Sunday, October 22, 2017

Trump's Lawyer a Poor Fit for Federal Bench

      President Trump has been neck-deep in a swamp of legal troubles, some political and others quite personal, from the very first days of his presidency and even before. Since entering the White House, he and his staff have relied to some extent on legal advice from Gregory Katsas, an experienced Washington attorney chosen by Trump as deputy counsel to the president.
      Trump has now nominated Katsas to a lifetime federal judgeship: a seat on the United States Court of Appeals for the District of Columbia Circuit, often referred to as the country's second most important federal court. On paper, Katsas is eminently qualified for the bench, as seen in the questionnaire he filed with the Senate Judiciary Committee. Katsas has two Ivy League degrees, Princeton and Harvard Law School; three judicial clerkships, including one term with Supreme Court Justice Clarence Thomas; eight years in ranking positions in the Justice Department; and nearly two decades with a prominent Washington law firm.
      Among all these accomplishments, however, Katsas's most important qualification for Trump's consideration may have been his three decades of active and prominent membership in the Federalist Society. The conservative-libertarian organization has been both the feeder and the screener for Trump's judicial nominees, including the eventual Supreme Court justice Neil Gorsuch.
      Republican senators heaped praise on Katsas during his two-hour hearing before the Senate Judiciary Committee last week [Oct. 17], but Democrats pressed him hard on his ability to be independent of the White House if confirmed. Katsas's assurances on the point left the committee's ranking Democrat, California's Dianne Feinstein, plainly unconvinced.
      Trump has behaved with legal recklessness from his very first week in office — most notably, in issuing as an executive order a travel ban so blatantly anti-Muslim that federal courts had no choice but to strike it down, now even its third iteration. Katsas listed the travel ban as one of many issues on which he had advised the president and the White House staff.
      The sins of the client are  not necessarily sins of the lawyer, but the travel ban was poorly lawyered, to say the least. The executive order was "badly drafted, badly executed, and badly defended," as Jonathan Turley, a George Washington University law professor, remarked at a Supreme Court preview program in September. Nothing has been reported from this very leaky White House to suggest that Katsas voiced any doubts about the ban or counseled against it in any way.
      Katsas listed the travel ban as one of several of Trump's controversial policy moves on which he had advised as deputy counsel. He also acknowledged working on the Emoluments Clause litigation and more specifically pledged to recuse himself if the case eventually came before him.
      Judicial appointments entail some inevitable risks of future recusal — as seen, for example, in Justice Elena Kagan's recurrent need in her first years on the bench to step out of cases that she had helped oversee while serving as U.S. solicitor general. Given his White House role, Katsas would face recusal issues more frequently — arguably, in any of the slew of cases likely to reach the D.C. Circuit challenging Trump administration policy initiatives by executive branch agencies.
      Presidents typically do not nominate White House lawyers for federal judgeships, as the Washington Post noted, "because of questions inevitably raised about the nominee's legal advice." President George W. Bush's nomination of his White House aide Brett M. Kavanaugh to the D.C. Circuit stalled for three years before finally winning Senate approval in May 2006 on a 57-36 vote.
      Trump's utter disregard for administrative law and order casts a darker cloud over Katsas even if, by all accounts, he has a good reputation for honesty and integrity. By way of historical analogy, it seems unimaginable that President Richard M. Nixon, in the midst of the Watergate scandal, could possibly have installed one of his lawyers onto the federal bench. The Senate's then Democratic majority would have rejected the nomination without a second thought.
      Unfortunately, the Senate's current 52-vote Republican majority has shown no hesitation whatsoever in confirming a succession of dubiously qualified, doctrinaire conservative Trump nominees to the federal bench. Katsas will be confirmed, just like those others, unless at least three Republicans are moved by constitutional conscience or, improbably, political calculation to stand up for an independent and politically respectable federal judiciary.
      Katsas was also questioned in regard to his eight years at the Justice Department under President George W. Bush. The Bush administration was also frequently in hot water legally on matters before Katsas in his oversight of the civil division. He acknowledged defending the ultimately unsuccessful effort to block Guantánamo prisoners from any judicial review of their detention, but he claimed credit for faithfully complying with the eventual Supreme Court's decision protecting the prisoners' right to federal habeas corpus.
      If confirmed, Katsas would succeed the hard-line libertarian-conservative judge Janice Rogers Brown, who was reported in early July to be planning to retire after 12 years on the bench. With Brown's retirement, the court's active judges include seven Democratic appointees and three Republican appointees.
      Katsas was asked about his interest in the seat on July 7, according to his account, and five days later agreed to a request by his boss, White House counsel Don McGahn, to undergo a background check. He passed, according to the Trump White House standards, but his work in two legally suspect presidential administrations cries out for the Senate to say no.

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