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Judge in contempt of Bannon case previously fought congressional subpoena power

It’s a remarkable symmetry for the longtime, mild-mannered business lawyer, who now finds himself at the head of one of the most important clashes between Congress and Trump – the man who put him on the federal bench in 2019. The Bannon case has implications for the future of Congressional investigations and for efforts to uncover the secrets of those who fueled the Jan.6 attack on Capitol Hill.

Despite his Trump-era pedigree, Nichols won’t be easy to classify. He is already presiding over dozens of criminal cases stemming from the January 6 attack, and his rulings and sentences are largely aligned with those of other district judges.

Nichols did not hesitate to attack the defendants for threatening the peaceful transfer of power, and he ordered the pre-trial detention on January 6, Jeffrey McKellop, a retired special forces soldier. And prosecutors cited Nichols’ comments as they called for stiff sentences for some of the Jan.6 defendants.

“Democracy requires the cooperation of citizens,” Nichols said at a recent January 6 sentencing hearing for the accused Thomas Gallagher. “Demonstrating on Capitol Hill in a way that delays the certification of the election, casts disarray throughout our system of government and undermines the stability of our society. “

Nichols sentenced Gallagher to two years of probation.

Nichols is also presiding over a series of civil libel lawsuits that voting equipment maker Dominion has filed against pro-Trump figures such as Rudy Giuliani, Sidney Powell and Mike Lindell for their spread of false allegations about the company facilitating voter fraud. .

Trump has made it clear that he expects the judges he has appointed to rule consistently in his favor and in favor of his political allies, but Nichols is among those who have not. Giuliani, Powell, Lindell and others argued their Dominion statements were legally protected amid the political turmoil, but in an August Nichols ruling categorically disagree and ordered that the prosecution may continue to investigate.

“There is no general immunity for statements of a ‘political’ nature,” Nichols wrote. “It is true that the courts recognize the value of some level of ‘imaginative expression’ or ‘rhetorical hyperbole’ in our public debate. … But it is simply not the law that provable false statements cannot be prosecuted if made in the context of an election. “

Asset Nichols nominated in the United States District Court for the District of Columbia in 2018, 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 – backed the nomination.

One of Nichols’ former adversaries in the courtroom told POLITICO that the judge’s history in the Bush case should lead him to withdraw from the Bannon case. It’s unclear whether the judge will address this issue at a hearing Thursday – his first in the Bannon case – where he could also face questions about a possible gag order.

Under a grand jury indictment released last week, Bannon faces two counts of “contempt of Congress” for his categorical refusal to appear on a subpoena and provide evidence. documents to the House select committee on January 6. Bannon’s attorney at the time, Robert Costello, said Bannon was immune from appearance due to his relationship as Trump’s adviser. But Bannon’s request represented an extreme – and legally fragile – view of his ability to ignore a subpoena from Congress.

Although the Justice Department has long asserted the right of presidential advisers to claim “absolute immunity” from testifying before Congress – itself a legally fragile position – these claims have generally been reserved for a small group of legal advisers. White House, and not to strangers without any responsible. responsibilities.

The Jan. 6 committee hopes that the criminal charges against Bannon, brought just three weeks after the House referred the case to the Justice Department, will force other reluctant witnesses to cooperate. The way Nichols approaches this matter may influence this perspective.

Bannon made a quick hit for his “War Room” podcast as he visited the FBI last week and held a press conference just outside the courthouse, where he said the criminal case against him would prove to be “hell” for President Joe Biden, Attorney General Merrick Garland and House Speaker Nancy Pelosi. Bannon appears to intend to use his right-wing media megaphone to present the case against him as corrupt and political.

Nichols, who graduated from the University of Chicago Law School in 1996, interned with Court of Appeal Judge Laurence Silberman and Supreme Court Judge Clarence Thomas before a long career in private practice, only interrupted through his five-year stint at the Ministry of Justice.

But Nichols’ story with the Bush affair – when Chief of Staff Joshua Bolten and former White House lawyer Harriet Miers claimed they were “immune” to testifying in Congress about the Bush’s dismissal of eight US lawyers – outweighs the Bannon charge.

Representing Bolten and Miers on behalf of the Bush White House, Nichols argued that Congress’ need for testimony is just not as acute as, say, the courts.

“Congress doesn’t need perfect information. They do not sit on a grand jury. They sit in order to have enough information to make general legislative and predictive judgments, ”argued Nichols, watched by legal bigwigs like White House attorney Fred Fielding and chairman of the House Judiciary Committee. , John Conyers (D-Mich.).

Ultimately, Nichols lost the case to U.S. District Court Judge John Bates, who ruled that presidential advisers must appear when subpoenaed by Congress. The Justice Department appealed the decision, but after Barack Obama won the presidency, the House, Bush’s lawyers and the new administration came to an agreement and dropped the litigation over the case.

Bates’ decision is not binding on other courts, but remains one of the few to ever address the notion of immunity for presidential advisers.

Despite Nichols’ broad argument for the immunity of key presidential advisers, it’s not as extreme as Bannon’s. Nichols told the court, for example, that subpoenas from Congress for documents could still be challenged. Bannon, in particular, refused to comply with a request for a committee document.

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

“We’re not looking for carte blanche to have absolute immunity for anyone in the White House,” Nichols said at the time.

Bannon, who had been absent from the White House for years at the time of the Jan.6 riot on Capitol Hill, would clearly be stepping outside the bounds of this analysis.

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

“Carl Nichols was a very professional, very knowledgeable and courteous opponent in the Harriet Miers affair,” 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 follow the law on the bench. Nonetheless, for the sake of the appearance of impartiality, I think he should consider recusing himself from the Bannon case. The problems are too similar to the Miers case.

“I admit that he was then simply defending the position of the Bush administration and the then DOJ. And most of his arguments revolved around procedural issues in a civil context that are not present in this criminal case, ”Nathan continued. “But ultimately, he argued that a witness, a private citizen (a former executive official) on the instructions of a president, did not need to comply with a subpoena from Congress and could even refusing to appear, to produce documents or even to give details of the alleged documents.

Nathan’s successor as House Legal Counsel Kerry Kircher said he understood concerns about “the appearance of conflict” but did not believe judicial ethics would force Nichols to recuse himself. .

“As a general rule, I don’t think that a position that a lawyer has taken as a lawyer … creates a conflict of interest if that lawyer later serves as a judge and is faced with a case that presents the issue on which he has previously defended, ”says Kircher.

Democratic senators insisted specifically on Nichols about the Bush case during the confirmation process in 2019. In a written questionnaire, Senator Mazie Hirono (D-Hawaii) asked if Nichols continues to have “those broad views. executive powers ”.

“As a litigator representing the executive branch in these cases, I have vigorously defended the interests of my clients and the political decisions made by other higher-ranking employees of the executive branch, but I was not responsible for these political decisions, ”replied Nichols. “If I am confirmed, I will not be a litigant representing a party, but a judge whose obligation is to decide cases fairly, on the basis of existing law and relevant case law.

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