All none extraordinary and
please stand. Case number 22
30 86, United States of
America versus Stephen K.
Morning. Morning, Mr. Sean.
Morning, Amber. You can adjust the podium to suit your comfort level up or down. Proceed
when you're ready. Thank you. 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 will. Moving forward about 300 years, our own Supreme Court in a flurry
of cases, the past seven years or so, seven, eight years, focused on the fundamental nature
of mens rea under our criminal justice system. And they decided the cases cited in Mr. Brannon's
brief, recent cases, 2015. With principles that are remarkably similar to Mr. Blackstone's
understanding that were abandoned in the instant case, just last year in Ruan versus United
States, the 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. Quoting from
the Morissette case, it's a fundamental principle in our system. I refer to the Alonus decision
also in the brief. And now for this circuit, there's Pillar, I don't think I have to tell
your honor what the court said in, wrote in United States versus Burden, but I think it's
important, I don't think I have to tell any of the judges, Judge Pillar, judge in that
point. This court, the case appears to set the threshold for what willfully means. It
juxtaposes it knowingly, just as Justice Alito did in his dissenting opinion in Alonus. And
it said first of all, of course, that it's a word of many meanings. And the defendant
in that case, like many other defendants, claimed that they had to be, they should have
to be required to be aware of the specific law they violated. The court, this court rejected
that. And they said though, they set a baseline for what mens rea means in relationship to
the charged actus rea. The court found that a requirement the defendants have the prescribed
conduct know the prescribed conduct was unlawful. That's the baseline. And the court gave examples
of how it's applied in other cases, the more complicated cases like cheek with a more stringent
standard, but at a bare minimum that it's required that the defendant know or understand
that his or her conduct was unlawful or wrong. 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, to behave in response to the subpoena.
So counsel, I appreciate those arguments, but I just, could you focus on our 1961 decision
in Likovoli and what your best argument is that that case simply doesn't tie our hands.
And just to set the stage, as you know, that decision addressed this statute and squarely
held in an advice of counsel defense is not relevant. All that you need is a deliberate
and intentional failure to respond to a subpoena. And the cases that you've relied on discuss
the meaning of the term willfully generally, but they're not about this statute. So I think
the key question is, what is your best authority that we as a panel can depart from that 1961
decision?
Yes, your honor. I think there are a number of reasons why that decision is not binding
on this court in this case. And I'd like to go through them quickly, but first of all,
what I'd like to say is in Likovoli and in Sinclair, there's not a very rich analysis
of why the advice of counsel wouldn't apply. In contrast, this court's decision in Townsend
versus United States 1938 decision, the court comes to a very different conclusion. 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 in the Likovoli case? Let me give an example. This was an
appeal from a conviction under this statute to USC 192, well after Sinclair and the panel
cites Sinclair in its decision. They noted Sinclair's holding and then the court wrote,
this court wrote, however, the Supreme court has also held perhaps on the theory that willfulness
is a type of specific intent that where the crime involves willful intent and 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, 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. But Townsend
offers a much richer and more comprehensive analysis of the idea than either Sinclair
or Liccavoli 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. Let me go
through it.
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. There's not any issue before us here as to whether there is in fact a valid assertion
of executive privilege that would be a defense, that would itself be a defense against the
contempt charge. It's through the 192 willfulness issue.
I think that's right, Your Honor, with two caveats. Number one, one is not a caveat.
And 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. 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 a stopper. 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. That's what those go to. And so I can get
into that. Happy to get into that if you like. But right now I'm going to focus on the on
the Likavoli question of why this case differed from...
I take your attention to the FINAs that were quashed by the district court. You know what
I'm talking about? Yes, sir.
Okay. Take the document that you requested that is most relevant to the case.
Well, I list out a number of examples in the record and in the appendix and the brief,
and I also made a very detailed proffer to the district court. But if I were to have
to pick one at this point, I would say there's a Chairman Thompson's testimony, frankly,
Chairman Thompson's testimony on issues that became issues in this case, the court in this
case barred all defenses.
What's the question that you wanted to ask Chairman Thompson?
Chairman Thompson continued writing letters after the date of the subpoena that urged
Mr. Bannon to continue to comply with the subpoena. Those were his words. That would
indicate that the subpoena was still alive. 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. Ms. Amerling wasn't qualified to know what
to testify as to what Chairman Thompson meant when he said, I urge you to continue to comply.
Even after former President Trump wrote the letter saying confirming that he had invoked
privilege and withdrawing privilege now so that Bannon could testify, July 14th, 2022,
Chairman Thompson wrote another letter saying, I urge you to comply with the subpoena. So
that's one thing. Other would be the authority of the committee, the issue of the subpoena.
Remember, these committees are, as you well know.
That's the topic. What's the document or what's the question that you wanted to ask Chairman
Thompson?
There are many of them.
One question that would have been relevant would have been on the sole defense that the
court allowed, whether the subpoena was still open and why, if these dates that were in
the indictment were fixed dates, why did it continue on?
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. I mean, tax returns, 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.
So I'm not sure that I follow that. First of all, it's in the record that Thompson
continued to want the testimony. So I'm not sure why you would need any...
Your honor.
... but it's more, you're raising an inference or you're drawing an inference from that,
that I'm not sure it supports.
Your honor, a related question would be why the committee refused to accommodate. There's
a constitutional mandate under US versus AT&T to try to reach an accommodation. In this
case, what Bannon said through Costello to the committee was, Costello said Bannon's
hands are tied, privilege has been invoked, he cannot comply. However, if you resolve
privilege with Trump or get a court to order Bannon to comply, he will comply in full.
Secondly.
Does it matter under that theory whether the former president or the incumbent president
had communicated any assertion of privilege to the committee?
No, your honor, it does not.
It doesn't matter. So any lawyer can say, I'm speaking for the president here, I don't
have anything to show you, but talked on the phone to someone and they're asserting privilege.
I mean, when you look at the past cases, like take the Myers case where there's a detailed
district court opinion by Judge Bates, there typically is a formal assertion.
Typically, your honor, yes. 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. When you're talking about the ex ante obligatory-
Sure, your honor. Yes, your honor.
... state, and I'm thinking about whose burden is it to make the next foray into a process
of accommodation, and the committee has served a subpoena, 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 or something, but
I don't see in the record that there was any response other than no.
Good answers, your honor. I think there was more than no, frankly. He said, 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 that was at the committee's behest. The committee asked Castello
to accept the subpoena, and he did, but Mr. Bannon only knows what Castello tells him.
This part of the defense is relying on advice of counsel, and by the way, the lack of communication
or accommodation didn't turn on whether Justin Clark had the authority of the president.
It's whether an executive privilege could apply because he's a former president and
because he's a former advisor. All of those issues, which Castello assured Bannon, were
not real issues. But at the end of the day, when after the deadline had passed, President
Biden had a representative come in, Jonathan Sue, 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. That's on the 18th of October. Castello writes
to the committee and says, I understand this is case Trump versus Thompson out there. It's
dealing with the issue of whether an incumbent president overrides the invocation of privilege
from the previous president. I'd like to be able to study that. Also, President Biden
has just said he could go forward with the testimony. Chairman, he asked for a one week
extension. Chairman Thompson said no. The committee is going forward tomorrow with a
vote and they did. That's part of what I call the accommodation process being violated.
I just have to return quickly. I know I'm up with my rebuttal time already, but I was
asked the question earlier about reasons to distinguish this case.
You can proceed. Our practice is that as long as we're asking questions, you get extra time.
Thank you. There are many answers, but one at Brewster, from this court, talks about
applying the panel rule. It's clear that it's only applied firmly in cases that are not,
that are factually indistinguishable. This case for a major reason is factually distinguishable.
That is the invocation of executive privilege. That changes everything, the entire dynamic
in the case. 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, first of all, when the privilege is invoked, it's presumptively
valid. 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.
So can I just ask one question about this, the narrative there. 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. And I believe that was October 18th. And I just want to
read to you from the October 16th letter from Justin Clark to Mr. Costello. 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. As I indicated to you the other day, we don't
believe there is. So how do you reconcile that communication with your argument today?
A couple of ways. Number one, use of the term immunity is just wrong there. Justin Clark
couldn't confer immunity. President Trump couldn't confer immunity on anyone. We know
that from the McGahn case and otherwise. Secondly, anecdotally, Costello has said Justin Clark
was telling him a completely different story. Justin Clark was making clear to him in his
declaration, was making clear to him that Bannon could not comply with the subpoena
because this was a protective assertion of the privilege. Bannon was in a position to
know what documents, testimony would be covered by it and what wouldn't be covered by it.
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. But the idea is, Congress can't decide whether the privilege
was properly invoked or not. When the privilege is invoked, it's up to a court as the only
arbiter, not Congress. And quite frankly, the government told the jury a different thing.
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.
Never in our system is Congress the arbiter of a subpoena. That's McGahn unbunked.
But why isn't the retort that in your view, the former president or even more removed,
someone that talked to a representative of the former president and advises his client
is the arbiter of the privilege? 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 the ability of the congressional committee to investigate?
Two reasons, John. I don't think it overrides that. But two reasons. One, he is his lawyer.
Advice of counsel is the defense. And secondly, the privilege is presumptively valid. And
so when Clark writes in his letter a vigorous assertion of the privilege, it covered deliberative
processes and communications.
But it's just that's so broad to say it's presumptively valid. 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. And none of the conducted issue here was during Mr. Bannon's
service in the White House, was it? None of it.
Right, Judge. It was during the presidency.
But not during Mr. Bannon's service.
Correct, Your Honor.
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
service?
Yes, Your Honor. First of all, Your Honor, the OLC opinion that I've cited in the brief
on the determination about choosing U.S. attorneys doesn't require it.
The Myers.
Yes. Doesn't it require to be an employee of the executive branch at all? And that makes
sense. If the former or otherwise. And if the president wants to consult, let's say
the president determines doesn't think he or she doesn't think the economy is doing
so well. 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. The president has that prerogative, solely
his prerogative.
What about the 15 different numbered topics out of the 18? Or I might have the numbers
wrong. You know, for for 14 out of 17, there's a whole list of topics and subpoena. And I
think only three of them even mention communications with the former president.
So number of answers to that. This starts with and in his subject to what Costello has
told he did what a lay person should do. He hired a lawyer period. But Costello's theory
on that issue that he has the lawyer told the ban is this subpoena under the OLC opinion
that says if the committee refuses to allow the privilege holders representative to be
present during a deposition, the subpoena is unconstitutional and invalid. This was
one subpoena. It required testimony and documents. Therefore, Costello, the lawyer, told ban
and the lay person this subpoena is absolutely unconstitutional and invalid. Not only can't
you comply with it, you have no obligation to comply with it for that reason. In addition
to the others, he made very clear in his declaration. And again, I asked the court to consider
in the broader picture, how should a lay person respond when a lay person gets this subpoena
from a committee? All of communication is through the lawyer and the lawyer tells him
or her in definitive terms, they may not comply. Their hands are tied. At least let a jury
decide whether that was reasonable or appropriate advice, whether the lawyer had all of the
facts, but let a jury decide we don't treat a person who believes he or she is acting
in full compliance with the law. And then the only way the law applies only complies
with the law. We don't treat that person the same as a wrongdoer, as a liquefied, a mobster
who just didn't show up.
I want to return with maybe just one question to the subpoenas that were quashed on speech
and debate grounds. You submitted a 28J letter about a recent opinion from this court in
the concealed case. 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. I think that that case did
not purport to be breaking new ground or establishing a new rule. And so my question to you is,
to the extent that we think something like that should have happened here but didn't,
not saying we do, it seems like you have not made that argument or you did not make that
argument in your briefing. And so isn't it forfeited?
I don't think so. 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. But I really filed the 28J letter because it specifically speaks
about things that aren't covered. The court in this case, Mr. Letter's position in this
case was you should have a blanket speech and debate clause. This court made clear in
the Ray Steele case that that's not the way to approach it. We don't have a blanket thing.
And my objection was that the court treated it in blanket fashion. But also it specifically
spoke about press releases. And that's something I emphasized in my papers is that these members
of the committee evidenced, 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. And
so I thought that this case made clear in there when they say things like statements
to the press and so on. It may not have broken new ground, but it's a recent decision since
the briefing that I thought made that point. Do you see any need? The government has asked
for a remand to correct the judgment. They see some $50 discrepancy. Is that something
that requires a remand? I don't think so. But I don't think my position won't turn on
that. All right. Thank you. Thank you. You have sought to reserve time for rebuttal.
We've used your time, but we'll give you a couple minutes. Thank you. Good afternoon.
May I please support Elizabeth Spinella for the United States? 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. That was contempt of Congress, and he was
properly convicted. 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. 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. My understanding is that it matters neither to your position
nor to Mr. Bannon's position. Is that right? He has suggested it is relevant to his due
process claim. I don't think so. I think he suggested that Mr. Bannon's, the advice of
counsel, referencing executive privilege is all that matters. Certainly on the mens rea
issue, I understand his assertion with respect to executive privilege to be relevant to his
claim of entrapment by the stop all public authority. But let me put that aside for the
moment and talk about mens rea. Because the district court did not err in barring Bannon
from putting on evidence or argument relating to his claim that he acted in good faith on
advice of counsel based on the alleged assertion of executive privilege. 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. Good faith, including advice
of counsel, is not a defense. Cases interpreting other statutes do not change the establishment's
rea for contempt of Congress. Now, we recognize that for many cases the government asked to
prove that the defendant did act with a wrongful intent. But for section 192, the Supreme Court
has held that no moral turpitude is required. Intentional violation is sufficient to constitute
guilt. That was a holding in Sinclair where the defendant had claimed that the judge erred
and he was entitled to a new trial because he was precluded from putting on evidence
that he acted in good faith on advice of counsel. So what about Mr. Shone's position that you
have a client who's not a lawyer? His lawyer tells him full, absolute testimonial privilege
here and in any event, it's flexible, there's an accommodation process, you know, and in
fact this layperson has testified before Congress in the past and maybe that adds credibility
to the notion that there's going to be some kind of accommodation process. So the only
recourse for this defendant is malpractice claiming he's a former lawyer?
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. That's page 208 of that opinion. And Bannon here certainly
had reason to be questioning his lawyer's advice given that not only did Chairman Thompson
make clear that his executive privilege excuse wasn't going to fly and that he would be held
in contempt of Congress if he continued in his fail to comply, but also where the president's
own lawyer admonishes Costello and Costello admits that he shares his correspondence with
Bannon and Clark says as you've pointed out, Judge Garcia pointed out that the defendant
in this case, Bannon, was not immune from testifying. I don't understand the distinction
that counsel has made here. Clearly the point that Clark was making was that Bannon was
required to show up and that's consistent with both the procedures that the committee outlined
for raising objections and Judge Pillers, you've pointed out the number is 14 out of
17. 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 with
Costello which we know got forwarded to Bannon. So in terms of fairness, the Supreme Court
has said this is what the law is and even apart from this court's binding decisions
in cases like Fields and Dennis and LeCovoli, there is controlling Supreme Court authority
that required the district court to exclude Bannon's good faith defense.
The opposing counsel mentioned a United States v. Townsend case and I think maybe it wasn't
mentioned in his briefing until the reply brief when it replied to that.
Townsend did not 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 LeCovoli. 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. So Townsend cannot be read as somehow being in conflict
with this court's later ruling. Do you think it was appropriate for the prosecutor
in the case at closing argument to tell the jury that Bannon had quote no justification
for doing what he did? 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
and given the case law that does not recognize good faith as a defense then yes that was
a correct statement he did have no justification for acting as he did.
Bannon seems a little weird. I'm not saying it's just positive in this case by any means
but it seems like if you're right, I think you probably are, the district court properly
kept out any of Bannon's defenses about his kind of subjective state of mind or the reasons
why Bannon did what he did. You know if the district court tells Bannon 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. Again given the state of the case law that
was a legally correct argument. He did not have a legal justification for acting as he
did. Bannon had a choice. When the committee overrides his executive privilege excuse,
he could either at that point comply or not comply and risk contempt. He was aware of
that risk, he took it and he was properly prosecuted.
I think when you 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. Do you think it would be appropriate for us to reach it? Do you
think we should reach that question or not? 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 executive
privilege is an additional basis to distinguish those opinions. 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?
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.
That none of the OLC opinions address that. There's also the fact that the OLC does not
provide guidance to private individuals. It makes that clear on the website. It provides
guides to the Department of Justice and to the executive agencies.
So is there a next reason? Because the 2007 OLC opinion has at least some general language
about the need to contact private citizens in the context of US attorneys. So I'm curious
what the next reason would be. Well, a couple responses with that. One, the
2007 opinion is not talking about prosecution. It's just talking generally about executive
privilege. 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. But also that decision
was in the context of a president's official decision making. It doesn't address the issue,
which is an open issue. We're not taking a position on it. Whether communications regarding
a political campaign and its aftermath would also be within the scope of executive privilege.
Why does your answer involve all these open questions? 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. And here, President Trump didn't assert executive
privilege. Well, this goes back to Judge Hillert's question
and perhaps Judge Garcia's too as to which is our best argument. There are several ways
home. 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 opinions didn't make sense
in this case. Just one question. I think it's clear based
on the arguments today, this is very much a hypothetical question. 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? Is the answer
simply to be raised as an affirmative defense rather than through the lens of mens rea?
Let me just back up and also clarify, if I may, your hypothetical. To clarify, let's
assume that your assertion of executive privilege is with respect to a private citizen rather
than an executive branch employee. Because it's the executive branch employee, we actually
have an assertion of executive privilege. That case wouldn't get prosecuted. But let's
assume that that doesn't matter and that we have someone who is prosecuted. Again, I wanted
to back up. 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. Again, that's not this case. I understand
you're talking more generally. If the committee overrules the executive privilege claim, 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.
Didn't that happen also in the Harriet Myers case where it was a declaratory judgment suit
before Judge Babes seeking to determine the privilege issue?
Right. There could be separation or speech or debate clause issues if a suit was filed
against the committee. The more likely scenario would be if the president chose to vindicate
his interest in executive privilege, the president would have to intervene. Now, in this case,
of course, the president chose not to intervene. Despite Stelos' entreaties, Clark did not
identify what was privileged. He did not reach out to the committee, nor did he step in once
the committee overruled the executive privilege justification.
I have a related question. Mr. Shuman 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 president
who would be allowed to be in the deposition. What's the response on that?
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 counsel could not attend. Bannon's attorney,
either Bannon or his attorney, actually asked any member of the committee. Costello raised
this issue with committee staffer Sean Tenali on October 13th, after Costello had already
made it clear that Bannon was not going to testify. This is at pages 429 and 439 of the
appendix. Costello says he only is asking us for future reference, doesn't need an immediate
answer, and Tenali demurs, does not give an answer. So the committee never rejected that
specific request. But even if it had, the only basis 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. And again, there was an assertion of executive privilege,
a direct assertion. And in any event, exclusion of agency counsel issue would not have affected
Bannon's obligation to provide documents. Judge Walker, I just want to return to your
questions about the subpoenas. And counsel for Bannon has suggested that it was necessary
to call Chairman Thompson to ask about the later request that Bannon still comply with
the subpoena. Bannon had already defaulted at that point. He had already committed the
offense. 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. Also, as the
district court found, the Congress's specific motivations, internal deliberations would
be protected by the speech debate clause because they were in the legislative sphere. And in
any event, none of the matters. Go ahead. I guess I asked about relevancy because I
wonder if any of the subpoena documents or the questions that he was hoping to ask the
subpoenaed witnesses were relevant. And if they were all irrelevant, we wouldn't even
have to reach the speech and debate clause issue. Do you agree with that?
That's absolutely right. And that's really the shortcut answer to your question about
Inray's sealed case. And just to direct the court, the district court made specific findings
that went through the various categories of information sought in denying the motion for
a new trial. That's at pages 4, 6, 8, 3, 86 of the appendix.
I think it's 4, 6, 8, 3, 4, 6, 8, 6 of the appendix. So yes, you can sidestep.
The answer was none of them are relevant. None of them were relevant.
Even the documents that the district court said are protected by speech and debate, even
those were not relevant. Correct. And you'll see looking at the
judge has several pages in the ruling that addresses the various topics.
On the judgment and commitment order question that I believe you had asked, I realized when
going back and reading the J&C that that was my mistake. In fact, the 45 or the 6550 figure
is correct because it includes the combined special assessment. That was my mistake. I
apologize. Just ignore footnote one in our brief.
That was my understanding. Great. That's helpful.
Thank you. And unless the court has any further questions, we'd ask you to affirm the judgment
of the district court. Thank you.
Thank you. If I might just briefly respond to a couple
of them. First of all, Mr. Bannon, neither Mr. Bannon
nor Mr. Estello suggested that they were the ultimate arbiter. They asked quite clearly
in their letter for it to have a court decide this. That doesn't mean that they had to
bring the action. They suggested to the committee that Bannon would comply fully if the committee
had a court to order it. And that's part of the accommodation process. That's what the
cases have said in U.S. versus House of Representatives. That's what the cases say in McGahn and some
of the other cases. That's part of the process. And it's appropriate. Congress can't decide.
Congress can't be the arbiter of its subpoena or of the validity of executive privilege.
That's what McGahn on bank says. I don't really understand the point Mr. Estello said about
Townsend. I read from Townsend and Townsend unequivocally says Mr. Estello said Townsend
didn't hold or suggest that if a defendant acted in good faith, that would be a defense.
The court could not have been clearer in Townsend in saying expressly that the reliance on advice
of counsel is a justification defense when willfully willful intent is what's required
in the statute. This same statute that's on pages 358 to 359. There's not a question about
what that case says. It's true as early as later. But that court was aware of Sinclair.
They cite Sinclair repeatedly. There's no question about it. Do you think the committee
would have asked Bannon anything that was unprotected by executive privilege? I don't
know what the committee would have asked. I think the committee had an agenda, was a
political agenda. I don't know what the committee would have asked. I know that the reasons
that Bannon. I guess if you don't know what they were going to ask, how can you be so
sure that everything would have been protected by executive privilege? I can't be that sure
of it. The advice might not have been correct that Bannon got. I can't be so sure that everything
was protected. But that's the advice that Bannon got from his lawyer and that the subpoena
was invalid. And again, it was one subpoena. That's why their theory is that, and this
is what Costello told Bannon, that it applied because it asked for the documents and the
testimony in one subpoena. Therefore that subpoena was invalid. I said that the evidence
was uncontroverted about Costello getting that information from the committee that they wouldn't
permit privilege holder to be present because there is no competent evidence controverting
it. I refer the court to A364. The only evidence on the thing that's competent evidence was
submitted to this court is Costello'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. 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 Bannon? The government went much further than that. They went much further in arguing.
First they argued that there is, I'm sorry, Judge.
I just realized we're well over time. So just wrap up.
I reserved two minutes for the button. I thought your honor said I'm going to give you a couple
of minutes.
Yeah, no, you've had your three plus. Go ahead and finish your point.
The government went much further than that. After arguing at length that there was no
defense is relevant, there is no justification for it, Bannon is not permitted to put on
any reason. The government argued to the jury that there was no justification. They argued
that Bannon didn't comply with the subpoena because he thinks he's above the law. You
can't have it both ways. 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.
He didn't ignore the subpoena.
Did you object?
Yes. And the opening, as soon as they said above the law, we had a bench conference and
so on. I would point out to the court that the government clearly understood it had made
a mistake shortly before the trial and they showed buyer's remorse. I cite this on page
three of the-
We read that. We read that.
All right. Thank you, Your Honor.
Thank you very much. The case is submitted.