The Senate Judiciary Committee is now holding its nomination hearing for Greg Katsas, President Trump’s nominee to the D.C. Circuit. Because he has served this year as Deputy White House Counsel, it appears committee ranking member Dianne Feinstein (D-CA) and her Democratic colleagues are using this as an opportunity to turn the hearing into an inquisition regarding virtually every aspect of the Trump administration they oppose. Such a strategy could operate as a subterfuge to overlook the nominee’s impeccable character and rich experience to serve as an appellate judge.
Hopefully this nomination will remain about the nominee’s qualifications and not become a free-for-all regarding the administration. There are prudential reasons for this concern even apart from the importance of filling vacancies in our woefully understaffed federal judiciary. Our constitutional separation of powers offers the president the right to receive candid and confidential advice, a consideration that should not be dismissed casually. The Supreme Court recognized as much in its landmark Watergate-era decision on executive privilege in United States v. Nixon (1974) even while it held that a “generalized assertion of privilege” without more would give way to a “demonstrated, specific need for evidence in a pending criminal trial.”
Whether or not the term “executive privilege” is used (it usually is not), the president’s interest in confidentiality has been asserted as early as the administration of George Washington, when the first chief executive was confronted with congressional demands for documents relating to military misfortunes and treaty negotiations. It remains consistent practice for senior executive branch officials to regard information regarding internal deliberations prior to reaching important decisions on policy and other key matters, including law enforcement investigations, as confidential.
In interbranch conflicts where presidents resist demands for testimony or documents from Congress, courts over the years following Watergate have been reluctant to intervene, preferring that the two branches negotiate their own resolution. In other contexts, however, we have instructive holdings from none other than the D.C. Circuit. In In re Sealed Case (1997), that court recognized that a “presidential communications privilege” applies “to communications authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.” As a member of such a staff, Katsas in his current position would be covered by that privilege. Unlike a narrower “deliberative process privilege” that applies to executive branch officials beyond an immediate White House adviser’s staff, the presidential communications privilege “applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.”
Consistent with the Nixon precedent, this privilege is not absolute, but it is “more difficult to surmount” than that based strictly on deliberative process. To overcome it, a party “must always provide a focused demonstration of need, even when there are allegations of misconduct by high-level officials.” In other words, before demanding testimony or documents from a White House adviser’s staff, show why you need the information from that source and why you cannot get it elsewhere.
When Brett Kavanaugh had his nomination hearing for the D.C. Circuit in 2006, he was asked about issues on which he had given advice as Staff Secretary to President Bush. He refrained from giving more than a general idea of the subject matter he encountered in that position and would not discuss any specific advice he offered. The Senate confirmed him 2½ weeks later.
In this case, Katsas should fare no worse. He enjoys a reputation for integrity and is not facing allegations of involvement in, or even knowledge of, government misconduct. His name has not come up in connection with arguably the Democrats’ top investigative priority this year—one initiated by the Judiciary Committee’s Republican chairman: the probe of Russian interference in the 2016 election and the firing of James Comey. If Katsas had information critical to that investigation, you can bet it would have come up there.
Still, given their track record, don’t be surprised at the spectacle of the Democrats ignoring other venues for investigation and behaving as if they are participating in a kitchen-sink executive branch oversight hearing instead of a judicial nomination hearing.
Update: During the hearing, Katsas testified that he had not worked on any matter relating to the dismissal of James Comey or to Paul Manafort, including his June 9, 2016, meeting with a Russian attorney, and that he lacked knowledge of any underlying facts on the question of Russian interference in the 2016 election. His only work that even related to Special Counsel Robert Mueller’s probe was confined to “a few discrete legal questions arising out of the investigation.” Accordingly, he also testified that the special counsel has not asked to interview him in connection with his investigation. For that matter, he added that he only learned of Comey’s dismissal when he saw mention of it on television. Based on this, the Committee could not make a serious argument overcoming the presumption of executive privilege.