Informal Transcription: Apologies for any Errors. SENATOR LEE: Mr. Katsas, you can go ahead and give your opening remarks to the committee.

Transcription

1 SENATOR LEE: Mr. Katsas, you can go ahead and give your opening remarks to the committee. [Microphone was off] MR. KATSAS: Is that better? SENATOR LEE: Got it. MR. KATSAS: Got it. So my family my wife, Simone Millie Katsas, my older daughter, Antoinette Katsas, and my younger daughter, Angelina Katsas. Antoinette is seven and wants to be a doctor when she grows up. Angelina is five and wants to be an astronaut. I love all of my family very much, and I m grateful for all the sacrifices they have made and continue to make so that I could take on a very demanding government job. I d also like to recognize my parents, who are no longer with us, but who must be very happy right now. Nearly a decade ago, I sat before this committee as a nominee to be assistant attorney general for the civil division. During my opening statement, I described how my father had lived the American dream as an immigrant to the United States and had also built up a sterling professional reputation for honesty and integrity. Senator Whitehouse asked me to elaborate, and I recalled how as a forensic pathologist frequently called upon to testify as an expert witness in court, he followed the facts wherever they led him, and he let the chips fall where they may. I noted that that kind of impartiality was important for any member of the executive branch. Of course, it s even more critical for any member of the judicial branch. In nine letters of support submitted on my behalf, friends and colleagues have described me as having the highest standards of integrity, independence, and commitment to the rule of law. I want to deeply thank everyone who has expressed such great confidence in me, and I want to pledge to the committee that if I should be confirmed, I will do my very best every day to be the person described in those letters. Thank you all for considering my nomination. I look forward to answering questions to the maximum extent consistent with my ethical obligations. SENATOR LEE: Thank you, Mr. Katsas. We ll now begin a series of five-minute rounds, beginning with me and alternating between Republicans and Democrats. Mr. Katsas, I d like to begin by asking for what assurances you can give us about your independence. Your independence from the President, from the White House, from any particular or political interests or any other interest. There s a long and distinguished line of judges who have, on occasion, ruled against the administration of the presidents who have appointed them in appropriate cases. So what can you tell us about what traditional independence means to you, and about whether if confirmed you ll be the type of judge who rules on the basis of the law and the facts before you, and without fear, without regard to who s appearing in front of you at the moment? MR. KATSAS: Judicial independence is central to our constitutional structure. It s imbedded in Article 3. The judges are given tenure and salary protection so that they can rule fairly in every individual case without pressure from the executive branch, without pressure from the legislature, without pressure from public opinion. It s central to our structure. I believe it in my bones. I have worked for the government, and I have spent substantial parts of my career litigating against the government. I understand different roles, and I understand the role of the

2 judge to apply the law neutrally and fairly, without regard for whatever president happened to nominate the judge. SENATOR LEE: That s consistent with your record, with everything I ve seen, and without objection I d like to enter into the record three letters. The first two are from career attorneys at the Department of Justice. Those first two letters emphasize Mr. Katsas s unparalleled work ethic, his respect for the law, and his remarkable legal abilities and explain that despite his position as a political appointee at the Department of Justice, Mr. Katsas never approached issues politically. The third letter is a bipartisan letter from 77 former Department of Justice officials who have served in both Democratic and Republican administrations. Switching gears, I d like to ask for you to summarize briefly your portfolio at the White House counsel s office. Can you tell us what that is? MR. KATSAS: Sure. I m a deputy counsel to the President. There are four different deputies. Each of us has our own areas of responsibility. Each of us reports directly to Mr. McGahn. My principle area of responsibility involves dealing with legal questions arising out of executive branch agencies. As you know, there have been many law suits filed against the President, the executive office of the President, so in practice I ve spent a lot of my time working with the Justice Department as they defend the executive branch s interests in those cases. I m also involved to some extent with Judicial and other nominations. The areas I m not involved in are those handled by other deputies. They include national security, ethics, compliance, clearance with respect to personnel, oversight, and law enforcement. SENATOR LEE: Did you ever work on any matter related to the dismissal of former FBI director, James Comey? MR. KATSAS: I did not work on the dismissal of James Comey. In fact, I first learned of that dismissal when I saw it announced on television. SENATOR LEE: Did you ever work on any matter related to Paul Manafort? MR. KATSAS: No. SENATOR LEE: Did you ever work on any matter related to the June 9, 2016, meeting involving Donald Trump, Jr., Jared Kushner, Paul Manafort, and a Russian attorney? MR. KATSAS: I did not. SENATOR LEE: Have you been interviewed by the Special Counsel or has the Special Counsel asked for the opportunity to interview you? MR. KATSAS: I have not been interviewed by the Special Counsel, nor have I been asked to be interviewed. SENATOR LEE: I expect that you won t be able to answer every question related to work in the White House, because of things like the executive privilege.

3 MR. KATSAS: Right. SENATOR LEE: Tell me, does the executive privilege belong to the president or does it belong to the president s staff? MR. KATSAS: Belongs to the president. SENATOR LEE: And because it belongs to the president, it s not your choice whether to invoke that privilege, is it? MR. KATSAS: That s correct. SENATOR LEE: In your view, would it be possible for any president to receive candid advice in the absence of executive privilege. MR. KATSAS: It would not. SENATOR LEE: And what would it do to the separation of powers between our three coordinate branches of government if the executive privilege ceased to exist? MR. KATSAS: It would undermine them. The Supreme Court has specifically said that in the context of government privileges, the president s need to obtain confidential advice is rooted in the separation of powers. SENATOR LEE: Separation of powers would thus be eroded if we eroded that privilege. I see my time s expired. Senator Feinstein. SENATOR FEINSTEIN: Thanks very much, Mr. Chairman. I d like to put in the record the letter I sent on behalf of every member who, on this side, that signed the letter on September 29, and I d like to put that in the record, if I may. SENATOR LEE: Without objection. Without objection. SENATOR FEINSTEIN: And that was the letter asking a number of questions. I do want to point out that question seven on page three in your Senate judiciary questionnaire, you were asked about potential conflicts of interest... MR. KATSAS: Yes. SENATOR FEINSTEIN:... and you responded, and I quote, Cases most likely to present conflicts issues would be those related to my prior service as a government lawyer or a private practitioner. If confirmed, I would recuse myself on any matter in which during my government service, I had participated as a counsel advisor or material witness or had expressed an opinion concerning the merits. Is that a true reflection of your thinking?

4 MR. KATSAS: It is, Senator. SENATOR FEINSTEIN: Thank you. That s helpful. And I would also like to put in the record the letter from Stephen Boyd, the assistant attorney general that said he would answer these questions at this hearing. SENATOR LEE: Without objection. SENATOR FEINSTEIN: Thank you very much. So let me begin, if I may. Since joining the White House counsels in office in January 2017, have you worked or advised on any matters related to Special Counsel, Muller s investigation into Russian interference in the 2016 election? MR. KATSAS: I have given legal advice on a few discreet legal questions arising out of the investigation. I have no knowledge of any underlying facts regarding Russian interference. SENATOR FEINSTEIN: Can you tell us what those legal questions were? MR. KATSAS: I m sorry, I cannot. SENATOR FEINSTEIN: And why can you not? Are you asserting grounds of privilege? And what are those grounds? MR. KATSAS: I m saying that the executive branch needs confidentiality in order for the president to receive confidential advice, in order for lawyers to provide confidential advice. The line that past nominees have drawn in this situation is to identify in general terms matters that they have worked on but not to get into the specifics of particular topics. I will also say, Senator, just again in general terms and treading carefully for obvious reasons, to the extent that any matters that I may have advised on implicate the work of the Special Counsel, I want to be very careful not to say anything here that could undermine that work. SENATOR FEINSTEIN: Has the President told you that he intends to assert either executive privilege or attorney-client privilege over any of these issues that you refuse to discuss? MR. KATSAS: I have not discussed the matter with the President. When I received your letter, I did a couple of things. I refreshed my recollection of what I had worked on. I hope you can appreciate I typically see 10, 15, 20 matters a day, so I had to refresh my recollection on what I did or didn t do and then I had to ascertain what I safely could or couldn t say. I sought guidance from within the White House Counsel s office. I received authorization to answer the questions. Your letter was very fair in posing questions about did you or did you not work on a matter. You didn t ask for substantive advice, which obviously would have been much dicier. We ascertained consistent with the lines that Judge Kavanaugh and Justice Kagan drew when they appeared before the committee that I could answer general questions about whether I worked on matters or didn t. SENATOR FEINSTEIN: Right, well let me stop you there, because my understanding is when Kavanaugh came before this committee in 2006, he told us whether he worked on particular

5 issues within the White House. So let me ask you the same question. Did you work or advise on the Muslim travel ban executive order. Yes or no will do. MR. KATSAS: Yes, I worked on that executive order. I gave advice on that executive order, yes. SENATOR FEINSTEIN: Did you work or advise on the religious liberty executive order? MR. KATSAS: Yes, I did. SENATOR FEINSTEIN: Did you work or advise on the executive order creating the President s commission on election integrity? MR. KATSAS: Yes, I did. SENATOR FEINSTEIN: The President s decision to end the DACA program? MR. KATSAS: Yes, I did. SENATOR FEINSTEIN: The interim final rules by the Departments of Health and Human Service, Treasury, and Labor, allowing any company or employer to stop providing workers with health coverage for contraception for religious or moral objections? MR. KATSAS: As to that one, I worked on discreet pieces of that issue. There were certain cases within that area from which I was recused. SENATOR FEINSTEIN: Okay. I wanted to ask you quickly one other question if I can find here it is. In your questionnaire to the committee, there s a page of notes from remarks you gave to the Federalist Society on March 2, about your work in the Counsel s office. MR. KATSAS: Yes. SENATOR FEINSTEIN: My staff can show you a copy if you need it. On your notes of your first week, you listed Flynn and Yates. What do these notes refer to, and what did you tell the Federalist Society about Lieutenant General Flynn and Sally Yates? MR. KATSAS: Could I just see the notes to refresh my recollection? SENATOR FEINSTEIN: Yes. Look toward the bottom. MR. KATSAS: Oh right. So this was the overarching heading is First Week, and the point I was trying to convey was the frenetic pace, the range of issues, everything was coming at us a million miles an hour, and this was just an illustration of that. Flynn SENATOR FEINSTEIN: Well, let me ask this question, and I think it ll make did you work on the decision to appoint Lieutenant General Flynn as national security advisor?

6 MR. KATSAS: I did not. SENATOR FEINSTEIN: Did you work on the decision to fire or accept the resignation of Lieutenant General Flynn? MR. KATSAS: I did not. SENATOR FEINSTEIN: Okay, can you tell us what you said to the Federalist Society about Yates and Flynn. MR. KATSAS: Sure. With regard to Flynn, when I gave this talk, which was about what the Counsel s office collectively was doing, it was a matter of public record that General Flynn had issues and the Counsel s office was working on them, and I flagged that as one thing the office was working on, even though I was not. The reference to Yates is a reference to the fact that on Monday, January 30, Ms. Yates as acting attorney general refused to defend an executive order of the President, and then was removed by the President from her position. SENATOR FEINSTEIN: Thank you very much. My time is well up. Thank you, Mr. Chairman. SENATOR LEE: Thank you. Senator Hatch. SENATOR HATCH: One view of judging focuses on the results that a judge wants to reach. The attitude is the ends pretty much justify the means. Another view focuses on the process of reaching results by impartially interpreting and applying the law. I ve described this as the difference between political and impartial judging. In general, which of those views would you subscribe to? MR. KATSAS: I subscribe to the latter, Senator. SENATOR HATCH: Alright. One left wing group says that you were nominated because you are a Trump loyalist and a White House insider. Am I right that you have worked in the White House for about nine months? MR. KATSAS: Yes, that s correct. SENATOR HATCH: I thought so, but by my calculation, that amounts to less than three percent of your legal career. MR. KATSAS: I haven t done the math, but it s 9 months over a 28-year legal career. SENATOR HATCH: I suspect you were nominated more for your eight years in the Justice Department, your sixteen years in private practice, the deep respect which you have earned throughout the legal community, but perhaps the fact that you have argued cases in every federal appellate court in the country, including the Supreme Court. I ll just note for the record that when you were nominated in 2008 to be assistant attorney general for the civil division, this committee approved your nomination by unanimous consent, and the Senate confirmed your

7 nomination by voice vote. Left-wing groups claim that you have spent your entire career representing business and corporate interests. Now I understand that you have participated in more than 50 pro-bono matters during your career. Am I right on that? MR. KATSAS: That s about right, yes. SENATOR HATCH: In the D.C. Circuit, didn t you represent groups such as the ACLU and People for the American Way? MR. KATSAS: Yes, I did. SENATOR HATCH: You were challenging the way the FCC imposes fines, weren t you? MR. KATSAS: That was a case in private practice in which I represented the ACLU and People for the American Way, sued the government, and argued for greater First Amendment protections for broadcasters accused of indecency. SENATOR HATCH: In the Sixth Circuit, didn t you represent a woman seriously injured in a car accident and seeking to recover damages against the driver and his employer? Didn t you do that? MR. KATSAS: I worked on a case like that. I think it was in the Supreme Court. SENATOR HATCH: Okay. In the Fourth Circuit, didn t you represent a woman seeking asylum because of political persecution in Ethiopia? MR. KATSAS: Yes, I did. SENATOR HATCH: Tell us a little bit more about your work on that case. MR. KATSAS: Well, that was a case in which I supervised a team of lawyers at my law firm who invested years of work to help this woman. Her father had been murdered by the government, as I recall, and she had been beaten up for her political views. She was seeking asylum on account of political persecution. We represented her before the immigration judge, before the Board of Immigration Appeals, and before the Fourth Circuit, and ultimately we were successful in getting her asylum so that she could come into the country. SENATOR HATCH: That s tremendous. You have an excellent reputation of being a true lawyer, who really represents your clients whether they re liberal, conservative, or whatever. And that you do so in the basis of your knowledge of the law, your ability in the law, and your experience. Do you have any prejudices? MR. KATSAS: I have none, Senator. And if I did, I don t think I would have received the kind of recommendations that I did across the board. SENATOR HATCH: Well, let me just say that I think you re a tremendous nominee.

8 MR. KATSAS: Thank you. SENATOR HATCH: And anybody that finds otherwise just isn t looking at the facts. So I commend you for being willing to give your life to the courts and to give all of this experience that you have in helping the American people the way you should and the way you want to and the way that really is meaningful in our court systems. So I just want to congratulate you and tell you I support you 100 percent. MR. KATSAS: Thank you, Senator. SENATOR HATCH: Thank you. Senator Durban. SENATOR DURBIN: Thank you, Senator Hatch. Mr. Katsas MR. KATSAS: Good morning. SENATOR DURBIN: thank you for joining us, and welcome to your family as well, your cute little daughters, too love them. MR. KATSAS: Thank you. SENATOR DURBIN: Following up on Senator Feinstein s question, while you ve been in the White House Counsel s office, have you worked on or advised on the submission of security clearance forms by White House and administration officials, including Sebastian Gorka and Michael Flynn? MR. KATSAS: I have not, Senator. SENATOR DURBIN: Have you worked on the President s financial conflicts of interest and emoluments? MR. KATSAS: I have given legal advice with regard to emoluments clause issues. SENATOR DURBIN: Have you worked on the use by White House officials of private accounts for official business? MR. KATSAS: I have not, Senator. SENATOR DURBIN: Have you worked on the firing of any White House or administration officials, including James Comey? MR. KATSAS: I have not. SENATOR DURBIN: When you were last before this committee, you were asked whether waterboarding was torture, and you declined to answer.

9 MR. KATSAS: Right. SENATOR DURBIN: So let me ask you today. Is waterboarding torture? MR. KATSAS: I decline to answer, based on the attorney general s views before me. Waterboarding is likely torture in many circumstances. I hesitate to answer the question in the abstract, not knowing the circumstances, the nature of the program. As you know, waterboarding s been abandoned. I m reluctant to answer in the abstract, not having before me a particular case or controversy. SENATOR DURBIN: I don t know why this is abstract anymore, because since you were last before this committee, Congress has acted and a law has been signed. The McCain Amendment in 2006, the Detainee Treatment Act, the McCain Torture Amendment, as explained by Senator McCain, Warner, and Graham said, Waterboarding under any circumstance represents a clear violation of U.S. law. Anyone who engages in this practice on behalf of any U.S. government agency puts himself at risk of criminal prosecution. Why is this still a matter in doubt? MR. KATSAS: I m sorry. I m not recollecting the statute as you do. My recollection is that the statute prohibited cruel, inhuman, and degrading treatment. So the question would be whether waterboarding is cruel, inhuman, and degrading treatment. SENATOR DURBIN: And your answer? MR. KATSAS: Anything that is cruel, inhuman, and degrading treatment would be clearly unlawful. No question about it. SENATOR DURBIN: Is waterboarding cruel, inhuman, and degrading treatment? MR. KATSAS: It clearly could be. No question about it. SENATOR DURBIN: Is waterboarding illegal under U.S. law? MR. KATSAS: To the extent it constitutes either torture or cruel, inhuman, and degrading treatment yes, it is. SENATOR DURBIN: But you haven t drawn any personal conclusion as to whether waterboarding qualifies under the existing law? MR. KATSAS: Well, my personal opinions are not what I m here to talk about with regard to my assessment of the law, Senator. I can tell you, I did a lot of work on detainee issues when I was at the Justice Department, but I didn t work on interrogation methods, so I haven t thought those through the way I have issues regarding detention. As you know, I worked on habeas cases for years, and I m very conversed in that law and very familiar with it and happy to discuss it with you.

10 SENATOR DURBIN: So I m going to take you back to a speech that you gave on April 4, 2009, at Amherst College MR. KATSAS: Right. SENATOR DURBIN: entitled Legal Aspects of the War on Terrorism. You wrote about the prohibition on torture, High bar a lot of coercive interrogation does not equal torture. Please discuss what you meant by the statement about a lot of coercive interrogation not equaling torturing. Is this still your view? MR. KATSAS: The prohibition on torture requires infliction of a substantial amount of pain. The issue that I had in mind when I made that statement this was, I think, before the waterboarding memos had been released and what I had in mind was interrogation techniques that had been disclosed at Guantanamo Bay, and those techniques involved things like sleep adjustment (not to be confused with sleep deprivation), adjustment of the temperature in the room, subject to the requirement that both the interrogator and the detainee be put in the same room. Those were thought to be coercive techniques. My view at the time was that those techniques didn t rise to the level of torture. SENATOR DURBIN: I will have to tell you, I am surprised by this exchange. I thought after your experience of January 2008 before this committee and your deference to Attorney General Mukasey as your basis for declining to answer the question about waterboarding as torture, a question asked by Senator Kennedy, that now, with all that we have seen, all that we know, laws that have been passed, decisions by the Bush administration, Judge Advocates General, that I would have had a much clearer answer. Today there s no equivocation, no uncertainty, but there clearly is uncertainty in your answer about whether waterboarding is cruel, inhuman, or degrading, and the extent of the use of interrogation techniques that could be considered torture. MR. KATSAS: You re asking me, Senator, about an issue that I never had occasion to confront in a professional capacity. SENATOR DURBIN: Mr. Katsas, in all fairness, you were in a professional capacity under oath when you told us in 2008 that you had to decline to answer the question as to whether waterboarding was torture. MR. KATSAS: Yes. SENATOR DURBIN: As a learned attorney and one with much experience, as Senator Hatch has noted, you were put on the spot, you answered in a fashion which you knew would be at least controversial to some, and you must have anticipated that we would return to that issue today, and yet, I don t hear in your answer any change in position. MR. KATSAS: Well, I have a long record I have a 28-year record as an attorney. I ve argued more than 75 cases. I have my private career. I have my DOJ career. I have my White House Counsel s office career, which has generated a lot of questions. I ve had to think about a lot of issues that you might ask about.

11 SENATOR DURBIN: Thank you. Thank you, Mr. Chairman. SENATOR LEE: Senator Cruz. SENATOR CRUZ: Thank you, Mr. Chairman. Mr. Katsas, welcome. Congratulations on your nomination. Should you be confirmed as a judge on the D.C. Circuit and a question of torture and whether particular conduct constituted torture came before that court, what would the method be that you would follow to answer that question? MR. KATSAS: It would start by looking at the law. The Eighth Amendment and the Due Process Clause prohibit cruel and unusual punishment and conduct that shocks the conscience, and there are cases explaining what that means. There s a federal statute prohibiting torture, and there are cases explaining what that means. There is now a statutory prohibition on cruel, inhuman, and degrading treatment, and there s precedent explaining what that means. I would have to consider whether there were any other intervening legal developments since 2009, when I started paying much less attention to these issues. I would have to look at all those precedents. I would have to examine the facts of any particular case that came before me what was actually being done to the detainee and I would apply the law to the facts and reach my best judgement, and call it as I saw it, and if I had worked on the matter in the government, I would obviously recuse myself, and if I hadn t worked on the matter, I would decide the case to the best of my abilities. SENATOR CRUZ: So thank you. That is helpful so it s fair to say that you would look to whatever federal statutes spoke to the issue, any federal or congressional definitions of torture, and also the constitutional standards and the Supreme Court and D.C. Circuit case law that might apply there, and both of those, you would endeavor to apply to the specific facts in front of you. MR. KATSAS: That s correct. SENATOR CRUZ: So you wouldn t be answering the question in the abstract. You would be dealing with a concrete case or controversy with actual facts developed in the district court. MR. KATSAS: Yeah, I mean, Article 3 limits judicial decision-making to cases or controversies. It does that so that judges can decide cases in the context of specific facts and circumstances, so you wouldn t have a judge opining, is punching torture? You would have the specific interrogation before you. That s just very basic to how judicial decision-making is done. SENATOR CRUZ: And what would you do as a judge if the law that you were applying to the facts yielded one outcome, and your personal preferences, be they policy preferences, political, or otherwise, were to the contrary. MR. KATSAS: Follow the law. SENATOR CRUZ: In every circumstance? MR. KATSAS: Absolutely.

12 SENATOR CRUZ: You know, I will say, you and I have been friends for more than two decades, and you have earned a national reputation for intelligence, for diligence, for principle, and for integrity. And I will say personally one of the things I admire most about you is something that I manage to do as well, which is you married way, way, way up. And so I congratulate you on your demonstrated advocacy. As with me, with a difficult set of facts. MR. KATSAS: Thank you, Senator. SENATOR CRUZ: And I want to take a minute to congratulate your girls. Your daddy s being nominated to the Court of Appels is a big, big deal. It matters. It matters for the whole country, and I want to tell you he s going to be confirmed. He s going to be a judge. He s going to go to work and wear a black dress every day, which is pretty funny. I m telling you the truth. He s going to wear dress. It s not going to be pretty like that green one you re wearing. It s going to be a black dress, and he s going to do a fantastic job upholding the law, protecting people s rights, and adjudicating cases and controversies. Mr. Katsas, I think you re going to make a terrific Appellate Judge, and congratulations to you and your family on the nomination. Mr. Whitehouse. MR. KATSAS: Thank you. SENATOR WHITEHOUSE: Thank you. MR. KATSAS: Good morning. SENATOR WHITEHOUSE: Welcome, Mr. Katsas. I was struck by something you said, I believe to Senator Feinstein, which is that you felt restrained sitting there and answering our questions because something that you might say could, to use your words, undermine the work of the Special Counsel. What on earth could you possibly say there that would undermine the work of Special Counsel? Why did you bring that up? MR. KATSAS: The question put to me involved my work on the Russia investigation. As you know, Special Counsel Mueller is looking at those issues. I told Senator Feinstein I gave legal advice on some discreet issues related to that investigation. SENATOR WHITEHOUSE: What could undermine that investigation that you could say? You are not a part of that investigation. You were being interviewed as a witness, presumably, correct? MR. KATSAS: I am not a part of the investigation. SENATOR WHITEHOUSE: So you were a witness. MR. KATSAS: To the extent I could say things that reveal what legal issues the Special Counsel may be looking at, I don t feel comfortable 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, and I want to be very careful not to say anything that inadvertently undermines his work.

13 SENATOR WHITEHOUSE: Still it seems very odd. And it s a just that there is something specific enough regarding that investigation that you now know, that you re reluctant to disclose, because it fits into that category of improper disclosure of investigative material. MR. KATSAS: I am reluctant to disclose the substance of my legal advice on issues related to the investigation for SENATOR WHITEHOUSE: This is your legal advice to the President to be clear. MR. KATSAS: for two distinct reasons, right? One SENATOR WHITEHOUSE: This is your legal advice to the President to be clear. MR. KATSAS: This is legal advice I have provided within the White House Counsels in my capacity as deputy counsel. SENATOR WHITEHOUSE: Reporting to the President. MR. KATSAS: Well, reporting to a White House Counsel, who reports to the President. SENATOR WHITEHOUSE: Okay, there is an intermediary, I understood that. MR. KATSAS: There are two reasons for that. One is it involves legal advice that I m providing as an attorney to a client. And as you know, Senator, no lawyer SENATOR WHITEHOUSE: And that privilege belongs to the client, correct? Not to the attorney. MR. KATSAS: That s correct. No lawyer SENATOR WHITEHOUSE: Executive privilege also belongs to the president and not to his staff, correct? MR. KATSAS: Right, but no lawyer is at liberty to disclose the substance of advice provided to a client in the course of representing the client. SENATOR WHITEHOUSE: Unless the client has waived, correct? MR. KATSAS: A client can waive. SENATOR WHITEHOUSE: Correct. And on the other side of that, executive privilege actually has to be asserted, does it not? MR. KATSAS: It is not my place to disclose information that is confidential to the executive branch, just as it was not Judge Kavanaugh s place when he sat here to go beyond simply telling you what I have told you, which is what matters he did or didn t work on, and just

14 SENATOR WHITEHOUSE: Why is that the case? One obvious reason would be that there is attorney-client privilege, and that is something that the White House and the president is at liberty to waive. The second is that there has been an assertion of executive privilege, and as I understand it, there is a time window in which somebody is asked a surprise question or that there is a request of documents, and you can make an intermediate assertion of executive privilege while you review to see what actually merits a proper assertion of executive privilege, but as I understand it, there has been no assertion of executive privilege with respect to anything you might tell us. MR. KATSAS: What Senator Feinstein s letter asked me was whether or not I had given advice on specific matters. In the course of preparing for this hearing, I did everything I could to put myself in a position to be able to answer those questions, and I have. But I was not SENATOR WHITEHOUSE: Just to be clear, and I m really trying to get to this point. There has been no assertion of executive privilege regarding your testimony here today, correct? MR. KATSAS: I have not until today been asked to reveal the substance of advice that I may have provided, and as to that I cannot SENATOR WHITEHOUSE: You re saying that there has been I m really trying to get this question answered, and I shouldn t think it s a hard one. There either has been or has not been an exertion of executive privilege. I think what you re telling me is that there has not been, but you don t believe that the timing is right be it for that assertion, because we re just having this conversation now, is that a fair description of what you re trying to say? MR. KATSAS: Given where I sit today, I am not at liberty to get into the substance of advice. SENATOR WHITEHOUSE: And is that because you are claiming that intermediate executive privilege pending a determination by the President as to whether to make a formal assertion? MR. KATSAS: Well, look, it s attorney-client advice as well, so I can t SENATOR WHITEHOUSE: I m just trying to sort out the issues here and figure out what you see as your defense. MR. KATSAS: Sure, I understand. As to that piece of it, I can t reveal the substance of client confidences SENATOR WHITEHOUSE: Unless the client waives. MR. KATSAS: Unless the client waives. The client has not waived. SENATOR WHITEHOUSE: Okay, my time s expired. SENATOR LEE: Senator Hirono.

15 SENATOR HIRONO: I m sorry you called upon me. I sort of zoned out for a moment. Thank you very much, Mr. Chairman. Mr. Katsas, welcome. MR. KATSAS: Thank you. SENATOR HIRONO: I was interested to learn that in 2007, you had testified against the Native Hawaiian Reorganization Act. That was the Department of Justice s position, and you based that position on that you had a concern about that the bill really relying on suspect lines of race and ethnicity, so racially defined. Are not American Indians and Alaskan natives racially defined groups? MR. KATSAS: So the issue Native American Indians are different. There is a line of Supreme Court precedents saying that classifications based on tribal statutes are political, rather than racial. But there was also a decision of the Supreme Court in a case called Rice v. Cayetano SENATOR HIRONO: I m familiar with that decision, and in fact, that was a state action case, and the state itself cannot define an election along those kind of lines, so I would limit it to a state action case. MR. KATSAS: Well, it was a decision in which the Supreme Court specifically rejected the analogy to Indian law in the context of a statute that tried to treat native Hawaiians like Indians. SENATOR HIRONO: I attended that hearing. There were a lot of questions about whether or not the native Hawaiians have been organized as tribes, which they are not. But do you not consider them an indigenous peoples? MR. KATSAS: They are, to my knowledge. They are an indigenous people. SENATOR HIRONO: So why should they not be treated as American Indians and Alaskan natives, who are also deemed indigenous peoples, although they may have governed themselves differently than the monarchy that the native Hawaiians had? MR. KATSAS: The issue as I understand it is when the United States deals with tribes, it is a government-to-government relationship. It is like when the United States deals with foreign countries. You wouldn t regard our conduct of foreign affairs as raising nationality-based distinctions because we re dealing with a foreign country. So the question is whether a statute that defines preferred status by reference to ancestry, tracing lineage to original indigenous people, is more like a racial classification or more like a government classification, and the Supreme Court SENATOR HIRONO: Well, obviously I do not agree with you, and as I had attended the Rice hearing, and I read that, I have quite a background myself, and in fact your testimony was contradicted. Your position was contradicted by imminent scholars [names] and others, so let s move on.

16 MR. KATSAS: May I respond, just briefly? SENATOR HIRONO: Well, let s just say, I m glad that you consider native Hawaiians to be native peoples, because a lot of what follows, I think, is very dependent on that kind of classification. Let me move on to you told Senator Feinstein that you worked on the travel ban executive order when you were in the White House, and you are a very talented lawyer. Did you think that the first version was constitutional in view of the President s comments about wanting to impose a Muslim ban? MR. KATSAS: The office of legal counsel opined in the ordinary course that the order was lawful, and the civil division of the Justice Department and the Solicitor General s office are defending the constitutionality of those orders in court. That is the government s position. SENATOR HIRONO: So let me ask you, though, because you are going to the D.C. Circuit, so in terms of how the President s executive order, in view of his statements that he wanted to impose a Muslim ban, should be viewed, and as you well know, the district court in Hawaii deemed that second executive order to be unconstitutional, so regarding your view on judicial review of an executive order, or a statute, should that judicial review confine itself to the words of the executive order or the statute and not through things such as evidentiary statements such as a President saying he wants to impose a Muslim ban? MR. KATSAS: That is an issue in the pending cases, and the Solicitor General s office has argued that campaign statements should not generally be considered, and if they are considered, should be considered in light of later developments like what a president says after taking office and how an executive order operates on its face. SENATOR HIRONO: So you re view is that statements made are also irrelevant to a determination of what the impact or the intent of an executive order or statute should be? MR. KATSAS: The government s view is that such statements are generally irrelevant or minimally probative. SENATOR HIRONO: Is that your view? MR. KATSAS: I don t think it wouldn t be appropriate for me to express a personal view, and it wouldn t be appropriate for me as a lawyer for a client with a pending case to undercut the arguments that that client is making in court. SENATOR HIRONO: I do have a number of other questions, but my time is up, and I don t know if we re going to go to a second round or we re going to the second panel. SENATOR LEE: We re not sure yet. It will depend on what the desires of the members are. Thank you, Senator Hirono. Senator Kennedy.

17 SENATOR KENNEDY: Thank you, Mr. Chairman. Counselor, I m sorry I missed your opening remarks. Would we have any rights under the Constitution if the Bill of Rights had not been adopted? MR. KATSAS: You d have many rights. The original Constitution has a privileges and immunities clause, it has a bill of attainder clause, it has protections against impairment of contracts. We would have all of those rights. We would also have rights under whatever statutes Congress enacts to protect rights. And we would SENATOR KENNEDY: But I m talking about the Constitution. Sorry to interrupt MR. KATSAS: I m sorry. SENATOR KENNEDY: but as you know, we re limited in time. Would we have a right to privacy? MR. KATSAS: We would have the same question we have with the Bill of Rights, because the Fifth Amendment has a due process SENATOR KENNEDY: But would we if the Bill of Rights had not been adopted, would we have a right to privacy, in your judgement, under the Constitution? MR. KATSAS: That, I Well, the right to privacy as the courts have articulated it, they have located that right within the due process clause of the Fifth and Fourteenth Amendments, so if there were no Fifth and Fourteenth Amendments, that argument wouldn t be available. I haven t thought of any other alternative justification that might exist. SENATOR KENNEDY: How should we go about determining which rights are fundamental? MR. KATSAS: Well, the Supreme Court has addressed that in a line of modern substantive due process cases. SENATOR KENNEDY: Quickly give me a one- or two-sentence definition, then, of the suggestion. MR. KATSAS: The canonical formulation is rights that are either implicit in the concept of ordered liberty or deeply rooted in the nation s history and tradition. SENATOR KENNEDY: Okay. Are there any rights that have not yet been declared fundamental that should be declared fundamental, in your judgement? MR. KATSAS: That s a hard question and sounds like one that might come before me if I were fortunate enough to be confirmed. So I think I ll have to demur. SENATOR KENNEDY: How do you know what our founding fathers intended when they drafted the Constitution?

18 MR. KATSAS: First and foremost, you have the words that they used in the text. There are some provisions that are vague, but there are many provisions that are not, right? We know a president has to be 35 years SENATOR KENNEDY: So you would look at the words? MR. KATSAS: You would look SENATOR KENNEDY: Should we look at the Federalist Papers? MR. KATSAS: Sure. You would look at text, structure, history SENATOR KENNEDY: I thought the rule was, that originalists generally follow, I thought the rule was that you look at the language and you never look at secondary sources. MR. KATSAS: No. Well, you start with the language, and SENATOR KENNEDY: Would you interpret a statute I m sorry to cut you off, but I m going to be cut off. MR. KATSAS: It s fine. SENATOR KENNEDY: When you interpret a statute then, and the language is clear and unambiguous, then you would go further and look at legislative history? MR. KATSAS: No, if the words are clear and unambiguous, that s the end of the matter. SENATOR KENNEDY: Well then why do you look at the Federalist Papers if the words of the Constitution are clear enough? MR. KATSAS: I m sorry, I misheard you. I was assuming a situation in which the words were ambiguous. SENATOR KENNEDY: Okay. So if you go to the Constitution, and you re interpreting the Constitution, and the words to you are clear and unambiguous, you don t resort to the Federalist Papers at all? MR. KATSAS: No. SENATOR KENNEDY: Okay. That s interesting. How do you think that the mens rea requirement is consistent with the principle of law that the ignorance of the law is no excuse? MR. KATSAS: Mens rea is generally read into criminal statutes. We try to construe them SENATOR KENNEDY: It s intent, right?

19 MR. KATSAS: Yes. SENATOR KENNEDY: Okay, well if I didn t know the law, how can I have intent to break it? MR. KATSAS: Well, but it s not quite ignorance of the law. It s not knowledge of the law, it s knowledge of one s actions. So if I SENATOR KENNEDY: Is it some innate moral barometer that we have? MR. KATSAS: If I knowingly do something wrong if I knowingly do something illegal, and I don t know that it s illegal, that s not a defense. But that s a little bit different from mens rea, which is if I do something, not knowing what I m doing, that could be a defense, depending on how the statute is written. SENATOR KENNEDY: Thank you, counsellor. Appreciate it. SENATOR LEE: Senator Klobuchar. SENATOR KLOBUCHAR: Thank you very much. Thank you, Mr. Katsas. MR. KATSAS: Good morning. SENATOR KLOBUCHAR: Good morning. Like many of my colleagues, I m troubled to see the Justice Department reverse its position in several important cases this year, and I m sure we ll be asking the Attorney General about this this week. But as a senator from a state that has a high voter turnout every single year, I m really concerned about some of the voter cases where the Justice Department has changed their position. One of the cases was the challenge to Texas s voter ID law. The department first withdrew its claim, and it basically changed its decision. Were you involved in the decision to abandon the claim of discriminatory intent in the case? MR. KATSAS: I was not, Senator. SENATOR KLOBUCHAR: Okay. And then there was the other case where the department is now arguing that Ohio is not violating that National Voter Registration Act. Were you involved in that decision at all? MR. KATSAS: I was not. SENATOR KLOBUCHAR: Okay. Thank you. I am concerned about this, as I noted, and I understand that you have previously spoken about the consequences of the Justice Department changing its position in litigation. MR. KATSAS: Right. SENATOR KLOBUCHAR: Okay. And you talk about that it would look like they re being influenced by political considerations. Can you elaborate on that point, and do you still believe

20 that the Justice Department s risks undermine its credibility in the court when it changes its position? MR. KATSAS: I think the Justice Department should never lightly change positions. The quote that you re referencing what I said was anytime the Justice Department changes positions in a pending case, they should be very careful to have an explanation that can be publically articulated and defended on neutral grounds. In my judgment, their change of positions in the case that I was talking about seemed very hard to defend for reasons I can get into if you want. SENATOR KLOBUCHAR: Sort of in a similar vein, I wanted to talk to you about your own views on something that would come up much more if you were confirmed for this position, and that s adhering to precedent. In a piece commenting on Justice Thomas s jurisprudence last year, you wrote that the Justice favors original meaning over evolving standards and getting it right over following precedent. Can you explain what you meant by that statement, and did you mean to suggest that it is preferable for Supreme Court justices to achieve a result that they personal think is correct rather than applying precedent? MR. KATSAS: I was describing my best understanding of Justice Thomas s jurisprudence. I think it is fair to say that of the current members of the Court, he is the most likely to call for reconsideration of precedent. Of course, as a nominee for a lower court, I would not have that luxury. I would be absolutely bound by all Supreme Court opinions, and under the practice of the D.C. Circuit, I would be absolutely bound by all prior panel opinions. SENATOR KLOBUCHAR: Okay, thank you. In notes for a speech that you disclosed to the committee, you appear to criticize Justice Kennedy s opinion in the same-sex marriage case as long on rhetoric but short on traditional legal reasoning. And in notes from a 2010 speech, it appears that you wrote that the government had a duty to defend DOMA. As you know, DOMA s provision was struck down by the Supreme Court in What would you view the precedent created by the Supreme Court s decisions? How would you view that on the D.C. Circuit, the precedent set in those two cases? MR. KATSAS: Oh, that s easy. I mean, the Supreme Court has decided that issue. It rejected the position that I asserted advocating on behalf of the United States, defending the congressional statute. They decided the issue, and I would be bound by their decision, and I would have absolutely no trouble following it and applying it. SENATOR KLOBUCHAR: But originally, you were talking about how Justice Kennedy s opinion was long on rhetoric, short on traditional legal reasoning, so... MR. KATSAS: Yeah, and I criticized the opinion as a commentator. That doesn t mean that I would get to ignore it as a judge. SENATOR KLOBUCHAR: Okay. It also appears that you criticized his opinion in Texas Department of Housing and Community Affairs in previous speech notes. In that case, Justice Kennedy s opinion affirmed that disparate impact claims, which have been an essential tool in preventing

21 discriminatory housing practices were available under the Fair Housing Act. You described the opinion as very schizophrenic. Can you explain what you meant by that statement? MR. KATSAS: Sure. There were two parts to the opinion. The first half of the opinion, he recognized disparate impact as a theory available under that statute, and in the second half of the opinion, he imposed various caveats and limitations on the disparate impact theory. The first half of the opinion had very broad language embracing the theory. The second half of the opinion had a lot of language that seemed to express some pretty basic concerns about it. SENATOR KLOBUCHAR: Okay, thank you. SENATOR LEE: Senator Franken. SENATOR FRANKEN: Thank you, Mr. Chairman. Mr. Katsas, welcome. MR. KATSAS: Thank you. SENATOR FRANKEN: Congratulations on your nomination. On March 2, 2017, you delivered a presentation to the Federalist Society entitled Work of the White House Counsel s Office, and you provided this committee with the notes you used to prepare for that presentation. Now, the notes you provided us are just in the form of an outline, but I d like you to help me understand a few items that you reference. MR. KATSAS: Okay. SENATOR FRANKEN: Under the section titled, Extremely Busy, you wrote litig-abandon posits. I assume that s MR. KATSAS: Short for positions. SENATOR FRANKEN: And litigation-abandon positions, right? MR. KATSAS: Right. SENATOR FRANKEN: So you just said to Senator Klobuchar that you did not participate in the Justice Department s change in stance on the voter ID law. Is that right that you just said that? MR. KATSAS: Yes. SENATOR FRANKEN: Okay. But you did say that if the DOJ changes its position when the administration changes, that it shouldn t do that without real justification MR. KATSAS: Right. SENATOR FRANKEN: because it looks like there s politics involved. So my question is, did the administration, in your mind, explain that change?