David Tatel – dwkcommentaries

Judge David Tatel Honored by Chicago Lawyers’ Committee for Civil Rights

At its 50^thAnniversary Gala on October 24, the Chicago Lawyers’ Committee for Civil Rights granted its Legal Champion Award to Judge David S. Tatel. Here we will review the Gala Co-Chair’s introduction of the Judge, the latter’s response and the Judge’s recent opinion for the U.S. Court of Appeals for the D.C. Circuit upholding a House of Representatives committee’s subpoena to an accounting firm for certain financial records of Donald Trump and some of his companies. This post will conclude with some personal remarks by this blogger.

Co-Chair’s Introduction of Judge Tatel

Nate Eimer, a Chicago attorney and Co-Chair of the Gala, introduced the Judge with these remarks, “Fifty years ago, [David Tatel,] a brilliant, dedicated, courageous University of Chicago of Law graduate working as an associate at Sidley & Austin decided to leave the firm and join the newly formed Chicago Lawyers’ Committee for Civil Rights Under Law as its founding Executive Director.”

“[Before then, David Tatel already had begun] his life of dedicated service to the cause of civil rights immediately upon his arrival at Sidley doing pro bono work for the Chicago Urban League. [And in] his first year as Executive Director of the Lawyers’ Committee [Mr.] Tatel initiated almost 50 projects to advance civil rights in the areas of education, housing, community economic development, employment, and police accountability.”

“In that first year the Committee’s efforts led to the federal investigation and indictment of those responsible for the murder of Black Panthers Fred Hampton and Mark Clark. Another effort, reminiscent of the recent school closings in Chicago, was the Committee’s member firms’ successful representation of a group of parents on the South Side whose cooperative school was abruptly closed by the City of Chicago.”

“On leaving the Chicago Lawyers’ Committee, . . . [Mr. Tatel] moved to Washington DC where he joined Sidley’s DC office and then served as the Executive Director of the National Lawyers’ Committee for Civil Rights and later as the Director of the Office for Civil Rights of HEW.”

“In 1994, . . .[David] Tatel was nominated by President Bill Clinton to assume the seat held by Justice Ruth Bader Ginsburg on the United States Court of Appeals for the D. C. Circuit. This is Judge Tatel’s 25^th year on the bench. His recent opinion in Trump v. Mazar – which upheld the House Oversight Committee’s subpoena for records relating to President, candidate, and private citizen Trump’s financial records – was widely recognized as ‘meticulous and scholarly.’”

The printed Gala program added these words about the Judge’s background: “Judge Tatel earned his undergraduate degree from the University of Michigan and his J.D. degree from the University of Chicago. [After HEW, he returned to private practice in 1979 to join]. . . Hogan & Hartson, where he founded and headed the firm’s education practice until his appointment by President Clinton to the D.C. Circuit. Judge Tatel currently co-chairs the National Academy of Sciences’ Committee on Science, Technology and Law, and serves on the boards of Associated Universities , Inc. and the Federal Judicial Center. Judge Tatel is a member of the American Philosophical Society and the American Academy of Arts and Sciences. Judge Tatel and his wife, Edith, have four children and eight grandchildren.”

Judge Tatel’s Acceptance Speech

“For me, serving as the Chicago Lawyers’ Committee’s first executive director was one of the most formative experiences of my career. I was only twenty-seven years old, yet through the Lawyers’ Committee, I met and worked with some of the most dedicated and gifted members of the Chicago bar. Two of those lawyers, Dick Babcock, of Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, now part of McGuire Woods, and Bill Haddad, of Bell, Boyd, Lloyd, Haddad & Burns, now part of K&L Gates, were the true founders of the Chicago Lawyers’ Committee. It was they who took the baton from the National Committee and laid the foundation for the success you celebrate today.”

“Like the founders of the National Lawyers’ Committee six years earlier, Babcock and Haddad were not civil rights lawyers—far from it. Bill was a tax lawyer and Dick specialized in municipal zoning, but they were community leaders, ‘lawyer-statesmen,’ as it were, committed to the Constitution and the rule of law.”

“Joined by twelve other lawyers, all senior partners in the city’s major law firms, Babcock and Haddad formed the Chicago Lawyers’ Committee to bring the skills, energy, and prestige of the legal profession to bear on the serious civil rights problems facing this city—problems dramatically highlighted just one year earlier during the devastating riots that swept through the south and west sides in the wake of the assassination of Dr. Martin Luther King, Jr.”

“The Committee began its work in a small office on the 19th floor of the old Monadnock Building at 53 West Jackson—just me, a secretary, and a used Xerox machine. Member firms quickly took on representations involving education, employment, housing, and community development.”

“And then, on a dark, cold December morning just a few months after the Committee opened its doors, fourteen heavily-armed police officers assigned to a special unit of the Cook County State’s Attorney raided an apartment at 2337 West Monroe. When the raid was over, two leaders of the Black Panther Party lay dead, cut down in a hail of bullets. The State’s Attorney called the raid ‘a fierce gun battle’ and congratulated his officers on their ‘bravery and restraint in the face of the vicious Black Panther attack,’ yet a subsequent investigation found that the apartment’s occupants had fired but two shots. In response, Dick Babcock, Bill Haddad, and ten other members of the Lawyers’ Committee sent a telegram to the Attorney General of the United States calling for the appointment of a special grand jury. They warned that the incident had ‘exacerbated to a critically dangerous level the already tense relations between the black community and the police.’ The telegram concluded with these simple but powerful words that Dick added in his own handwriting just before calling Western Union: ‘None of us is accustomed to petitioning government. That we now do is a measure of the depth of our concern.’”

“In calling for a federal investigation, these prominent attorneys were fulfilling the vision President John F. Kennedy articulated in June 1963 when he called on the nation’s lawyers to play a more active role in the fight for racial equality. Deeply troubled about the South’s violent response to the civil rights movement, especially the assassination of Medgar Evers and the firehosing of demonstrators in Birmingham, and having just federalized the Alabama National Guard to enforce court-ordered desegregation at the University of Alabama, the president told 250 leaders of the bar assembled in the East Room that lawyers have a special responsibility to ensure that civil rights issues are resolved ‘in the courts, not the streets.’ Thus was born the Lawyers’ Committee for Civil Rights Under Law.”

“Like the lawyers who heeded Kennedy’s call, Babcock, Haddad, and the others who signed the telegram to the Attorney General were acting in the very best tradition of the legal profession. Even though they were committing their names and reputations to defending an organization whose tactics they and most Chicagoans deplored, they demanded, as lawyers and officers of the court, that the city confront the Black Panther Party through the legal system, and that it hold accountable those officials who had taken the law into their own hands. The lawyers who signed the telegram to the Attorney General, like the 250 lawyers listening to President Kennedy in the East Room, were Democrats and Republicans, liberals and conservatives. But they had no disagreement about the fundamental proposition that in a nation based on the rule of law, civil rights conflicts must be resolved through the legal process.”

“This bipartisan commitment to the rule of law is the key to the Lawyers’ Committee for Civil Rights Under Law. It is what makes the Lawyers’ Committee unique, and now more than ever, it is this precious bipartisan commitment to civil rights that the Chicago Lawyers’ Committee must seek to preserve.”

Judge Tatel’s Opinion in Trump v. Mazars USA LLP [1]

On October 11, just two weeks before this award, Judge Tatel wrote the 2-1 opinion for a panel of the D.C. Circuit upholding the subpoena by the House Committee on Oversight and Reform to the accounting firm Mazars, USA LLP for “records related to work performed for President Trump and several of his business entities both before and after he took office.” The opinion started with its conclusion that was explicated in the balance of the opinion: “the Committee possesses authority both under the House Rules and the Constitution to issue the subpoena, and Mazars must comply.” The opinion then cited many Supreme Court cases and other authorities in the following five sections:

1. The current Congress on January 3, 2019, debated and adopted “a set of rules to govern its proceedings.” It established the previously mentioned Committee, which was charged with “review[ing] and study[ing] on a continuing basis the operation of Government activities at all levels” and which was authorized to “conduct investigations” “at any time . . . of any matter,” “without regard to” other standing committees’ jurisdictions. To “carry[] out . . . [these] functions and duties” the . . . Committee may “require by subpoena or otherwise . . . the production of such . . . documents as it considers necessary.”

The opinion then reviewed the background for this subpoena, including the Ethics in Government Act of 1978 and the district court’s opinion in this case that had upheld this subpoena.

2. Next Judge Tatel’s opinion reviewed the history of legislative subpoenas, starting with the English Parliament and U.S. congressional subpoenas before discussing U.S. Supreme Court cases regarding the latter (as well as the D.C. Circuit’s opinion in a case over a Senate subpoena to President Nixon). These authorities established the following governing principles: (a) the committee must have been delegated the power to conduct investigations; (b) the congressional power to investigate is broad; Congress, however, may not “usurp the other branches’ constitutionally designated functions nor violate individuals’ constitutionally protected rights” or “conduct itself as a law enforcement agency;” (c) “Congress may investigate only those topics on which it could legislate;” and (d) “congressional committees may subpoena only information ’calculated to’ ‘materially aid[]’ their investigations.” 3. The opinion then reviewed the “public record,” including “several pieces of legislation related to the Committee’s inquiry,” regarding this subpoena and concluded that it “reveals legitimate legislative pursuits, not an impermissible law-enforcement purpose.” Moreover, “this subpoena is a valid exercise of the legislative oversight authority because it seeks information important to determining the fitness of legislation to address potential problems within the Executive Branch and the electoral system; it does not seek to determine the President’s fitness for office.” In short, “the categories of information sought are ‘reasonably relevant’ to the Committee’s legitimate legislative inquiry.” 4. Next the opinion rejected Mazars’ contention that the full House had not authorized the Committee to issue this subpoena. After all, Mazars had not challenged “the most natural reading of the House Rules [that] the full chamber has authorized the Committee to issue the challenged subpoena” and “the House Rules have no effect whatsoever on the balance between Congress and the President.” 5.Finally, “the constitutional questions raised here are neither “’[g]rave’” nor “’serious and difficult.’” “We therefore have no cause to invoke the canon of constitutional avoidance.” “It is Mazars, a third-party, that will retrieve and organize the relevant information; the subpoena seeks non-confidential records in which the President has asserted no proprietary or evidentiary protections; and it is Mazars, not the President, [that] risks contempt through non-compliance.”

Conclusion

This blogger is a University of Chicago Law School classmate and friend of Judge Tatel and at our 50^th reunion in May 2016, presented our classmates with a booklet containing his biography and a selected list of 10 of his most significant cases as of that date.[2]

In 1957 David was diagnosed with retinitis pigmentosa, a genetic disorder causing loss of vision, which happened for him around 1973. I continue to be amazed at his ability to overcome this disorder and do this difficult and important legal work with such intelligence, diligence and grace. Thank you, Judge Tatel!

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[1] Trump v. Mazars and Committee on Oversight & Reform of the U.S. House of Representatives, No. 19-5142 (D.C. Cir. Oct. 11, 2019). The dissenting opinion of Circuit Judge Neomi Rao is not discussed in this post.

[2] See these posts to dwkcommentaries.com mentioning Judge Tatel: My Years at the University of Chicago Law School (Dec. 27, 2011); The D.C. Circuit’s Decision Upholding the Validity of the Voting Rights Act of 2006 (March 11, 2013); Judging on the U.S. Court of Appeals for the D.C. Circuit (April 11, 2013); Federal Appellate Court Allows Lawsuit by Guantanamo Detainees (March 1, 2014).

My Years at the University of Chicago Law School

From the Fall of 1963 through May of 1966 I was a student at the University of Chicago Law School. I spent many hours in its beautiful building that was designed by Eero Saarinen.

I chose Chicago because it was an excellent law school and because its Mechem Selection Committee awarded me a full-tuition Floyd Russell Mechem Prize Scholarship. The chair of the Committee was Justice Tom C. Clark, Associate Justice of the U.S. Supreme Court. The other Committee members were Associate Justice Roger Traynor of the California Supreme Court; Judge Sterry Waterman of the U.S. Second Circuit Court of Appeals; two past presidents of the American Bar Association; and two political science professors.

This scholarship was started in 1959 as one of the first three-year full-tuition, merit-based scholarships offered by any top-tier law school. It was financed through the School’s general fund and was designed to attract top candidates to Chicago and to free them from student debt in order to pursue their highest career aspirations. Floyd Mechem, by the way, in the early 20th century had been one of the School’s original professors and a leading expert on the law of sales, agency and corporations.[1]

Law school was a major change from my studies at the University of Oxford. There I had two tutorials a week during the academic terms by myself or with only one other student. My tutors gave me a question to address in an essay for the next tutorial along with suggested readings. The rest of the week was spent reading those articles and books and writing an essay and going to whatever lectures I chose. The examinations were at the end of my two years at Oxford.[2]

Law school at Chicago and almost all U.S. law schools, on the other hand, feature large classes with assigned pages in big law books for the next day and lectures and questioning of the students by the professors with exams at the end of the semester. This was a big adjustment for me, and I did not like the forced abandonment of the independence I had at Oxford. Another major change, especially in the first year, was encountering an entirely new vocabulary and system. I remember how long it took me, especially in the first year, to read anything because I always was consulting the big Black’s Law Dictionary.

Chicago’s first-year students had a legal writing component taught by Bigelow Fellows that provided a break from the large class routine. Learning how to write legal memos and briefs took practice, I discovered. The most exciting part of this course was preparing for, and observing, an oral argument before the Illinois Supreme Court when they visited the law school. The issue in the case, as I recall, concerned a Chicago ordinance regarding pornography, and our assignment was to write a judicial opinion deciding the case after reading the briefs and watching the oral argument. I enjoyed this assignment and replicated it when I taught a course about law to undergraduates at Grinnell College in 1982.[3]

I received excellent grades my first year and was invited to be on the staff of The University of Chicago Law Review my second year. I wrote two comments for the Review that in retrospect were not scintillating. One argued for recognition of a constitutional right to counsel in federal income tax investigations.[4] The other explored the distinction between repair and reconstruction of patented combination; the former was permissible; the latter, was not.[5] I still chuckle about a late 19th century case on this issue that held that replacing toilet paper in a patented toilet paper dispenser did not constitute reconstruction of the dispenser and, therefore, was not patent infringement.[6]

In any event, on the basis of my performance as a staff member on the Review, I was chosen to be one of its Managing Editors for my third year with special responsibility for articles. We had a special issue that year honoring the Law School’s Professor Malcolm Sharp, and I was in charge of soliciting and editing articles about him.

One of the articles was by his friend and noted journalist and literary critic, Edmund Wilson, who spent time with Sharp during the summers in Talcottsville, New York. (I did not do any editing of his submission.) Wilson said,

“We saw a good deal of one another then, and were in the habit, at the end of the day, of meeting for conversation and drinks at either their house or mine. We enjoyed a pleasant leisure and peace, a freedom from the immediate pressures with which we elsewhere had to contend, as we sat in my ancient living-room, with its Boston and Salem rockers and its old-fashioned paintings and engravings, or looking from the Sharps’ back lawn, on a green and unmowed meadow, now soaked in the golden light of an orange and silver declining sun. . . . In our conversations on the back lawn of Talcottville, in the little trough of rural civilization that lies between the foothills of the Adirondacks and the wilderness of the Tug Hill plateau, we have covered, in our conversations, many aspects of that disturbed and disturbing world that was invisible from where we sat.”[7]

Wilson’s “Stone House” in Talcottville is now on the National Register of Historic Places. It was built in 1789 with limestone from the nearby Sugar River and was made famous in Wilson’s book Upstate. Wilson’s father bought it as a summer place, and it became a symbol for Wilson “of the kind of life he valued, . . . a life in which an intimate knowledge of the past provided stability in the present and guidance for the future; a life in which human beings had individuality, dignity and worth.”

I was in Professor Sharp’s contracts course my first year, and although often difficult to understand, he was warmly regarded by students as “good and wise and kind.” Others I fondly remember are Harry Kalven, Jr. for torts; Phil Kurland for constitutional law; David Currie for conflict of laws and federal jurisdiction; Walter Blum for taxation; Bernard Meltzer for evidence; Phil Neal for antitrust law; Francis Allen for criminal law; Jo Desha Lucas for civil procedure; Soia Menschikoff for sales and the Uniform Commercial Code; and Kenneth Dam for international law. The first-year property course was taught by Sheldon Tefft, who because he had been a Rhodes Scholar liked to call on me.

UCProfs — Univ. Chicago Law School Faculty 1966

Because of all the work required for the Review, my fellow staff members and then Editorial Board members and I spent a lot of time together, and they became my best friends. They were and are Bob Berger, Roland Brandel, David Brown, Lew Collens, George Ranney, Walt Robinson, Mike Shakman and David Tatel. All went on to distinguished legal careers.

On November 22, 1963, I was studying in the Law School Library and was shocked when someone told me that President Kennedy had been assassinated.

In June 1966 I received the Juris Doctor (J.D.) degree with Honors and the Order of the Coif for excellence in my studies.

In my last semester in 1966 I was unsuccessful in applying for a White House Fellowship and judicial clerkships with U.S. Supreme Court Chief Justice Earl Warren and Associate Justices Byron White and Potter Stewart.[8] Instead my wife and I moved to New York City where I joined the eminent Wall Street law firm of Cravath, Swaine & Moore.[9]

I am glad that I went to the University of Chicago Law School and became a lawyer.

[1] Gerald de Jaager, The Impact of a Full-Tuition Scholarship, http://www.law.uchicago.edu/alumni/magazine/fall10.mechem;Bigelow, Floyd Russell Mechem, 15 A.B.A.J. 169 (1929).

[2] See Post: My Oxford University Years (Aug. 30, 2011); Post: Reading PPE at Oxford (June 6, 2011); Post: PPE Examinations at Oxford (June 10, 2011).

[3] See Post: A Sabbatical Leave from Lawyering (May 26, 2011).

[4] Comment, The Constitutional Right to Counsel in Tax Investigations, 32 U. Chi. L. Rev. 134 (1965).

[5] Comment, Repair and Reconstruction of Patented Combinations, 32 U. Chic. L. Rev. 353 (1965).

[6] Morgan Envelope Co. v. Albany Perforate d Wrapping Paper Co.,152 U.S. 425 (1894).

[7] Edmund Wilson, Conversing with Malcolm Sharp, 33 U. Chi. L. Rev. 198 (1966); Edmund Wilson House, http://www.livingplaces.com.

[8] See Post: Questioning President Lyndon Johnson (April 17, 2011); Post: The Roads Not Taken (April 27, 2011).

[9] See Post: Lawyering on Wall Street (April 14, 2011).