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At every level, this matter has commanded the immediate and close attention of the judges involved—suggesting that no ordinary witness and no ordinary issue is involved. But is it the president? The docket sheets give one final—but compelling—clue. When the witness lost the first time in the circuit court (before the quick round trip to the district court), he petitioned, unusually, for rehearing en banc—meaning the witness thought the case was so important that it merited the very unusual action of convening all 10 of the D.C. Circuit judges to review the order. That is itself telling (this witness believes the case demands very special handling), but the order disposing of the petition is even more telling: Trump’s sole appointee to that court, Gregory Katsas, recused himself.
Why did he recuse himself? We don’t know; by custom, judges typically don’t disclose their reasons for sitting out a matter. But Katsas previously served in the Trump White House, as one of four deputy White House counsels. He testified in his confirmation hearings that in that position he handled executive branch legal issues, but made clear that apart from some discrete legal issues, he had not been involved in the special counsel’s investigation. If the witness here were unrelated to the White House, unless the matter raised one of the discrete legal issues on which Katsas had previously given advice, there would be no reason for the judge to recuse himself.
But if the witness were the president himself—if the matter involved an appeal from a secret order requiring the president to testify before the grand jury—then Katsas would certainly feel obliged to recuse himself from any official role. Not only was the president his former client (he was deputy counsel to the president, remember) but he owes his judicial position to the president’s nomination. History provides a useful parallel: In 1974, in the unanimous Supreme Court decision United States v. Nixon, which required another witness-president to comply with a subpoena, Justice William Rehnquist recused himself for essentially the same reasons.
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