Should Judge Nichols Recuse Himself in the Bannon Case?

Many moons ago the Justice Department first presented in court its legal theory that senior White House aides are absolutely immune from compelled congressional testimony with regard to their official duties. Although the DOJ attorney who argued the case did a pretty good job, he was unsuccessful in persuading the district court, which rejected the theory in no uncertain terms. See Comm. on the Judiciary v. Miers, 558 F. Supp.2d 53, 99 (D.D.C. 2008) (Bates, J.) (“[T]he asserted absolute immunity claim here is entirely unsupported by existing case law.”). More than a decade later, another district judge, who is currently nominated to sit on the Supreme Court, strongly agreed, finding that “the Miers court rightly determined not only that the principle of absolute testimonial immunity for senior-level presidential aides has no foundation in law, but also that such a proposition conflicts with key tenets of our constitutional order.” Comm. on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 202-03 (D.D.C. 2019) (Ketanji Brown Jackson, J.). Although neither Miers nor McGahn resulted in an appellate decision on the merits, two D.C. Circuit judges wrote opinions strongly questioning or rejecting outright the absolute immunity theory, while not a single judge has expressed any degree of support for it. See Comm. on the Judiciary v. McGahn, 973 F.3d 121, 131 (D.C. Cir. 2020) (Rogers, J., dissenting) (McGahn’s claim of testimonial immunity is foreclosed by precedent); Comm. on the Judiciary v. McGahn, 951 F.3d 510, 536-40 (D.C. Cir. 2020) (Henderson, J., concurring) (explaining at some length why McGahn’s claim of immunity rests on a “shaky foundation”).

As fate and the random assignment system would have it, the DOJ attorney from the Miers case, Carl Nichols, is now himself a federal judge presiding over two high profile cases in which testimonial immunity may be an issue. Both cases arise out of the January 6 select committee investigation. The first is the prosecution of Steve Bannon for refusing to comply with the select committee’s subpoena for documents and testimony. The second is a lawsuit filed by Mark Meadows against the select committee seeking to prohibit the enforcement of subpoenas issued to him and his telecommunications provider. Among the grounds asserted by Meadows for invalidating the testimonial aspects of the subpoena directed at him was that it “contravene[d] Mr. Meadows’ testimonial immunity as a senior executive official.” Meadows Complaint ¶ 153.

Back in November a Politico article by Kyle Cheney and Josh Gerstein discussed whether Judge Nichols should recuse himself from the Bannon case (the Meadows lawsuit had not yet been filed) due to his participation in Miers.  According to former House Counsel Irv Nathan, who argued Miers for the House and is quoted in the piece, Nichols should have considered recusing himself because of the similarity of the issues in the two cases. Nathan explained that in Miers Nichols had “argued that a witness, a private citizen (a former Executive Branch official) following the direction of a President, need not comply with a Congressional subpoena and could refuse even to show up, produce any documents or even itemize the documents alleged to be privileged.” This in his view would undermine the judge’s appearance of impartiality in presiding over the Bannon trial.

Continue reading “Should Judge Nichols Recuse Himself in the Bannon Case?”

What Exactly is a Congressional Criminal Referral?

As discussed in my last post, the January 6 select committee has argued in federal court that there is sufficient evidence of misconduct by former President Trump to potentially warrant application of the crime/fraud exception to attorney-client privilege with respect to otherwise privileged communications he may have had with John Eastman. This in turn has sparked renewed speculation as to whether the committee will or should make a “criminal referral” to the Justice Department regarding the former president. According to this Politico article, while “Washington has viewed the decision on a criminal referral against Trump as a major pivot point in the Jan. 6 probe,” some think that the committee’s filing in the Eastman case makes such a referral less important or entirely unnecessary.

But what exactly is a congressional “criminal referral” and what is its significance, if any?

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The Eastman Emails, the Attorney Client Privilege, and the Mazars Overhang

In a recent Lawfare piece, Quinta Jurecic and Molly Reynolds argue that the Supreme Court’s 2020 decision in Trump v. Mazars, though limited by its terms to congressional subpoenas for the personal records of a sitting president, is having a profound effect on the broader legal landscape for the January 6 select committee and other congressional investigations. As further evidence of this phenomenon, I would point to the select committee’s recent filing in the John Eastman lawsuit, in which Eastman is seeking a court order prohibiting Chapman University, where he had been a law professor, from releasing to the committee allegedly privileged emails that Eastman sent or received through his university account. Specifically, Eastman claims that certain emails are privileged attorney-client communications and/or attorney work product arising out of his representation of Donald Trump, in his personal capacity as a candidate for office, and the Trump presidential campaign.

In a brief filed last week, the select committee advanced several arguments against Eastman’s claim of privilege, the most sensational of which was the committee’s contention that “evidence and information available to the Committee establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts, and that [Eastman’s] legal assistance was used in furtherance of those activities.” As this quote suggests, the committee’s argument is merely that there is sufficient evidence to warrant in camera review of the disputed material. Even if the court agrees with the committee on this point, it may ultimately conclude after review that the crime-fraud exception to the attorney-client privilege does not apply.

What I want to focus on today, however, is an argument that the committee did not make. At the outset of its brief, it refers to the standards applicable to establishing attorney-client privilege “to the extent attorney-client privilege applies in the context of a Congressional subpoena.” To explain this reference, the brief drops a footnote directing the reader to pages 37-39, which I suspect originally contained an argument that congressional committees are not bound to recognize common law privileges at all. This argument, however, was evidently removed, and now the committee’s discussion of the issue is confined to a footnote (no. 74), which states:

Congress has consistently taken the view that its investigative committees are not bound by judicial common law privileges such as the attorney-client privilege or the work product doctrine. See generally, Congressional Research Service, Congressional Oversight Manual 61-62 (March 21, 2021). This aspect of Congress’s investigative authority is rooted in the separation of powers inherent in the Constitution’s structure. Id. Congress and its committees make decisions regarding such common law privileges by balancing the important institutional, constitutional, and individual interests at stake on a case-by-case basis. Here, Congressional Defendants have determined, consistent with their prerogatives, not to submit an argument on this point. This is not, however, intended to indicate, in any way, that Congress or its investigative committees will decline to assert this institutional authority in other proceedings.

I am sure Senate Legal Counsel is relieved to hear the select committee is not purporting to waive the rights of “Congress or its investigative committees” in all future investigations, but why did the committee decide not to assert this longstanding congressional view here? In many ways this case would seem to provide a perfect illustration of why Congress believes it should not be bound by common law privileges. Continue reading “The Eastman Emails, the Attorney Client Privilege, and the Mazars Overhang”