Judge Bannon represented Bush’s Justice Department in the fight for executive privilege

By Tierney Sneed, CNN

More than a decade before he was handed the criminal contempt case against Steve bannon, Judge Carl Nichols was a leading Justice Department attorney deeply involved in defending sweeping arguments for protecting a former presidential adviser from congressional testimony.

Nichols – who was appointed to the bench in 2019 by former President Donald Trump – will now oversee the Justice Department’s case against Bannon, a former Trump adviser, for Bannon’s alleged breach of the investigation. the House of January 6.

Just as remarkable as the president who put Nichols on the bench is the judge’s experience in defense. Harriet miers, who served as a White House adviser to President George W. Bush, when lawmakers filed a civil suit against her for refusing to appear for testimony summoned by the House. Bannon has pleaded not guilty, and if the case goes to trial, it will be a jury that ultimately determines his guilt. But Nichols will decide the crucial legal and procedural questions that arise before and during a possible trial.

“This experience – it gives him a lot of foundation for some of the arguments Bannon is likely to make,” said Jonathan Shaub, a professor at the University of Kentucky Rosenberg College of Law and expert on questions of privilege.

RELATED: What’s Next for the Jan.6 Investigation

Bush DOJ’s claims in court – including in oral argument presented by Nichols himself, then the Senior Deputy Attorney General – were dismissed by the district court and the dispute was ultimately settled by the administration. Obama before an appeals court can fully weigh on the merits.

Nonetheless, the Miers case has featured prominently in the Trump administration’s appearing battles, which set the stage for future court battles over Congressional inquiries into the Capitol Riot.

Prosecutors will be grappling with legal issues specific to the Bannon case that could complicate the Justice Department’s path to a conviction of Bannon. But some of those distinctions may make it easier for Nichols to make decisions against Trump’s ally, legal experts say – however sympathy the judge retains. a for the arguments he made over ten years ago.

“I think if there is a judge who is familiar with the matter, it would be Judge Nichols,” said Rick Kaplan, an attorney who represented the House committee in the Miers case. “A case like Miers hadn’t come up for many years before, so he was breaking new ground. “

“A History of Defending Aggressive Interpretations of Executive Privilege”

Miers was subpoenaed by a Democratic-controlled House in his investigation into the layoffs of several American lawyers under President George W. Bush. This was an extremely rare case where Congress attempted to use civil litigation to enforce a subpoena from an executive official.

Miers had already quit her post as a White House adviser by the time she was subpoenaed, but the Bush administration argued that since the investigation concerned her work as a close presidential adviser, she was protected by a absolute immunity that allowed him to avoid even appearing for testimony – arguments that were echoed by the Trump administration when the House sued former Trump White House lawyer Don McGahn in 2019 for his refusal to comply to a subpoena from Congress.

Nichols presented the DOJ’s arguments in the Miers case when it was heard by the district court and before a panel of the DC Circuit Court of Appeals.

“I think our briefs make it clear that the need for immunity rests not only on the need to protect the President’s interest in confidentiality, which can be protected at least in some respects by executive privilege, but also on the ability to protect the autonomy of the president and how he exercises his constitutional duties and obligations, ”Nichols said at a district court hearing in July 2008 in the case.

The Justice Department – in submissions signed by Nichols and other senior Bush Justice officials – argued not only that Miers was constitutionally immune from standing as a witness, but that the judicial branch had no authority to settle the civil lawsuit brought by Congress. (This argument will not be available to Bannon as he faces criminal prosecution from the executive.)

“Justice Nichols, at the time, made the executive’s arguments, which are very aggressive in their views on the ability to [presidential] counselors to refuse to provide information, ”said Emily Berman, a professor at the University of Houston Law Center who had filed a friend of the court brief in the Miers case on behalf of several public interest organizations.

“He’ll know the issues pretty well and hopefully at least that will allow him to deal with some of these things relatively quickly,” Berman said. “But I think it’s significant that he’s used to defending aggressive interpretations of executive privilege.”

The arguments made by Bannon to justify not participating in the current House inquiry are even more aggressive than the claims made by Bush’s Justice Department in the Miers case, Berman said. And it should be noted that just because a lawyer makes certain arguments on behalf of a client – which Nichols in the Miers dispute said was the executive branch of the US government – does not mean the lawyer is personally d agree with these arguments, or that he will take them with him to the bench.

In his two-plus years on the bench, Nichols made several decisions contrary to the interests of the President who appointed him.

Nichols beaten down attempts by the Trump administration to ban TikTok and refused to fire a Defamation lawsuit against Trump allies for their false allegations of 2020 election fraud. He also rejected Trump’s arguments in a case regarding the potential disclosure of his tax returns to Congress.

An experience that will be “useful in its evaluations”

Bannon faces criminal prosecution from the Biden administration, which acted on the House referral, while Bush’s Justice Department has refused to prosecute Miers, prompting lawmakers to file a lawsuit civil against her instead.

The issues raised by the Miers case and the Bannon case are not the same, said Jody Hunt, a former senior Justice Department lawyer who has been involved in the Miers case.

“But I think the fact that Judge Nichols has dealt with these other issues gives him useful experience in his assessments, because he already understands a lot about these issues,” Hunt said.

In the Miers case, the DOJ argued that the court should not get involved in the litigation because criminal contempt – as well as the tools held by lawmakers, like executive funding decisions and candidate confirmations – were the appropriate means to lobby for compliance with subpoenas. In the district court arguments, Nichols described the department’s view that “Congress cannot sue the executive branch in federal court by requesting information that he had cited to appear before the executive branch for profit. of its legislative function ”.

Nichols also pointed to the 200-year tradition of Congress and the executive negotiating accommodations around compliance with subpoenas, arguing that court intervention in the dispute would spoil that process. Department attorneys pointed out in the case how the Bush administration responded to some of Congressional requests for information before reaching the deadlock over Miers’ testimony.

In particular, Bannon did not engage in negotiations with lawmakers on cooperation at all, beyond a letter its The lawyer sent the House committee on Jan.6 to advise lawmakers that he would follow former President Trump’s directive not to participate in their investigation.

“I think Bannon made it easier for the DOJ – and Nichols in his decision – by absolutely not complying because, privilege: one, it’s qualified. This only applies to certain information. And there is this tradition of negotiation, ” Shaub, who worked for the Justice Department during the Obama administration, told CNN.

While Miers, like Bannon, was not a government official when Congress sought his testimony, lawmakers’ interest was in the events that occurred during his White House service. Bannon – as lawmakers are now pointing out – was long out of the White House when the Capitol Riot and related events unfolded.

But since this is a criminal prosecution and not a civil matter, the Justice Department will have to overcome obstacles that were not present when the House sought to order that Miers comply with the subpoena of US prosecutors.

One possible issue in the Bannon case is the weight that can be given to a former president’s assertion privilege, as Biden waived the privilege for the purposes of the House’s demands on Bannon, while Trump – in a civil case separate regarding presidential records – claims his assertion privilege may trump Biden’s waiver of it.

In order for Bannon to be convicted, prosecutors will have to prove – ultimately to a jury – that Bannon had the deliberate intention of defying the congressional subpoena. Bannon’s lawyers are likely to argue that he had good faith reasons not to appear to testify, saying he was following the former president’s direction and the advice of his lawyers.

“While in the Miers litigation, the type of ambiguity was acceptable and the court is trying to resolve these questions of privilege and immunity,” Shaub said.. “Here, if there is any ambiguity in the law, it will be interpreted in favor of Bannon, because he is an accused.”

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