- The Washington Times - Tuesday, October 17, 2017

A top White House lawyer President Trump nominated to be a federal circuit judge refused Tuesday to detail his role in helping craft some of the president’s most controversial policies, drawing a rebuke from Democrats who said they wanted more transparency before giving him a lifetime judgeship.

Greg Katsas, who’s served as deputy White House counsel since January, said he would be violating his duty as a lawyer if he disclosed the legal advice he’s given the president.

“No lawyer is at liberty to disclose the substance of advice to the client,” Mr. Katsas told Sen. Sheldon Whitehouse, a Rhode Island Democrat, who asked Mr. Katsas to describe his involvement with planning the White House response to the ongoing probe into Russian interference in the 2016 election.

The lawyer said he did not advise the president on the firing of former FBI Director James B. Comey, but he did answer questions about issues related to the special counsel’s investigation into alleged Russia collusion.

Mr. Katsas has also worked on the president’s travel ban policy, his voter integrity commission, the challenges to Mr. Trump’s business arrangements under the Constitution’s Emoluments Clause, immigration policy and the Obamacare contraceptive mandate.

Mr. Trump has picked Mr. Katsas for as seat on the U.S. Circuit Court of Appeals for the District of Columbia, which because it hears so many cases from federal agencies is considered the second most powerful court in the country, behind the Supreme Court.

That makes nominations to the circuit particularly controversial, and Democrats signaled they’ll battle Mr. Katsas.

The top Democrat on the committee, Sen. Dianne Feinstein of California, said she was concerned Mr. Katsas might end up with a problem because of the ongoing Russia probe.

“The possibility exists that current or former White House officials may be fact witnesses,” she said.

Sen. Richard Blumenthal, Connecticut Democrat, asked Mr. Katsas if he had any role in advising the president on an Emoluments Clause challenge, where Mr. Blumenthal is the plaintiff.

Mr. Katsas said he did advise the president on the issue and would recuse himself if a case came before him dealing with Mr. Blumenthal’s legal challenge.

Sen. Chris Coons, Delaware Democrat, asked Mr. Katsas if the president’s pardon of former Arizona Sheriff Joe Arpaio undermines the rule of law, but the nominee refused to answer the question since it pertained to an action committed by his client.

Sen. Richard Durbin, Illinois Democrat, questioned the nominee about waterboarding and if it’s considered a form of torture.

“Waterboarding is likely torture in many circumstances. I hesitate to answer the question in the abstract not knowing the circumstances,” Mr. Katsas demurred.

“There clearly is uncertainty in your answer,” Mr. Durbin said.

Ms. Feinstein also took issue with two of the district court nominees who appeared before the committee on Tuesday, saying the committee had not received their American Bar Association (ABA) scores. She said historically ABA ratings have played an important role during confirmation hearings.

In particular, she raised concerns with Brett Talley, who was nominated to be a district judge for the Middle District of Alabama.

Mr. Talley did not have an ABA score reported to the committee yet, and he also had published a pro-gun blog post five years ago after the mass shooting at Sandy Hook Elementary in 2012 where he said then-President Barack Obama and allied Democrats were “about to launch the greatest attack on our Constitutional freedoms in our lifetime.”

“I have never seen anyone in 24 years before this committee with the strong statements you have made on weapons, and when I think of what just happened in Las Vegas, it makes it very difficult for me,” Ms. Feinstein said.

Mr. Talley told the committee he created the blog post to start a discussion between both sides of the gun control debate, but he promised to be impartial as a judge, ruling on the law and facts, rather than his personal thoughts.

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