Judge Bannon brings case experience in landmark subpoena battles

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

“That experience — it gives him a lot of background for some of the arguments Bannon is likely to make,” said Jonathan Shaub, a professor at the University of Kentucky Rosenberg School of Law who specializes in privileged issues. .

The statements made by the Bush Department of Justice in court – including in oral arguments presented by Nichols himself, then chief deputy attorney general – were dismissed in district court and the dispute was ultimately was resolved by the Obama administration before the appellate court could fully consider it. on values.

However, Miers’ case stands out in the Trump administration’s subpoena battles, which have set the stage for upcoming court battles over congressional probes into the riots. at the Capitol.

Prosecutors will grapple with legal questions unique to the Bannon case that could complicate the Justice Department’s path to Bannon’s conviction. But some of those differences could make it easier for Nichols to make a decision against ally Trump, legal experts say — whatever the judge still sympathizes with. for the arguments he made more than a decade ago.

Rick Kaplan, an attorney representing the House committee in the Miers case, said: “I think if there was one judge who knew this very well, it would be Judge Nichols. “A case like Miers hadn’t come up for many, many years before that, so it made for a new breakthrough.”

‘History defends positive interpretations of executive privilege’

Miers has been subpoenaed by a Democratic-controlled House of Representatives in an investigation into misconduct by several US lawyers under President George W. Bush. This case is an extremely rare instance of Congress attempting to use civil procedure to enforce compliance with a subpoena from an executive branch official.

Miers was leaving her role as a White House adviser at the time of her subpoena, but the Bush administration argued that because the investigation involved her work as a close presidential adviser, she protected by absolute immunity that allows her not to appear even to testify – an argument that was echoed by the Trump administration when the House sued former Trump White House adviser Don McGahn in 2019 for his refusal. comply with a congressional subpoena.

Nichols presents the DOJ’s arguments in the Miers case as it is heard in district court and as it proceeds before the DC Circuit’s appellate panel.

What's Next in the Inquiry on January 6

“I think our summary makes it clear that the need for immunity is based not only on the need to protect the President’s secret interests, which can be protected in at least some ways by executive privilege, but also is the ability to protect the President’s autonomy and how he discharges his constitutional duties and obligations,” said Nichols at the trial of the case in the district court in July of this year. 2008.

The Justice Department – in a summary signed by Nichols and other top Bush DOJ officials – argues not only that Miers is constitutionally exempt from testifying but that the judiciary has no authority to testify. the right to settle civil lawsuits brought by the National Assembly. (That argument won’t be available to Bannon because he faces criminal prosecution from law enforcement.)

“Judge Nichols, at the time, presented the executive branch’s arguments, being very aggressive in their view of the possibility of [presidential] Emily Berman, a professor at the University of Houston Law Center, who said: Yes on behalf of a number of public interest organizations submitted briefs to a friend of the court about the Miers case.

“He will be quite familiar with the issues and hopefully, at the very least, it will allow him to rule relatively quickly on some of these issues,” Berman said. “But I think it’s important that he has a history of defending positive interpretations of executive privilege.”

Trump warns against giving Congress too much power as it seeks to keep his White House records secret

Berman said the arguments Bannon is making to justify not participating in the current House probe are even more stark than the statements made by the Bush DOJ in the Miers case. And it’s worth noting that just because an attorney is making certain arguments on behalf of a client – which, for Nichols in the Miers dispute, is an executive branch of the US government – doesn’t mean he’s personal. the attorney agrees with those arguments, or that he will bring them with him to the bench.

In more than two years on the bench, Nichols has had a number of decisions against the interests of the President who appointed him.
Nichols shoot down Trump administration’s effort to ban TikTok and refuse to refute a defamation lawsuit against Trump allies for their false 2020 election fraud claims. He also rejected Trump’s arguments in a case involving his ability to disclose his tax returns to Congress.

Experience will be ‘helpful in his assessments’

Bannon is facing criminal prosecution from the Biden administration, acting on a recommendation from the House of Representatives, while the Bush Justice Department refused to prosecute Miers, prompting lawmakers to launch a civil lawsuit against her.

Jody Hunt, a former DOJ top attorney involved in the Miers case, said the issues raised in the Miers case and the Bannon case are not the same.

“But I think the fact that Judge Nichols has dealt with other issues gives him a useful experience in his assessments, because he’s understood so much about these issues.” , Hunt said.

In the Miers case, the DOJ argues that the courts should not be involved in the contempt dispute — as are tools wielded by lawmakers, such as executive branch funding decisions and determinations. nominations – are appropriate ways to pressure compliance with subpoenas. . In the district court’s arguments, Nichols described the department’s position that “Congress cannot take the executive branch to federal court seeking information that the agency has subpoenaed from the executive to support its legislative function.”

Nichols also highlighted the 200-year tradition of Congress and the executive branch negotiating settlements around subpoena compliance, arguing that court intervention in the dispute would derail that process. . Department lawyers highlight in this case how the Bush administration responded to several requests for information by Congress before reaching an impasse over Miers’ testimony.

Bannon notably did not enter into negotiations with legislators about cooperation, apart from a letter from him The attorney general sent the House committee on January 6 to notify 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 to arbitrate this – just by being completely non-compliant because, privileged: one, it qualifies. It only applies to certain pieces of information. certain. And there is this tradition of bargaining, ” Shaub, who worked for the Justice Department during the Obama administration, told CNN.

While Miers, like Bannon, was not a government official when Congress was seeking her testimony, the lawmakers’ interest were events that occurred during her time in office. The White House. Bannon – as lawmakers are now pointing out – had not been out of the White House for long as the Capitol riots and related events unfolded.

But because this is a criminal prosecution, and not a civil matter, there will be obstacles the Justice Department will have to overcome that the Justice Department was not present when the House was trying to figure it out. order of Miers to comply with the investigative subpoena of the United States Attorney.

One possible question in the Bannon case is how much weight can be given to the former president’s affirmative privilege, since Biden has waived the privilege for House purposes to ask for Bannon, while Trump – in a separate civil case involving the presidential record – is claiming his confirmation privilege could replace Biden’s relinquishment of it.

For Bannon to be found guilty, prosecutors will have to prove – ultimately before a grand jury – that Bannon intended to defy a congressional subpoena. Bannon’s attorneys could argue that he had good reason not to appear to testify, arguing that he was following the former President’s directives and the advice of his attorneys.

“Meanwhile in the Miers case, ambiguity is acceptable and the court is trying to resolve these issues of privilege and immunity,” Shaub said.. “Here, if there is ambiguity in the law, it will be construed in favor of Bannon, because he is a criminal defendant.”


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