Jan. 6 panel Democrats admit blunder, as false accusation emboldens GOP. Now a privilege fight looms

Committee admits error in subpoena letter to Bernard Kerik, whose lawyer asks for more time to address Trump attorney-client privilege issues

Published: November 23, 2021 8:38pm

Updated: November 24, 2021 12:29am

The Democrat-led congressional committee investigating the Jan. 6 Capitol riots handed Republican critics a political cudgel, admitting it made a false accusation against witness Bernard Kerik while subpoenaing him.

But the backpedal Tuesday — prompted by an investigative report in Just the News — portends a larger battle over how much the former NYPD commissioner can cooperate with the congressional investigation as his lawyer raises concerns that some of Kerik's work on election integrity issues prior to the Capitol riot may be covered by President Trump's attorney-client privilege.

Trump is also pursuing litigation claiming some of his conversations with witnesses, like ex-White House chief of staff Mark Meadows, are shielded by executive privilege.

"Mr. Kerik still intends to comply with the subpoena," Kerik attorney Timothy Parlatore wrote the Jan. 6 Select Committee Chairman Bennie Thompson (D-Miss.) in a letter Tuesday. "However, we will need additional time to comply due to the volume of documents and privilege issues." In the same letter, Parlatore also accused majority Democrats of fabricating an allegation against his client.

Parlatore explained that Kerik worked as an investigator for Trump attorney Rudy Giuliani in the aftermath of the November 2020 election to determine whether there were any irregularities or fraud in election results. Kerik never finished his examination, and some materials are protected as work product under the attorney-client privilege, Parlatore wrote.

"Given the fact that all of Mr. Kerik's work was done at the behest of attorneys in anticipation of litigation, substantially all of the documents Mr. Kerik has that would be responsive to your subpoena is shielded from disclosure by the work-product doctrine," the lawyer wrote.

The communication about privilege came shortly after the panel acknowledged it made an error in a subpoena letter that falsely accused Kerik of attending a secret meeting in Washington to allegedly discuss overturning the November 2020 election results.

Just the News reported Monday night that Kerik could not have attended the meeting in Washington on Jan. 5 as alleged in the subpoena letter because he was in New York City for a family emergency, according to his own phone and tollbooth records. In a footnote, that letter had attributed the allegation to a book by famed Washington Post journalist Bob Woodward. But the book actually made no such claim and did not even mention Kerik by name a single time in 482 pages, Woodward told Just the News.

The subpoena also cited two Washington Post articles, which also did not claim Kerik attended such a meeting.

"In advance of our deposition of Mr. Kerik, we wanted to correct an error in the letter accompanying the subpoena that you accepted on his behalf," the committee wrote Parlatore in a communication that did not address its footnote attributing the allegation to Woodward's book but instead focused on one of the Washington Post articles.

"That letter indicated that Mr. Kerik participated in a meeting at the Willard Hotel on January 5, 2021, citing a Washington Post article dated October 23, 2021," the committee wrote. "The Post reports that Mr. Kerik was at the Willard around January 6 and that, according to Mr. Kerik, his firm billed the Trump campaign more than $55,000 for rooms. The article does not say that he was at the Willard Hotel on January 5th, specifically, as the Select Committee letter indicates. Nonetheless, the Select Committee still believes that Mr. Kerik has information about efforts to evaluate claims of election fraud and other matters relevant to its inquiry."

The mistake lit up Twitter, where several GOP members of Congress lambasted Thompson's panel and claimed the faulty subpoena letter was further evidence the probe was partisan and not factual in nature.

"The January 6th Committee said they had 'credible evidence' that Bernard Kerik attended a planning meeting at the Willard Hotel in D.C. One problem? Kerik was in New York City on the day of the meeting!" Rep. Jim Jordan, the top Republican on the House Judiciary Committee, tweeted.

Added freshman Georgia Rep. Marjorie Taylor-Greene: "The J6 Committee lied on subpoena. Lying on Congressional record is a very big problem for them. These Members are abusing power and abusing Congressional Committee power. They are in trouble and the J6 Committee should be dismantled immediately."

Parlatore's letter raising the privilege claim likewise rebuked the Jan. 6 committee for the mistake, calling it a fabrication.

"We knew from the time that we received the subpoena that this was a false allegation, as Mr. Kerik never participated in any such meeting," the lawyer wrote the committee, asking that its subpoena and press release be removed from public display on its Web site. "He wasn’t even in Washington DC, as he was in New York dealing with a family medical emergency. ... While we knew at the time that the claim was false, we later found out that it was actually a fabrication.

"You can understand my concern where you send a letter claiming that the basis for issuing the subpoena is that you 'have revealed credible evidence,' of a provably false claim, citing two sources that do not support this false claim. If you were not personally responsible for this fabrication and false statements, then someone on your staff was and should be held accountable."

​The admission of a mistake was the latest backpedaling Democrats in Congress have been forced to perform during their many efforts to investigate Trump dating to 2016.

Most recently, House Intelligence Committee Chairman Adam Schiff (D-Calif.) who also plays a key role on the Jan. 6 commission, was confronted on national television for reading into the congressional record in 2017 allegations from Christopher Steele's dossier that have since been debunked. 

"You may have helped spread Russian disinformation yourself for years by promoting this," guest host Morgan Ortagus told Schiff on "The View."

"I completely disagree with your premise," Schiff fired back, while acknowledging Steele may have been misled by his sources. "It's one thing to say allegations should be investigated, and they were. It's another to say that we should have foreseen in advance that some people were lying to Christopher Steele."

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