.

[00:36:16] Speaker 04:
Didn't that happen also in the Harriet Myers case where there was it was a declaratory judgment suit before Judge Bates.

[00:36:25] Speaker 04:
seeking to determine the privilege issue?

[00:36:30] Speaker 00:
Right.

[00:36:30] Speaker 00:
There could be speech or debate clause issues if a suit was filed against the committee.

[00:36:40] Speaker 00:
The more likely scenario would be if the president chose to vindicate his interest in executive privilege, the president would have to intervene.

[00:36:49] Speaker 00:
Now, in this case, of course,

[00:36:51] Speaker 00:
The president chose not to intervene.

[00:36:53] Speaker 00:
Despite Stella's entreaties, Clark did not identify what was privileged.

[00:37:00] Speaker 00:
He did not reach out to the committee, nor did he step in once the committee overruled the executive privilege justification.

[00:37:09] Speaker 04:
I have a related question.

[00:37:12] Speaker 04:
Mr. Showman was saying that your position is that Mr. Bannon was required to show up and assert any privileges on a question by question basis, but he points out that Costello, at least, was of the impression that there was no counsel for the former president who would be allowed to be in the deposition.

[00:37:35] Speaker 04:
And so what's the response on that?

[00:37:38] Speaker 00:
First, Your Honor, just as a factual matter, I just want to correct a representation in the reply brief at page two, note one, where Bannon says it is undisputed that the committee advised Costello that the privilege holder council could not attend.

[00:38:01] Speaker 00:
Bannon's attorney, neither Bannon or his attorney actually asked any member of the committee.

[00:38:07] Speaker 00:
Costello raised this issue with committee staffer Sean Tenali on October 13th after Costello had already made clear that Bannon was not going to testify.

[00:38:18] Speaker 00:
This is at pages 429 and 439 of the appendix.

[00:38:23] Speaker 00:
And Costello says he only is asking us for future reference, doesn't need an immediate answer.

[00:38:30] Speaker 00:
And Tonali, Demures does not give an answer.

[00:38:34] Speaker 00:
So the committee never rejected that specific request.

[00:38:40] Speaker 00:
But even if it had, the only basis for that Bannon has cited for suggesting that the subpoena was invalid was this OLC opinion on exclusion of agency counsel, which makes clear that that applies when a witness is called to testify about the witness's official duties within the executive branch.

[00:39:04] Speaker 00:
And again, there was an assertion of executive privilege, a direct assertion.

[00:39:08] Speaker 00:
And in any event, exclusion of agency counsel issue would not have affected Bannon's obligation to provide documents.

[00:39:18] Speaker 00:
Judge Walker, I just want to return to your questions about the subpoenas.

[00:39:22] Speaker 00:
And counsel for Bannon has suggested that it was necessary to call Chairman Thompson to ask about the later request that Bannon

[00:39:36] Speaker 00:
still comply with the subpoena, Bannon had already defaulted at that point.

[00:39:41] Speaker 00:
He had already committed the offense.

[00:39:43] Speaker 00:
And the fact that the committee still was continuing its investigation and still wanted Bannon's information doesn't in any way change Bannon's default.

[00:39:55] Speaker 00:
Also, as the district court found,

[00:39:59] Speaker 00:
the Congress's specific motivations, internal deliberations, would be protected by the speech debate clause because they were in the legislative sphere.

[00:40:09] Speaker 00:
And in any event, none of the matters.

[00:40:14] Speaker 03:
Go ahead.

[00:40:16] Speaker 03:
I asked about relevancy because I wonder if any of the subpoenaed documents or the questions that he was hoping to ask the subpoenaed witnesses were relevant.

[00:40:29] Speaker 03:
And if they were all irrelevant, we wouldn't even have to reach the speech and debate clause issue.

[00:40:36] Speaker 03:
Do you agree with that?

[00:40:37] Speaker 00:
That's absolutely right.

[00:40:38] Speaker 00:
And that's really the shortcut answer to your question about, um, in race field case.

[00:40:43] Speaker 00:
And just to direct the court, the district court made specific findings that went through the various categories of information sought, uh, in denying the motion for a new trial.

[00:40:53] Speaker 00:
That's at pages four, six, eight, three to 86 of the appendix.

[00:40:59] Speaker 00:
I think it's four.

[00:41:01] Speaker 00:
The 4683, the 4686 of the appendix.

[00:41:09] Speaker 00:
So yes, you can sidestep the.

[00:41:13] Speaker 04:
So the answer was none of them are relevant.

[00:41:15] Speaker 00:
None of that was relevant.

[00:41:16] Speaker 00:
None of it was material.

[00:41:17] Speaker 03:
Even the documents that the district court said are protected by speech and debate, even those were not relevant.

[00:41:24] Speaker 00:
Correct.

[00:41:25] Speaker 00:
And you'll see looking at the,

[00:41:28] Speaker 00:
Judge has several pages in the ruling that addresses the various topics.

[00:41:36] Speaker 00:
On the judgment and commitment order question that I believe you had asked, I realized when going back and reading the JNC that that was my mistake.

[00:41:47] Speaker 00:
In fact, the 45 or the 6550 figure is correct because it includes the combined special assessment.

[00:41:55] Speaker 00:
So that was my mistake.

[00:41:56] Speaker 00:
I apologize.

[00:41:56] Speaker 00:
Just ignore footnote one in our brief.

[00:41:58] Speaker 04:
That was my understanding.

[00:41:59] Speaker 04:
Great.

[00:42:00] Speaker 04:
That's helpful.

[00:42:01] Speaker 00:
Thank you.

[00:42:01] Speaker 00:
And unless the court has any further questions, we'd ask you to affirm the judgment of the district court.

[00:42:08] Speaker 00:
Thank you.

[00:42:16] Speaker 01:
Thank you.

[00:42:17] Speaker 01:
If I might just briefly respond to a couple of them.

[00:42:22] Speaker 01:
First of all,

[00:42:25] Speaker 01:
Neither Mr. Bannon nor Mr. Costello suggested that they were the ultimate arbiter.

[00:42:30] Speaker 01:
They asked quite clearly in their letter for it to have a court decide this.

[00:42:34] Speaker 01:
That doesn't mean that they had to bring the action.

[00:42:36] Speaker 01:
They suggested to the committee that Bannon would comply fully if the committee had a court to order it.

[00:42:41] Speaker 01:
And that's part of the accommodation process.

[00:42:43] Speaker 01:
That's what the cases have said in U.S.

[00:42:45] Speaker 01:
versus House of Representatives.

[00:42:47] Speaker 01:
That's what the cases say in McGann and so on.

[00:42:50] Speaker 01:
That's part of the process.

[00:42:52] Speaker 01:
And it's appropriate.

[00:42:54] Speaker 01:
Congress can't decide.

[00:42:55] Speaker 01:
Congress can't be the arbiter of its subpoena or of the validity of executive privilege.

[00:43:01] Speaker 01:
That's what McGann on Banck says.

[00:43:02] Speaker 01:
I don't really understand the point Mr. Nello said about Townsend.

[00:43:08] Speaker 01:
I read from Townsend, and Townsend unequivocally says, as Ms.

[00:43:13] Speaker 01:
Donnello said, Townsend didn't hold or suggest that if a defendant acted in good faith, that would be a defense.

[00:43:19] Speaker 01:
The court could not have been clearer in Townsend in saying expressly that the reliance on advice of counsel

[00:43:28] Speaker 01:
is a justification defense when willfully willful intent is what's required in the statute.

[00:43:34] Speaker 01:
This same statute that's on pages 358 to 359.

[00:43:37] Speaker 01:
There's not a question about what that case says.

[00:43:40] Speaker 01:
It's true liquefies later.

[00:43:42] Speaker 01:
But that court was aware of Sinclair.

[00:43:44] Speaker 01:
They cite Sinclair repeatedly.

[00:43:46] Speaker 01:
There's no question about it.

[00:43:48] Speaker 03:
Do you think the committee would have asked Bannon anything that was

[00:43:53] Speaker 03:
unprotected by executive privilege?

[00:43:56] Speaker 01:
I don't know what the committee would have asked.

[00:43:57] Speaker 01:
I think the committee had an agenda, was a political agenda.

[00:43:59] Speaker 01:
I don't know what the committee would have asked.

[00:44:02] Speaker 03:
I know that the reasons that Bannon- I guess if you don't know what they were gonna ask, how can you be so sure that everything would have been protected by executive privilege?

[00:44:10] Speaker 01:
I can't be that sure of it.

[00:44:11] Speaker 01:
The advice might not have been correct that Bannon got.

[00:44:14] Speaker 01:
I can't be so sure that everything was protected.

[00:44:17] Speaker 01:
But that's the advice that Bannon got from his lawyer and that the subpoena was invalid.

[00:44:21] Speaker 01:
And again, it was one subpoena.

[00:44:23] Speaker 01:
That's why their theory is that, and this is what Estello told Bannon, that it applied because it asked for the documents and the testimony in one subpoena.

[00:44:32] Speaker 01:
Therefore, that subpoena was invalid.

[00:44:34] Speaker 01:
I said that the evidence was uncontroverted about

[00:44:39] Speaker 01:
Castello getting that information from the committee that they wouldn't permit privilege holder to be present because there is no competent evidence controverting it.

[00:44:48] Speaker 01:
I refer the court to A364.

[00:44:50] Speaker 01:
The only evidence on the thing that's competent evidence was submitted to this court is Castello's declaration under penalty of perjury on it, in which he says the committee told him in no uncertain terms that their rules would not permit the privilege holder to be present.

[00:45:07] Speaker 01:
Um, your honor asked earlier, was it appropriate for the court to say there was no justification for the government to say there was no justification for Bennett?

[00:45:16] Speaker 01:
The government went much further than that.

[00:45:18] Speaker 01:
They went much further in arguing.

[00:45:19] Speaker 01:
First, they argued that there is, I'm sorry, judge.

[00:45:22] Speaker 04:
I just realized we're well over time.

[00:45:24] Speaker 04:
So just wrap up.

[00:45:25] Speaker 01:
I had reserved two minutes for the button.

[00:45:27] Speaker 01:
I thought your honor said I'm going to give you a couple of minutes.

[00:45:28] Speaker 04:
Yeah, no, you've had your three plus.

[00:45:35] Speaker 01:
Go ahead, finish your point.

[00:45:37] Speaker 01:
The government went much further than that.

[00:45:38] Speaker 01:
After arguing at length that no defense is relevant, there is no justification for it, Bannon is not permitted to put on any reason.

[00:45:46] Speaker 01:
The government argued to the jury that there was no justification.

[00:45:50] Speaker 01:
They argued that Bannon didn't comply with the subpoena because he thinks he's above the law.

[00:45:55] Speaker 01:
You can't have it both ways.

[00:45:56] Speaker 01:
And when they did this in the opening, I suggested to the judge that this clearly requires us to call Thompson because they argued he ignored the subpoena.

[00:46:04] Speaker 01:
He didn't ignore the subpoena.

[00:46:05] Speaker 01:
Did you object?

[00:46:06] Speaker 01:
Yes.

[00:46:07] Speaker 01:
In the opening, as soon as they said above the law, we had a bench conference and so on.

[00:46:15] Speaker 01:
I would point out to the court that the government clearly understood it had made a mistake shortly before the trial.

[00:46:20] Speaker 01:
They showed buyer's remorse.

[00:46:22] Speaker 01:
I cite this on page three of the... We read that.

[00:46:24] Speaker 01:
We read that.

[00:46:26] Speaker 01:
Thank you.

[00:46:27] Speaker 04:
Thank you very much.

[00:46:29] Speaker 04:
The case is submitted.