Judge in Bannon contempt case once fought Congress’ subpoena power

It’s a remarkable symmetry for the meek, longtime corporate attorney who is now at the helm of one of the major clashes between Congress and Trump – the man who put him on the Bundesbank in 2019. The Bannon case has implications for the future of Congressional investigations and efforts to uncover the secrets of those who fueled the January 6 attack on the Capitol.

Despite his Trump-era pedigree, Nichols won’t be easy to type. He is already leading dozens of criminal cases related to the January 6 attack, and his judgments and verdicts have largely been aligned with those of the rest of the district’s judges.

Nichols has not shy away from attacking defendants for threatening the peaceful transfer of power, and on January 6 he ordered a defendant, Jeffrey McKellop, a retired special forces soldier, to be placed in pre-trial detention. And prosecutors quoted Nichols’ words in demanding harsh sentences for some of the Jan.6 defendants.

“Democracy requires the cooperation of the citizens,” said Nichols recently in a hearing on the judgment of the defendant Thomas Gallagher on January 6th. “The protest in the Capitol, which is delaying the confirmation of the elections, is disrupting our entire system of government and undermining the stability of our society.”

Nichols sentenced Gallagher to two years probation.

Nichols also leads a number of civil defamation suits filed by voting machine maker Dominion against pro-Trump figures like Rudy Giuliani, Sidney Powell and Mike Lindell for spreading alleged falsehoods about the company that facilitates electoral fraud.

Trump has made it clear that he expects the judges he appoints to consistently rule in his favor and his political allies, but Nichols is among those who have not. Giuliani, Powell, Lindell, and others argued that their statements about Dominion were legally protected as part of the harsh political upheaval, but in a Nichols ruling in August expressly contradicted and ordered that the lawsuits proceed with the determination of the facts.

“There is no blanket immunity for utterances that are ‘political’ in nature,” wrote Nichols. “It is true that courts recognize the value of ‘imaginative expression’ or ‘rhetorical exaggeration’ in our public debate. … But it is simply not the law that demonstrably false information cannot be challenged if it is made in the context of an election. “

Trump card nominated Nichols In 2018 in the U.S. District Court for the District of Columbia, and he was confirmed by a 55-43 Senate vote in June 2019. All Republicans and three Democrats – Joe Manchin of West Virginia, Kyrsten Sinema of Arizona, and Doug Jones of Alabama – supported the nomination.

One of Nichols’ former opponents in the courtroom told POLITICO that the story of the judge in the Bush case should lead him to withdraw from the Bannon matter. It’s unclear whether the judge will bring this up at a hearing on Thursday – his first in the Bannon case – where he may also ask questions about a possible gag arrangement.

On a grand jury indictment that returned last week, Bannon faces two “disregard for Congress” charges for his total refusal to appear under a subpoena and provide documents to the House Special Committee on Jan. 6. Bannon’s attorney at the time, Robert Costello, said Bannon was immune to appearing because of his relationship as an advisor to Trump. But Bannon’s claim presented an extreme – and legally shaky – view of his ability to ignore a subpoena from Congress.

Although the Justice Department has long asserted the right of presidential advisors to claim “absolute immunity” from testifying before Congress – even a legally questionable position – those claims have usually been reserved for a small group of top White House advisors, not Outsiders with no official responsibilities.

The January 6th committee hopes the criminal complaint against Bannon, filed just three weeks after the House of Representatives referred the case to the Justice Department, will compel other reluctant witnesses to cooperate. How Nichols approaches this case can affect that prospect.

Bannon made a quick hit on his War Room podcast when he surrendered to the FBI last week and held a press conference right outside the courthouse saying the criminal case against him would prove to be “hell” for President Joe Biden , Attorney General Merrick Garland and House Speaker Nancy Pelosi. Bannon seems intent on using his prominent right-wing media megaphone to portray the case against him as corrupt and political.

A 1996 graduate of the University of Chicago Law School, Nichols worked for Appeal Court Judge Laurence Silberman and Supreme Court Justice Clarence Thomas before a long career in private practice interrupted only by five years in the Justice Department.

But Nichols’ story with the Bush case – when Chief of Staff Joshua Bolten and former White House legal adviser Harriet Miers claimed they were “immune” to a testimony in Congress about Bush’s dismissal of eight US lawyers – is the biggest role in this the Bannon indictment.

As representative of Bolten and Miers on behalf of the Bush White House, Nichols argued that the need for Congressional testimony is not as acute as, for example, in courts.

“The congress doesn’t need perfect information. You are not sitting as a grand jury. They sit together to have enough information to make general legislative and forward-looking judgments, ”argued Nichols, as legal entities such as White House attorney Fred Fielding and Chairman of the House Judiciary Committee John Conyers (D-Mich.) , watched.

Ultimately, Nichols lost the case before US District Court Judge John Bates, who ruled that presidential advisers must appear if they are summoned by Congress. The Justice Department appealed the decision, but after Barack Obama won the presidency, the House of Representatives, Bush attorneys and the new administration reached an agreement and dropped the dispute on the matter.

Bates’ ruling is not binding on other courts, but it remains one of the few to ever address the concept of immunity for presidential advisors.

Despite Nichols’ broad argument in favor of immunity for top presidential advisors, it is nowhere near as extreme as Bannon’s. For example, Nichols told the court that subpoenas from Congressional documents could still be tried. In particular, Bannon refused to comply with a request from a committee document.

And Nichols stressed that the notion of “absolute immunity” should only apply to a “small group” of close advisers to the president, such as the chief of staff or the White House attorney.

“We are not calling for carte blanche to have absolute immunity for anyone in the White House,” argued Nichols at the time.

Bannon, who had not been to the White House in years at the time of the January 6th Capitol Uprising, would clearly be outside the scope of this analysis.

Nichols’ rival attorney on the Miers-Bolten case, former House attorney Irving Nathan, praised his opponent this week but said that Nichols may want to take the Bannon case on to one of his colleagues.

“Carl Nichols was a thoroughly professional, highly competent and polite opponent in the Harriet Miers case,” Nathan told POLITICO in an email. “I haven’t followed his career as a district court judge, but I expect him to be fair, impartial, and strictly lawful. Still, I think that, for the sake of impartiality, he should consider pulling out of the Bannon case. The problems are too similar to the Miers case. “

“I acknowledge that at the time he was simply representing the position of the Bush administration and the then DOJ. And most of his arguments were about procedural issues in a civil law context that are not present in this criminal case, ”Nathan continued. “But ultimately he argued that a witness, a private citizen (a former executive officer), who follows a presidential instruction, does not have to obey a subpoena from Congress and may even refuse to show up, produce any documents, or even the alleged ones List documents. “To be privileged.”

Nathan’s successor as House attorney, Kerry Kircher, said he understood concerns about “the occurrence of conflict” but did not believe that the ethics of justice would oblige Nichols to step down.

“As a general statement, I do not believe that a position that an attorney has held as a lawyer creates a conflict of interest when that attorney later acts as a judge and is confronted with a case that is the same as that for which he was previously advocating . ”Said Kircher.

Democratic senators pushed Nichols precisely on the Bush case during the 2019 confirmatory process. In a written questionnaire, Senator Mazie Hirono (D-Hawaii) asked whether Nichols continued to have “these expansive views of the executive powers.”

“As a litigator who represented the executive branch in these cases, I vigorously defended the interests of my clients and the political decisions of other, higher-ranking employees of the executive branch, but I was not responsible for these political decisions,” replied Nichols, confirming that I will not be a litigator who represents a party, but a judge whose duty it is to rule cases fairly on the basis of applicable law and relevant precedents. “

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