Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
Speaker 1: Last month, South Dakota Governor Christie Nome signed a bill
Speaker 1: that bands transgender women and girls in the States schools
Speaker 1: and universities from participating in school sports leagues that match
Speaker 1: their gender identity. Now, we will ensure that we have
Speaker 1: fairness in a level playing field for female athletes here
Speaker 1: in the state of South Dakota at the K twelve
Speaker 1: level and at the university level. Texas Governor Greg Abbott
Speaker 1: ordered the state's Department of Family Service to investigate gender
Speaker 1: affirming care for minors as child abuse, and order that's
Speaker 1: been put on hold by a judge. Conservative lawmakers across
Speaker 1: the country have introduced measures that target trans and non
Speaker 1: binary youth, from their right to play sports to their
Speaker 1: right to get gender affirming care or even use the bathroom.
Speaker 1: Here's transgender activists Eden Rose torres. The people that have
Speaker 1: never had to think about gender identity, that is such
Speaker 1: a privilege because those of us that have had to
Speaker 1: think about it. The reason is is because we don't
Speaker 1: fit into the two boxes that society has given us,
Speaker 1: male or female. The American Civil Liberties Union is taking
Speaker 1: the lead in many of these cases fighting for transgender rights,
Speaker 1: and one lawyer is leading the a c l USE fight.
Speaker 1: J Stangio. Bloomberg Legal reporter Eric Larson did a profile
Speaker 1: on stan Gio. Eric to foodstan Gio's work in context,
Speaker 1: it seems like we're hearing a lot more about cases
Speaker 1: where transgender rights are increasingly under attack. That's true. There
Speaker 1: are dozens of bills that have been proposed in state
Speaker 1: houses around the country just this year, at least a
Speaker 1: couple of dozen that seek to restrict essentially activities for
Speaker 1: trans use, whether it's related to playing in sports or
Speaker 1: various healthcare measures a gender affirming healthcare measures happening kind
Speaker 1: of all across the country. You know, clearly it's an
Speaker 1: issue that the Conservatives and Republicans have jumped on right now.
Speaker 1: So it's similar to the way we've seen a lot
Speaker 1: of other similar bills back in the day against same
Speaker 1: sex marriage and things like that. So it just seems
Speaker 1: to be what they're focusing on right now. So tell
Speaker 1: us about Chase Strange, GEO and a c l U lawyer. Yeah,
Speaker 1: So I noticed that in a lot of these cases
Speaker 1: that the a c l U had been filing challenging
Speaker 1: some of these laws that Chase Strangeeo's name was coming up. Um.
Speaker 1: He has been at the a c l U for
Speaker 1: several years. He oversees the a c l USED legal
Speaker 1: response to trans issues. That doesn't mean he's working on
Speaker 1: every single case or arguing in court in all of them,
Speaker 1: but he's overseeing broadly what is going on, and he
Speaker 1: is also personally working on several of those cases as
Speaker 1: well in court. And protecting trends rights is personal for him. Yeah.
Speaker 1: He he came out as trends in law school. He
Speaker 1: told me about, um, you know, the long process that
Speaker 1: he went through before, you know, coming to this realization
Speaker 1: and decided that trends rights were something that he needed
Speaker 1: to focus on for his career. So he went to
Speaker 1: law school, eventually came out it, worked at a few
Speaker 1: organizations that focused on lgbt Q rights, and then found
Speaker 1: himself at the a c l U. And he lives
Speaker 1: in New York in Queens. He's thirty nine. He is
Speaker 1: co parenting a nine year old and has been working
Speaker 1: from home during the pandemic and fighting this legal battle
Speaker 1: at the same time. Yeah, so he's been leading the
Speaker 1: charge against an order from the governor of Texas, which
Speaker 1: directed the state agency to investigate parents or doctors who
Speaker 1: provide gender affirming care for miners. And this has become
Speaker 1: a huge issue. And did he argue it there? How
Speaker 1: much has he worked on that? He didn't do the
Speaker 1: arguments because they had the a c l U of
Speaker 1: Texas had a lawyer there in court and we were
Speaker 1: able to watch that that hearing over zoom on Friday
Speaker 1: when the decision was handed down granting the injunction against
Speaker 1: that rule that you just mentioned, blocking the state from
Speaker 1: enforcing that rule while this litigation proceeds. So while he
Speaker 1: was not there in court, he is broadly overseeing the
Speaker 1: a c l use legal response to it. And as
Speaker 1: you said, this is a huge, sort of huge deal.
Speaker 1: There's been a lot of these anti trans bills that
Speaker 1: are being challenged. You know, Chase is working on one
Speaker 1: case in Idaho challenging that states law banning girls and
Speaker 1: women from school sports at their trans and another case
Speaker 1: in Arkansas that bands gender firming care from miners, so
Speaker 1: he's working on that case. Well, but I think what
Speaker 1: really made this Texas rule it's not even a law,
Speaker 1: by the way, it's just um the governor Greg Abbott
Speaker 1: issued a directive ordering the state agencies to interpret existing
Speaker 1: law in such a way that the gender firm and
Speaker 1: care is child abuse. So it wasn't even a new law.
Speaker 1: It's just there was the directive, but it got a
Speaker 1: lot of attention across the country because it had a
Speaker 1: new element where it's basically telling the state to investigate
Speaker 1: families for child abuse. So it's not just trying to
Speaker 1: ban gender firming care, it's saying investigate families for child
Speaker 1: abuse if they if they look into it or try it.
Speaker 1: He told you that besides the record number of bills
Speaker 1: being introduced in passing the breath of the cruelty keeps increasing.
Speaker 1: I think that what he was getting at there is
Speaker 1: that when they started to target the children is when
Speaker 1: he really thought that it was getting so cruel because
Speaker 1: you know, obviously, the folks on the other side of
Speaker 1: the argument here are saying that they're the ones protecting children,
Speaker 1: that they're doing is to help children. But that's just
Speaker 1: not how the a c l U sees it. They
Speaker 1: see that this gender firming care is something that a
Speaker 1: lot of people don't know about, and so it's easy
Speaker 1: to spread misinformation about it and make its sound scary,
Speaker 1: I think is the way that Chase describes the effort
Speaker 1: to undermine it. But this point is that there are
Speaker 1: just some some kids who have gender dysphoria. It's a
Speaker 1: you know, it's serious psychological issue that they can have.
Speaker 1: They really strongly identify with a different gender than what
Speaker 1: they physically appear to be. So it's not like a
Speaker 1: decision that's made lightly whether or not to have this
Speaker 1: gender firming care like puberty blockers they're taking um testosterone
Speaker 1: or hormones. It's something that you know, is very carefully
Speaker 1: mapped out with psychologists and doctors and parents, and that
Speaker 1: it's not something that every transmnor does anyway. It's just
Speaker 1: in some cases it's a very rare occurrence and that
Speaker 1: these kids really need this help Strangers says, and for
Speaker 1: the state to try to stop it and demonize their
Speaker 1: parents were trying to help their kids. I think that's
Speaker 1: what he was getting at and saying it was just
Speaker 1: so cruel. And there seemed to be a lot of
Speaker 1: bills lately or laws that try to ban transgender girls
Speaker 1: or women from playing on female sports teams. Have any
Speaker 1: of those cases gotten past the initial stages? Yeah, the
Speaker 1: state of Idaho was the first to pass the law
Speaker 1: like this, and Chase went to port there on behalf
Speaker 1: of a few trans email plaintiffs and the A C
Speaker 1: L You did win at a preliminary junction blocking that
Speaker 1: law from taking effects during the case right now, that um,
Speaker 1: you know, COVID has kind of slowed down a lot
Speaker 1: of these lawsuits, but it's now on appeal of the
Speaker 1: because the state is arguing that the plaintiff no longer
Speaker 1: has standing in the case because she took a year
Speaker 1: off from Boise State University after she failed to make
Speaker 1: the cross country team, so she's back at the university,
Speaker 1: but the state is trying to scrap the case on
Speaker 1: on those grounds. So that's kind of import on appeal.
Speaker 1: And there's another case in Connecticut where to non trans
Speaker 1: female athletes assist gender athletes sued to challenge the state's
Speaker 1: inclusive policy for transit girls and women, saying that they
Speaker 1: have an unfair advantage over non trans athletes. So that
Speaker 1: case was thrown out and they appealed and for the
Speaker 1: Second Circuit will eventually hold arguments on that. This struck
Speaker 1: me in your story. You spoke to Mason Donne, a
Speaker 1: non binary trans right activists in Massachusetts, and he said
Speaker 1: about Strangio, he marveled at his elegant ability to maintain
Speaker 1: decorum in the courtroom even when his opponent is actively
Speaker 1: dehumanizing him to his face with their arguments, and that
Speaker 1: struck me as quite the lawyer, I guess, yeah, yeah,
Speaker 1: you know, that's uh, it's certainly something that I'm sure
Speaker 1: a lot of lawyers have been in similar positions in
Speaker 1: different ways, whether or not. You know, it's a female
Speaker 1: lawyer arguing a case about, you know, something like abortion
Speaker 1: rights or equal pay or things like that, or a
Speaker 1: black lawyer arguing a case related to racial discrimination. So certainly,
Speaker 1: I'm sure a lot of lawyers have been in similar positions.
Speaker 1: But I think because you know, trans community doesn't have
Speaker 1: quite as much visibility to be a trans lawyer up
Speaker 1: in court fighting over and discussing very personal aspects of
Speaker 1: their existence when there's a you know, a well paid
Speaker 1: taxpayer finance lawyer perhaps on the other side, saying that
Speaker 1: you're a threat to children. The fact that Chase Stranger
Speaker 1: is able to sort of let that roll off back
Speaker 1: and just keep arguing, as people have noticed his ability
Speaker 1: to do that, because I spoke a few plaintiffs in
Speaker 1: some of these cases we've been on that are who
Speaker 1: are trans and sort of felt the same way, but
Speaker 1: sort of marveled at his ability to keep his cool
Speaker 1: in court during argument. And he was involved in what
Speaker 1: was probably the greatest victory for trans rights so far,
Speaker 1: and that is the landmark Supreme Court ruling that made
Speaker 1: it illegal to discriminate against trans employees. That's right, that
Speaker 1: was a big ruling. You know, it interpreted existing federal
Speaker 1: law against sex discrimination to apply to transgender employees and
Speaker 1: making a discrimination against trans employees the illegal nationwide. That
Speaker 1: was a huge victory. There are lots of plaintifts involved,
Speaker 1: lots of lawyers involved in that case. He was one
Speaker 1: of them. And he told me he was in the
Speaker 1: Supreme Court building that data and there's those arguments and
Speaker 1: basically said, you know that that was one of the
Speaker 1: greatest days of his life. He said that there were
Speaker 1: a lot of trans well in the Supreme Court building
Speaker 1: that day, people watching. So yeah, clearly a big landmark
Speaker 1: victory for trans rights. But also, he pointed out in
Speaker 1: my interview, a lot of the backlash started after that
Speaker 1: as well, such sad ramifications for a great legal victory.
Speaker 1: Mark Zuckerberg will not have to testify in Washington d
Speaker 1: c's data privacy lawsuit against Facebook. In fact, the judge
Speaker 1: overseeing the case called the attempt to get Zuckerberg to
Speaker 1: testify frankly annoying. Joining me is Bloomberg Legal reporter Eric Larson,
Speaker 1: who covered this interesting hearing. Tell us what this data
Speaker 1: privacy lawsuit against Facebook is about. So, the Attorney General
Speaker 1: of the District of Columbia suit Facebook in two thousand eighteen.
Speaker 1: It's a consumer protection lawsuit over what they describe as
Speaker 1: a data breach involving Facebook's data that was used by
Speaker 1: Cambridge Analytica. You may remember that was that firm in
Speaker 1: the UK that was used by Homer President Donald Trump
Speaker 1: two thousand sixteen campaigns. They were able to sort of
Speaker 1: flice and dice a lot of user data for millions
Speaker 1: of Facebook users and use it to try to improve
Speaker 1: Trump's campaign outreach, could say it. And because of the
Speaker 1: way that that data was used, it was friends of
Speaker 1: friends data basically, and so no one had really agreed
Speaker 1: to this use of their data, and the d c
Speaker 1: a g says this was a violation of the district's
Speaker 1: consumer protection laws and file the lawsuit in two thousand eighteen.
Speaker 1: Why didn't they sue Zuckerberg as well? Well, I can't
Speaker 1: tell you exactly why they didn't at first, although they
Speaker 1: had tried to add him to the suits. I think
Speaker 1: that as far as the defendant goes, it was the
Speaker 1: company itself that had engaged in this alleged behavior. So
Speaker 1: I don't think it's uncommon to file a suit against
Speaker 1: the company like that without naming individual executives. That being
Speaker 1: said that they did try to add Zuckerberg to the
Speaker 1: suits just recently. They said that they wanted to get
Speaker 1: his deposition. They said that he had a decision making
Speaker 1: role at the time period when the decisions were made
Speaker 1: to allow third party app to start collecting the data
Speaker 1: in this way, so they wanted to hear from him
Speaker 1: directly on that. What did the judge decide about deposing Zuckerberg, Well,
Speaker 1: he wasn't going to have it. He shot down the
Speaker 1: Attorney General's proposal pretty harshly. I would say, I listened
Speaker 1: in on the on this hearing and Superior Court in DC.
Speaker 1: The judge denied the Attorney General's motion to add Zuckerberg
Speaker 1: is a defendant and granted Facebook's motion for a protective
Speaker 1: order to block the Attorney General from trying to depose Zuckerberg.
Speaker 1: So the judge said, look, this is a consumer protection lawsuits.
Speaker 1: This is about financial damages basically for consumers. The judge said,
Speaker 1: based on what he had heard, the Attorney General already
Speaker 1: had plenty of information to go ahead with his case
Speaker 1: and bring the current claims that he had to trial.
Speaker 1: He was pretty critical at some point, I would say
Speaker 1: he was shouting at the district lawyer is saying that
Speaker 1: they basically were trying to turn this case into a
Speaker 1: case about Mark Zuckerberg int of a case about Facebook,
Speaker 1: and it was really critical of their attempt to add
Speaker 1: saying that they did not need to depose Mark Zuckerberg
Speaker 1: in order to potentially get damages from this data breach
Speaker 1: for the district consumer. But it seems like Zuckerberg is
Speaker 1: a hands on CEO and it would perhaps prove something
Speaker 1: or ramp up money damages. The d C Attorney General
Speaker 1: tweeted that allowing third party apps like Cambridge Analytica to
Speaker 1: access user data was Mark Zuckerberg's brain child. So to me,
Speaker 1: it seems odd that the judge wouldn't allow them to
Speaker 1: depose him. Well, I mean, I think then you would
Speaker 1: have to get into the details of the District of
Speaker 1: Columbia's consumer protection laws and how just might interpret them.
Speaker 1: You know, as you said, a lot of this decision
Speaker 1: making has been exposed, and we're aware now of a
Speaker 1: lot of the failures that happened at Facebook through Cambridge
Speaker 1: Analytica and the decision making behind that, and also of
Speaker 1: course recently whistle blower activity and testimony in Congress. So
Speaker 1: there's clearly a lot of problems that have been exposed
Speaker 1: over there as Facebook. But I think the judges point
Speaker 1: that he was trying to make is just that to
Speaker 1: prove a data breach and to prove that it occurred,
Speaker 1: and to prove that residents of the district had their
Speaker 1: data misused. The judges implying or arguing because that the
Speaker 1: district can already prove that at trial and that they
Speaker 1: need to go ahead to trial with the claims that
Speaker 1: they already have. So at one point the judge did say, look,
Speaker 1: if you find that Mark Zuckerberg did something wrong with
Speaker 1: the evidence, you have final a criminal complaining against them.
Speaker 1: She was being a little flippant, but he's the point.
Speaker 1: He was making is if Mark Zuckerberg did something wrong,
Speaker 1: maybe that's a different case. Maybe that's something that you
Speaker 1: can handle all at different time or another authority. But
Speaker 1: for the purposes of this lawsuit, he wanted to narrow
Speaker 1: it and he wanted to speed it up. That the
Speaker 1: case had been going on too long, and that as
Speaker 1: far as he could tell, the claims that had already
Speaker 1: been spelled out in the complaints, they seem to already
Speaker 1: have enough evidence to take it to trial based on that.
Speaker 1: Whether or not Mark Zuckerberg personally said do this or
Speaker 1: don't do this, I think the judge is saying it's
Speaker 1: irrelevant to the claims in the complaint, and we can't
Speaker 1: leave out that. The judge quoted from the movie Jerry
Speaker 1: McGuire in his opinion, like I said, he had said
Speaker 1: that for the purposes of a consumer protection complaint, it's
Speaker 1: about getting money back to our consumers at the end
Speaker 1: of the day, not proving, you know, some sweeping wrong
Speaker 1: doing by Mark Zuckerberg. So he's saying, if this is
Speaker 1: about money damages, which consumer protection is he said, you know,
Speaker 1: it's like Jerry mcguires, he's like Huber getting Junior, show
Speaker 1: me the money Uh so, he did mention that he
Speaker 1: likes to reference pop culture and and his hearing its
Speaker 1: on occasion, and I love those pop culture references. Thanks
Speaker 1: so much, Eric, that's Bloomberg Little reporter Eric Larson. Steve Bannon,
Speaker 1: once former President Donald Trump's chief White House strategist, is
Speaker 1: facing a rare criminal charge of contempt of Congress for
Speaker 1: refusing to testify before the House Committee investigating the January
Speaker 1: six riots. In a two hour hearing, Bannon won access
Speaker 1: to Department of Justice documents reflecting its official position on
Speaker 1: prosecuting current or former US officials claiming immunity from congressional
Speaker 1: subpoenas on the grounds of executive privilege. But Bannon may
Speaker 1: not be able to raise an advice of council defense
Speaker 1: at his trial. Joining me as former federal prosecutor Robert Mints,
Speaker 1: a partner at McCarter and English, Bob, what is the
Speaker 1: House Committee looking for from Steve Bannon? The House Committee
Speaker 1: start information from Bannon related to his activities as an
Speaker 1: outside Trump advisor after presidential election, and they're particularly interested
Speaker 1: in conversation that Bannon allegedly had at the Willard Hotel
Speaker 1: the day before the attack, when hundreds of Trump supporters
Speaker 1: protested the elections outcome and ultimately stormed the Capitol building.
Speaker 1: And so what the House Committee is looking for is
Speaker 1: they want to know what was said that day, and
Speaker 1: they were particularly noting the fact that Ban instead that
Speaker 1: hell is going to break loose the following day. So
Speaker 1: they want to know what did he know, what did
Speaker 1: he say, who did he talk to and the day
Speaker 1: before the insurrection occurred. He made an argument based on
Speaker 1: Office of Legal Council opinions. Bannon had suggested that that
Speaker 1: he was relying on the Justice Department's own past advice
Speaker 1: to White House aids as he fights these criminal charges,
Speaker 1: and he was particularly citing these Office of Legal Council
Speaker 1: opinions which are out there. Prosecutors argued that the Justice
Speaker 1: Department's legal guidance reflected in opinions issued by the Office
Speaker 1: of Real Council, we're not relevant to whether Banton actually
Speaker 1: committed the contempt of Congress crimes. But the judge was
Speaker 1: not persuaded and ordered the Department of Justice to turn
Speaker 1: over any writings reflecting its official positions on prosecuting current
Speaker 1: or former U S officials claiming immunity from Congressional subpoena
Speaker 1: on grounds of executive privilege. At one point, the judge
Speaker 1: even asked federal prosecutors, isn't there something anomalous. Isn't there
Speaker 1: something unusual for the Department of Justice to stay, on
Speaker 1: the one hand, as someone that's absolute immunity and that
Speaker 1: the Justice Department will not prosecute them, and then to
Speaker 1: say that those statements, those official statements of d o
Speaker 1: J policy are not relevant to this case. So he
Speaker 1: ordered prosecutors to turn over those official statements to Bannon's
Speaker 1: defense team, and we'll see how the judge handles this
Speaker 1: issue after Bannon's lawyers get a chance to review these
Speaker 1: offers of Legal Council opinions. What I don't understand, Bob,
Speaker 1: is that Bannon had been fired as a presidential advisor
Speaker 1: years before January six, So what do those Office of
Speaker 1: Legal Council opinions have to do with him now as
Speaker 1: a non presidential advisor but an ally of the former
Speaker 1: president on January six? I mean, it just seems like
Speaker 1: even if those opinions say senior presidential advisors are absolutely
Speaker 1: immune from compelled congressional testimony, it wouldn't apply to him anyway,
Speaker 1: you know, that's exactly right. And Bannon is among a
Speaker 1: number of Trump allies to excited executive or attorney client
Speaker 1: privilege when refusing to cooperate with the House Committee. But
Speaker 1: the other individuals were actually employed by the executive Branch
Speaker 1: at the time of these communications. Banning is in a
Speaker 1: different situation raising legitimate executive privilege claims because he was
Speaker 1: forced to resign from the Trump Whitehouse in two seventeen,
Speaker 1: more than three years before the insurrection. So his argument
Speaker 1: that this executive privilege would apply to him when the
Speaker 1: conversations that he's trying to shield from the House Committee,
Speaker 1: we're not done while he was employed by the executive branch.
Speaker 1: It's not a strong an argument and ultimately I think
Speaker 1: will likely fail. But the judge nevertheless or the Justice
Speaker 1: Department to turn over statements or writings, whether public or not,
Speaker 1: reflecting official do o J policy on prosecuting current or
Speaker 1: former government officials who claim immunity from congressional subpoenas on
Speaker 1: the grounds of executive privilege. Yeah, no, that's exactly right.
Speaker 1: The judge did say though, that the ratings have to
Speaker 1: reflect the d o j's official position, So I think
Speaker 1: there's some documents that would not be turned over here.
Speaker 1: But prosecutors did fight vigorously to oppose turning over this
Speaker 1: information on the ground that it will allow demanding defense
Speaker 1: team to probe its investigative and prosecutorial decision making. In
Speaker 1: the eyes of prosecutors, this is something that was simply
Speaker 1: not relevant. This case boils down to simply the fact
Speaker 1: that and refused to appear, and that's the issue that
Speaker 1: they posed to the judge. But the judge did give
Speaker 1: some leeway to the banned defense team and did order
Speaker 1: these internal documents, as you say, whether public or not,
Speaker 1: to be turned over as long as they reflect the
Speaker 1: official position of the Department of Justice on this issue.
Speaker 1: And Trump has repeatedly tried to shield from this House
Speaker 1: Committee information from his time in the White House, and
Speaker 1: he has been unsuccessful each time in court, right, And
Speaker 1: the basis for that is that the courts have ruled
Speaker 1: that the decision over whether executive a privilege would apply
Speaker 1: is won me by the current president, not the former president.
Speaker 1: So ultimately it was President Biden's decision as to whether
Speaker 1: or not to exert executive privilege over these communications, and
Speaker 1: he decided not to do it, stated that it was
Speaker 1: in the public at this provided to the House Committee
Speaker 1: and declined to extend executive privilege, and the courts have
Speaker 1: upheld that and have denied former presidents from claim to
Speaker 1: executive privilege when he is no longer a sitting president.
Speaker 1: The Justice Department is trying to stop Banning from arguing
Speaker 1: at his trial that he was following the advice of
Speaker 1: his attorney when he didn't comply with the subpoena. First
Speaker 1: of all, explain the import of an attorney's advice. Well.
Speaker 1: The attorney client privilege is one of the bedrocks of
Speaker 1: the legal system in that it is important for clients
Speaker 1: to be able to communicate freely and openly with their lawyers,
Speaker 1: to provide them candid information so that the lawyer can
Speaker 1: give sound advice to the clients. So that is an
Speaker 1: area that courts have historically been very careful not to
Speaker 1: tread upon to invade those conversations, and that is conversations
Speaker 1: between a client who's providing information to the attorney and
Speaker 1: then the attorney providing legal advice back to the client. So,
Speaker 1: of course have historically been very reluctant to pierce the
Speaker 1: privilege in areas that considered attorney client communications. Is it
Speaker 1: a defense that he was following his attorney's advice when
Speaker 1: his attorney told him he didn't have to comply with
Speaker 1: the subpoena, Well, that's a complicated question. Bannon invoked executive
Speaker 1: privilege that advised the committee that he would not comply
Speaker 1: with this with the subpoena until a court rules on
Speaker 1: that issue. The committee said that and has to comply
Speaker 1: with the portions of the subpoena not covered by any privilege,
Speaker 1: and it expected him to appear for his deposition and
Speaker 1: to produce documents and to raise any privileged issues in
Speaker 1: response to specific questions. Instead, Bannon simply refused to appear
Speaker 1: at all, refused to provide any documents at all, and
Speaker 1: ultimately he was charged with two counts of contempt of Congress,
Speaker 1: one based on his failure to appear for the deposition
Speaker 1: and the other based on his failure to produced documents.
Speaker 1: The contempt actually punishes any person who was summoned as
Speaker 1: they witnessed by Congress and willfully makes default, meaning they
Speaker 1: failed to appear, or they appear and refused to answer
Speaker 1: all of the questions. But it's the burdens on the
Speaker 1: government to prove that Bannon willfully failed to comply with
Speaker 1: the subpoena. And this is where the advice of council
Speaker 1: defense comes in, because he's arguing that he did not
Speaker 1: willfully fail to comply, that he was relying on the
Speaker 1: advice his council gave him, essentially that he did not
Speaker 1: need to appear because he was immune from testimony based
Speaker 1: upon the Office of Legal Council opinion. But there is
Speaker 1: a federal appellate court precedent that says defendants cannot invoke
Speaker 1: their lawyer's advice as a reason to ignore a lawful
Speaker 1: congressional subpoena. Yes, that's exactly right. There's a nineteen fifty
Speaker 1: one decision by the d C. Circuit that held that
Speaker 1: under the Contempt of Congress statute, So it's very limited
Speaker 1: only to this statute. The advice of council defense cannot
Speaker 1: immunize a deliberate and intentional failure to appear pursuant to
Speaker 1: a lawful subpoena issued by Congress. And the reason for
Speaker 1: that is that if a witness who was summoned to
Speaker 1: appear before a Congressional committee could simply rely on the
Speaker 1: advice of counsel that the information being thought by the
Speaker 1: committee was not relevant to some legislative inquiry. They could
Speaker 1: basically stone wall all congressional peerings and refused with impunity
Speaker 1: to answer any questions based on the counciled advice that
Speaker 1: the area of questioning is not pertinent to the legislative inquiry.
Speaker 1: So there is the urt ruling that says that the
Speaker 1: advice of council defense cannot be raised in connection was
Speaker 1: refusing to appear before a congressional committee. And this decision
Speaker 1: forces a person to essentially choose between either complying with
Speaker 1: the court's order to provide evidence or refusing to comply,
Speaker 1: thereby risking a contempt conviction if those claims are ultimately
Speaker 1: rejected on appeal. The judge appeared ready to give prosecutors
Speaker 1: a victory on this particular point and deny Bannon the
Speaker 1: ability to use the advice of council during trial. But
Speaker 1: what happened to stop the judge from going far with that.
Speaker 1: Batman's lawyer tried to distinguish the nineteen one decision by
Speaker 1: saying it was factually different. He argued that witnesses might
Speaker 1: have to appear before Congress to invoke claims such as
Speaker 1: the right against self incrimination that that executive privilege is
Speaker 1: different because it's the privilege that is held by the
Speaker 1: executive branch and not by the witness. The argument that
Speaker 1: seemed to resonate with the judge and at least pause
Speaker 1: the decision and and resulted in the judge ordering both
Speaker 1: sides to further brief. The issue was when Batman's lawyer
Speaker 1: argued that in ruling that advice of counsel was not
Speaker 1: a defense that could be raised at this time, would
Speaker 1: essentially give Congress of veto power over what executive privilege is.
Speaker 1: That would shift the balance of powers between the president
Speaker 1: and lawmakers. It would essentially say that you have to
Speaker 1: choose between raising the choose between raise being the privilege
Speaker 1: and ultimately being found to be held in contempt or
Speaker 1: rolling over essentially and providing the information. And in this case,
Speaker 1: because executive privilege was implicated, it would a sense of
Speaker 1: rescript the executive branch of the power to assert that
Speaker 1: privilege and shift the balance of power too far over
Speaker 1: to the congressional side. Is what happens in this case.
Speaker 1: In Bannon's case, important would it's set a precedent for
Speaker 1: others who are refusing to appear before the January six committee. Well,
Speaker 1: each of the individuals Hoop had something before the committee
Speaker 1: are in a slightly different factual situation. Some were existing
Speaker 1: employees at the time. Bannon obviously was not. But it
Speaker 1: is very important here because from the Department of Justice
Speaker 1: is standpoint. You get a subpoena from a congressional committee
Speaker 1: and you simply have to appear. The only thing prosecutors
Speaker 1: believe they have to prove here is that you willfully
Speaker 1: failed to appear before the committee. Once you're in front
Speaker 1: of the committee, whether you raise certain privileges or not
Speaker 1: is a separate issue here. Bannon flatly refused to appear,
Speaker 1: flatly refused to produce documents, and that's ultimately why prosecutors
Speaker 1: decided to take the very unusual step and indict him
Speaker 1: for contempt of Congress. Bob Sum up for us the
Speaker 1: prosecution's case. The government here has to prove that the
Speaker 1: defendant acted with knowledge such as conduct was unlawful. The
Speaker 1: advice of defense seeks to negate that conclusion by showing
Speaker 1: that the defendant relied in good faith on Council's advice
Speaker 1: and that the course of conduct that you took was
Speaker 1: therefore legal The government's position is that the summoned witness
Speaker 1: doesn't get to decide if Congress can make them show up. Basically,
Speaker 1: the government argues that the contempt charge changes simply unquestioned
Speaker 1: of whether or not you showed up, if the defendant
Speaker 1: makes a deliberate and intentional decision not to appear. Prosecutors
Speaker 1: believe that that will satisfy the requisite intense for contempt.
Speaker 1: Thanks Bob. That's Robert Mints of McCarter and English, and
Speaker 1: that's it for this edition of The Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news honor
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Speaker 1: I'm June Grossow, and you're listening to Bloomberg