Bernie Kerik, the former New York City police chief who aided Rudy Giuliani’s effort to discredit the results of the 2020 election, is inching closer to compliance with a subpoena from the Jan. 6 select committee for his testimony and documents.
In a Thursday letter to Chair Bennie Thompson, obtained by POLITICO, Kerik’s attorney Timothy Parlatore indicated that Kerik intends to share documents he believes are “not privileged” with the panel by the end of next week and produce a log of other documents he believes should be withheld due to various privileges.
Kerik, raising concerns that his documents could be released selectively or without context, indicated that he planned to post them on a public website. Parlatore also indicated that Kerik would appear for a Jan. 13 deposition, as the panel has demanded, but intended to raise objections to the validity of the committee’s subpoena.
“As I have stated from the beginning, Mr. Kerik is happy to provide all of the responsive documents, as well as to sit and answer all appropriate questions regarding these matters,” Parlatore said in the letter.
The committee subpoenaed Kerik on Nov. 8, seeking information about his work with Giuliani, as well as his involvement in the so-called “war room” at the Willard Hotel, where Trump allies met to strategize about preventing Congress from certifying Joe Biden’s victory. The letter that accompanied the subpoena incorrectly suggested Kerik was present in the war room on Jan. 5, leading to an apology demand from Kerik.
Kerik had previously agreed to testify to the Jan. 6 committee if it permitted him to do so in public. His offer drew a positive statement from former President Donald Trump, who said he was willing to waive attorney-client privilege to permit Kerik to testify.
Citing that statement, Thompson pressed Kerik in a Dec. 10 letter, also obtained by POLITICO, to appear for a deposition on Jan. 13 — several weeks later than the panel initially planned — or face a potential criminal contempt citation.
“[T]he Select Committee would view Mr. Kerik’s failure to appear at the deposition and to produce responsive documents or a privilege log … as willful non-compliance,” Thompson wrote. “Such willful noncompliance with the subpoena would force the Select Committee to consider invoking the contempt of Congress procedures.”
Thompson also rejected Kerik’s request for a public hearing in lieu of a deposition. But he did say the committee would take the request “under advisement” and consider for a future hearing after Kerik appeared for his deposition.
In his reply to Thompson, Parlatore rejected the notion that Trump had waived attorney-client privilege altogether, but rather emphasized that he did it only on the condition that Kerik be permitted to testify publicly.
“[T]o the extent that you do not understand the conditional nature of this privilege waiver, I would suggest that you have committee counsel obtain a clarification from the attorneys for former President Trump,” Parlatore wrote.
Parlatore also criticized Thompson for making a contempt threat when Kerik had repeatedly proposed options for full cooperation.
“To be clear, Mr. Kerik wants very much to cooperate with the Committee and to comply with the subpoena,” he said. “He is being hampered by the Committee’s refusal thus far to accept the conditions of the privilege waiver.”
Parlatore also encouraged the committee to seek resolution via a civil lawsuit, which he said Kerik would welcome and agree to expedite.
The bulk of Parlatore’s letter focuses on disputed claims that the Jan. 6 committee is structurally invalid because it includes no members appointed by House GOP Leader Kevin McCarthy. This claim has become a feature of multiple lawsuits lodged by targets of the committee investigation resisting subpoenas for testimony or phone records.
The claims emphasize that House subpoena and deposition rules require “consultation” between the chair of a committee and the “ranking member” of the minority party. But in this case, there is no ranking member appointed by the GOP. Instead, the two Republicans on the panel — Reps. Liz Cheney and Adam Kinzinger — were appointed by Speaker Nancy Pelosi.
Thompson pushed back on this claim in his Dec. 10 letter, calling it “meritless.” The resolution establishing the Jan. 6 committee empowered Pelosi to name all the panel’s members after “consultation with the minority leader.” That consultation occurred, Thompson said, and nothing in the rules “require that the Minority Leader’s preferred Members be appointed to or participate in the Select Committee.”
McCarthy did name five picks to the committee in June, but Pelosi rejected two of them: Reps. Jim Jordan (R-Ohio) and Jim Banks (R-Ind.), who she suggested would not be constructive members of the panel. In response, McCarthy withdrew all of his picks, leaving the entire panel in the hands of Pelosi and the majority.
Courts have yet to rule on whether this series of events has legal ramifications, but judges are typically reluctant to weigh in on matters of internal House dynamics and procedures.
In his reply, Parlatore said Thompson did not reconcile the lack of a ranking member with the House rules requiring consultation before subpoenas are issued and depositions are scheduled.
“I am unaware whether you have attempted to address this conflict with either the House Parliamentarian or the Rules Committee to resolve the conflict,” he wrote, “or if the Committee is simply proceeding with deposition subpoenas without first ensuring that it has the proper authority to do so.”
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