WASHINGTON (CN) – A White House lawyer President Donald Trump has nominated for a spot on the Second Circuit dodged questions Wednesday about whether he advised on some of the administration’s most controversial immigration policies.
Steven Menashi has served as associate counsel and special assistant to the president since last year, giving legal advice to senior staff at the White House on a wide range of legal issues.
Democrats on the Senate Judiciary Committee who questioned Menashi during his nomination hearing Tuesday morning tried to pin down what specific issues he advised on in this position, but struggled to get firm answers.
When pressed on whether he advised on the Trump administration’s family separation policy, the decision to lower the number of refugees admitted to the United States or other controversial initiatives, Menashi often responded that principles of confidentiality prevented him from answering questions about what advice he gave to his client.
“Senator, again, I did advise on immigration matters, in addition to other policy issues that would have arisen in the White House, but I’m not authorized here to talk about particular matters,” Menashi said.
He said if senators want to know what issues he advised on, they would need to work with the White House to give him more room to speak freely, as has happened with other nominees drawn from the counsel’s office.
The refrain drew visible frustration from Democrats, who said he should be able to answer their questions in general terms without disclosing specific advice he gave.
“I’ve been on this committee for 26 years, seen a lot of nominees, no one has ever used ‘well, I’m not authorized to talk about it,'” Senator Dianne Feinstein, D-Calif., said at the hearing.
Senator Lindsey Graham, the South Carolina Republican who chairs the Senate Judiciary Committee, said Democrats should have worked with the White House in advance to give Menashi authority to discuss some of the specific advice he gave, but even he expressed frustration when Menashi refused to answer more general questions about whether he worked on certain policies.
Senator Mike Lee, R-Utah, defended Menashi’s reluctance to answer questions about his work in the White House, saying lawyers are duty bound to keep information about their work with their clients secret. He said senators should follow up in writing to give Menashi a fair chance to answer their questions.
“It is not appropriate to beat up Mr. Menashi on the basis of permission he has not been granted to reveal confidential information,” Lee said.
Before joining the White House, Menashi worked under the Trump administration in the Department of Education, where he told the Judiciary Committee he provided “legal advice related to all aspects of the department’s operations, including litigation, rulemaking, regulation and enforcement.” This put him at the agency when it advanced several controversial policies, including rescinding federal guidelines on how schools should investigate and resolve sexual misconduct allegations on campus.
Menashi’s appointment to the Second Circuit has drawn particular scrutiny from Democrats and liberal groups, as he would bring Trump within striking distance of giving the court, which hears cases from New York, Connecticut and Vermont, a Republican-appointed majority.
A broad coalition of left-wing advocacy groups gathered outside of the room in the Senate office building where Menashi’s hearing took place Wednesday morning, shouting and blowing whistles to drown out the nominee’s remarks at the start of the hearing.
In addition to his work at the White House and in the Department of Education, Menashi’s opponents have objected to controversial comments he made in articles as an undergraduate and in his professional life.
Thanks in part due to a segment from MSNBC’s Rachel Maddow, one 2010 law review article Menashi wrote entitled “Ethnonationalism and Liberal Democracy,” has gained particular attention. In the article, Menashi discussed the interplay between Israel’s identity as a Jewish state and its democracy and argued the two are not inherently incompatible.
While Maddow and other critics have called the article racist, Menashi said it has been misconstrued. He said he was simply arguing that there are other liberal democracies that have specific ethnic identities and that Israel is not an outlier in that respect.
“It was not meant to suggest that every country had to be that way, simply to say that Israel was not out of the norm,” Menashi said.
In addition to Menashi, the committee considered the nominations of U.S. District Court for the Eastern District of Pennsylvania nominee Karen Marston, U.S. District Court for the Eastern District of North Carolina nominee Richard Myers and U.S. District Court for the Southern District of Florida nominee Anuraag Singhal.