Gregory AFJ NOMINEE REPORT AFJ Katsas U.S. Court of Appeals for the D.C. Circuit WWW.AFJ.ORG CONTENTS Introduction, 1 Biography, 1 Participant in Donald Trump’s Attacks on the Rule of Law, 2 Legal and Other Views, 6 Executive Power and Civil Liberties, 6 Supports Weakening Critical Legal Protections, 9 Work with the Trump Administration In Eroding Legal Protections, 9 Hostility to Legal Protections Throughout His Career, 10 LGBTQ Rights, 10 Reproductive Rights, 11 Undermining Health Care for Millions, 12 Equal Pay, 12 Pleading Standards, 12 Torture Victims, 13 Fair Housing Act, 13 Criminal Justice, 14 Conclusion, 15 WWW.AFJ.ORG PAGE 1 Alliance for Justice strongly opposes his confirmation to the District of Columbia INTRODUCTION Circuit. On September 7, 2017, President Trump nominated Deputy White House Counsel, Biography Gregory G. Katsas, to serve on the United States Court of Appeals for the District of Gregory Katsas graduated from Princeton Columbia Circuit. University in 1986 and Harvard Law School in 1989. Katsas then clerked for Edward There is no doubt why the President nominated Becker on the U.S. Court of Appeals for Katsas. There are countless seasoned the Third Circuit, and then for Clarence Republican lawyers who would be qualified Thomas (first on the D.C. Circuit and then to sit on the D.C. Circuit, the nation’s “second on the Supreme Court). After clerking, highest court.” The reason for Katsas’s Katsas practiced law at Jones Day, where nomination, however, appears to be his role he became a partner in 1999. In 2001, he as a Trump loyalist and a White House insider, joined the U.S. Department of Justice, who by his own account could have had a where he eventually became Assistant hand in almost all legal actions and decisions Attorney General for the Civil Division in undertaken by the Trump Administration. 2008. Katsas returned to Jones Day in 2009 after the election of President Barack Indeed, Katsas describes his role as providing Obama. advice to the President and his staff “on 1 virtually any legal issue of interest.” Given this Following President Trump’s inauguration, fact, Katsas must demonstrate that he will be Katsas joined the administration as Deputy independent of the President who nominated Assistant and Deputy Counsel to the him, and has an obligation to clarify his President. He currently serves in that role. involvement crafting and implementing some Like other Trump nominees, Katsas of the most troubling actions taken by any has strong ties to the ultraconservative President in history. Federalist Society. He has been a member since 1989, and has spoken at Federalist Katsas’s career has also been defined by Society events at least 53 times.2 advocating for virtually unchecked executive power, trying to weaken civil rights laws, and working to eviscerate critical protections for the environment, workers, consumers and investors. 2 Last year, Katsas received a $1,000 honorarium from the Federalist Society. Since 2009 he has served on two Executive Committees of the Federalist Society. He was Vice Chair of the Federalist Society Litigation Practice Group from 1996-2001. He has also spoken before the Pacific Legal Foundation and the Heritage Foundation; 1 Sen. Comm. on the Jud., 115th Cong., Gregory George Katsas: Questionnaire for Judiciary See Sen. Comm. on the Jud., 115th Cong., Gregory George Katsas: Questionnaire for Nominees, 33. Judiciary Nominees, 5, 9–21, 56. WWW.AFJ.ORG PAGE 2 [President Trump],” and “[t]he subject could Participant be virtually any legal issue of interest....” Since Katsas has admitted to having a potential hand in “virtually any legal issue in Donald of interest” in the Trump Administration, the inquiry into his fitness for office must be wide-ranging. Indeed, it is imperative Trump’s that Katsas clarify for the Senate all matters he has worked on for the Trump Administration and his personal position on Attacks on controversial issues. This administration has repeatedly the Rule of demonstrated its contempt for the rule of law by taking actions that courts have made clear are unconstitutional or that Law have raised serious questions regarding the administration’s commitment to the Constitution. The Senate and the Since January 2017, Katsas has served American people have a right to know as Deputy Assistant and Deputy Counsel if Katsas was involved in these matters, to President Trump. Katsas describes his and if so, whether he supported such responsibilities as: troubling actions. They have a right to know what actions, if any, he disavows. [P]roviding legal advice to senior staff These are central questions if the Senate in the White House Office, including is to evaluate how Katsas will perform as the President and the Counsel to the a lifetime appointed judge on the second President; managing legal issues involving highest court in the country. executive-branch agencies; interviewing and recommending candidates for various The following are examples of issues that executive and judicial appointments; and Katsas should be called to address: supervising approximately 15 Associate 3 Counsels to the President. • He must disclose his involvement in the decision not to fire Michael Flynn, While Katsas’s role in the administration is and to allow him to keep his security far-reaching, perhaps his most problematic status, after Acting Attorney General commitment is his relationship with the Sally Yates briefed White House President himself. In his Senate Judiciary Counsel Don McGahn about Justice Questionnaire, Katsas describes President Department and FBI concerns that Trump as his “principal client.” In his post, Flynn could be compromised by the Katsas “is often called on to provide advice to Russians. 3 Id. at 33. WWW.AFJ.ORG PAGE 3 campaign manager, and a Russian • He must disclose his involvement in the lawyer. firing of Acting Attorney General Sally Yates. • He must be asked about reports of repeated attempts by the members • He must disclose his involvement in of the administration and the White the investigation into President Trump’s House Counsel’s office to avoid personal and campaign ties to Russia, cooperating with the investigation including the President’s decision to being conducted by Special Counsel fire FBI Director James Comey. In the Robert Mueller.7 President’s own words, he decided to fire Comey because of “this Russia thing,” • He must disclose his involvement in and “regardless of recommendation [he] the President’s innumerable conflicts was going to fire Comey.”4 Was Katsas of interest, including whether he had involved in such blatant efforts to impede any role in the President’s decision a pending investigation? not to fully divest himself of his business interests. By not divesting, • He must be asked about his involvement President Trump has created conflicts with the President’s allusion, on Twitter, of interest at home and abroad that to the existence of “tapes” of his potentially color his policy decisions.8 conversation with Comey, which appeared Since he has refused to disclose to be an attempt by the President to his tax returns, the full extent of the intimidate a government witness.5 potential misconduct may never be known. Katsas, as a legal and policy • He must be asked about President advisor, must clarify whether he Trump’s unsubstantiated accusation facilitates Trump’s ability to pursue against former President Obama, when he policy initiatives that also line the claimed, “How low has President Obama President’s pockets. As Deputy White gone to tapp [sic] my phones during the House Counsel, Katsas had the legal very sacred election process. This is and ethical responsibility to advise Nixon/Watergate. Bad (or sick) guy!”6 the President against these activities. Yet as the list of conflicts grows, it is • He must be asked about the clear that Katsas has either failed in administration’s response to reports his duty or ignored it. regarding the meeting that took place at Trump Tower among Trump’s sons, • He must disclose whether he Trump’s son-in-law, Trump’s then- participated in approving government 4 Donald Trump interview with Lester Holt, NBC News (May 11, 2017), https://www.nbcnews. and private flights for Cabinet officials com/nightly-news/video/pres-trump-s-extended-exclusive-interview-with-lester-holt-at-the-white- house-941854787582. 5 Donald Trump (@realDonaldTrump), Twitter (May 12, 2017, 5:26 AM); see also Julia Manches- 7 Peter Baker and Kenneth P. Vogel, Trump Lawyers Clash Over How Much to ter, White House refers House panel to Trump’s tweets about Comey ‘tapes’, The Hill (June 11, Cooperate with Russia Inquiry, The New York Times (Sept. 17, 2017), https://www. 2017), http://thehill.com/homenews/administration/339265-white-house-responds-to-house-pan- nytimes.com/2017/09/17/us/politics/trump-lawyers-white-house-russia-mcgahn-ty-cobb. el-on-tapes-points-to-trumps-tweet. html?_r=0. 6 Donald Trump (@realDonaldTrump), Twitter (Mar. 4, 2017, 4:02 AM), https://twitter.com/ 8 Jeremy Venook, Trump’s Interests vs. America’s, Dubai Edition, The Atlantic (Aug. realdonaldtrump/status/837996746236182529?lang=en; see also http://www.politico.com/ 9, 2017), https://www.theatlantic.com/business/archive/2017/08/donald-trump-con- story/2017/09/02/obama-trump-tower-wiretap-no-evidence-242284. flicts-of-interests/508382/. WWW.AFJ.ORG PAGE 4 at tremendous expense to taxpayers. “absolutely” considering “breaking up” the Ninth Circuit as punishment • He must be asked what role he played for ruling against him.10 Katsas has in ethics training and oversight of White served in the administration of a House staff, given the significant and President who shows hostility to the regular ethics problems that have arisen. federal judiciary. Does he share the These range from Kellyanne Conway’s President’s contempt for independent ethics violation hawking Ivanka Trump’s federal judges who will check the products, to communications aide Dan administration when it violates the Scavino’s Hatch Act violation on social Constitution? media, to Jared Kushner’s repeated failure to submit complete and timely financial Such questions are entirely appropriate.