Nichols – who was appointed to the bench in 2019 by former President Donald Trump – will now oversee the Justice Department’s case against Bannon, a former Trump adviser, for Bannon’s alleged breach of the investigation. the House of January 6.
“This experience – it gives him a lot of ground for some of the arguments Bannon is likely to make,” said Jonathan Shaub, a professor at the University of Kentucky Rosenberg College of Law and expert on questions of privilege.
Nonetheless, the Miers case has featured prominently in the Trump administration’s appearing battles, which set the stage for future court battles over Congressional inquiries into the Capitol Riot.
Prosecutors will be grappling with legal issues specific to the Bannon case that could complicate the Justice Department’s path to a conviction of Bannon. But some of these distinctions may make it easier for Nichols to make decisions against Trump’s ally, legal experts say – however sympathy the judge retains. a for the arguments he made over ten years ago.
“I think if there is a judge who is familiar with the matter, it would be Judge Nichols,” said Rick Kaplan, a lawyer who represented the House committee in the Miers case. “A case like Miers hadn’t been raised for many, many years before, so he was innovating. ”
“A History of Defending Aggressive Interpretations of Executive Privilege”
Miers was subpoenaed by a Democratic-controlled House in his investigation into the layoffs of several American lawyers under President George W. Bush. This was an extremely rare case where Congress attempted to use civil litigation to enforce a subpoena from an executive official.
Miers had already quit her post as a White House adviser by the time she was subpoenaed, but the Bush administration argued that since the investigation concerned her work as a close presidential adviser, she was protected by a absolute immunity that allowed him to avoid even appearing for testimony – arguments that were echoed by the Trump administration when the House sued former Trump White House lawyer Don McGahn in 2019 for his refusal to comply to a subpoena from Congress.
Nichols presented the DOJ’s arguments in the Miers case when it was heard by the district court and before a panel of the DC Circuit Court of Appeals.
“I think our briefs make it clear that the need for immunity rests not only on the need to protect the President’s interest in confidentiality, which can be protected at least in some respects by executive privilege, but also on the ability to protect the autonomy of the president and how he exercises his constitutional duties and obligations, ”Nichols said at a district court hearing in July 2008 in the case.
The Justice Department – in submissions signed by Nichols and other senior Bush Justice officials – argued not only that Miers was constitutionally immune from standing as a witness, but that the judicial branch had no authority to settle the civil lawsuit brought by Congress. (This argument will not be available to Bannon as he faces criminal prosecution from the executive.)
“Justice Nichols, at the time, made the executive’s arguments, which are very aggressive in their views on the ability [presidential] counselors to refuse to release information, ”said Emily Berman, a professor at the University of Houston Law Center who had filed a friend of the court brief in the Miers case on behalf of several public interest organizations.
“He’s going to know the issues pretty well and hopefully at least that will allow him to deal with some of these things relatively quickly,” Berman said. “But I think it’s significant that he’s used to defending aggressive interpretations of executive privilege. ”
The arguments made by Bannon to justify not participating in the current House inquiry are even more aggressive than the claims made by Bush’s Justice Department in the Miers case, Berman said. And it should be noted that just because an attorney makes certain arguments on behalf of a client – which Nichols in the Miers dispute said was the executive branch of the U.S. government – does not mean that the attorney is personally d agree with these arguments, or that he will take them with him to the bench.
In his two-plus years on the bench, Nichols made several decisions contrary to the interests of the President who appointed him.
Nichols has rejected attempts by the Trump administration to ban TikTok and refused to dismiss a libel lawsuit against Trump allies for their false allegations of electoral fraud in 2020. He also rejected Trump’s arguments in a case concerning the potential disclosure of his tax returns to Congress.
An experience that will be “useful in its evaluations”
Bannon faces criminal prosecution from the Biden administration, which acted on a House referral, while Bush’s Justice Department has refused to prosecute Miers, prompting lawmakers to file a lawsuit. civil action against her instead.
The issues raised by the Miers case and the Bannon case are not the same, said Jody Hunt, a former senior Justice Department lawyer who has been involved in the Miers case.
“But I think the fact that Justice Nichols has dealt with these other issues gives him useful experience in his assessments, because he already understands a lot about these issues,” Hunt said.
In the Miers case, the DOJ argued that the court should not get involved in the litigation because criminal contempt – as well as the tools held by lawmakers, like executive funding decisions and candidate confirmations – were the appropriate means to pressure compliance with subpoenas. . In the district court arguments, Nichols described the department’s view that “Congress cannot sue the executive branch in federal court to obtain information that he had summoned to appear in the executive branch for the benefit of the government. of its legislative function ”.
Nichols also pointed to the 200-year tradition of Congress and the executive negotiating accommodations around compliance with subpoenas, arguing that judicial intervention in the dispute would spoil that process. Department attorneys pointed out in the case how the Bush administration responded to some of Congressional requests for information before reaching the deadlock over Miers’ testimony.
Notably, Bannon has not entered into negotiations with lawmakers over cooperation at all, beyond a letter his lawyer sent to the House committee on January 6 advising lawmakers that he would follow the directive. former President Trump not to participate in their investigation.
“I think Bannon made it easier for the DOJ – and Nichols in his decision – by absolutely not complying because, privilege: one, it’s qualified. This only applies to certain information. And there is this tradition of negotiation, » Shaub, who worked for the Justice Department during the Obama administration, told CNN.
While Miers, like Bannon, was not a government official when Congress sought his testimony, lawmakers’ interest was in the events that occurred during his White House service. Bannon – as lawmakers are now pointing out – was long out of the White House when the Capitol Riot and related events unfolded.
But since this is a criminal prosecution and not a civil matter, the Justice Department will have to overcome obstacles that were not present when the House sought to order Miers to comply with the subpoena of US prosecutors.
One possible issue in the Bannon case is the weight that can be given to a former president’s assertion privilege, as Biden waived the privilege for the purposes of Bannon’s House demands, while Trump – in a civil case separate regarding presidential records – claims his assertion privilege may override Biden’s waiver of it.
In order for Bannon to be convicted, prosecutors will have to prove – ultimately to a jury – that Bannon had the deliberate intention of defying the congressional subpoena. Bannon’s lawyers are likely to argue that he had good faith reasons not to appear to testify, saying he was following the former president’s direction and the advice of his lawyers.
“While in the Miers litigation, the type of ambiguity was acceptable and the court is trying to resolve these questions of privilege and immunity,” Shaub said.. “Here, if there is any ambiguity in the law, it will be interpreted in favor of Bannon, because he is an accused. ”