One of special counsel Bob Mueller’s witnesses may be headed to the federal bench.
Sources tell The Daily Beast that James Burnham—formerly a top deputy to Don McGahn in the White House Counsel’s office, and reportedly a potential witness for the Mueller probe—is a leading contender for an open seat on the powerful 9th Circuit Court of Appeals.
Mueller’s investigation into alleged Russian election interference has presented a huge hardship for many of those involved, especially retired Gen. Michael Flynn, who launched a legal defense fund because of his sky-high legal bills. But for other figures in President Donald Trump’s orbit, the investigation—at least thus far—has been little more than a speed bump. Burnham is one of those figures.
Burnham previously worked at Jones Day, a big law firm whose imposing neoclassical Washington office is guarded by huge stone griffins. The firm represented Trump’s campaign, and many of its alumni now populate the Trump administration. Burnham is one of those alums. After the election, he took a position in the White House Counsel’s office under McGahn, focusing on Trump’s nominations to the federal judiciary.
So Burnham had a front row seat to first chaotic months of the administration. The Washington Post reported that Mueller wants to question him because then-acting Attorney General Sally Yates—before being fired by Trump for refusing to defend the travel ban—briefed Burnham and McGahn about “concerns in the Justice Department and FBI that Flynn could be compromised by the Russians.”
“Given James’ position as a traffic cop at the White House Counsel’s office for paperwork and things like that, it doesn’t surprise me that he’s somebody that they would want to touch base with,” said Leonard Leo, who heads the conservative Federalist Society.
Burnham is widely regarded as a top contender for the 9th Circuit judgeship. Above the Law reported in July on rumors he could be in the running for the spot. He’s from a legal family; his father-in-law is a Jones Day partner, according to the New York Times write-up of Burnham’s wedding. His mother is a shareholder with Greenberg Traurig, and his father is a founding partner of the Phoenix firm Gammage & Burnham. Burnham received his J.D. from the University of Chicago Law School in 2009. He helped defend former Virginia Gov. Bob McDonnell in a corruption probe. The Supreme Court ultimately (and unanimously) overturned McDonnell’s conviction, a ruling that some good governance advocates said could result in fewer successful prosecutions of corrupt politicians.
Burnham could not be reached for comment for this story.
He recently departed the White House Counsel’s office to take a political appointment in Federal Programs Branch of the Justice Department’s Civil Division. If nominated, Burnham’s confirmation hearing could be must-see C-SPAN. And he would draw scorching criticism from the president’s opponents.
“Let’s face it: Burnham has only been out of law school for eight years, so President Trump would not be nominating a seasoned legal luminary to this seat,” said Daniel Goldberg, the legal director for the progressive Alliance for Justice. “The reason Trump would nominate him is the same reason Robert Mueller likely wants to interview Burnham: Because he is a Trump loyalist and a White House insider who has worked for a President and an Administration that repeatedly demonstrate that they believe they are above the law.”
Stephen Gillers, an expert on judicial ethics and professor at the New York University School of Law, told The Daily Beast Burnham’s nomination could be risky.
“The onus is on McGahn,” Gillers said. “The White House Counsel’s office has a responsibility to keep the president out of trouble and to investigate the facts and advise the president whether nominating Burnham will create a side show that the president may wish to avoid. That’s McGahn’s duty. And then it’s the president’s responsibility and authority to decide whether or not he wants to accept that risk.”
Gillers added that Burnham’s potential role in the Mueller probe should not be a reason for the president to opt not to nominate him.
“The only reason not to is not because of Burnham,” Gillers said. “It’s because of a desire to avoid giving the [Senate Judiciary] Committee, and especially the Democrats, an opportunity to inquire into the workings of the White House.”
It would be a question of prudence, Gillers said, but not of ethics.
Leonard Leo, who advises the White House on judicial nominations, said any decision about the 9th Circuit vacancy is probably a ways off.
“I haven’t heard any rumblings about a decision being made there anytime soon,” he said.
Leo added that he thinks would be a good pick for the spot.
“It’s a tremendous advantage for the president and for the judiciary,” he said. “To have someone who wants to dedicate their life to judiciary service with those kinds of credentials at such a young age is a tremendous plus for the institution of the judiciary. It is a sacrifice for him.”
Burnham has fans in high places. Burnham previously clerked for Alex Kozinski, a judge on the 9th Circuit. Kozinski told The Daily Beast that Burnham is a “very smart guy” with a “good, strong legal mind” who would be a good fit for the court.
“He really gets off on litigation,” Kozinski said. “I think he’d be great.”
This article has been updated to correct the legal term used to describe James Burnham.