Bench Memos

Law & the Courts

Re: Telltale Talley Tally

Yet more imposition of a double standard against federal judicial nominee Brett Talley:

The New York Times complains today that Talley “did not disclose on publicly available congressional documents that he is married to a senior lawyer in the White House Counsel’s Office.”

1. One good reason for Talley not to have included that information on his Senate questionnaire response is that it is not in fact responsive to any of the questions posed.

The article suggests that he should have mentioned his wife, Ann Donaldson, in response to the question (24.a) asking him to identify “family members … that are likely to present potential conflicts-of-interest.” It states that decisions by district judges “can put them at odds with the White House and its lawyers.”

But Talley, as deputy assistant attorney general in the Office of Legal Policy in the Department of Justice, will already have potential conflicts of interest that arise from his service in the Trump administration. In what foreseeable case is his wife’s role in the White House going to present a conflict that wouldn’t already exist?

The article states that Donaldson “has emerged in recent weeks as a witness in the special counsel’s investigation into whether Mr. Trump obstructed justice.” But who imagines that any litigation over that matter will be pursued in the Middle District of Alabama?

Further, the Senate Judiciary Committee has long been content with a nominee’s general statement to evaluate potential conflicts as they arise. To cite just one example: When President Obama nominated Cornelia Pillard to the D.C. Circuit, Pillard didn’t bother to note that her husband David Cole frequently litigates in the D.C. Circuit, and no one faulted her for failing to identify the potential conflict. So why the double standard with Talley?

The article also states that Talley “did not mention his wife when he described his frequent contact with White House lawyers during the nomination process.” Perhaps that’s because Talley’s “descri[ption] of his frequent contact with White House lawyers” was limited to this:

On July 12, 2017, I interviewed with attorneys from the White House Counsel’s Office and the Office of Legal Policy. Since then I have been in contact with officials from the White House Counsel’s Office and the Office of Legal Policy.

Perhaps that’s because of the unsurprising fact that, as an Administration source confirms for me, his wife played no role in his nomination process.

2. There was hardly any secret about the fact that Talley was married to White House lawyer Ann Donaldson. Above the Law reported on their marriage and on their positions in the Trump administration way back in April. Such information would surely have been in the FBI report available to senators and their staff.

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