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.
Another former House Counsel (and my former colleague), Kerry Kircher, disagreed with Nathan’s assessment, saying that the mere fact a judge has previously taken a legal position as an advocate does not disqualify him from ruling on that issue if it comes before him.
While I am no expert on judicial ethics or recusal, it seems to me that Kircher must be correct here. As a general matter, we presume that a judge, or indeed any lawyer, is capable of distinguishing between an objective analysis of the law and a legal position previously taken as an advocate. Thus, if Nichols were to rule on the same legal issue presented in the Miers case (namely whether senior White House aides are immune from compelled congressional testimony relating to their official duties), in my view there would be no conflict of interest or appearance of impropriety.
Furthermore, while the issue of testimonial immunity is squarely presented in the Meadows case, there would seem to be no obvious reason for it to arise at all in the Bannon case. To begin with, Bannon is facing two counts of contempt, one for failure to produce documents and one for failure to appear at a deposition. The Justice Department has never claimed that there is immunity from document subpoenas, as Nichols himself acknowledged in the Miers case. Miers Oral Argument at 95 (June 23, 2008) (“We are not arguing that there is immunity from document subpoenas.”).
Even as to the deposition count, the immunity theory would not protect Bannon. Most obviously, Bannon’s tenure at the White House (where he was President Trump’s chief strategist) ended on August 18, 2017, years before the events about which the January 6 committee wishes to question him. While DOJ has argued that former White House aides can be protected by absolute immunity, this only applies when they are asked to testify about matters related to their service in the White House. As the Office of Legal Counsel explained in its opinion on the alleged immunity of former White House Counsel Don McGahn, OLC “has consistently advised that ‘the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committees’ on matters related to their official duties.” Testimonial Immunity before Congress of the Former Counsel to the President, 43 Op. O.L.C. __, slip op. at 3 (May 20, 2019) (emphasis added). Clearly the January 6 committee is not seeking to depose Bannon on anything related to his “official duties” (of which he has none). Indeed, even if Bannon were still employed in the White House, it seems highly questionable that his political activities in connection with January 6 would fall within the broadest conception of “official duties.”
Moreover, even if there were a colorable claim that Bannon is protected by absolute immunity (which there is not), there would still need to be an invocation of immunity in response to the congressional subpoena. There was no such invocation by the incumbent president, of course. As to the former president, his only statement on the matter comes third-hand in the form of a letter from Bannon’s counsel to the select committee in which he recites instructions received from Trump’s lawyer. Those instructions expressly mention the executive, presidential communications, deliberative process and attorney-client privileges, but not testimonial immunity. They then go on to say:
Therefore, to the fullest extent permitted by law, President Trump instructs Mr. Bannon to: (a) where appropriate, invoke any immunities and privileges he may have from compelled testimony in response to the Subpoena; (b) not produce any documents concerning privileged material in response to the Subpoena; and (c) not provide any testimony concerning privileged material in response to the Subpoena.
One might read the single reference to “immunities” as authorizing Bannon to assert absolute immunity under some circumstances, but it certainly does not purport to require him to do so. At most, the instructions leave it up to Bannon to determine whether the assertion of immunity is “permitted by law” and “appropriate.” Thus, even assuming former presidents have the authority to direct former aides to refuse to appear in response to a congressional subpoena for testimony, no such authority was purportedly exercised here.
More importantly, Bannon (or, more precisely, Bannon’s counsel) never invoked immunity in response to the subpoena. As far as I can tell, he has not raised it as a defense in court either. For example, in Bannon’s motion to compel discovery from the government, which was argued before Judge Nichols last week, he contended that he was entitled to government documents analyzing defense to contempt and “determining that a prosecution of someone in Mr. Bannon’s position cannot be sustained.” In this regard the motion discusses, and attaches OLC and DOJ opinions regarding, executive privilege and the (alleged) right of agency counsel to attend depositions to protect executive privilege. It makes no mention, however, of testimonial immunity, and it neither discusses nor attaches any of the numerous OLC opinions on that subject.
Nonetheless, the issue of testimonial immunity was apparently discussed extensively at the hearing on this motion last week. With the caveat that I was not at the hearing and do not have access to a transcript, press reports suggest that Judge Nichols extensively questioned the lawyers about testimonial immunity, which he apparently viewed as inconsistent with the DOJ’s decision to prosecute Bannon. For example:
Nichols raised a hypothetical scenario in which Congress subpoenaed Ron Klain, the chief of staff to President Joe Biden. Klain, he said, could refuse to appear, citing published OLC opinions that say senior presidential advisers are “absolutely immune” from compelled congressional testimony. But under the Justice Department’s argument in the Bannon case he noted, Klain could be prosecuted anyway—creating a conflict between the department’s internal policies and its prosecution decisions.
Nichols then directed the prosecution to provide the defense with “Justice Department ‘statements or writings’ that square the decision to charge Bannon with contempt of Congress with long-standing department legal opinions that say former presidential advisers are largely immune from congressional subpoenas.”
It is worth pausing here to note how inapposite the Klain hypothetical is to the facts before Judge Nichols. First, Klain is actually a current White House official who is presumably being called to testify regarding his official duties; unlike Bannon, therefore, Klain would fall squarely within existing DOJ/OLC doctrine. Second, Klain would presumably, like other White House aides invoking immunity, ask for and receive an express presidential direction not to comply with the congressional subpoena, along with an OLC opinion justifying the invocation of immunity; as already discussed, Bannon’s case is entirely different. Third, in the hypothetical Klain invokes immunity and provides the OLC opinion(s) to support it; again, Bannon did not.
Finally, it is not at all obvious that Klain would have a valid legal defense should DOJ subsequently change its mind and decide to prosecute him. DOJ has long maintained that it would be unconstitutional to prosecute someone in Klain’s position, but that is an open legal question. Discovery will not answer that question, nor will it change the fact that Bannon’s position is different from the Klain hypothetical in any relevant respect.
It is hard to know exactly what Judge Nichols thinks the purpose of this discovery is, but one can surmise that he subscribes to one or both of the following propositions: (1) Bannon may have a defense if the prosecution is inconsistent with the Justice Department’s immunity doctrine, or perhaps the department’s internal interpretation of that doctrine, even if the doctrine and/or the interpretation of it is erroneous; and (2) Bannon may have a defense if he reasonably believed he was immune from compelled testimony under DOJ’s doctrine, even if the doctrine and/or Bannon’s interpretation thereof is erroneous (and, I guess, even if Bannon failed to tell the select committee he was invoking the doctrine).
These propositions seem to me to raise more difficult recusal questions than would the straightforward legal issue whether Bannon is entitled to absolute immunity. They could implicate the reasonableness of the legal position DOJ took in the Miers case and insisted on maintaining even after it was firmly rejected by Judge Bates. That could create an appearance problem for Judge Nichols given his involvement in those matters. There could also be factual questions about which Nichols might have personal knowledge, such as how the Justice Department has historically understood the purpose and contours of the absolute immunity doctrine.
Why Nichols chose to focus on an issue which none of the parties appears to have raised is a mystery, but in doing so he created a more difficult recusal question than existed before.
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