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Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.

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Speaker 1: Last month, South Dakota Governor Christie Nome signed a bill

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Speaker 1: that bands transgender women and girls in the States schools

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Speaker 1: and universities from participating in school sports leagues that match

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Speaker 1: their gender identity. Now, we will ensure that we have

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Speaker 1: fairness in a level playing field for female athletes here

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Speaker 1: in the state of South Dakota at the K twelve

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Speaker 1: level and at the university level. Texas Governor Greg Abbott

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Speaker 1: ordered the state's Department of Family Service to investigate gender

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Speaker 1: affirming care for minors as child abuse, and order that's

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Speaker 1: been put on hold by a judge. Conservative lawmakers across

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Speaker 1: the country have introduced measures that target trans and non

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Speaker 1: binary youth, from their right to play sports to their

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Speaker 1: right to get gender affirming care or even use the bathroom.

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Speaker 1: Here's transgender activists Eden Rose torres. The people that have

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Speaker 1: never had to think about gender identity, that is such

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Speaker 1: a privilege because those of us that have had to

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Speaker 1: think about it. The reason is is because we don't

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Speaker 1: fit into the two boxes that society has given us,

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Speaker 1: male or female. The American Civil Liberties Union is taking

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Speaker 1: the lead in many of these cases fighting for transgender rights,

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Speaker 1: and one lawyer is leading the a c l USE fight.

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Speaker 1: J Stangio. Bloomberg Legal reporter Eric Larson did a profile

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Speaker 1: on stan Gio. Eric to foodstan Gio's work in context,

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Speaker 1: it seems like we're hearing a lot more about cases

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Speaker 1: where transgender rights are increasingly under attack. That's true. There

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Speaker 1: are dozens of bills that have been proposed in state

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Speaker 1: houses around the country just this year, at least a

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Speaker 1: couple of dozen that seek to restrict essentially activities for

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Speaker 1: trans use, whether it's related to playing in sports or

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Speaker 1: various healthcare measures a gender affirming healthcare measures happening kind

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Speaker 1: of all across the country. You know, clearly it's an

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Speaker 1: issue that the Conservatives and Republicans have jumped on right now.

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Speaker 1: So it's similar to the way we've seen a lot

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Speaker 1: of other similar bills back in the day against same

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Speaker 1: sex marriage and things like that. So it just seems

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Speaker 1: to be what they're focusing on right now. So tell

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Speaker 1: us about Chase Strange, GEO and a c l U lawyer. Yeah,

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Speaker 1: So I noticed that in a lot of these cases

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Speaker 1: that the a c l U had been filing challenging

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Speaker 1: some of these laws that Chase Strangeeo's name was coming up. Um.

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Speaker 1: He has been at the a c l U for

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Speaker 1: several years. He oversees the a c l USED legal

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Speaker 1: response to trans issues. That doesn't mean he's working on

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Speaker 1: every single case or arguing in court in all of them,

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Speaker 1: but he's overseeing broadly what is going on, and he

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Speaker 1: is also personally working on several of those cases as

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Speaker 1: well in court. And protecting trends rights is personal for him. Yeah.

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Speaker 1: He he came out as trends in law school. He

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Speaker 1: told me about, um, you know, the long process that

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Speaker 1: he went through before, you know, coming to this realization

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Speaker 1: and decided that trends rights were something that he needed

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Speaker 1: to focus on for his career. So he went to

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Speaker 1: law school, eventually came out it, worked at a few

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Speaker 1: organizations that focused on lgbt Q rights, and then found

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Speaker 1: himself at the a c l U. And he lives

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Speaker 1: in New York in Queens. He's thirty nine. He is

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Speaker 1: co parenting a nine year old and has been working

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Speaker 1: from home during the pandemic and fighting this legal battle

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Speaker 1: at the same time. Yeah, so he's been leading the

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Speaker 1: charge against an order from the governor of Texas, which

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Speaker 1: directed the state agency to investigate parents or doctors who

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Speaker 1: provide gender affirming care for miners. And this has become

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Speaker 1: a huge issue. And did he argue it there? How

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Speaker 1: much has he worked on that? He didn't do the

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Speaker 1: arguments because they had the a c l U of

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Speaker 1: Texas had a lawyer there in court and we were

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Speaker 1: able to watch that that hearing over zoom on Friday

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Speaker 1: when the decision was handed down granting the injunction against

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Speaker 1: that rule that you just mentioned, blocking the state from

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Speaker 1: enforcing that rule while this litigation proceeds. So while he

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Speaker 1: was not there in court, he is broadly overseeing the

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Speaker 1: a c l use legal response to it. And as

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Speaker 1: you said, this is a huge, sort of huge deal.

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Speaker 1: There's been a lot of these anti trans bills that

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Speaker 1: are being challenged. You know, Chase is working on one

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Speaker 1: case in Idaho challenging that states law banning girls and

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Speaker 1: women from school sports at their trans and another case

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Speaker 1: in Arkansas that bands gender firming care from miners, so

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Speaker 1: he's working on that case. Well, but I think what

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Speaker 1: really made this Texas rule it's not even a law,

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Speaker 1: by the way, it's just um the governor Greg Abbott

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Speaker 1: issued a directive ordering the state agencies to interpret existing

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Speaker 1: law in such a way that the gender firm and

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Speaker 1: care is child abuse. So it wasn't even a new law.

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Speaker 1: It's just there was the directive, but it got a

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Speaker 1: lot of attention across the country because it had a

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Speaker 1: new element where it's basically telling the state to investigate

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Speaker 1: families for child abuse. So it's not just trying to

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Speaker 1: ban gender firming care, it's saying investigate families for child

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Speaker 1: abuse if they if they look into it or try it.

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Speaker 1: He told you that besides the record number of bills

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Speaker 1: being introduced in passing the breath of the cruelty keeps increasing.

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Speaker 1: I think that what he was getting at there is

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Speaker 1: that when they started to target the children is when

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Speaker 1: he really thought that it was getting so cruel because

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Speaker 1: you know, obviously, the folks on the other side of

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Speaker 1: the argument here are saying that they're the ones protecting children,

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Speaker 1: that they're doing is to help children. But that's just

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Speaker 1: not how the a c l U sees it. They

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Speaker 1: see that this gender firming care is something that a

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Speaker 1: lot of people don't know about, and so it's easy

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Speaker 1: to spread misinformation about it and make its sound scary,

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Speaker 1: I think is the way that Chase describes the effort

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Speaker 1: to undermine it. But this point is that there are

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Speaker 1: just some some kids who have gender dysphoria. It's a

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Speaker 1: you know, it's serious psychological issue that they can have.

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Speaker 1: They really strongly identify with a different gender than what

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Speaker 1: they physically appear to be. So it's not like a

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Speaker 1: decision that's made lightly whether or not to have this

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Speaker 1: gender firming care like puberty blockers they're taking um testosterone

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Speaker 1: or hormones. It's something that you know, is very carefully

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Speaker 1: mapped out with psychologists and doctors and parents, and that

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Speaker 1: it's not something that every transmnor does anyway. It's just

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Speaker 1: in some cases it's a very rare occurrence and that

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Speaker 1: these kids really need this help Strangers says, and for

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Speaker 1: the state to try to stop it and demonize their

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Speaker 1: parents were trying to help their kids. I think that's

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Speaker 1: what he was getting at and saying it was just

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Speaker 1: so cruel. And there seemed to be a lot of

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Speaker 1: bills lately or laws that try to ban transgender girls

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Speaker 1: or women from playing on female sports teams. Have any

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Speaker 1: of those cases gotten past the initial stages? Yeah, the

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Speaker 1: state of Idaho was the first to pass the law

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Speaker 1: like this, and Chase went to port there on behalf

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Speaker 1: of a few trans email plaintiffs and the A C

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Speaker 1: L You did win at a preliminary junction blocking that

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Speaker 1: law from taking effects during the case right now, that um,

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Speaker 1: you know, COVID has kind of slowed down a lot

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Speaker 1: of these lawsuits, but it's now on appeal of the

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Speaker 1: because the state is arguing that the plaintiff no longer

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Speaker 1: has standing in the case because she took a year

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Speaker 1: off from Boise State University after she failed to make

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Speaker 1: the cross country team, so she's back at the university,

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Speaker 1: but the state is trying to scrap the case on

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Speaker 1: on those grounds. So that's kind of import on appeal.

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Speaker 1: And there's another case in Connecticut where to non trans

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Speaker 1: female athletes assist gender athletes sued to challenge the state's

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Speaker 1: inclusive policy for transit girls and women, saying that they

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Speaker 1: have an unfair advantage over non trans athletes. So that

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Speaker 1: case was thrown out and they appealed and for the

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Speaker 1: Second Circuit will eventually hold arguments on that. This struck

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Speaker 1: me in your story. You spoke to Mason Donne, a

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Speaker 1: non binary trans right activists in Massachusetts, and he said

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Speaker 1: about Strangio, he marveled at his elegant ability to maintain

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Speaker 1: decorum in the courtroom even when his opponent is actively

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Speaker 1: dehumanizing him to his face with their arguments, and that

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Speaker 1: struck me as quite the lawyer, I guess, yeah, yeah,

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Speaker 1: you know, that's uh, it's certainly something that I'm sure

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Speaker 1: a lot of lawyers have been in similar positions in

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Speaker 1: different ways, whether or not. You know, it's a female

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Speaker 1: lawyer arguing a case about, you know, something like abortion

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Speaker 1: rights or equal pay or things like that, or a

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Speaker 1: black lawyer arguing a case related to racial discrimination. So certainly,

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Speaker 1: I'm sure a lot of lawyers have been in similar positions.

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Speaker 1: But I think because you know, trans community doesn't have

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Speaker 1: quite as much visibility to be a trans lawyer up

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Speaker 1: in court fighting over and discussing very personal aspects of

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Speaker 1: their existence when there's a you know, a well paid

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Speaker 1: taxpayer finance lawyer perhaps on the other side, saying that

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Speaker 1: you're a threat to children. The fact that Chase Stranger

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Speaker 1: is able to sort of let that roll off back

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Speaker 1: and just keep arguing, as people have noticed his ability

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Speaker 1: to do that, because I spoke a few plaintiffs in

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Speaker 1: some of these cases we've been on that are who

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Speaker 1: are trans and sort of felt the same way, but

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Speaker 1: sort of marveled at his ability to keep his cool

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Speaker 1: in court during argument. And he was involved in what

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Speaker 1: was probably the greatest victory for trans rights so far,

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Speaker 1: and that is the landmark Supreme Court ruling that made

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Speaker 1: it illegal to discriminate against trans employees. That's right, that

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Speaker 1: was a big ruling. You know, it interpreted existing federal

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Speaker 1: law against sex discrimination to apply to transgender employees and

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Speaker 1: making a discrimination against trans employees the illegal nationwide. That

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Speaker 1: was a huge victory. There are lots of plaintifts involved,

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Speaker 1: lots of lawyers involved in that case. He was one

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Speaker 1: of them. And he told me he was in the

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Speaker 1: Supreme Court building that data and there's those arguments and

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Speaker 1: basically said, you know that that was one of the

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Speaker 1: greatest days of his life. He said that there were

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Speaker 1: a lot of trans well in the Supreme Court building

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Speaker 1: that day, people watching. So yeah, clearly a big landmark

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Speaker 1: victory for trans rights. But also, he pointed out in

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Speaker 1: my interview, a lot of the backlash started after that

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Speaker 1: as well, such sad ramifications for a great legal victory.

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Speaker 1: Mark Zuckerberg will not have to testify in Washington d

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Speaker 1: c's data privacy lawsuit against Facebook. In fact, the judge

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Speaker 1: overseeing the case called the attempt to get Zuckerberg to

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Speaker 1: testify frankly annoying. Joining me is Bloomberg Legal reporter Eric Larson,

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Speaker 1: who covered this interesting hearing. Tell us what this data

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Speaker 1: privacy lawsuit against Facebook is about. So, the Attorney General

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Speaker 1: of the District of Columbia suit Facebook in two thousand eighteen.

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Speaker 1: It's a consumer protection lawsuit over what they describe as

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Speaker 1: a data breach involving Facebook's data that was used by

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Speaker 1: Cambridge Analytica. You may remember that was that firm in

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Speaker 1: the UK that was used by Homer President Donald Trump

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Speaker 1: two thousand sixteen campaigns. They were able to sort of

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Speaker 1: flice and dice a lot of user data for millions

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Speaker 1: of Facebook users and use it to try to improve

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Speaker 1: Trump's campaign outreach, could say it. And because of the

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Speaker 1: way that that data was used, it was friends of

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Speaker 1: friends data basically, and so no one had really agreed

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Speaker 1: to this use of their data, and the d c

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Speaker 1: a g says this was a violation of the district's

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Speaker 1: consumer protection laws and file the lawsuit in two thousand eighteen.

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Speaker 1: Why didn't they sue Zuckerberg as well? Well, I can't

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Speaker 1: tell you exactly why they didn't at first, although they

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Speaker 1: had tried to add him to the suits. I think

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Speaker 1: that as far as the defendant goes, it was the

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Speaker 1: company itself that had engaged in this alleged behavior. So

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Speaker 1: I don't think it's uncommon to file a suit against

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Speaker 1: the company like that without naming individual executives. That being

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Speaker 1: said that they did try to add Zuckerberg to the

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Speaker 1: suits just recently. They said that they wanted to get

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Speaker 1: his deposition. They said that he had a decision making

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Speaker 1: role at the time period when the decisions were made

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Speaker 1: to allow third party app to start collecting the data

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Speaker 1: in this way, so they wanted to hear from him

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Speaker 1: directly on that. What did the judge decide about deposing Zuckerberg, Well,

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Speaker 1: he wasn't going to have it. He shot down the

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Speaker 1: Attorney General's proposal pretty harshly. I would say, I listened

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Speaker 1: in on the on this hearing and Superior Court in DC.

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Speaker 1: The judge denied the Attorney General's motion to add Zuckerberg

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Speaker 1: is a defendant and granted Facebook's motion for a protective

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Speaker 1: order to block the Attorney General from trying to depose Zuckerberg.

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Speaker 1: So the judge said, look, this is a consumer protection lawsuits.

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Speaker 1: This is about financial damages basically for consumers. The judge said,

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Speaker 1: based on what he had heard, the Attorney General already

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Speaker 1: had plenty of information to go ahead with his case

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Speaker 1: and bring the current claims that he had to trial.

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Speaker 1: He was pretty critical at some point, I would say

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Speaker 1: he was shouting at the district lawyer is saying that

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Speaker 1: they basically were trying to turn this case into a

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Speaker 1: case about Mark Zuckerberg int of a case about Facebook,

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Speaker 1: and it was really critical of their attempt to add

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Speaker 1: saying that they did not need to depose Mark Zuckerberg

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Speaker 1: in order to potentially get damages from this data breach

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Speaker 1: for the district consumer. But it seems like Zuckerberg is

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Speaker 1: a hands on CEO and it would perhaps prove something

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Speaker 1: or ramp up money damages. The d C Attorney General

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Speaker 1: tweeted that allowing third party apps like Cambridge Analytica to

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Speaker 1: access user data was Mark Zuckerberg's brain child. So to me,

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Speaker 1: it seems odd that the judge wouldn't allow them to

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Speaker 1: depose him. Well, I mean, I think then you would

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Speaker 1: have to get into the details of the District of

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Speaker 1: Columbia's consumer protection laws and how just might interpret them.

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Speaker 1: You know, as you said, a lot of this decision

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Speaker 1: making has been exposed, and we're aware now of a

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Speaker 1: lot of the failures that happened at Facebook through Cambridge

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Speaker 1: Analytica and the decision making behind that, and also of

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Speaker 1: course recently whistle blower activity and testimony in Congress. So

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Speaker 1: there's clearly a lot of problems that have been exposed

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Speaker 1: over there as Facebook. But I think the judges point

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Speaker 1: that he was trying to make is just that to

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Speaker 1: prove a data breach and to prove that it occurred,

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Speaker 1: and to prove that residents of the district had their

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Speaker 1: data misused. The judges implying or arguing because that the

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Speaker 1: district can already prove that at trial and that they

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Speaker 1: need to go ahead to trial with the claims that

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Speaker 1: they already have. So at one point the judge did say, look,

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Speaker 1: if you find that Mark Zuckerberg did something wrong with

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Speaker 1: the evidence, you have final a criminal complaining against them.

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Speaker 1: She was being a little flippant, but he's the point.

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Speaker 1: He was making is if Mark Zuckerberg did something wrong,

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Speaker 1: maybe that's a different case. Maybe that's something that you

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Speaker 1: can handle all at different time or another authority. But

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Speaker 1: for the purposes of this lawsuit, he wanted to narrow

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Speaker 1: it and he wanted to speed it up. That the

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Speaker 1: case had been going on too long, and that as

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Speaker 1: far as he could tell, the claims that had already

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Speaker 1: been spelled out in the complaints, they seem to already

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Speaker 1: have enough evidence to take it to trial based on that.

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Speaker 1: Whether or not Mark Zuckerberg personally said do this or

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Speaker 1: don't do this, I think the judge is saying it's

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Speaker 1: irrelevant to the claims in the complaint, and we can't

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Speaker 1: leave out that. The judge quoted from the movie Jerry

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Speaker 1: McGuire in his opinion, like I said, he had said

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Speaker 1: that for the purposes of a consumer protection complaint, it's

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Speaker 1: about getting money back to our consumers at the end

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Speaker 1: of the day, not proving, you know, some sweeping wrong

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Speaker 1: doing by Mark Zuckerberg. So he's saying, if this is

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Speaker 1: about money damages, which consumer protection is he said, you know,

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Speaker 1: it's like Jerry mcguires, he's like Huber getting Junior, show

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Speaker 1: me the money Uh so, he did mention that he

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Speaker 1: likes to reference pop culture and and his hearing its

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Speaker 1: on occasion, and I love those pop culture references. Thanks

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Speaker 1: so much, Eric, that's Bloomberg Little reporter Eric Larson. Steve Bannon,

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Speaker 1: once former President Donald Trump's chief White House strategist, is

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Speaker 1: facing a rare criminal charge of contempt of Congress for

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Speaker 1: refusing to testify before the House Committee investigating the January

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Speaker 1: six riots. In a two hour hearing, Bannon won access

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Speaker 1: to Department of Justice documents reflecting its official position on

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Speaker 1: prosecuting current or former US officials claiming immunity from congressional

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Speaker 1: subpoenas on the grounds of executive privilege. But Bannon may

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Speaker 1: not be able to raise an advice of council defense

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Speaker 1: at his trial. Joining me as former federal prosecutor Robert Mints,

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Speaker 1: a partner at McCarter and English, Bob, what is the

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Speaker 1: House Committee looking for from Steve Bannon? The House Committee

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Speaker 1: start information from Bannon related to his activities as an

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Speaker 1: outside Trump advisor after presidential election, and they're particularly interested

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Speaker 1: in conversation that Bannon allegedly had at the Willard Hotel

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Speaker 1: the day before the attack, when hundreds of Trump supporters

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Speaker 1: protested the elections outcome and ultimately stormed the Capitol building.

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Speaker 1: And so what the House Committee is looking for is

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Speaker 1: they want to know what was said that day, and

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Speaker 1: they were particularly noting the fact that Ban instead that

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Speaker 1: hell is going to break loose the following day. So

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Speaker 1: they want to know what did he know, what did

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Speaker 1: he say, who did he talk to and the day

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Speaker 1: before the insurrection occurred. He made an argument based on

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Speaker 1: Office of Legal Council opinions. Bannon had suggested that that

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Speaker 1: he was relying on the Justice Department's own past advice

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Speaker 1: to White House aids as he fights these criminal charges,

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Speaker 1: and he was particularly citing these Office of Legal Council

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Speaker 1: opinions which are out there. Prosecutors argued that the Justice

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Speaker 1: Department's legal guidance reflected in opinions issued by the Office

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Speaker 1: of Real Council, we're not relevant to whether Banton actually

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Speaker 1: committed the contempt of Congress crimes. But the judge was

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Speaker 1: not persuaded and ordered the Department of Justice to turn

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Speaker 1: over any writings reflecting its official positions on prosecuting current

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Speaker 1: or former U S officials claiming immunity from Congressional subpoena

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Speaker 1: on grounds of executive privilege. At one point, the judge

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Speaker 1: even asked federal prosecutors, isn't there something anomalous. Isn't there

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Speaker 1: something unusual for the Department of Justice to stay, on

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Speaker 1: the one hand, as someone that's absolute immunity and that

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Speaker 1: the Justice Department will not prosecute them, and then to

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Speaker 1: say that those statements, those official statements of d o

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Speaker 1: J policy are not relevant to this case. So he

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Speaker 1: ordered prosecutors to turn over those official statements to Bannon's

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Speaker 1: defense team, and we'll see how the judge handles this

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Speaker 1: issue after Bannon's lawyers get a chance to review these

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Speaker 1: offers of Legal Council opinions. What I don't understand, Bob,

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Speaker 1: is that Bannon had been fired as a presidential advisor

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Speaker 1: years before January six, So what do those Office of

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Speaker 1: Legal Council opinions have to do with him now as

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Speaker 1: a non presidential advisor but an ally of the former

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Speaker 1: president on January six? I mean, it just seems like

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Speaker 1: even if those opinions say senior presidential advisors are absolutely

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Speaker 1: immune from compelled congressional testimony, it wouldn't apply to him anyway,

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Speaker 1: you know, that's exactly right. And Bannon is among a

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Speaker 1: number of Trump allies to excited executive or attorney client

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Speaker 1: privilege when refusing to cooperate with the House Committee. But

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Speaker 1: the other individuals were actually employed by the executive Branch

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Speaker 1: at the time of these communications. Banning is in a

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Speaker 1: different situation raising legitimate executive privilege claims because he was

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Speaker 1: forced to resign from the Trump Whitehouse in two seventeen,

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Speaker 1: more than three years before the insurrection. So his argument

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Speaker 1: that this executive privilege would apply to him when the

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Speaker 1: conversations that he's trying to shield from the House Committee,

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Speaker 1: we're not done while he was employed by the executive branch.

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Speaker 1: It's not a strong an argument and ultimately I think

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Speaker 1: will likely fail. But the judge nevertheless or the Justice

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Speaker 1: Department to turn over statements or writings, whether public or not,

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Speaker 1: reflecting official do o J policy on prosecuting current or

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Speaker 1: former government officials who claim immunity from congressional subpoenas on

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Speaker 1: the grounds of executive privilege. Yeah, no, that's exactly right.

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Speaker 1: The judge did say though, that the ratings have to

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Speaker 1: reflect the d o j's official position, So I think

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Speaker 1: there's some documents that would not be turned over here.

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Speaker 1: But prosecutors did fight vigorously to oppose turning over this

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Speaker 1: information on the ground that it will allow demanding defense

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Speaker 1: team to probe its investigative and prosecutorial decision making. In

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Speaker 1: the eyes of prosecutors, this is something that was simply

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Speaker 1: not relevant. This case boils down to simply the fact

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Speaker 1: that and refused to appear, and that's the issue that

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Speaker 1: they posed to the judge. But the judge did give

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Speaker 1: some leeway to the banned defense team and did order

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Speaker 1: these internal documents, as you say, whether public or not,

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Speaker 1: to be turned over as long as they reflect the

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Speaker 1: official position of the Department of Justice on this issue.

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Speaker 1: And Trump has repeatedly tried to shield from this House

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Speaker 1: Committee information from his time in the White House, and

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Speaker 1: he has been unsuccessful each time in court, right, And

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Speaker 1: the basis for that is that the courts have ruled

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Speaker 1: that the decision over whether executive a privilege would apply

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Speaker 1: is won me by the current president, not the former president.

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Speaker 1: So ultimately it was President Biden's decision as to whether

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Speaker 1: or not to exert executive privilege over these communications, and

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Speaker 1: he decided not to do it, stated that it was

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Speaker 1: in the public at this provided to the House Committee

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Speaker 1: and declined to extend executive privilege, and the courts have

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Speaker 1: upheld that and have denied former presidents from claim to

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Speaker 1: executive privilege when he is no longer a sitting president.

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Speaker 1: The Justice Department is trying to stop Banning from arguing

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Speaker 1: at his trial that he was following the advice of

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Speaker 1: his attorney when he didn't comply with the subpoena. First

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Speaker 1: of all, explain the import of an attorney's advice. Well.

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Speaker 1: The attorney client privilege is one of the bedrocks of

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Speaker 1: the legal system in that it is important for clients

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Speaker 1: to be able to communicate freely and openly with their lawyers,

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Speaker 1: to provide them candid information so that the lawyer can

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Speaker 1: give sound advice to the clients. So that is an

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Speaker 1: area that courts have historically been very careful not to

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Speaker 1: tread upon to invade those conversations, and that is conversations

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Speaker 1: between a client who's providing information to the attorney and

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Speaker 1: then the attorney providing legal advice back to the client. So,

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Speaker 1: of course have historically been very reluctant to pierce the

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Speaker 1: privilege in areas that considered attorney client communications. Is it

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Speaker 1: a defense that he was following his attorney's advice when

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Speaker 1: his attorney told him he didn't have to comply with

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Speaker 1: the subpoena, Well, that's a complicated question. Bannon invoked executive

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Speaker 1: privilege that advised the committee that he would not comply

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Speaker 1: with this with the subpoena until a court rules on

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Speaker 1: that issue. The committee said that and has to comply

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Speaker 1: with the portions of the subpoena not covered by any privilege,

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Speaker 1: and it expected him to appear for his deposition and

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Speaker 1: to produce documents and to raise any privileged issues in

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Speaker 1: response to specific questions. Instead, Bannon simply refused to appear

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Speaker 1: at all, refused to provide any documents at all, and

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Speaker 1: ultimately he was charged with two counts of contempt of Congress,

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Speaker 1: one based on his failure to appear for the deposition

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Speaker 1: and the other based on his failure to produced documents.

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Speaker 1: The contempt actually punishes any person who was summoned as

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Speaker 1: they witnessed by Congress and willfully makes default, meaning they

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Speaker 1: failed to appear, or they appear and refused to answer

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Speaker 1: all of the questions. But it's the burdens on the

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Speaker 1: government to prove that Bannon willfully failed to comply with

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Speaker 1: the subpoena. And this is where the advice of council

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Speaker 1: defense comes in, because he's arguing that he did not

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Speaker 1: willfully fail to comply, that he was relying on the

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Speaker 1: advice his council gave him, essentially that he did not

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Speaker 1: need to appear because he was immune from testimony based

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Speaker 1: upon the Office of Legal Council opinion. But there is

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Speaker 1: a federal appellate court precedent that says defendants cannot invoke

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Speaker 1: their lawyer's advice as a reason to ignore a lawful

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Speaker 1: congressional subpoena. Yes, that's exactly right. There's a nineteen fifty

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Speaker 1: one decision by the d C. Circuit that held that

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Speaker 1: under the Contempt of Congress statute, So it's very limited

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Speaker 1: only to this statute. The advice of council defense cannot

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Speaker 1: immunize a deliberate and intentional failure to appear pursuant to

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Speaker 1: a lawful subpoena issued by Congress. And the reason for

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Speaker 1: that is that if a witness who was summoned to

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Speaker 1: appear before a Congressional committee could simply rely on the

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Speaker 1: advice of counsel that the information being thought by the

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Speaker 1: committee was not relevant to some legislative inquiry. They could

436
00:26:13,480 --> 00:26:18,439
Speaker 1: basically stone wall all congressional peerings and refused with impunity

437
00:26:18,480 --> 00:26:22,040
Speaker 1: to answer any questions based on the counciled advice that

438
00:26:22,200 --> 00:26:26,560
Speaker 1: the area of questioning is not pertinent to the legislative inquiry.

439
00:26:26,640 --> 00:26:29,600
Speaker 1: So there is the urt ruling that says that the

440
00:26:29,640 --> 00:26:33,399
Speaker 1: advice of council defense cannot be raised in connection was

441
00:26:33,560 --> 00:26:36,720
Speaker 1: refusing to appear before a congressional committee. And this decision

442
00:26:36,760 --> 00:26:40,320
Speaker 1: forces a person to essentially choose between either complying with

443
00:26:40,400 --> 00:26:43,480
Speaker 1: the court's order to provide evidence or refusing to comply,

444
00:26:43,880 --> 00:26:47,680
Speaker 1: thereby risking a contempt conviction if those claims are ultimately

445
00:26:47,680 --> 00:26:53,280
Speaker 1: rejected on appeal. The judge appeared ready to give prosecutors

446
00:26:53,320 --> 00:26:57,760
Speaker 1: a victory on this particular point and deny Bannon the

447
00:26:57,800 --> 00:27:02,080
Speaker 1: ability to use the advice of council during trial. But

448
00:27:02,440 --> 00:27:05,879
Speaker 1: what happened to stop the judge from going far with that.

449
00:27:06,680 --> 00:27:10,840
Speaker 1: Batman's lawyer tried to distinguish the nineteen one decision by

450
00:27:10,880 --> 00:27:14,720
Speaker 1: saying it was factually different. He argued that witnesses might

451
00:27:14,800 --> 00:27:18,000
Speaker 1: have to appear before Congress to invoke claims such as

452
00:27:18,040 --> 00:27:22,080
Speaker 1: the right against self incrimination that that executive privilege is

453
00:27:22,119 --> 00:27:25,280
Speaker 1: different because it's the privilege that is held by the

454
00:27:25,359 --> 00:27:29,320
Speaker 1: executive branch and not by the witness. The argument that

455
00:27:29,359 --> 00:27:32,480
Speaker 1: seemed to resonate with the judge and at least pause

456
00:27:32,600 --> 00:27:36,680
Speaker 1: the decision and and resulted in the judge ordering both

457
00:27:36,680 --> 00:27:39,920
Speaker 1: sides to further brief. The issue was when Batman's lawyer

458
00:27:40,080 --> 00:27:43,000
Speaker 1: argued that in ruling that advice of counsel was not

459
00:27:43,119 --> 00:27:45,840
Speaker 1: a defense that could be raised at this time, would

460
00:27:45,920 --> 00:27:50,080
Speaker 1: essentially give Congress of veto power over what executive privilege is.

461
00:27:50,240 --> 00:27:52,640
Speaker 1: That would shift the balance of powers between the president

462
00:27:52,880 --> 00:27:55,960
Speaker 1: and lawmakers. It would essentially say that you have to

463
00:27:56,080 --> 00:28:01,240
Speaker 1: choose between raising the choose between raise being the privilege

464
00:28:01,560 --> 00:28:05,120
Speaker 1: and ultimately being found to be held in contempt or

465
00:28:05,320 --> 00:28:09,520
Speaker 1: rolling over essentially and providing the information. And in this case,

466
00:28:09,600 --> 00:28:13,200
Speaker 1: because executive privilege was implicated, it would a sense of

467
00:28:13,280 --> 00:28:16,639
Speaker 1: rescript the executive branch of the power to assert that

468
00:28:16,760 --> 00:28:20,840
Speaker 1: privilege and shift the balance of power too far over

469
00:28:20,920 --> 00:28:25,040
Speaker 1: to the congressional side. Is what happens in this case.

470
00:28:25,240 --> 00:28:29,560
Speaker 1: In Bannon's case, important would it's set a precedent for

471
00:28:29,680 --> 00:28:34,600
Speaker 1: others who are refusing to appear before the January six committee. Well,

472
00:28:34,680 --> 00:28:37,480
Speaker 1: each of the individuals Hoop had something before the committee

473
00:28:37,680 --> 00:28:41,600
Speaker 1: are in a slightly different factual situation. Some were existing

474
00:28:41,680 --> 00:28:44,840
Speaker 1: employees at the time. Bannon obviously was not. But it

475
00:28:44,960 --> 00:28:47,840
Speaker 1: is very important here because from the Department of Justice

476
00:28:47,880 --> 00:28:51,040
Speaker 1: is standpoint. You get a subpoena from a congressional committee

477
00:28:51,200 --> 00:28:54,000
Speaker 1: and you simply have to appear. The only thing prosecutors

478
00:28:54,040 --> 00:28:56,920
Speaker 1: believe they have to prove here is that you willfully

479
00:28:57,240 --> 00:29:00,200
Speaker 1: failed to appear before the committee. Once you're in front

480
00:29:00,200 --> 00:29:02,960
Speaker 1: of the committee, whether you raise certain privileges or not

481
00:29:03,320 --> 00:29:06,560
Speaker 1: is a separate issue here. Bannon flatly refused to appear,

482
00:29:06,800 --> 00:29:10,680
Speaker 1: flatly refused to produce documents, and that's ultimately why prosecutors

483
00:29:10,880 --> 00:29:13,640
Speaker 1: decided to take the very unusual step and indict him

484
00:29:13,680 --> 00:29:17,200
Speaker 1: for contempt of Congress. Bob Sum up for us the

485
00:29:17,280 --> 00:29:21,880
Speaker 1: prosecution's case. The government here has to prove that the

486
00:29:21,920 --> 00:29:25,640
Speaker 1: defendant acted with knowledge such as conduct was unlawful. The

487
00:29:25,680 --> 00:29:29,520
Speaker 1: advice of defense seeks to negate that conclusion by showing

488
00:29:29,560 --> 00:29:32,840
Speaker 1: that the defendant relied in good faith on Council's advice

489
00:29:33,160 --> 00:29:35,240
Speaker 1: and that the course of conduct that you took was

490
00:29:35,320 --> 00:29:39,120
Speaker 1: therefore legal The government's position is that the summoned witness

491
00:29:39,200 --> 00:29:44,040
Speaker 1: doesn't get to decide if Congress can make them show up. Basically,

492
00:29:44,200 --> 00:29:48,480
Speaker 1: the government argues that the contempt charge changes simply unquestioned

493
00:29:48,520 --> 00:29:51,000
Speaker 1: of whether or not you showed up, if the defendant

494
00:29:51,040 --> 00:29:55,400
Speaker 1: makes a deliberate and intentional decision not to appear. Prosecutors

495
00:29:55,440 --> 00:29:59,720
Speaker 1: believe that that will satisfy the requisite intense for contempt.

496
00:30:00,400 --> 00:30:04,120
Speaker 1: Thanks Bob. That's Robert Mints of McCarter and English, and

497
00:30:04,200 --> 00:30:06,360
Speaker 1: that's it for this edition of The Bloomberg Law Show.

498
00:30:06,720 --> 00:30:09,200
Speaker 1: Remember you can always get the latest legal news honor

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00:30:09,240 --> 00:30:13,360
Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

500
00:30:13,560 --> 00:30:18,600
Speaker 1: and at www dot Bloomberg dot com, slash podcast, Slash Law,

501
00:30:19,000 --> 00:30:21,120
Speaker 1: and remember to tune in to The Bloomberg Law Show

502
00:30:21,280 --> 00:30:24,080
Speaker 1: every week night at ten p m. Wall Street Time.

503
00:30:24,600 --> 00:30:27,320
Speaker 1: I'm June Grossow, and you're listening to Bloomberg