Brett J. Talley in 2014. (Matt McClain/The Washington Post)
Brett J. Talley, the young lawyer nominated by President Trump for a lifetime federal judgeship in Alabama, was asked by a Senate committee to disclose family members who are likely to present potential conflicts of interest if he is confirmed.
In response, Talley said he would evaluate “real or potential conflict, or relationships that could give rise to appearance of conflict” and recuse himself from cases if necessary, according to a Senate Judiciary Committee questionnaire.
He did not, however, identify any family members — including his wife, who is one of President Trump’s attorneys. Annie Donaldson is White House Counsel Donald McGahn’s chief of staff.
As a district judge, Talley could end up presiding over cases in which the federal government or the White House is one of the parties. For example, district judges in Hawaii and Maryland had previously heard cases challenging the Trump administration’s travel ban.
Talley’s failure to mention his wife in the 30-page written questionnaire was first reported Monday by the New York Times.
Talley could not be immediately reached for comment.
A White House official said in a brief statement Monday night that Donaldson was not involved in Trump’s nomination of her husband or other judicial candidates, and that nominees should be judged on their merits.
“Mr. Talley served as Deputy Solicitor General for the state of Alabama, currently serves in the Department of Justice’s Office of Legal Policy and was recommended by Alabama U.S. Senators. He is more than qualified to serve in the federal judiciary,” White House Press Secretary Sarah Huckabee Sanders said.
Taylor Foy, spokesman for the Senate Judiciary Committee and its chair, Sen. Charles E. Grassley (R-Iowa), said nominees are not required to list their spouses’ occupation.
“It’s no secret that Mr. Talley’s wife, Ann Donaldson, is the chief of staff to the White House counsel,” Foy said. “She was sitting behind Mr. Talley at his nomination hearing. Anyone who had any concerns about his wife’s occupation could have raised them at the hearing.”
Charles Geyh, an Indiana University law professor, said Talley’s marriage to a White House attorney is not bothersome and should not disqualify him from his nomination. Federal judges are required by law to recuse themselves in cases that present conflicts of interest.
But, Geyh said, “the 800-pound gorilla was that it was not disclosed.”
“It makes it, at the very least, incredibly poor form . . . It’s something that the Senate has every right to be in front of it to decide whether it’s a problem,” said Geyh, who teaches and writes about judicial ethics and conduct.
Talley attracted controversy for what some say is his limited experience in practicing law and the level of partisanship he had shown in the past. The Judiciary Committee, on which Republicans outnumber Democrats, approved Talley’s nomination last week on a party-line vote.
His nomination is now headed to the Senate for a full confirmation vote.
Sen. Dianne Feinstein (D-Calif.), the ranking Democrat on the committee, said the Senate should not confirm Talley.
“By failing to disclose that his wife is one of President Trump’s lawyers, Talley has betrayed his obligation to be open and transparent with the Senate and American people,” Feinstein said in a statement, adding later: “Talley’s nomination shouldn’t be considered by the Senate unless he answers questions about this glaring omission that [clarify] matters concerning when he would recuse himself.”
Feinstein said reports that Donaldson has been interviewed by special counsel Robert S. Mueller III’s team as it investigates Russian meddling in the U.S. presidential election show “a clear conflict of interest that should have been disclosed.” The Times reported that Mueller’s team recently talked to Donaldson about her notes on conversations with McGahn regarding the firing of FBI Director James B. Comey.
Feinstein and other Democrats on the committee have opposed Talley’s nomination, citing his lack of trial experience, and political comments he previously made on social media, on his political blog and in several opinion pieces he has written for CNN. The American Bar Association, which vets federal judicial nominees, has rated Talley as “not qualified.”
Talley, a 36-year-old lawyer from Alabama who writes horror stories on the side, has practiced law for only three years and has yet to try a case.
Before his nomination in September, he had been unequivocal about his political views. For example, one tweet from his account, which has since been made private, says, “Hillary Rotten Clinton might be the best Trumpism yet.”
On his political blog called Government in Exile, he wrote a post with the title, “A Call to Arms: It’s Time to Join the National Rifle Association,” in January 2013, a month after a gunman in Newtown, Conn., killed 27 people before taking his own life. He criticized gun-control advocates, who, he said, “have exploited” the Newtown mass shooting to advance an agenda to strip people of their Second Amendment rights.
Answering written questions from Democrats on the Judiciary Committee about his previous political statements, Talley said he would recuse himself in cases in which his impartiality is questioned, as required by federal statute, and that his personal views on the Second Amendment and other issues “will have no bearing on how I would rule in a case.” He also said the blog post calling on people to join the NRA was meant to attract opposing views and encourage constructive discussion.
Challenged about his lack of trial experience, Talley said he had previously argued motions in federal district court on behalf of the state of Alabama, often through written briefs rather than in person. He also said he had argued cases before the 11th Circuit Appeals Court and the Alabama Court of Criminal Appeals. He said it would be “inappropriate” for him to comment on his recommendation for the federal bench — a decision made by two U.S. senators from Alabama, Richard C. Shelby and Luther Strange.
Geyh, the law professor, said revelations of Talley’s failure to disclose also could raise questions about whether his proximity to political power played a role in his nomination.
“We do have a cronyism concern; that because of his association with members of the Senate and members of the White House that he’s being considered for a position that the ABA says he’s unqualified [for],” Geyh said. “To what extent is the president doing this as a favor for someone he knows? To what extent is this an arrangement in favor of home state senators who are indifferent to [Talley’s] qualifications?”
Talley graduated from Harvard Law School in 2007. Shortly after, he became a law clerk in Alabama, spending two years in a federal-district court and another two at the U.S. Court of Appeals for the 11th Circuit. He worked as a political speechwriter for three years, first for Mitt Romney’s presidential campaign in 2012 and then for Sen. Rob Portman (R-Ohio) from 2013 to 2015.
In April 2015, Talley became an Alabama deputy solicitor general, a position he held for nearly two years until he became deputy assistant attorney general for the Justice Department in January.
In a statement defending Talley’s nomination, Grassley said he does not believe “extensive trial experience” is the only factor in deciding on a nominee’s qualifications.
“Mr. Talley has a wide breadth of various legal experience that has helped to expose him to different aspects of federal law and the issues that would come before him,” Grassley said.
Talley’s nomination comes as Trump and Senate Majority Leader Mitch McConnell (R-Ky.) continue to intensify efforts to place conservative jurists on the federal bench.
Talley and Donaldson were married in August 2015.
Donaldson was an associate for the Washington law firm Jones Day before she was appointed to the White House post. She is one of several lawyers from the firm who were tapped to join the Trump administration, some as attorneys for the White House, including McGahn.
Among the others: Greg Katsas, James Burnham and David Morrell, who now work in the Office of the White House Counsel.
Katsas, Trump’s deputy counsel, is also a judicial nominee. The Senate last week approved Katsas’s nomination to an appellate court in Washington.