WASHINGTON (CN) – The White House lawyer nominated for a seat on the D.C. Circuit declined to tell Senate Democrats on Tuesday what advice he gave to the president on Special Counsel Robert Mueller’s ongoing investigation into Russian meddling in the 2016 election.
“I am not a part of the investigation, but to the extent I could say things that reveal what legal issues the special counsel may be looking at, I don’t think I can properly talk about issues that could signal what he is looking at, the scope, the focus, the progress of his investigation,” Deputy White House Counsel Gregory Katsas said at his nomination hearing Tuesday.
“And I want to be very careful not to say anything that inadvertently undermines his work,” Katsas said.
Katsas told Sen. Dianne Feinstein, D-Calif., he gave legal advice on “a few discrete” questions coming from Mueller’s investigation, but would not say exactly what he offered.
Katsas also acknowledged he gave legal advice on Trump’s ban on immigration from six Muslim majority countries, as well as on a religious liberty executive order and the decision to repeal the program known as DACA that provides protection for people in the country illegally who were brought to the U.S. as children.
“As a lawyer for the president, I can’t comment publicly on legal matters affecting my client and I certainly wouldn’t publicly criticize my client in order to enhance my personal interests before you today,” Katsas told Sen. Chris Coons, D-Del., in response to a question about the president’s pardon of former Sheriff Joe Arpaio.
Democrats appeared frustrated at times with Katsas’ refusal to delve more deeply into the legal advice he gave Trump, especially Sen. Sheldon Whitehouse, D-R.I., who pressed Katsas on why he could not answer the questions if Trump did not explicitly claim executive privilege.
Katsas also faced questions on a speech he gave in March to the Federalist Society, the conservative legal group that lists Katsas as an expert. Katsas provided notes he used during the speech to the Judiciary Committee, which included several entries he described as “cryptic” that referenced notable controversies from the early days of the Trump White House.
One such note mentioned the names of former Acting Attorney General Sally Yates and former National Security Advisor Michael Flynn. Trump fired Yates after she refused to defend an executive order banning immigration from Muslim majority countries, while Flynn resigned after it was revealed he did not tell Vice President Mike Pence about his conversations with a Russian diplomat.
Katsas told Feinstein he mentioned Flynn and Yates as examples of a the fast pace of work in the early Trump White House and that he was not involved in the decisions to fire them.
He did not have a similar answer when Sen. Al Franken, D-Minn., asked why he jotted down “yesterday” in his notes for the speech. Franken noted he gave the speech the day after the Washington Post reported Attorney General Jeff Sessions did not tell the Senate about meetings he took with former Russian Ambassador Sergei Kislyak, but Katsas said he could not remember if he referred to the note in his speech.
Franken was unhappy with the answer and implored Katsas to try to get a recording of the speech to provide to the committee.
Republicans defended Katsas at the hearing, calling him exceptionally qualified and saying his insistence on not telling Democrats about specific legal advice he offered the president is necessary to ensure the White House counsel can give legal advice in confidence.
“I know from my time as general counsel to Utah Governor John Huntsman, it would be impossible for staff to provide candid advice without the guarantee that the deliberations would remain private,” Sen. Mike Lee, R-Utah, said at the hearing.
Katsas’ testimony was the main focus of Tuesday’s hearing before the Senate Judiciary Committee, but the panel also considered the nominations of four federal district court judges. Two of the nominees, Brett Talley and Emily Marks, are members of the conservative Federalist Society, with Marks having joined just this year.
Talley, who is up for a position on the U.S. District Court for the Middle District of Alabama, was the most controversial nominee to go before the committee Tuesday, with Democrats grilling him on a series of blog posts he penned five years ago that were vocally supportive of gun rights.
Feinstein specifically took umbrage with a post saying it was “an outrage” that gun control advocates were calling for more restrictive gun laws following the shooting at Sandy Hook Elementary School in 2012.
Talley also argued in the post that the massacre would not have been as deadly if teachers were armed, Feinstein said.
Talley defended the blog posts as a way to foster discussion on the divisive issue and promised not to let his opinions seep into his judging.
“All I can do is give you this assurance: that I truly believe in the rule of law,” Talley said. “I believe in the independence of the judiciary. I believe that judges should set aside their own views. They all have them. Everyone who comes before you has views. Some of them have written about them, some of them haven’t. The challenge that every single one of them faces is to put those views aside and to let the law be their guide. That is the assurance I can give you.”
But Sen. Richard Blumenthal, D-Conn., became frustrated when Talley would not directly answer whether he stood by his writings, saying instead that his personal opinions would not play a role in his judging.
“I consider that answer totally disingenuous and evasive,” Blumenthal said. “I’m asking you whether you regret anything you’ve said in those blog posts, yes or no.”