White House Lawyer Is Top Pick For Open Court Seat, And Controversy Could Follow

Jul 28, 2017
Originally published on July 28, 2017 1:34 pm

Deputy White House counsel Gregory Katsas is the leading candidate for a judgeship in one of the most important federal appeals courts in the nation, NPR has learned.

While the White House has not yet named its pick for the seat on the U.S. Court of Appeals for the D.C. Circuit, a Katsas nomination would open the door to confirmation hearings that could plumb a series of legal controversies from the first six months of the Trump administration.

Katsas, 52, appears to want the post and it may be his for the taking, according to three legal sources familiar with the vacancy.

Katsas ran the Justice Department's Civil Division during the George W. Bush presidency. Earlier, he served as executive editor of the Harvard Law Review and clerked for Justice Clarence Thomas during his first year on the Supreme Court. Katsas' White House biography says he's argued more than 75 appeals including cases in the high court and "every federal appellate court."

But it's Katsas' work for President Trump this year that could overtake all that other experience in any Senate hearing.

Katsas served on the Justice Department transition team before becoming the right-hand man to White House counsel Donald McGahn after the inauguration this year. The two men had worked together before, as partners at the Jones Day law firm in Washington, D.C. By all accounts, inside the tumultuous Trump White House, McGahn has depended on Katsas for legal advice and day-to-day management of the White House legal operation that includes more than two dozen attorneys.

The administration has had a rough time in the legal arena. Trump had to withdraw his first executive order banning visitors from seven majority-Muslim countries after courts imposed a temporary halt, and signaled it might be unconstitutional. The new, revised version also met with legal challenges, which the Supreme Court will hear in October.

Another judge issued a nationwide injunction over the Trump executive order that threatened to pull funds from so-called sanctuary cities, which decline to share certain information with federal immigration authorities. Attorney General Jeff Sessions eventually issued guidance limiting the scope of the White House order.

Then, there's the stormy relationship between the White House and the Justice Department, a role typically managed by the White House Counsel's Office. The president fired FBI Director James Comey in May, with nearly seven years left to go on his 10-year-term. Trump gave conflicting reasons for the dismissal, finally telling an interviewer at NBC News he let go of Comey to relieve pressure over the DOJ investigation into Russian interference in last year's election.

Yet, the pressure only intensified after the Justice Department named a special counsel to lead the Russia probe, which the president has called a "witch hunt" and a waste of time.

Meanwhile, Justice Department veterans from previous administrations have blown the whistle over what they said are violations of long-standing policy that's supposed to protect law enforcement independence by barring most people in the White House from inquiring about ongoing investigations. New White House communications director Anthony Scaramucci recently told The New Yorker he had consulted with DOJ and FBI about leak investigations. And chief of staff Reince Priebus reportedly pulled aside an FBI official to ask about Russia earlier this year.

In a confirmation hearing for a lifetime-tenured judgeship, especially on the D.C. Circuit which is known as a "feeder" court for the U.S. Supreme Court, all of those issues could be fair game, veterans of the judicial nominations process said. Katsas could be asked about his involvement, knowledge and advice on a host of controversies, though the White House could decide to assert legal privileges over his communications with the president.

There's no dispute about his pedigree. He graduated from top schools, won an award for his previous Justice Department service and, in fact, has played an important role in meeting and vetting Trump's picks so far for the federal courts. Filling court vacancies is a preoccupation for the president, who told an audience on Long Island, N.Y., Friday, "We need to have those judges quickly."

At the end of a month where Trump has attacked his attorney general, his deputy attorney general and the acting director of the FBI, one of the few legal-related mechanisms that appears to be functioning smoothly is the president's judicial nominations process. With the Senate under Republican control, Trump has won relatively easy confirmation for Supreme Court Justice Neil Gorsuch and three other lower-court judges already this year. The White House has selected more than two dozen other nominees awaiting hearings and Senate votes.

Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, said in a tweet this week that the remainder of his calendar this year would be devoted to confirming judges and sub-Cabinet level nominees.

At the White House, spokeswoman Kelly Love told NPR, "we do not have any official announcements at this time."

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