1 00:00:00,000 --> 00:00:07,380 All none extraordinary and 2 00:00:01,620 --> 00:00:09,400 please stand. Case number 22 3 00:00:05,420 --> 00:00:11,560 30 86, United States of 4 00:00:07,480 --> 00:00:12,420 America versus Stephen K. 5 00:00:12,420 --> 00:00:22,060 Morning. Morning, Mr. Sean. 6 00:00:22,060 --> 00:00:33,500 Morning, Amber. You can adjust the podium to suit your comfort level up or down. Proceed 7 00:00:33,500 --> 00:00:37,720 when you're ready. Thank you. In his commentaries written between 8 00:00:37,720 --> 00:00:43,620 1765 and 1769, William Blackstone wrote, to constitute a crime against human laws, there 9 00:00:43,620 --> 00:00:47,900 must be first a will, a vicious will, and secondly, an unlawful act consequent upon 10 00:00:47,900 --> 00:00:52,940 such a vicious will. Moving forward about 300 years, our own Supreme Court in a flurry 11 00:00:52,940 --> 00:00:58,400 of cases, the past seven years or so, seven, eight years, focused on the fundamental nature 12 00:00:58,400 --> 00:01:04,020 of mens rea under our criminal justice system. And they decided the cases cited in Mr. Brannon's 13 00:01:04,020 --> 00:01:09,940 brief, recent cases, 2015. With principles that are remarkably similar to Mr. Blackstone's 14 00:01:09,940 --> 00:01:14,700 understanding that were abandoned in the instant case, just last year in Ruan versus United 15 00:01:14,700 --> 00:01:20,140 States, the court wrote, consciousness of wrongdoing is a principle as universal and 16 00:01:20,140 --> 00:01:25,780 persistent in mature systems of criminal law, as belief in freedom of the human will, and 17 00:01:25,780 --> 00:01:31,180 a consequent ability of the normal individual to choose between good and evil. Quoting from 18 00:01:31,180 --> 00:01:38,820 the Morissette case, it's a fundamental principle in our system. I refer to the Alonus decision 19 00:01:38,820 --> 00:01:43,940 also in the brief. And now for this circuit, there's Pillar, I don't think I have to tell 20 00:01:43,940 --> 00:01:50,260 your honor what the court said in, wrote in United States versus Burden, but I think it's 21 00:01:50,260 --> 00:01:56,420 important, I don't think I have to tell any of the judges, Judge Pillar, judge in that 22 00:01:56,420 --> 00:02:01,900 point. This court, the case appears to set the threshold for what willfully means. It 23 00:02:01,900 --> 00:02:08,340 juxtaposes it knowingly, just as Justice Alito did in his dissenting opinion in Alonus. And 24 00:02:08,340 --> 00:02:13,260 it said first of all, of course, that it's a word of many meanings. And the defendant 25 00:02:13,260 --> 00:02:16,820 in that case, like many other defendants, claimed that they had to be, they should have 26 00:02:16,820 --> 00:02:21,500 to be required to be aware of the specific law they violated. The court, this court rejected 27 00:02:21,500 --> 00:02:27,060 that. And they said though, they set a baseline for what mens rea means in relationship to 28 00:02:27,060 --> 00:02:32,180 the charged actus rea. The court found that a requirement the defendants have the prescribed 29 00:02:32,180 --> 00:02:37,580 conduct know the prescribed conduct was unlawful. That's the baseline. And the court gave examples 30 00:02:37,580 --> 00:02:43,420 of how it's applied in other cases, the more complicated cases like cheek with a more stringent 31 00:02:43,420 --> 00:02:49,240 standard, but at a bare minimum that it's required that the defendant know or understand 32 00:02:49,240 --> 00:02:56,100 that his or her conduct was unlawful or wrong. In this case, of course, the undisputed record, 33 00:02:56,100 --> 00:03:01,260 Mr. Bannon's perspective based on the Bannon proffer and the Costello declaration is that 34 00:03:01,260 --> 00:03:06,180 Mr. Bannon acted in the only way he believed and understood from his lawyer that the law 35 00:03:06,180 --> 00:03:11,500 permitted him to believe, to behave in response to the subpoena. 36 00:03:11,500 --> 00:03:17,660 So counsel, I appreciate those arguments, but I just, could you focus on our 1961 decision 37 00:03:17,660 --> 00:03:23,020 in Likovoli and what your best argument is that that case simply doesn't tie our hands. 38 00:03:23,020 --> 00:03:29,020 And just to set the stage, as you know, that decision addressed this statute and squarely 39 00:03:29,020 --> 00:03:35,220 held in an advice of counsel defense is not relevant. All that you need is a deliberate 40 00:03:35,220 --> 00:03:42,300 and intentional failure to respond to a subpoena. And the cases that you've relied on discuss 41 00:03:42,300 --> 00:03:47,740 the meaning of the term willfully generally, but they're not about this statute. So I think 42 00:03:47,740 --> 00:03:53,460 the key question is, what is your best authority that we as a panel can depart from that 1961 43 00:03:53,460 --> 00:03:54,460 decision? 44 00:03:54,460 --> 00:03:58,220 Yes, your honor. I think there are a number of reasons why that decision is not binding 45 00:03:58,220 --> 00:04:02,420 on this court in this case. And I'd like to go through them quickly, but first of all, 46 00:04:02,420 --> 00:04:06,580 what I'd like to say is in Likovoli and in Sinclair, there's not a very rich analysis 47 00:04:06,580 --> 00:04:13,020 of why the advice of counsel wouldn't apply. In contrast, this court's decision in Townsend 48 00:04:13,020 --> 00:04:17,860 versus United States 1938 decision, the court comes to a very different conclusion. So when 49 00:04:17,860 --> 00:04:22,460 we're applying the panel rule, I think one fairly has to ask, why isn't the panel rule 50 00:04:22,460 --> 00:04:26,900 applied to the Townsend decision in the Likovoli case? Let me give an example. This was an 51 00:04:26,900 --> 00:04:33,220 appeal from a conviction under this statute to USC 192, well after Sinclair and the panel 52 00:04:33,220 --> 00:04:38,900 cites Sinclair in its decision. They noted Sinclair's holding and then the court wrote, 53 00:04:38,900 --> 00:04:44,420 this court wrote, however, the Supreme court has also held perhaps on the theory that willfulness 54 00:04:44,420 --> 00:04:50,820 is a type of specific intent that where the crime involves willful intent and accused 55 00:04:50,820 --> 00:04:56,380 may show justification by proving that he honestly and in good faith seeks the advice 56 00:04:56,380 --> 00:05:01,780 of counsel as to what he may lawfully do and fully and honestly lays out all of the facts 57 00:05:01,780 --> 00:05:06,920 before his counsel and in good faith and honestly follows such advice, relying on and believing 58 00:05:06,920 --> 00:05:12,500 it to be correct and only intends that his act should be lawful. Even if such advice 59 00:05:12,500 --> 00:05:18,300 by the lawyer was an inaccurate construction of the law, court then went on to find that 60 00:05:18,300 --> 00:05:21,940 in that case, they wouldn't apply it because there was nothing in the record to show that 61 00:05:21,940 --> 00:05:27,140 the defendant had sought the advice of counsel or of course had then followed it. But Townsend 62 00:05:27,140 --> 00:05:32,060 offers a much richer and more comprehensive analysis of the idea than either Sinclair 63 00:05:32,060 --> 00:05:37,500 or Liccavoli and it's certainly a decision from a panel of this court that if we apply 64 00:05:37,500 --> 00:05:44,180 the panel rule ought to have been binding authority on the Liccavoli pool. Let me go 65 00:05:44,180 --> 00:05:45,180 through it. 66 00:05:45,180 --> 00:05:51,700 Let me just ask you, Mr. Bannon has relied on executive privilege in this case, both 67 00:05:51,700 --> 00:05:57,780 here and in the district court, only to argue that he did not act willfully under section 68 00:05:57,780 --> 00:06:05,700 192. There's not any issue before us here as to whether there is in fact a valid assertion 69 00:06:05,700 --> 00:06:11,620 of executive privilege that would be a defense, that would itself be a defense against the 70 00:06:11,620 --> 00:06:15,500 contempt charge. It's through the 192 willfulness issue. 71 00:06:15,500 --> 00:06:19,140 I think that's right, Your Honor, with two caveats. Number one, one is not a caveat. 72 00:06:19,140 --> 00:06:23,660 And I would go even further and say it doesn't matter to this defense whether executive privilege 73 00:06:23,660 --> 00:06:28,420 was properly invoked, what the parameters were of it or otherwise, for the willfully 74 00:06:28,420 --> 00:06:35,460 part of it. The only caveat I had to Your Honor's question is it also applies, the invocation 75 00:06:35,460 --> 00:06:39,820 of executive privilege and his understanding of the consequences of that also applies to 76 00:06:39,820 --> 00:06:45,940 the due process defense of entrapment by a stopper. That's what triggers it because 77 00:06:45,940 --> 00:06:51,340 that's what the Office of Legal Counsel opinions, which again, I know at least two members of 78 00:06:51,340 --> 00:07:01,340 the panel are very familiar with that process. That's what those go to. And so I can get 79 00:07:01,340 --> 00:07:04,740 into that. Happy to get into that if you like. But right now I'm going to focus on the on 80 00:07:04,740 --> 00:07:10,180 the Likavoli question of why this case differed from... 81 00:07:10,180 --> 00:07:17,540 I take your attention to the FINAs that were quashed by the district court. You know what 82 00:07:17,540 --> 00:07:20,540 I'm talking about? Yes, sir. 83 00:07:20,540 --> 00:07:34,540 Okay. Take the document that you requested that is most relevant to the case. 84 00:07:34,540 --> 00:07:42,940 Well, I list out a number of examples in the record and in the appendix and the brief, 85 00:07:42,940 --> 00:07:48,060 and I also made a very detailed proffer to the district court. But if I were to have 86 00:07:48,060 --> 00:07:56,420 to pick one at this point, I would say there's a Chairman Thompson's testimony, frankly, 87 00:07:56,420 --> 00:08:01,340 Chairman Thompson's testimony on issues that became issues in this case, the court in this 88 00:08:01,340 --> 00:08:04,060 case barred all defenses. 89 00:08:04,060 --> 00:08:07,420 What's the question that you wanted to ask Chairman Thompson? 90 00:08:07,420 --> 00:08:12,020 Chairman Thompson continued writing letters after the date of the subpoena that urged 91 00:08:12,020 --> 00:08:17,300 Mr. Bannon to continue to comply with the subpoena. Those were his words. That would 92 00:08:17,300 --> 00:08:22,660 indicate that the subpoena was still alive. Judge Nichols said the only defense that the 93 00:08:22,660 --> 00:08:26,740 defendant could pursue in this case was whether the defendant had reason to believe that dates 94 00:08:26,740 --> 00:08:33,100 were malleable or were fixed dates in time. Ms. Amerling wasn't qualified to know what 95 00:08:33,100 --> 00:08:39,460 to testify as to what Chairman Thompson meant when he said, I urge you to continue to comply. 96 00:08:39,460 --> 00:08:43,460 Even after former President Trump wrote the letter saying confirming that he had invoked 97 00:08:43,460 --> 00:08:50,240 privilege and withdrawing privilege now so that Bannon could testify, July 14th, 2022, 98 00:08:50,240 --> 00:08:54,660 Chairman Thompson wrote another letter saying, I urge you to comply with the subpoena. So 99 00:08:54,660 --> 00:09:03,020 that's one thing. Other would be the authority of the committee, the issue of the subpoena. 100 00:09:03,020 --> 00:09:06,660 Remember, these committees are, as you well know. 101 00:09:06,660 --> 00:09:11,060 That's the topic. What's the document or what's the question that you wanted to ask Chairman 102 00:09:11,060 --> 00:09:12,060 Thompson? 103 00:09:12,060 --> 00:09:14,060 There are many of them. 104 00:09:14,060 --> 00:09:17,140 One question that would have been relevant would have been on the sole defense that the 105 00:09:17,140 --> 00:09:22,260 court allowed, whether the subpoena was still open and why, if these dates that were in 106 00:09:22,260 --> 00:09:25,620 the indictment were fixed dates, why did it continue on? 107 00:09:25,620 --> 00:09:33,580 I'm not sure I follow that because there's a lot of activities in life where someone 108 00:09:33,580 --> 00:09:38,540 might have a deadline and they might be punished for missing it, but then they might still 109 00:09:38,540 --> 00:09:44,540 have an obligation. I mean, tax returns, there's all kinds of things where there are consequences 110 00:09:44,540 --> 00:09:50,540 for missing a deadline, but the duty to comply and the utility in this case, the utility 111 00:09:50,540 --> 00:09:57,340 to the committee of having the testimony persists, even though there may have been a default. 112 00:09:57,340 --> 00:10:05,020 So I'm not sure that I follow that. First of all, it's in the record that Thompson 113 00:10:05,020 --> 00:10:09,700 continued to want the testimony. So I'm not sure why you would need any... 114 00:10:09,700 --> 00:10:10,700 Your honor. 115 00:10:10,700 --> 00:10:17,580 ... but it's more, you're raising an inference or you're drawing an inference from that, 116 00:10:17,580 --> 00:10:19,580 that I'm not sure it supports. 117 00:10:19,580 --> 00:10:24,740 Your honor, a related question would be why the committee refused to accommodate. There's 118 00:10:24,740 --> 00:10:30,740 a constitutional mandate under US versus AT&T to try to reach an accommodation. In this 119 00:10:30,740 --> 00:10:35,940 case, what Bannon said through Costello to the committee was, Costello said Bannon's 120 00:10:35,940 --> 00:10:40,700 hands are tied, privilege has been invoked, he cannot comply. However, if you resolve 121 00:10:40,700 --> 00:10:46,100 privilege with Trump or get a court to order Bannon to comply, he will comply in full. 122 00:10:46,100 --> 00:10:47,100 Secondly. 123 00:10:47,100 --> 00:10:54,340 Does it matter under that theory whether the former president or the incumbent president 124 00:10:54,340 --> 00:10:57,980 had communicated any assertion of privilege to the committee? 125 00:10:57,980 --> 00:10:59,740 No, your honor, it does not. 126 00:10:59,740 --> 00:11:06,700 It doesn't matter. So any lawyer can say, I'm speaking for the president here, I don't 127 00:11:06,700 --> 00:11:11,340 have anything to show you, but talked on the phone to someone and they're asserting privilege. 128 00:11:11,340 --> 00:11:18,820 I mean, when you look at the past cases, like take the Myers case where there's a detailed 129 00:11:18,820 --> 00:11:24,260 district court opinion by Judge Bates, there typically is a formal assertion. 130 00:11:24,260 --> 00:11:28,860 Typically, your honor, yes. In this case, we also have, by the way, the ratification, 131 00:11:28,860 --> 00:11:32,940 let's say the confirmation by President Trump in a letter later confirming- 132 00:11:32,940 --> 00:11:37,340 It's not available. When you're talking about the ex ante obligatory- 133 00:11:37,340 --> 00:11:38,340 Sure, your honor. Yes, your honor. 134 00:11:38,340 --> 00:11:47,900 ... state, and I'm thinking about whose burden is it to make the next foray into a process 135 00:11:47,900 --> 00:11:56,860 of accommodation, and the committee has served a subpoena, and typically, I think the deponent 136 00:11:56,860 --> 00:12:03,260 would then turn around and proffer some kind of, well, I'll answer all these other questions, 137 00:12:03,260 --> 00:12:09,100 but can we reserve questions about my communication with the former president or something, but 138 00:12:09,100 --> 00:12:14,380 I don't see in the record that there was any response other than no. 139 00:12:14,380 --> 00:12:19,260 Good answers, your honor. I think there was more than no, frankly. He said, if a court 140 00:12:19,260 --> 00:12:24,140 orders me to comply, I will. He explained what he was relying on, but a more broad answer, 141 00:12:24,140 --> 00:12:29,260 I suppose, is this is all Castello. There's no contact between Bannon and the committee 142 00:12:29,260 --> 00:12:33,980 at any point in time, and that was at the committee's behest. The committee asked Castello 143 00:12:33,980 --> 00:12:39,980 to accept the subpoena, and he did, but Mr. Bannon only knows what Castello tells him. 144 00:12:39,980 --> 00:12:46,020 This part of the defense is relying on advice of counsel, and by the way, the lack of communication 145 00:12:46,020 --> 00:12:50,020 or accommodation didn't turn on whether Justin Clark had the authority of the president. 146 00:12:50,020 --> 00:12:53,220 It's whether an executive privilege could apply because he's a former president and 147 00:12:53,220 --> 00:12:58,140 because he's a former advisor. All of those issues, which Castello assured Bannon, were 148 00:12:58,140 --> 00:13:02,700 not real issues. But at the end of the day, when after the deadline had passed, President 149 00:13:02,700 --> 00:13:06,700 Biden had a representative come in, Jonathan Sue, and put a letter saying, I've reviewed 150 00:13:06,700 --> 00:13:11,260 this and I don't think that President Trump was right and that privilege really applied 151 00:13:11,260 --> 00:13:15,900 and therefore Bannon, you're free to testify. That's on the 18th of October. Castello writes 152 00:13:15,900 --> 00:13:19,940 to the committee and says, I understand this is case Trump versus Thompson out there. It's 153 00:13:19,940 --> 00:13:27,100 dealing with the issue of whether an incumbent president overrides the invocation of privilege 154 00:13:27,100 --> 00:13:31,900 from the previous president. I'd like to be able to study that. Also, President Biden 155 00:13:31,900 --> 00:13:36,500 has just said he could go forward with the testimony. Chairman, he asked for a one week 156 00:13:36,500 --> 00:13:39,900 extension. Chairman Thompson said no. The committee is going forward tomorrow with a 157 00:13:39,900 --> 00:13:45,300 vote and they did. That's part of what I call the accommodation process being violated. 158 00:13:45,300 --> 00:13:49,420 I just have to return quickly. I know I'm up with my rebuttal time already, but I was 159 00:13:49,420 --> 00:13:53,660 asked the question earlier about reasons to distinguish this case. 160 00:13:53,660 --> 00:13:59,100 You can proceed. Our practice is that as long as we're asking questions, you get extra time. 161 00:13:59,100 --> 00:14:05,740 Thank you. There are many answers, but one at Brewster, from this court, talks about 162 00:14:05,740 --> 00:14:11,300 applying the panel rule. It's clear that it's only applied firmly in cases that are not, 163 00:14:11,300 --> 00:14:18,440 that are factually indistinguishable. This case for a major reason is factually distinguishable. 164 00:14:18,440 --> 00:14:23,580 That is the invocation of executive privilege. That changes everything, the entire dynamic 165 00:14:23,580 --> 00:14:28,260 in the case. As I say in the brief, if this court were to treat a person who gets this 166 00:14:28,260 --> 00:14:33,420 subpoena and believes executive privilege has been invoked and his or her hands are 167 00:14:33,420 --> 00:14:38,940 tied and cannot comply, first of all, when the privilege is invoked, it's presumptively 168 00:14:38,940 --> 00:14:43,940 valid. Secondly, it's the president's prerogative or a former president's prerogative entirely 169 00:14:43,940 --> 00:14:48,540 as to the parameters of that privilege, subject to what a court says the parameters were. 170 00:14:48,540 --> 00:14:57,300 So can I just ask one question about this, the narrative there. So what Mr. Bannon claimed, 171 00:14:57,300 --> 00:15:01,460 and at least what he did on October 18th, was essentially to claim a complete immunity 172 00:15:01,460 --> 00:15:08,180 from responding to the subpoena. And I believe that was October 18th. And I just want to 173 00:15:08,180 --> 00:15:17,540 read to you from the October 16th letter from Justin Clark to Mr. Costello. And what that 174 00:15:17,540 --> 00:15:23,740 says is, just to reiterate, our letter referenced below didn't indicate that we believe there 175 00:15:23,740 --> 00:15:28,800 is immunity from testimony for your client. As I indicated to you the other day, we don't 176 00:15:28,800 --> 00:15:35,260 believe there is. So how do you reconcile that communication with your argument today? 177 00:15:35,260 --> 00:15:39,740 A couple of ways. Number one, use of the term immunity is just wrong there. Justin Clark 178 00:15:39,740 --> 00:15:44,580 couldn't confer immunity. President Trump couldn't confer immunity on anyone. We know 179 00:15:44,580 --> 00:15:50,980 that from the McGahn case and otherwise. Secondly, anecdotally, Costello has said Justin Clark 180 00:15:50,980 --> 00:15:54,660 was telling him a completely different story. Justin Clark was making clear to him in his 181 00:15:54,660 --> 00:16:00,020 declaration, was making clear to him that Bannon could not comply with the subpoena 182 00:16:00,020 --> 00:16:04,080 because this was a protective assertion of the privilege. Bannon was in a position to 183 00:16:04,080 --> 00:16:09,780 know what documents, testimony would be covered by it and what wouldn't be covered by it. 184 00:16:09,780 --> 00:16:15,260 So at no point did he claim immunity except to refer to the way that term is used in the 185 00:16:15,260 --> 00:16:23,380 1984 OLC opinion, for example. But the idea is, Congress can't decide whether the privilege 186 00:16:23,380 --> 00:16:26,820 was properly invoked or not. When the privilege is invoked, it's up to a court as the only 187 00:16:26,820 --> 00:16:31,620 arbiter, not Congress. And quite frankly, the government told the jury a different thing. 188 00:16:31,620 --> 00:16:37,300 The government likened Congress in this case to the referee in a soccer game and Mr. Bannon's 189 00:16:37,300 --> 00:16:42,940 failure to comply with telling that referee in a kid's soccer game, not obeying that referee. 190 00:16:42,940 --> 00:16:47,940 Never in our system is Congress the arbiter of a subpoena. That's McGahn unbunked. 191 00:16:47,940 --> 00:16:58,580 But why isn't the retort that in your view, the former president or even more removed, 192 00:16:58,580 --> 00:17:03,820 someone that talked to a representative of the former president and advises his client 193 00:17:03,820 --> 00:17:09,380 is the arbiter of the privilege? In other words, you're basically, if we were to accept 194 00:17:09,380 --> 00:17:16,240 your position in this case, why wouldn't we be basically saying Mr. Costello's representation 195 00:17:16,240 --> 00:17:23,100 overrides the ability of the congressional committee to investigate? 196 00:17:23,100 --> 00:17:27,500 Two reasons, John. I don't think it overrides that. But two reasons. One, he is his lawyer. 197 00:17:27,500 --> 00:17:32,980 Advice of counsel is the defense. And secondly, the privilege is presumptively valid. And 198 00:17:32,980 --> 00:17:38,460 so when Clark writes in his letter a vigorous assertion of the privilege, it covered deliberative 199 00:17:38,460 --> 00:17:40,540 processes and communications. 200 00:17:40,540 --> 00:17:46,820 But it's just that's so broad to say it's presumptively valid. Even at its broadest 201 00:17:46,820 --> 00:17:54,500 where OLC has written, for example, that a former senior official can assert absolute 202 00:17:54,500 --> 00:18:03,260 testimonial immunity, it only covers communications within the scope of that former senior official's 203 00:18:03,260 --> 00:18:08,900 service in the White House. And none of the conducted issue here was during Mr. Bannon's 204 00:18:08,900 --> 00:18:11,460 service in the White House, was it? None of it. 205 00:18:11,460 --> 00:18:13,900 Right, Judge. It was during the presidency. 206 00:18:13,900 --> 00:18:15,980 But not during Mr. Bannon's service. 207 00:18:15,980 --> 00:18:16,980 Correct, Your Honor. 208 00:18:16,980 --> 00:18:22,180 And do you have any authority that suggests, any authority at all, that suggests that some 209 00:18:22,180 --> 00:18:28,220 kind of executive privilege or immunity would apply to conduct that post dates the person's 210 00:18:28,220 --> 00:18:29,220 service? 211 00:18:29,220 --> 00:18:32,500 Yes, Your Honor. First of all, Your Honor, the OLC opinion that I've cited in the brief 212 00:18:32,500 --> 00:18:37,260 on the determination about choosing U.S. attorneys doesn't require it. 213 00:18:37,260 --> 00:18:38,260 The Myers. 214 00:18:38,260 --> 00:18:42,780 Yes. Doesn't it require to be an employee of the executive branch at all? And that makes 215 00:18:42,780 --> 00:18:47,020 sense. If the former or otherwise. And if the president wants to consult, let's say 216 00:18:47,020 --> 00:18:52,340 the president determines doesn't think he or she doesn't think the economy is doing 217 00:18:52,340 --> 00:18:57,020 so well. And so the president calls in the head of Texaco, has never worked in the government, 218 00:18:57,020 --> 00:19:02,060 and wants to have private confidential communications and be able to assure the head of Texaco that 219 00:19:02,060 --> 00:19:06,700 those conversations will remain confidential. The president has that prerogative, solely 220 00:19:06,700 --> 00:19:07,700 his prerogative. 221 00:19:07,700 --> 00:19:12,460 What about the 15 different numbered topics out of the 18? Or I might have the numbers 222 00:19:12,460 --> 00:19:18,420 wrong. You know, for for 14 out of 17, there's a whole list of topics and subpoena. And I 223 00:19:18,420 --> 00:19:23,620 think only three of them even mention communications with the former president. 224 00:19:23,620 --> 00:19:28,220 So number of answers to that. This starts with and in his subject to what Costello has 225 00:19:28,220 --> 00:19:33,540 told he did what a lay person should do. He hired a lawyer period. But Costello's theory 226 00:19:33,540 --> 00:19:39,380 on that issue that he has the lawyer told the ban is this subpoena under the OLC opinion 227 00:19:39,380 --> 00:19:43,940 that says if the committee refuses to allow the privilege holders representative to be 228 00:19:43,940 --> 00:19:48,540 present during a deposition, the subpoena is unconstitutional and invalid. This was 229 00:19:48,540 --> 00:19:54,100 one subpoena. It required testimony and documents. Therefore, Costello, the lawyer, told ban 230 00:19:54,100 --> 00:20:00,660 and the lay person this subpoena is absolutely unconstitutional and invalid. Not only can't 231 00:20:00,660 --> 00:20:04,860 you comply with it, you have no obligation to comply with it for that reason. In addition 232 00:20:04,860 --> 00:20:09,260 to the others, he made very clear in his declaration. And again, I asked the court to consider 233 00:20:09,260 --> 00:20:14,100 in the broader picture, how should a lay person respond when a lay person gets this subpoena 234 00:20:14,100 --> 00:20:18,220 from a committee? All of communication is through the lawyer and the lawyer tells him 235 00:20:18,220 --> 00:20:23,500 or her in definitive terms, they may not comply. Their hands are tied. At least let a jury 236 00:20:23,500 --> 00:20:28,020 decide whether that was reasonable or appropriate advice, whether the lawyer had all of the 237 00:20:28,020 --> 00:20:32,740 facts, but let a jury decide we don't treat a person who believes he or she is acting 238 00:20:32,740 --> 00:20:37,820 in full compliance with the law. And then the only way the law applies only complies 239 00:20:37,820 --> 00:20:42,500 with the law. We don't treat that person the same as a wrongdoer, as a liquefied, a mobster 240 00:20:42,500 --> 00:20:44,900 who just didn't show up. 241 00:20:44,900 --> 00:20:54,820 I want to return with maybe just one question to the subpoenas that were quashed on speech 242 00:20:54,820 --> 00:21:01,020 and debate grounds. You submitted a 28J letter about a recent opinion from this court in 243 00:21:01,020 --> 00:21:09,220 the concealed case. And in that case, there's some suggestion that the district court needed 244 00:21:09,220 --> 00:21:15,260 to kind of go document by document in a way that it hadn't. I think that that case did 245 00:21:15,260 --> 00:21:24,500 not purport to be breaking new ground or establishing a new rule. And so my question to you is, 246 00:21:24,500 --> 00:21:33,140 to the extent that we think something like that should have happened here but didn't, 247 00:21:33,140 --> 00:21:39,100 not saying we do, it seems like you have not made that argument or you did not make that 248 00:21:39,100 --> 00:21:45,020 argument in your briefing. And so isn't it forfeited? 249 00:21:45,020 --> 00:21:49,260 I don't think so. In the briefing, I discussed the very specific proffer that I made to the 250 00:21:49,260 --> 00:21:55,820 court about each reason for each subpoena that I believe were narrowly tailored to each 251 00:21:55,820 --> 00:22:01,220 of those defendants. But I really filed the 28J letter because it specifically speaks 252 00:22:01,220 --> 00:22:06,140 about things that aren't covered. The court in this case, Mr. Letter's position in this 253 00:22:06,140 --> 00:22:10,900 case was you should have a blanket speech and debate clause. This court made clear in 254 00:22:10,900 --> 00:22:16,980 the Ray Steele case that that's not the way to approach it. We don't have a blanket thing. 255 00:22:16,980 --> 00:22:20,620 And my objection was that the court treated it in blanket fashion. But also it specifically 256 00:22:20,620 --> 00:22:27,420 spoke about press releases. And that's something I emphasized in my papers is that these members 257 00:22:27,420 --> 00:22:32,980 of the committee evidenced, in my view at least, in their press releases and press statements, 258 00:22:32,980 --> 00:22:38,820 decision to get Bannon rather than accommodate and to pursue that course to get Bannon. And 259 00:22:38,820 --> 00:22:42,380 so I thought that this case made clear in there when they say things like statements 260 00:22:42,380 --> 00:22:45,700 to the press and so on. It may not have broken new ground, but it's a recent decision since 261 00:22:45,700 --> 00:22:52,860 the briefing that I thought made that point. Do you see any need? The government has asked 262 00:22:52,860 --> 00:22:58,180 for a remand to correct the judgment. They see some $50 discrepancy. Is that something 263 00:22:58,180 --> 00:23:05,980 that requires a remand? I don't think so. But I don't think my position won't turn on 264 00:23:05,980 --> 00:23:12,060 that. All right. Thank you. Thank you. You have sought to reserve time for rebuttal. 265 00:23:12,060 --> 00:23:29,500 We've used your time, but we'll give you a couple minutes. Thank you. Good afternoon. 266 00:23:29,500 --> 00:23:36,620 May I please support Elizabeth Spinella for the United States? Stephen Bannon deliberately 267 00:23:36,620 --> 00:23:43,140 chose not to comply in any way with a lawful congressional subpoena, not to provide a single 268 00:23:43,140 --> 00:23:49,220 document, not even to show up for his deposition. That was contempt of Congress, and he was 269 00:23:49,220 --> 00:23:55,260 properly convicted. Before getting into the mens rea issue, I'd like to address a theme 270 00:23:55,260 --> 00:24:01,420 that Judge Pillard you touched on that runs through some of Bannon's arguments, and that's 271 00:24:01,420 --> 00:24:08,780 the notion that President Trump asserted executive privilege. In fact, there was no assertion 272 00:24:08,780 --> 00:24:15,020 of executive privilege over the contents of the subpoena, much less one that would justify 273 00:24:15,020 --> 00:24:20,580 Bannon's complete default. My understanding is that it matters neither to your position 274 00:24:20,580 --> 00:24:26,920 nor to Mr. Bannon's position. Is that right? He has suggested it is relevant to his due 275 00:24:26,920 --> 00:24:32,480 process claim. I don't think so. I think he suggested that Mr. Bannon's, the advice of 276 00:24:32,480 --> 00:24:41,340 counsel, referencing executive privilege is all that matters. Certainly on the mens rea 277 00:24:41,340 --> 00:24:47,820 issue, I understand his assertion with respect to executive privilege to be relevant to his 278 00:24:47,820 --> 00:24:54,860 claim of entrapment by the stop all public authority. But let me put that aside for the 279 00:24:54,860 --> 00:25:02,260 moment and talk about mens rea. Because the district court did not err in barring Bannon 280 00:25:02,260 --> 00:25:08,580 from putting on evidence or argument relating to his claim that he acted in good faith on 281 00:25:08,580 --> 00:25:16,580 advice of counsel based on the alleged assertion of executive privilege. The Supreme Court 282 00:25:16,580 --> 00:25:22,460 and this court have held that the mens rea element for contempt of Congress requires 283 00:25:22,460 --> 00:25:28,460 only that the defendant acted deliberately and intentionally. Good faith, including advice 284 00:25:28,460 --> 00:25:36,340 of counsel, is not a defense. Cases interpreting other statutes do not change the establishment's 285 00:25:36,340 --> 00:25:42,980 rea for contempt of Congress. Now, we recognize that for many cases the government asked to 286 00:25:42,980 --> 00:25:49,340 prove that the defendant did act with a wrongful intent. But for section 192, the Supreme Court 287 00:25:49,340 --> 00:25:55,900 has held that no moral turpitude is required. Intentional violation is sufficient to constitute 288 00:25:55,900 --> 00:26:02,540 guilt. That was a holding in Sinclair where the defendant had claimed that the judge erred 289 00:26:02,540 --> 00:26:07,300 and he was entitled to a new trial because he was precluded from putting on evidence 290 00:26:07,300 --> 00:26:13,100 that he acted in good faith on advice of counsel. So what about Mr. Shone's position that you 291 00:26:13,100 --> 00:26:22,420 have a client who's not a lawyer? His lawyer tells him full, absolute testimonial privilege 292 00:26:22,420 --> 00:26:29,140 here and in any event, it's flexible, there's an accommodation process, you know, and in 293 00:26:29,140 --> 00:26:35,860 fact this layperson has testified before Congress in the past and maybe that adds credibility 294 00:26:35,860 --> 00:26:40,500 to the notion that there's going to be some kind of accommodation process. So the only 295 00:26:40,500 --> 00:26:48,780 recourse for this defendant is malpractice claiming he's a former lawyer? 296 00:26:48,780 --> 00:26:56,420 The Supreme Court said in Watkins that a defendant who acts on a good faith but mistaken view 297 00:26:56,420 --> 00:27:03,380 of the law acts at his peril. That's page 208 of that opinion. And Bannon here certainly 298 00:27:03,380 --> 00:27:10,340 had reason to be questioning his lawyer's advice given that not only did Chairman Thompson 299 00:27:10,340 --> 00:27:16,500 make clear that his executive privilege excuse wasn't going to fly and that he would be held 300 00:27:16,500 --> 00:27:24,000 in contempt of Congress if he continued in his fail to comply, but also where the president's 301 00:27:24,000 --> 00:27:30,460 own lawyer admonishes Costello and Costello admits that he shares his correspondence with 302 00:27:30,460 --> 00:27:41,020 Bannon and Clark says as you've pointed out, Judge Garcia pointed out that the defendant 303 00:27:41,020 --> 00:27:47,820 in this case, Bannon, was not immune from testifying. I don't understand the distinction 304 00:27:47,820 --> 00:27:54,280 that counsel has made here. Clearly the point that Clark was making was that Bannon was 305 00:27:54,280 --> 00:28:01,060 required to show up and that's consistent with both the procedures that the committee outlined 306 00:28:01,060 --> 00:28:07,940 for raising objections and Judge Pillers, you've pointed out the number is 14 out of 307 00:28:07,940 --> 00:28:15,100 17. The vast majority of topics covered by the subpoena could not conceivably have implicated 308 00:28:15,100 --> 00:28:21,500 executive privilege as Chairman Thompson explained in plain English in the correspondence with 309 00:28:21,500 --> 00:28:28,100 Costello which we know got forwarded to Bannon. So in terms of fairness, the Supreme Court 310 00:28:28,100 --> 00:28:35,060 has said this is what the law is and even apart from this court's binding decisions 311 00:28:35,060 --> 00:28:42,420 in cases like Fields and Dennis and LeCovoli, there is controlling Supreme Court authority 312 00:28:42,420 --> 00:28:50,940 that required the district court to exclude Bannon's good faith defense. 313 00:28:50,940 --> 00:28:59,620 The opposing counsel mentioned a United States v. Townsend case and I think maybe it wasn't 314 00:28:59,620 --> 00:29:05,500 mentioned in his briefing until the reply brief when it replied to that. 315 00:29:05,500 --> 00:29:13,740 Townsend did not hold or even suggest that if the defendant had been able to show good 316 00:29:13,740 --> 00:29:19,860 faith that would have been a defense and it certainly isn't inconsistent with the later 317 00:29:19,860 --> 00:29:27,980 rulings of this court in Dennis and Fields and LeCovoli. Also Townsend at page 359 cites 318 00:29:27,980 --> 00:29:34,500 with approval the page of Sinclair where the Supreme Court said that intentional violation 319 00:29:34,500 --> 00:29:41,260 is sufficient to constitute guilt. So Townsend cannot be read as somehow being in conflict 320 00:29:41,260 --> 00:29:45,680 with this court's later ruling. Do you think it was appropriate for the prosecutor 321 00:29:45,680 --> 00:29:51,300 in the case at closing argument to tell the jury that Bannon had quote no justification 322 00:29:51,300 --> 00:30:01,440 for doing what he did? Given that there was no actual assertion of 323 00:30:01,440 --> 00:30:09,380 executive privilege, given that the subpoena on its face included a number of topics that 324 00:30:09,380 --> 00:30:14,140 could not possibly have included executive privilege, given that the committee laid out 325 00:30:14,140 --> 00:30:19,500 the procedures and repeatedly told Bannon he needed to follow them for risk contempt 326 00:30:19,500 --> 00:30:25,420 and given the case law that does not recognize good faith as a defense then yes that was 327 00:30:25,420 --> 00:30:29,660 a correct statement he did have no justification for acting as he did. 328 00:30:29,660 --> 00:30:36,180 Bannon seems a little weird. I'm not saying it's just positive in this case by any means 329 00:30:36,180 --> 00:30:42,660 but it seems like if you're right, I think you probably are, the district court properly 330 00:30:42,660 --> 00:30:51,140 kept out any of Bannon's defenses about his kind of subjective state of mind or the reasons 331 00:30:51,140 --> 00:30:57,260 why Bannon did what he did. You know if the district court tells Bannon you're not allowed 332 00:30:57,260 --> 00:31:01,380 to tell the jury your reasons, it's a little odd for the government to be able to tell 333 00:31:01,380 --> 00:31:07,860 the jury he had no reasons. Again given the state of the case law that 334 00:31:07,860 --> 00:31:13,180 was a legally correct argument. He did not have a legal justification for acting as he 335 00:31:13,180 --> 00:31:21,380 did. Bannon had a choice. When the committee overrides his executive privilege excuse, 336 00:31:21,380 --> 00:31:27,500 he could either at that point comply or not comply and risk contempt. He was aware of 337 00:31:27,500 --> 00:31:31,380 that risk, he took it and he was properly prosecuted. 338 00:31:31,380 --> 00:31:37,300 I think when you first started addressing the court and you said that there was no executive 339 00:31:37,300 --> 00:31:43,780 privilege assertion in this case and I interrupted you and said you know that's not something 340 00:31:43,780 --> 00:31:47,500 that we need to reach. Do you think it would be appropriate for us to reach it? Do you 341 00:31:47,500 --> 00:31:57,120 think we should reach that question or not? To the extent the court considers the argument 342 00:31:57,120 --> 00:32:05,460 that he was somehow entrapped into committing this offense based on the opinions of the 343 00:32:05,460 --> 00:32:11,580 office of legal counsel, the fact that we do not actually have an assertion of executive 344 00:32:11,580 --> 00:32:18,980 privilege is an additional basis to distinguish those opinions. I say additional because there 345 00:32:18,980 --> 00:32:21,420 are other facts that. Could you tell us what you think the best 346 00:32:21,420 --> 00:32:26,340 reason is to distinguish the OLC opinions for his entrapment defense? 347 00:32:26,340 --> 00:32:32,540 I think probably the easiest one Judge Garcia would be that he is a private citizen who 348 00:32:32,540 --> 00:32:37,860 has been subpoenaed to provide information about his activities as a private citizen. 349 00:32:37,860 --> 00:32:45,940 That none of the OLC opinions address that. There's also the fact that the OLC does not 350 00:32:45,940 --> 00:32:50,540 provide guidance to private individuals. It makes that clear on the website. It provides 351 00:32:50,540 --> 00:32:53,460 guides to the Department of Justice and to the executive agencies. 352 00:32:53,460 --> 00:32:58,860 So is there a next reason? Because the 2007 OLC opinion has at least some general language 353 00:32:58,860 --> 00:33:04,340 about the need to contact private citizens in the context of US attorneys. So I'm curious 354 00:33:04,340 --> 00:33:10,060 what the next reason would be. Well, a couple responses with that. One, the 355 00:33:10,060 --> 00:33:15,180 2007 opinion is not talking about prosecution. It's just talking generally about executive 356 00:33:15,180 --> 00:33:21,820 privilege. So it doesn't suggest that necessarily a private citizen who engages in a conversation 357 00:33:21,820 --> 00:33:27,460 with the president could then assume that he wouldn't be prosecuted. But also that decision 358 00:33:27,460 --> 00:33:34,860 was in the context of a president's official decision making. It doesn't address the issue, 359 00:33:34,860 --> 00:33:40,340 which is an open issue. We're not taking a position on it. Whether communications regarding 360 00:33:40,340 --> 00:33:46,380 a political campaign and its aftermath would also be within the scope of executive privilege. 361 00:33:46,380 --> 00:33:51,780 Why does your answer involve all these open questions? I would have thought the answer 362 00:33:51,780 --> 00:33:58,180 to Judge Garcia's question is that the OLC opinions are about the assertion by the president, 363 00:33:58,180 --> 00:34:04,220 former president even, of executive privilege. And here, President Trump didn't assert executive 364 00:34:04,220 --> 00:34:07,620 privilege. Well, this goes back to Judge Hillert's question 365 00:34:07,620 --> 00:34:12,780 and perhaps Judge Garcia's too as to which is our best argument. There are several ways 366 00:34:12,780 --> 00:34:21,420 home. And one of the reasons I let off with the lack of an assertion of executive privilege 367 00:34:21,420 --> 00:34:28,060 here is that is also a strong reason why any reliance on the OLC opinions didn't make sense 368 00:34:28,060 --> 00:34:33,760 in this case. Just one question. I think it's clear based 369 00:34:33,760 --> 00:34:36,940 on the arguments today, this is very much a hypothetical question. But I do want to 370 00:34:36,940 --> 00:34:42,740 understand the government's position on how, if there is an invocation of executive privilege 371 00:34:42,740 --> 00:34:48,660 and the defendant for whatever reason is still prosecuted in a case like this, how should 372 00:34:48,660 --> 00:34:53,260 the executive privilege claim be raised and litigated in the criminal case? Is the answer 373 00:34:53,260 --> 00:34:59,580 simply to be raised as an affirmative defense rather than through the lens of mens rea? 374 00:34:59,580 --> 00:35:06,220 Let me just back up and also clarify, if I may, your hypothetical. To clarify, let's 375 00:35:06,220 --> 00:35:11,380 assume that your assertion of executive privilege is with respect to a private citizen rather 376 00:35:11,380 --> 00:35:16,580 than an executive branch employee. Because it's the executive branch employee, we actually 377 00:35:16,580 --> 00:35:21,980 have an assertion of executive privilege. That case wouldn't get prosecuted. But let's 378 00:35:21,980 --> 00:35:26,860 assume that that doesn't matter and that we have someone who is prosecuted. Again, I wanted 379 00:35:26,860 --> 00:35:32,340 to back up. If there is an assertion of executive privilege, there are procedures for asserting 380 00:35:32,340 --> 00:35:39,620 that before the committee to identify which documents are privileged and at the deposition 381 00:35:39,620 --> 00:35:44,020 assert any privilege on a question by question basis. Again, that's not this case. I understand 382 00:35:44,020 --> 00:35:52,740 you're talking more generally. If the committee overrules the executive privilege claim, at 383 00:35:52,740 --> 00:35:59,460 that point, the president or former president, again, assuming that that doesn't matter, 384 00:35:59,460 --> 00:36:06,340 can assert that claim himself by filing suit against the witness, which is similar to what 385 00:36:06,340 --> 00:36:13,060 happened in the Mazar's case where President Trump sued a third party to enjoin that third 386 00:36:13,060 --> 00:36:16,260 party from complying with a congressional subpoena. 387 00:36:16,260 --> 00:36:22,200 Didn't that happen also in the Harriet Myers case where it was a declaratory judgment suit 388 00:36:22,200 --> 00:36:30,260 before Judge Babes seeking to determine the privilege issue? 389 00:36:30,260 --> 00:36:37,900 Right. There could be separation or speech or debate clause issues if a suit was filed 390 00:36:37,900 --> 00:36:45,060 against the committee. The more likely scenario would be if the president chose to vindicate 391 00:36:45,060 --> 00:36:50,260 his interest in executive privilege, the president would have to intervene. Now, in this case, 392 00:36:50,260 --> 00:36:59,420 of course, the president chose not to intervene. Despite Stelos' entreaties, Clark did not 393 00:36:59,420 --> 00:37:05,260 identify what was privileged. He did not reach out to the committee, nor did he step in once 394 00:37:05,260 --> 00:37:09,340 the committee overruled the executive privilege justification. 395 00:37:09,340 --> 00:37:16,860 I have a related question. Mr. Shuman was saying that your position is that Mr. Bannon 396 00:37:16,860 --> 00:37:24,220 was required to show up and assert any privileges on a question by question basis, but he points 397 00:37:24,220 --> 00:37:32,020 out that Costello, at least, was of the impression that there was no counsel for the president 398 00:37:32,020 --> 00:37:38,660 who would be allowed to be in the deposition. What's the response on that? 399 00:37:38,660 --> 00:37:45,780 First, Your Honor, just as a factual matter, I just want to correct a representation in 400 00:37:45,780 --> 00:37:53,120 the reply brief at page two, note one, where Bannon says it is undisputed that the committee 401 00:37:53,120 --> 00:38:02,420 advised Costello that the privilege holder counsel could not attend. Bannon's attorney, 402 00:38:02,420 --> 00:38:08,500 either Bannon or his attorney, actually asked any member of the committee. Costello raised 403 00:38:08,500 --> 00:38:15,820 this issue with committee staffer Sean Tenali on October 13th, after Costello had already 404 00:38:15,820 --> 00:38:22,380 made it clear that Bannon was not going to testify. This is at pages 429 and 439 of the 405 00:38:22,380 --> 00:38:29,700 appendix. Costello says he only is asking us for future reference, doesn't need an immediate 406 00:38:29,700 --> 00:38:38,260 answer, and Tenali demurs, does not give an answer. So the committee never rejected that 407 00:38:38,260 --> 00:38:46,580 specific request. But even if it had, the only basis that Bannon has cited for suggesting 408 00:38:46,580 --> 00:38:54,940 that the subpoena was invalid was this OLC opinion on exclusion of agency counsel, which 409 00:38:54,940 --> 00:39:01,300 makes clear that that applies when a witness is called to testify about the witness's official 410 00:39:01,300 --> 00:39:06,620 duties within the executive branch. And again, there was an assertion of executive privilege, 411 00:39:06,620 --> 00:39:13,300 a direct assertion. And in any event, exclusion of agency counsel issue would not have affected 412 00:39:13,300 --> 00:39:20,420 Bannon's obligation to provide documents. Judge Walker, I just want to return to your 413 00:39:20,420 --> 00:39:28,240 questions about the subpoenas. And counsel for Bannon has suggested that it was necessary 414 00:39:28,240 --> 00:39:38,180 to call Chairman Thompson to ask about the later request that Bannon still comply with 415 00:39:38,180 --> 00:39:43,500 the subpoena. Bannon had already defaulted at that point. He had already committed the 416 00:39:43,500 --> 00:39:49,260 offense. And the fact that the committee still was continuing its investigation and still 417 00:39:49,260 --> 00:39:56,020 wanted Bannon's information doesn't in any way change Bannon's default. Also, as the 418 00:39:56,020 --> 00:40:04,460 district court found, the Congress's specific motivations, internal deliberations would 419 00:40:04,460 --> 00:40:10,140 be protected by the speech debate clause because they were in the legislative sphere. And in 420 00:40:10,140 --> 00:40:19,260 any event, none of the matters. Go ahead. I guess I asked about relevancy because I 421 00:40:19,260 --> 00:40:27,100 wonder if any of the subpoena documents or the questions that he was hoping to ask the 422 00:40:27,100 --> 00:40:32,260 subpoenaed witnesses were relevant. And if they were all irrelevant, we wouldn't even 423 00:40:32,260 --> 00:40:37,620 have to reach the speech and debate clause issue. Do you agree with that? 424 00:40:37,620 --> 00:40:42,260 That's absolutely right. And that's really the shortcut answer to your question about 425 00:40:42,260 --> 00:40:47,380 Inray's sealed case. And just to direct the court, the district court made specific findings 426 00:40:47,380 --> 00:40:52,220 that went through the various categories of information sought in denying the motion for 427 00:40:52,220 --> 00:40:58,020 a new trial. That's at pages 4, 6, 8, 3, 86 of the appendix. 428 00:40:58,020 --> 00:41:13,540 I think it's 4, 6, 8, 3, 4, 6, 8, 6 of the appendix. So yes, you can sidestep. 429 00:41:13,540 --> 00:41:17,580 The answer was none of them are relevant. None of them were relevant. 430 00:41:17,580 --> 00:41:22,780 Even the documents that the district court said are protected by speech and debate, even 431 00:41:22,780 --> 00:41:27,940 those were not relevant. Correct. And you'll see looking at the 432 00:41:27,940 --> 00:41:36,620 judge has several pages in the ruling that addresses the various topics. 433 00:41:36,620 --> 00:41:44,100 On the judgment and commitment order question that I believe you had asked, I realized when 434 00:41:44,100 --> 00:41:50,700 going back and reading the J&C that that was my mistake. In fact, the 45 or the 6550 figure 435 00:41:50,700 --> 00:41:56,420 is correct because it includes the combined special assessment. That was my mistake. I 436 00:41:56,420 --> 00:41:58,820 apologize. Just ignore footnote one in our brief. 437 00:41:58,820 --> 00:42:01,420 That was my understanding. Great. That's helpful. 438 00:42:01,420 --> 00:42:06,500 Thank you. And unless the court has any further questions, we'd ask you to affirm the judgment 439 00:42:06,500 --> 00:42:10,540 of the district court. Thank you. 440 00:42:10,540 --> 00:42:20,260 Thank you. If I might just briefly respond to a couple 441 00:42:20,260 --> 00:42:27,420 of them. First of all, Mr. Bannon, neither Mr. Bannon 442 00:42:27,420 --> 00:42:31,540 nor Mr. Estello suggested that they were the ultimate arbiter. They asked quite clearly 443 00:42:31,540 --> 00:42:35,540 in their letter for it to have a court decide this. That doesn't mean that they had to 444 00:42:35,540 --> 00:42:40,300 bring the action. They suggested to the committee that Bannon would comply fully if the committee 445 00:42:40,300 --> 00:42:43,780 had a court to order it. And that's part of the accommodation process. That's what the 446 00:42:43,780 --> 00:42:50,220 cases have said in U.S. versus House of Representatives. That's what the cases say in McGahn and some 447 00:42:50,220 --> 00:42:55,580 of the other cases. That's part of the process. And it's appropriate. Congress can't decide. 448 00:42:55,580 --> 00:43:01,260 Congress can't be the arbiter of its subpoena or of the validity of executive privilege. 449 00:43:01,260 --> 00:43:06,660 That's what McGahn on bank says. I don't really understand the point Mr. Estello said about 450 00:43:06,660 --> 00:43:14,780 Townsend. I read from Townsend and Townsend unequivocally says Mr. Estello said Townsend 451 00:43:14,780 --> 00:43:19,900 didn't hold or suggest that if a defendant acted in good faith, that would be a defense. 452 00:43:19,900 --> 00:43:26,860 The court could not have been clearer in Townsend in saying expressly that the reliance on advice 453 00:43:26,860 --> 00:43:33,460 of counsel is a justification defense when willfully willful intent is what's required 454 00:43:33,460 --> 00:43:39,660 in the statute. This same statute that's on pages 358 to 359. There's not a question about 455 00:43:39,660 --> 00:43:44,300 what that case says. It's true as early as later. But that court was aware of Sinclair. 456 00:43:44,300 --> 00:43:48,900 They cite Sinclair repeatedly. There's no question about it. Do you think the committee 457 00:43:48,900 --> 00:43:56,220 would have asked Bannon anything that was unprotected by executive privilege? I don't 458 00:43:56,220 --> 00:43:58,980 know what the committee would have asked. I think the committee had an agenda, was a 459 00:43:58,980 --> 00:44:04,020 political agenda. I don't know what the committee would have asked. I know that the reasons 460 00:44:04,020 --> 00:44:07,540 that Bannon. I guess if you don't know what they were going to ask, how can you be so 461 00:44:07,540 --> 00:44:11,380 sure that everything would have been protected by executive privilege? I can't be that sure 462 00:44:11,380 --> 00:44:15,740 of it. The advice might not have been correct that Bannon got. I can't be so sure that everything 463 00:44:15,740 --> 00:44:21,180 was protected. But that's the advice that Bannon got from his lawyer and that the subpoena 464 00:44:21,180 --> 00:44:25,980 was invalid. And again, it was one subpoena. That's why their theory is that, and this 465 00:44:25,980 --> 00:44:30,740 is what Costello told Bannon, that it applied because it asked for the documents and the 466 00:44:30,740 --> 00:44:37,620 testimony in one subpoena. Therefore that subpoena was invalid. I said that the evidence 467 00:44:37,620 --> 00:44:42,340 was uncontroverted about Costello getting that information from the committee that they wouldn't 468 00:44:42,340 --> 00:44:48,300 permit privilege holder to be present because there is no competent evidence controverting 469 00:44:48,300 --> 00:44:53,500 it. I refer the court to A364. The only evidence on the thing that's competent evidence was 470 00:44:53,500 --> 00:44:59,300 submitted to this court is Costello's declaration under penalty of perjury on it, in which he 471 00:44:59,300 --> 00:45:03,860 says the committee told him in no uncertain terms that their rules would not permit the 472 00:45:03,860 --> 00:45:10,740 privilege holder to be present. Your honor asked earlier, was it appropriate for the 473 00:45:10,740 --> 00:45:15,380 court to say there was no justification, for the government to say there was no justification 474 00:45:15,380 --> 00:45:19,540 for Bannon? The government went much further than that. They went much further in arguing. 475 00:45:19,540 --> 00:45:22,500 First they argued that there is, I'm sorry, Judge. 476 00:45:22,500 --> 00:45:25,420 I just realized we're well over time. So just wrap up. 477 00:45:25,420 --> 00:45:28,500 I reserved two minutes for the button. I thought your honor said I'm going to give you a couple 478 00:45:28,500 --> 00:45:29,500 of minutes. 479 00:45:29,500 --> 00:45:37,820 Yeah, no, you've had your three plus. Go ahead and finish your point. 480 00:45:37,820 --> 00:45:41,740 The government went much further than that. After arguing at length that there was no 481 00:45:41,740 --> 00:45:45,940 defense is relevant, there is no justification for it, Bannon is not permitted to put on 482 00:45:45,940 --> 00:45:50,860 any reason. The government argued to the jury that there was no justification. They argued 483 00:45:50,860 --> 00:45:55,180 that Bannon didn't comply with the subpoena because he thinks he's above the law. You 484 00:45:55,180 --> 00:45:59,300 can't have it both ways. And when they did this in the opening, I suggested to the judge 485 00:45:59,300 --> 00:46:03,780 that this clearly requires us to call Thompson because they argued he ignored the subpoena. 486 00:46:03,780 --> 00:46:05,180 He didn't ignore the subpoena. 487 00:46:05,180 --> 00:46:06,180 Did you object? 488 00:46:06,180 --> 00:46:12,220 Yes. And the opening, as soon as they said above the law, we had a bench conference and 489 00:46:12,220 --> 00:46:18,580 so on. I would point out to the court that the government clearly understood it had made 490 00:46:18,580 --> 00:46:22,840 a mistake shortly before the trial and they showed buyer's remorse. I cite this on page 491 00:46:22,840 --> 00:46:24,300 three of the- 492 00:46:24,300 --> 00:46:25,740 We read that. We read that. 493 00:46:25,740 --> 00:46:27,300 All right. Thank you, Your Honor. 494 00:46:27,300 --> 00:46:43,740 Thank you very much. The case is submitted.