Feinstein Requests Answers on Talley Conflicts, Online Commentary
Washington—In light of Brett Talley’s failure to disclose potential conflicts of interest and online political commentary, Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today requested that Talley answer additional questions.
Feinstein wrote, “Earlier this week, after the Committee discharged your nomination, the press reported several items about your background that had not been previously disclosed to the Committee – either in your Senate Questionnaire or at your hearing. Specifically, it was reported that you may have additional conflicts of interest based on your wife’s current role at the White House and that you appear to have authored inflammatory online commentary on important issues that was previously undisclosed to the Committee. Based on these reports, we are asking you provide additional information to the Committee.”
Full text of the letter follows:
November 17, 2017
Brett J. Talley
Office of Legal Policy
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Dear Mr. Talley:
Earlier this week, after the Committee discharged your nomination, the press reported several items about your background that had not been previously disclosed to the Committee – either in your Senate Questionnaire or at your hearing. Specifically, it was reported that you may have additional conflicts of interest based on your wife’s current role at the White House and that you appear to have authored inflammatory online commentary on important issues that was previously undisclosed to the Committee. Based on these reports, we are asking you provide additional information to the Committee.
As you know, Question 24 on the Senate Judiciary Questionnaire asks judicial nominees to identify family members who present potential conflicts of interest. This is because occasions can arise where nominees will need to recuse themselves from cases in which a family member is involved. On Monday, the New York Times reported that your wife, Ann Donaldson, serves as Deputy Assistant to the President and Chief of Staff for the White House Counsel, Don McGahn. The article states that “Ms. Donaldson has emerged in recent weeks as a witness in the special counsel’s investigation into whether Mr. Trump obstructed justice” (attached). This fact was not disclosed in your questionnaire submitted to the Committee.
Federal district courts around the country, such as the one you are nominated to, are hearing cases involving President Trump’s executive actions. For example, federal district courts in Hawaii, Maryland, and several others, heard cases challenging President Trump’s travel ban. Please answer the following questions:
1. Do you believe your wife’s role as an attorney in the White House does not present a potential conflict of interest, if you are confirmed?
2. What issues has your wife worked on in the White House Counsel’s Office?
3. Is the reporting accurate that your wife has been interviewed by Special Counsel Mueller? If so, do you commit to recusing yourself from any case arising from Mr. Mueller’s investigation?
4. Do you commit to recusing from any case involving President Trump’s actions or executive authority for the duration that your wife serves in the White House Counsel’s Office?
Additionally, this week, BuzzFeed News reported there were more online political comments written by you under a pseudonym, “BamainBoston”, on a University of Alabama sports fan website called TideFans.com. Subsequently, Slate.com published articles discussing other online comments you wrote under the same pseudonym (attached). These posts had not been provided to the Committee prior to your hearing. Please answer the following questions:
1. BuzzFeed News reported that after the Sandy Hook Elementary tragedy when a gunman took the lives of 20 children, you wrote, “My solution would be to stop being a nation of pansies and man up. . . . Everyone should know that part of their social responsibility is to learn how to use a firearm effectively and carry one with them at all times.”
a. Did you author this post?
b. Why was this not provided to the Committee as part of your questionnaire?
c. What did you mean by the phrase “man up”?
d. Do you still believe that it is everyone’s “social responsibility” to carry a firearm with them “at all times”?
2. Slate.com reported that you wrote a comment (also under the “BamainBoston” pseudonym) regarding Nathan Bedford Forrest, a Confederate Army general during the Civil War and early leader of the Ku Klux Klan. The post stated that “It was only after the perceived depredations of the Union army during reconstruction that Forrest joined (it is highly unlikely that he founded or acted as Grand Wizard) the first KKK, which was entirely different from the KKK of the early 19th Century.”
a. Did you author this post?
b. Why was this not provided to the Committee as part of your questionnaire?
c. What led you to defend Nathan Bedford Forrest and his membership in the KKK?
d. Please explain your understanding of the views that the “first KKK” held regarding African Americans, and how these views were “entirely different from the KKK of the early 19th Century.”
e. Please explain whether your online comment accounted for enactment of the Enforcement Acts in 1870 and 1871 passed by the United States Congress and signed by President Ulysses S. Grant.
f. Please detail what sources of information you relied upon to inform your views.
3. Slate.com also reported that you wrote a comment (under the “BamainBoston” pseudonym) regarding Roe v. Wade and Miranda v. Arizona, describing them as “indefensible.” The post stated that while you considered “very few” U.S. Supreme Court decisions to be “indefensible when it comes to an interpretation of the Constitution,” you believed that “Roe v. Wade and Miranda are probably the worst offenders,” and further stated, “but that court is long gone, thank God.”
a. Did you author this post?
b. Why was this not provided to the Committee as part of your questionnaire?
c. Do you stand by your comment that Roe and Miranda are “indefensible”?
d. Do you commit to recusing in any case involving women’s right to access abortion or a criminal suspect’s right to be informed of her rights to remain silent and be provided an attorney?
4. Have you posted online about any other legal, political, or social issues on any other website, blog, or social media platform that was not provided to the Committee? If yes, please provide copies of each post.
5. What other names or pseudonyms, if any, have you used to post comments online about any legal, political, or social issue?
6. BuzzFeed also suggests that two posts written under the pseudonym “BamainBoston” in 2012 were edited on June 28, 2017—the same day that, according to your Questionnaire, you met with Senators Shelby and Strange about a potential district court nomination.
a. Did you edit those posts on June 28? If so, what edits did you make and why?
b. Once you decided to seek a judicial nomination or became aware that you were under consideration for a federal judgeship, have you taken any steps to delete, edit, or restrict access to any statements previously available on the Internet or otherwise available to the public? If so, please provide the Committee with your original comments and indicate what edits were made.
7. As the Deputy Assistant Attorney General responsible for judicial nominations in the Office of Legal Policy, you have been responsible for advising President Trump’s judicial nominees on what information they must disclose to the Committee. During the last Administration, for example, Stephen Bough, a nominee to the Western District of Missouri, disclosed not only his own blog posts but also his commentary on other authors’ blog posts and on other websites, because Question 12a asks nominees to disclose material they have authored, including “material published only on the Internet.” (Stephen Bough Senate Judiciary Questionnaire, pg. 10).
a. What have you told other judicial nominees in terms of what online commentary they need to disclose to the Committee?
b. Specifically, have you advised other nominees not to disclose online posts or comments they have authored regarding legal, political, or social issues? If so, please disclose the names of the nominees you have so advised.
The Senate must consider carefully each nominee’s record and reflect on whether they are able to be fair, independent, and impartial. Information about your potential conflicts of interest and your public political commentary are critical to that inquiry. Please respond to these questions as soon as possible. We believe the Senate should not move forward on your confirmation until this information has been provided and Senators have an opportunity to evaluate and review it.
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