Thread by @ZoeTillman

Hello from the DC federal courthouse, where Steve Bannon just arrived for the 11am motion hearing in his contempt of Congress case.

Prev: buzzfeednews.com/article/zoetil…

First issue Judge Carl Nichols will hear about is the govt's motion to block Bannon from arguing as a defense that he relied on advice of counsel when he didn't comply with the Jan. 6 committee subpoena to testify

AUSA Amanda Vaughn argues the heart of the contempt charge is "whether or not you showed up" — "The summoned witness doesn’t get to decide if Congress can make them show up."

Exchange about the govt's motion to limit Bannon from arguing he was relying on advice of counsel was pretty short, Nichols moved on to Bannon's motion to get info about the govt's decision to issue subpoena for his atty Bob Costello's records

Vaughn makes clear the records sought were toll records, which show that calls/emails happened, between whom, and when, but not the contents/substance. Nichols questions why they'd need those when they seem "pretty darn attenuated" to proving Bannon knew about the Jan. 6 subpoena

Vaughn says even though the subpoena for Bannon to provide docs/testimony was public, the govt has an obligation to prove elements of an offense, incl. Bannon knew what his obligations were, so they'd want to know if his atty was communicating w/ him as the intermediary

Govt's position now is that these records aren't relevant to establishing facts of the defense, and that Bannon has to specifically identify how they'd use these records re: some motion to dismiss, and they haven't, so they don't get to rummage through govt's files

Next, Nichols hears from the govt on their oppo to Bannon's broader motion to compel discovery, incl. records about DOJ's internal deliberations about what contempt of Congress charge requires and when people can be charged with that

Nichols presses Vaughn about whether there would be a situation where knowing DOJ's internal position (aka OLC opinions, other records re: internal deliberations) on the law/charging decisions would be relevant to considering something like a motion to dismiss an indictment

Vaughn says an OLC opinion wouldn't be controlling on the court, and notes judges in the past have disagreed with OLC sometimes, Nichols acknowledges that but says he's asking if it would be relevant, Vaughn stresses that it's not determinative

As for the rest of Bannon's motion to compel evidence, Nichols asked if there was evidence that a witness talked about a political motivation for prosecuting Bannon, if the govt would turn that over. Vaughn says yes, that'd be potential impeachment evidence

But Vaughn said Bannon's motion to compel impeachment evidence was moot because they'd turned over everything they have so far, and also haven't IDd trial witnesses yet

Bannon's legal team is up. First is Evan Corcoran defending Bannon's ability to argue he was relying on advice of counsel as a defense. Nichols is highly skeptical of what he sees as Corcoran's attempt to convince the judge he can ignore binding DC Circuit precedent on this issue

At issue is a 1961 opinion from the DC Circuit in Licavoli, re: a failure to comply with a congressional subpoena that held advice of counsel is not a defense: law.justia.com/cases/federal/…

Nichols says even if he thinks the DC Circuit got it wrong, he's not writing on a clean slate

Re: Bannon's motion to compel other info from the govt as it relates to grand jury materials, Corcoran says they have reason to believe the govt may have given the GJ wrong instructions about facts/law, and that would be grounds for dismissal, so they should be able to see it

Moving on to internal exec branch docs, Nichols presses Corcoran to explain why emails among DOJers, separate from actual formal OLC opinions, would be relevant to elements of offense and Bannon's defense. Corcoran says these internal delibs could lead to admissable evidence

Nichols sounds skeptical - one of Bannon's main proposed defenses is entrapment by estoppel, meaning he relied on what he understood DOJ's position to be re: immunity for past/current presidential advisors, but Nichols points out Bannon wouldn't have known about internal delibs

Bannon atty David Schoen is up, Nichols has him clarify what exactly they're still asking for, since govt is producing the app for Bob Costello email records (ended up being for other Bob Costellos, not Bannon's atty), they have phone records, judge is going to review the app

Shoen says he's skeptical the grand jury actually requested Bob Costello's comms records (versus the govt wanting those), and if GJ did want those, the defense wants to know what the grand jury was told that would prompt them to issue such subpoenas

Schoen (misspelled in prev. tweet) stresses it was inappropriate/against DOJ policy for govt to seek Costello records. Nichols asks, even if that's true, what's the impact on the case? Schoen argues court should "send a message" it's not okay, remedy is access to certain records

Bob Costello is up, argues DOJ gave different answers to why they subponeaed his records (first that he was a witness, then that they needed to prove Bannon was informed of subpoena obligations) and that as for latter reason, the committee had record of Costello accepting service

Costello says that he also met with DOJ attys on two occasions (Nov. 3 and 8) to discuss why he believed they should not prosecute Bannon, and that they never asked if he'd given Bannon the subpoena because it was a "ludicrous" question

After hearing brief rebuttals from both sides, Nichols is taking a short recess (10-15 minutes) and then will come back to discuss next steps, may issue oral rulings on at least some of the issues

Nichols is back on the bench

Nichols is *not* going to rule today on govt's motion to bar Bannon from arguing at trial as a defense that he relied in good faith on advice of counsel when he refused to comply with the Jan. 6 committee subpoena, b/c Bannon's lawyer raised a new arg today he needs to consider

Nichols strongly suggests he was inclined to rule for the govt on this, citing binding DC Circuit precedent in Licavoli, but Bannon's atty raised new arg today that wasn't in briefs about how the assertion of exec privilege might change applicability (he wasn't happy about that)

So Nichols will get supplemental briefing before ruling on whether Bannon can argue as a defense that he was relying in good faith on advice of counsel

Nichols won't rule now on the issue of how the govt handled subpoenaing communication records related to Bannon's attorney Bob Costello, pending govt's production of certain records to Bannon's defense team and to the court for ex parte review

As for Bannon's motion to compel govt to produce other materials, Nichols:
- denies request re: grand jury materials
- denies request to order govt to seek add'l info from Congress
- *grants* request for records reflecting DOJ policy re: prosecuting when exec priv. is asserted

So, for instance, a thing that Bannon is getting out of today's hearing is the possibility of getting statements of DOJ policy that aren't already public re: prosecuting former officials for failure to comply with a congressional subpoena