G.S. House of Representatives Committee on the Judiciary ‘Washington, DE 20515-6216 One Hudeed Sixteenth Congress February 13, 2019 The Honorable Jerrold Nadler Chairman Committee on the Judiciary USS. House of Representatives 2138 Raybum House Office Building Washington, D.C. 20515 Dear Chairman Nadler: Yesterday, you issued a press release announcing the Majority staff is hiring two individuals, Barry Berke and Norman Eisen, to assist on a consulting basis as special oversight counsels. According to your release, "Mr. Berke and Ambassador (Fet.) Bisen will consult on oversight matters related to the Department of Justice, including the Department's review of | Counsel Mueller's investigation, and other oversight and policy issues within the jurisdiction." However, according to detailed media reporting—posted just minutes after your press release, indicating a coordinated rollout between your staff and national media ‘outleis—Mr. Berke and Mr. Eisen's roles will be much more significant, According to CBS News, a Committee aide “did not dispute that whatever their work uncovers could eventually be used as evidence against the president if Congress docs move to impeach him.”? The New York Times reports the retention of counsels such as Mr. Berke and Mr. Eisen are “relatively unusual for a congressional committee,” and further reports the two attorneys are “prominent legal critics of President Trump [who will] help begin inquiries into some of the most sensitive allegations involving the president, including ethics violations, corruption and possible obstruction of justice.”® The hiring of these two individuals, and the apparent wide breadth of subject matter they will be covering for the sole benefit of the Majority staff, raises significant concerns, ‘The Writings of Mr. Berke and Mr. Bisen As you are no doubt aware, over the past year Mr. Berke and Mr. Bisen have teamed up to write a series of scathing editorials, as well as lengthier conclusory reports, about the president ' Press Release, “Chairman Nadler Announces Special Oversight Counsels to House Judiciary Committee Staff,” Feb. 12, 2019 available at hitps:/judiciary house. gov/news/press-releases/chairman-nadler-announces-special- oversight-counsels-house-judiciary-committe. 2? Rebeeca Kaplan, “House Judiciary Ramps up Oversight of Trump Administration with Two New Hires,” CBS NEWS, Feb. 12, 2019 available a hips:/hvww.cbsnews.com/news/house-judiciary-ramps-up-oversight-oF-trumip- ‘administration. with-wo-new--hires/ [hereinafter CBS News} Nicholas Fandos, “House Judiciary Committee Hires Trump Legal Critics for Investigations," NY TIMES, Feb. 12, 2019 available at hitps:/www.nytimes.com/2019/02/12/us/poities/house judiciary-committee-trump- investigations htm.‘The Honorable Jerrold Nadler February 13, 2019 Page 2 and his conduct. On June 4, 2018, in discussing a legal memorandum drafted by lawyers for President Trump, they wrote: ‘The weakness of the president’s position is, finally, highlighted by his attorneys’ concluding attempt to discredit the investigation, That is done by making the extraordinary argument that his own Department of Justice and the FBI are corrupt. While many subjects of criminal investigations may harbor that view, the fact that the attorneys for our chief law enforcement officer — who oversees the executive branch, where the Justice Department and FBI reside — made that desperate claim in their letter is striking. The president is arguing that not only is he above the law but also above the facts. That audacious move is unbecoming for our nation’s chief law enforcement officer, and neither Mueller nor Congress should let him get away with it. On December 7, 2018, they wrote, “[OJn Friday, federal prosecutors in Manhattan and the special counsel, Robert Mueller, delivered a potentially devastating one-two punch against President Trump.”® The editorial discusses alleged payments made by Michael Cohen, “new evidence of collusion with Russia,” and “potential exposure under the Foreign Corrupt Practices Act for activities relating to a potential Trump Tower Moscow.”* These opinion pieces are troubling because they: a) lead the reader to believe President Trump has already been proven guilty beyond a reasonable doubt; b) prejudge the outcome of Mr, Mueller’s investigation; and c) inflame emotions by jumping to conclusions. A recent report by the Brookings Institution, co-authored by Mr. Berke and Mr. Eisen, lays ‘out a case for obstruction of justice against the president.’ The report acknowledges “[tJhere is no doubt a difference between what is in the public record and what Special Counsel Mueller and his colleagues have uncovered in their investigation, and there remain factual disputes among key participants.”* Yet, Mr, Berke and Mr, Eisen disregard these factual disputes and their limited knowledge of key facts, and further write, “[nJevertheless, analyzing the current allegations against the president under the legal framework laid out in our original report even more strongly supports that the president obstructed justice under ordinary application of the relevant criminal law.”® In essence, Mr. Berke and Mr. Eisen believe the president has obstructed justice, irrespective of the outcome of the Special Counsel’s investigation. “Bary H. Berke, Noah Bookbinder, Norman Bisen, “Trump's Lawyers Say He's above the Law. They Clearly Don’t Understand It,” WASH, Posr, June 4, 2018 available at Intps:/wwvw.wwashingtonpost.com/news/posteverything/wp/2018/06/04/trumps-lawyers-say-hes-above-the-law-they- clearly-dont-understand-ivutm_term=.fOe2fTb4(018 (emphasis added). 5 Barry H. Berke, Noah Bookbinder, Norman Eisen, “Is This the Beginning ofthe End for Trump?” N.Y. TIMES, Dee. 7, 2018 available at http://www nytimes.com/2018/12/07/opinion/trump-collusion-cohen- ‘manafort htm! ?module=inline “ld. Bary Berke, Noah Bookbinder, and Norman Eisen, Presidential Obstruction of Justice: The Case of Donald J. Trump, BROOKINGS INST., Aug. 22, 2018, available at hitps://www.brookings.cdulwp- content/uploads/2018/08/GS_82218 Obstruction 2nd-edition pa, 81 "id‘The Honorable Jerrold Nadler February 13, 2019 Page 3 ‘The Impartiality and Recusal of Mr, Berke and Mr. Eisen Given the recent writings by Mr. Berke and Mr. Eisen, their hiring taints—and brings inherent bias to—any future work of the Committee in which these individuals are involved. Democrats were outraged by Acting Attomey General Whitaker's prior media comments regarding the Special Counsel's investigation.!° You and your colleagues vehemently called for ‘Acting Attomey General Whitaker's recusal based on statements he made as an editorialist on CNN." In fact, you signed a letter stating: Regrettably, Mr. Whitaker's statements indicate a clear bias against the investigation that would cause a reasonable person to question his impartiality. Allowing a vocal opponent of the investigation to oversee it will severely undermine public confidence in the Justice Department's work on this critically important matter.!? ‘Yet, you seemingly have done the exact same thing by hiring Mr. Berke and Mr. Eisen, You have allowed these two individuals to become the judge, jury, and executioner regarding impeachment proceedings. The hypocrisy in these hirings is evident, and their recent work product demonstrates an inability to be unbiased arbiters of facts presented to the Committee, Perhaps even more concerning is Mr. Berke’s history of political campaign contributions. According to Open Secrets, Mr. Berke has given at least 80 political contributions, to federal campaigns or national parties over the past 15 years—all to Democrats." The biggest benefactor of Mr, Berke’s contributions is Senator Kirsten Gillibrand, whose campaigns have received at least $12,000 from Mr. Berke. In addition, Mr. Berke has donated to the campaigns of Kamala Harris and Elizabeth Warren, All three of those individuals have announced they are running for president. These contributions create an apparent conflict of interest and beg the ‘question whether Mr. Berke is angling for a plum administration post should he play a key role in impeachment proceedings and any of those individuals become president—or whether other hidden motives exist as well. ‘Your unilateral decision to hire two individuals with such obvious bias against the president will taint anything they touch moving forward. Unless Mr. Berke and Mr. Eisen are recused from working on matters that directly implicate the president, there is no way the American people can have confidence the Committee is anything more than a large megaphone for partisan political charades. 10 jen Kirby, °6 Takeaways From Acting Attorney General Matthew Whitaker's Hearing,” VOX MEDIA, Feb. 8, 2019 available at https:/fwww.vox.com/2019/2/8/18217275/matthew-whitaker-acting-altorney-general-hearing- takeaways (noting that the Hon, Steve Cohen asked Mr. Whitaker about whether his prior opinions expressed on CNN had changed). "Allan Smith, “Top Democrats say Matt Whitaker Must Offer immediate recusal from Mueller Probe,” NBC News, Nov. 11, 2018 available at https:/www nibenews.com/politics/justice-departmenttop-democrats-say-matt- ‘whitaler-must-offer-immediate-recusal-mueller-n934921 Pid, 18 Open Secrets, available at htps:/www.opensectets.org/search?page=I &q=berke’42C+barry®etype=donors,