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One of President Donald Trump’s top judicial nominees faced a bevy of questions Tuesday over his involvement as a White House lawyer with some of the administration’s most controversial programs, in addition to special counsel Robert Mueller’s probe.
Greg Katsas, the deputy White House counsel whom Trump nominated to be a judge on the powerful DC Circuit Court of Appeals, told the Senate Judiciary Committee during a hearing that he worked on the White House’s response to Mueller’s investigation into Russian election interference. He also said he was involved with work on controversial policies and initiatives that could well end up before the court he is tapped to possibly sit on in some form. Those policies include the travel ban, the voter fraud commission, and the decision to phase out protections from the Deferred Action for Childhood Arrivals program for young undocumented immigrants.
Those issues caused some to wonder just how independent Katsas, who served in the Trump administration since January, could be when faced with cases involving the Trump administration. Katsas said he would recuse himself from matters related to Mueller’s investigation that he personally worked on, but did not commit to a recusal for all potential cases stemming from the Mueller probe, saying he would consider the facts of the case before making a decision.
During an exchange with Democratic Sen. Dianne Feinstein of California, the ranking member of the committee, Katsas said he has “given legal advice on a few discrete legal questions arising out of the” Mueller investigation.
“I have no knowledge of any underlying facts regarding Russian interference,” he added.
When pressed by Feinstein to “tell us what those legal questions were,” Katsas said he could not, saying that the topics were both confidential and covered by attorney-client and executive privilege.
“I have not until today been asked to reveal the substance of advice that I may have provided,” he said, adding that going into detail could undermine the Mueller investigation.
“I don’t think I could properly talk about issues that could signal what he is looking at, the scope, the focus, the progress of his investigations,” he said. “And I want I want to be very careful not to say anything that inadvertently undermines his work.”
Sen. Sheldon Whitehouse did not think much of that explanation.
“What on Earth could you possibly say there that would undermine the work of the special counsel?” the Rhode Island Democrat asked.
Richard Painter, the top White House ethics lawyer under President George W. Bush, echoed Whitehouse in an interview with Business Insider.
“That’s nonsense,” he said.
Painter said he wrote a letter to Democratic Sen. Al Franken of Minnesota, a member of the Senate Judiciary Committee, on the concerns that should be addressed with Katsas in the hearing. Painter, a frequent critic of the Trump administration, said Katsas could claim executive privilege and avoid answering some of the questions he was faced with, but the Senate also is not under any obligation to confirm him.
In recent days, Trump has been pointing to the Senate’s slow pace of confirmation for his many judicial nominees, saying it’s “not fair.”
“For the purpose of evaluating his character and fitness, it’s important to know the areas where the White House may very well have acted inappropriately,” he said. “Evaluating his character and fitness – that’s very relevant.”
Katsas, who served as a top official in the Justice Department during Bush’s presidency, received high praise from conservative judicial activists.
Carrie Severino, chief counsel of the Judicial Crisis Network, which has been aggressively backing Trump’s judicial nominees, said Katsas is “simultaneously a brilliant and talented lawyer and an unfailingly kind and humble man.”
“A seasoned and well-respected Supreme Court advocate, Katsas will uphold the Constitution and apply the law fairly,” she said. “I hope for a speedy confirmation for the latest of President Trump’s stellar judicial nominees.”
Carl Tobias, a University of Richmond professor who is an expert on judicial nominations, told Business Insider in an email that Katsas’ limited answers on his involvement in the Russia investigation doesn’t “seem like a major issue.”
Tobias added that is because the White House lawyer “suggested that he had given legal advice to a few people, but we don’t know who they were or the nature of the advice so you can’t tell definitively.”
“My guess is that the Senate Judiciary Committee will approve him on a party line vote,” he said.