The rapidly-unraveling investigation into Donald Trump’s dealings with Ukraine has the potential to place anyone attached to the White House under a harsher light—including judicial nominees.
Acting mostly under the radar of national media, Trump has filled the federal judiciary with some of the most bigoted and hateful human specimens that can be imagined. Prior Republican administrations, of course, have slavishly genuflected to the radical conservative cabal known as the Federalist Society when vetting their nominees to the federal bench, but Trump’s submissions stand out. Trump judges are distinctive not just for their grotesquely reactionary political and social philosophies, but also for their sheer incompetence and utter lack of judicial temperament.
But the decision by House Democrats to pursue an impeachment inquiry into Trump’s efforts to extort Ukraine may derail at least one of these people from a lifetime appointment to the highly influential Second Circuit Court of Appeals.
Democrats on the Senate Judiciary Committee have a lot of new questions for President Donald Trump’s judicial nominee Steven Menashi, an already controversial court pick who is also potentially connected to Trump’s Ukraine scandal given his current role as a White House legal adviser.
The Senate confirmation hearing for Menashi—former law clerk to right-wing Supreme Court Justice Samuel Alito, litigator at the law firm of Kirkland and Ellis, and now “associate counsel” in the White House Counsel’s office—had already gotten off to a rocky start on Sept. 11, with Menashi refusing to answer even basic questions from friendly Republicans accustomed to voting for any Trump nominee, no matter how abominable their views. Menashi already has plenty of racist and misogynist baggage; in this respect, he was quite typical of a Trump judicial pick.
(Menashi) wrote dozens of editorials and blog posts in the late 1990s and early 2000s for a number of college and professional publications decrying “leftist multiculturalism” and “PC orthodoxy.” He complained about “gynocentrists,” wrote that the Human Rights Campaign “incessantly exploited the slaying of Matthew Shepard for both financial and political benefit” and argued that a Dartmouth fraternity that held a “ghetto party” wasn’t being racist.
One characteristic of these types of conservative nominees is that they are routinely swapped out from department to department in an administration that only wants one legal viewpoint—ever. As noted by Sens. Chuck Schumer and Kristen Gillibrand, Menashi’s work under Betsy DeVos provided him ample opportunity to add to his pile of conservative bona fides.
“As the top lawyer at the Department of Education, he played a critical role in executing Secretary DeVos’s agenda to make it harder for campus sexual assault victims to seek justice, provide federal funding to schools that discriminate against LGBTQ students, roll back civil rights investigations, and undermine critical protections for student borrowers who were defrauded by their institutions,” Schumer and Gillibrand in a joint statement.
Racist, misogynist and anti-LGBTQ attitudes are now generally de rigueur for conservative nominees to the federal bench, and for that reason the Federalist Society seeks out those who have less of a “paper trail” expressing such sentiments. When someone with such a clear record as Menashi is put up, however, the strategy becomes one of “hide the ball.” Thus at Menashi’s confirmation hearing, when the would-be judge refused to answer Senators’ questions about his involvement in formulating the Trump administration’s widely-reviled “child kidnapping” policy—in which children of asylum seekers and other undocumented immigrants attempting to enter the U.S. are forcibly removed from their parents and housed in metal cages—he was simply following the customary conservative strategyof lying by omission. As reported in Politico at the time, however, even Republicans were displeased with Menashi’s obstructive antics.
Republicans and Democrats on Wednesday castigated President Donald Trump’s nominee to the powerful Second Circuit Court of Appeals for dodging their questions as well as his prior controversial writings.
Senate Judiciary Chairman Lindsey Graham (R-S.C.) in particular chided Steven Menashi for not being more forthcoming during his confirmation hearing after the nominee wouldn’t provide specifics on how or if he helped shape Trump’s immigration policy.
Even though Republicans expressed an unusual level of discomfort with Menashi, his confirmation prospects after that hearing were still unclear. Now the ground for Menashi has now shifted considerably. As a member of the White House Counsel’s office during the time that Donald Trump was pressuring Ukraine to falsify “dirt” on Joe Biden, Menashi may have had knowledge of, or participated in decision-making both during and in the immediate aftermath of that episode±particularly with regard to the administration’s efforts to classify it or “cover it up.”
Accordingly, Senators are demanding answers to these and other questions.
We write to inquire about your knowledge of or involvement with any of the events related to a telephone call between President Trump and Ukrainian President Volodymyr Zelensky on July 25, 2019, or a whistleblower complaint about that call and efforts to pressure Ukraine to interfere in the upcoming 2020 U.S. election,” reads a Friday letter to Menashi, signed by all 10 Democrats on the committee.
The letter poses several detailed questions to Menashi about what and when he knew about Trump pressuring Zelensky to investigate his potential 2020 rival, former Vice President Joe Biden, while discussing U.S. military aid to Ukraine. They ask when he first knew about Trump’s call, whether he advised Trump on any matter related to the subsequent whistleblower complaint, and whether he was involved in any conversations about how to handle the complaint. They give Menashi an Oct. 7 deadline for his responses.
Since the White House Counsel does not “represent” the President in a personal capacity, there should be no “privilege” for Menashi to assert when trying to dodge questions posed by the Senators’ letter. Here’s a quick primer.
Although the White House Counsel offers legal advice to the President, the Counsel does so in the President’s official capacity, and does not serve as the President’s personal attorney. Therefore, controversy has emerged over the scope of the attorney–client privilege between the Counsel and the President, namely with John Dean of Watergate notoriety. It is clear, however, that the privilege does not apply in strictly personal matters. It also does not apply to legislative proceedings by the U.S. Congress against the President due to allegations of misconduct while in office, such as formal censures or impeachment proceedings. In those situations the President relies on a personal attorney if he desires confidential legal advice.
Refusing to answer questions about one’s political or social views, or even about potential involvement in administration policy, during a judicial confirmation, is one matter. It’s what we’ve come to expect from conservative nominees who don’t want the American people to know just how radical and out-of-step their views are. But refusing to answer questions—or hiding behind frivolous assertions of “privilege”—that directly impact the potential impeachment of the President of the United States, is an entirely different matter, particularly for a candidate for one of the highest and most important Judicial bodies in the country, second to only the Supreme Court.
Menashi has until Oct. 7th to respond to the Senate’s inquiry.