Abscam lawyer Nathan now takes on White House and defends lawmakers

In the quiet confines of an unobtrusive office, a legal sharpshooter has been engaged in a high-stakes constitutional showdown with the White House — not that anyone would know it if they saw him walking down the corridor.

Irv Nathan, who as general counsel is charged with protecting the House’s constitutional prerogatives in court, easily blends into the Capitol Hill crowd with his gray hair, diminutive frame and bookish, button-down looks.


But get him in front of a judge for oral arguments and his years of litigation work and command of the courtroom are obvious.

Earlier this year, Nathan and his legal team filed a lawsuit challenging the Bush administration’s assertion of executive privilege to shield current and former White House officials from congressional subpoenas. Such a lawsuit is unprecedented in the tug-of-war between Congress and the White House over oversight and privacy.

The legal battle stems from last year’s U.S. attorneys scandal. Just this week, a report by the Department of Justice’s Inspector General found some of the attorneys were fired for political reasons, and a special prosecutor was named by Attorney General Michael Mukasey to look into whether there should be criminal charges.

The House has already voted to hold White House counsel Harriet Miers and others in contempt for their refusal to testify before the House Judiciary Committee. Nathan, on behalf of the House, filed suit to enforce the subpoenas, and last month a federal judge ordered Miers to appear before the panel, a major legal victory.

A three-judge appeals court panel granted the White House a stay of that lower-court order, and Nathan is arguing that the stay be lifted. If it loses, the administration is expected to continue appealing all the way up to the Supreme Court in an effort to stall a decision until it leaves office.

Nathan, who supervised the Abscam investigation, the biggest public corruption scandal in U.S. history before the Jack Abramoff controversy, knows a little something about executive power and the ways of Washington.

In addition to the Abscam work, his more than three-decade career in Washington has included two stints as a congressional staffer. One of his mentors was former “Meet the Press” host Tim Russert, and his clients in private practice included CBS and Viacom, which he represented against shock-jock Howard Stern when Stern left for Sirius Radio.

Whatever the outcome of the current battle, expect Nathan to stay on the case until the bitter end. Even if Miers and other aides want to avoid testifying, they must appear before the House or Senate to declare their immunity, he argues.

“There is no American citizen who is exempt from a subpoena. You have to appear,” he told the three-judge panel earlier this month.

Nathan first returned to the Hill when the Judiciary Committee hired him last year to help guide Democrats in handling the legal issues involved in the U.S. attorneys’ firings. The committee paid him $25,000 a month for nine months for his work.

Afterward, Speaker Nancy Pelosi (D-Calif.) tapped him to replace Geraldine Gennet as head of the House’s legal arm last year.

Some Republicans on the panel immediately decried the move as overtly partisan.

But Nathan said the job as in-house lawyer for the House is completely nonpartisan, and Pelosi made that clear to him when he was hired. Others in the general counsel’s office, such as deputy counsel Kerry Kircher, have been there since Republicans took over in 1995.

Nathan sees himself as a lawyer able to fulfill his professional responsibility to represent all clients’ rights without regard to political leanings. It’s something he did in private practice at Arnold & Porter, where he once represented the Republican National Committee.

{mospagebreak}While he’s gone after the White House, Nathan and his office also have defended the rights of conservative stalwarts like GOP California Reps. Darrell Issa and Duncan Hunter. The pair, along with Rep. Brian Bilbray (R-Calif.), were the targets of a civil lawsuit for their role in trying to save a giant 29-foot cross that serves as a war memorial in San Diego.

He views his legal battle with the White House as a critical issue for Congress as an institution, one that will long outlast any current partisan tensions.

During his career, Nathan has seen the rise and fall of regimes on both sides of the aisle. He’s a former chairman of Arnold & Porter’s white-collar practice, where he’s worked on and off since 1968.


He left the firm twice for senior posts in the Justice Department (DoJ), serving as deputy assistant attorney general for the criminal division from 1979 to 1981 during Abscam, the FBI sting operation aimed at trapping corrupt public officials. The investigation ultimately led to the conviction of one senator and five members of the House of Representatives.

Nathan sees the FBI’s 2006 raid on Rep. William Jefferson’s (D-La.) Capitol Hill office as part of a pattern of executive branch abuse of power, and points out the Abscam investigation didn’t involve one raid on a lawmaker’s congressional office. He said it managed to be successful without imposing on Congress’s constitutional protections.

“There were no wiretaps in the Congress; all the meetings were held off of the premises; there were no raids or search warrants sought for congressional offices,” he said. “I think we demonstrated that we could carry out the functions of the DoJ without invading on constitutional privileges.”

Now Nathan is working for the other team, often fighting DoJ subpoenas for members’ information and testimony. He says he has no problem doing so, even if it comes to protecting one of the lawmakers implicated in the Abscam investigation: Rep. John Murtha (D-Pa.). The longtime lawmaker was videotaped in the Abscam sting, but escaped long-term damage.

“I haven’t had the occasion to either meet or represent Mr. Murtha,” Nathan said. “Those events were a long time ago and obviously, if he had a legal issue I would be able to represent him and give him our best advice,” Nathan said.

In 1987, Nathan began his first stint on Capitol Hill when Sen. Patrick Moynihan (D-N.Y.) pulled him out of private practice to help out in an investigation of then-CIA Director William Casey.

Moynihan was the vice chairman of the Senate Intelligence Committee at the time, and former Sen. Barry Goldwater (R-Ariz.) was the chairman. Issues arose with Casey after he hired a chief of covert operations whose main claim to fame was engaging in dirty tricks in Ronald Reagan’s 1980 election campaign.

Former Sen. Fred Thompson (R-Tenn.) was Goldwater’s counsel, and Nathan ran across others who would go on to become major D.C. players.

“It taught me how the Hill works, and I had a great mentor because Sen. Moynihan’s chief of staff at the time was a guy named Tim Russert,” he said.

Nathan has vowed to continue the legal fight for Congress even if the Bush administration is successful in stalling past the next president’s inauguration. And he has the full support of Judiciary Chairman John Conyers Jr. (D-Mich.), who has sat in on the two days of Nathan’s oral arguments in the case.

“It’s likely to last beyond the term of this Congress and this administration,” Nathan acknowledges. “But these are issues that will not [become] moot with the passage of time. And the chairman [Conyers] has made it clear that he wants us to pursue it and get some resolution.”