Life of Privilege: Nickles has proffered multiple dodges to council subpoenas.
Life of Privilege: Nickles has proffered multiple dodges to council subpoenas. Credit: Darrow Montgomery

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Peter J. Nickles, 70 years old and an accomplished triathlete, isn’t shy when it comes to bragging about his athletic prowess. Take the acting attorney general’s exchange with Ward 3 Councilmember Mary M. Cheh at a September hearing on the mysterious firing of Rent Administrator Grayce Wiggins.

Cheh had been pressing hard on top honchos at the Department of Housing and Community Development to get answers on the circumstances surrounding Wiggins’ termination. Nickles, delayed by a court appearance, had shown up late in the hearing and promptly grasped the councilmember’s line of questioning. That’s when he dropped an aquatic metaphor: “I think you’re getting into very deep water here, Ms. Cheh, with all due respect.”

“Well, thank you very much,” replied Cheh. “I like deep water.”

“Can you swim that well?” asked Nickles, for decades a bulldog litigator in private practice.

“Yes, very much so,” said Cheh, a law professor.

“All right. Well, I can swim very well, and I’m gonna tell you you’re getting into very deep water.”

Shark fight!

The spat bodes well for an entertaining hearing this Friday, when Nickles’ confirmation as D.C. attorney general finally comes before the council. He has served officially, albeit interimly, as the city’s top legal official since January, and unofficially for a year before that. Among his early accomplishments was driving Mayor Adrian M. Fenty’s first attorney general, Linda Singer, out of office for his perceived meddling while serving as Fenty’s general counsel. Also on his list is a group of vexed legislators—including two who get a big say in whether he gets to stay on as AG.

Those would be judiciary committee members Cheh and At-Large Councilmember Phil Mendelson, who chairs the panel. In their view, Nickles’ tenure in public service has been marked by his inability to decide whether he’s working on behalf of the mayor or on behalf of the greater city government—a far from niggling distinction that has led to numerous conflicts.

Working for the mayor involves advancing his agenda, while working for the city means punishing all wrongdoers, no matter their standing vis-à-vis Hizzoner.

In one memorable exchange, at a January hearing held shortly after Nickles became acting attorney general, Cheh—a Singer ally—accused him of being “a puppet of the mayor.”

“I’m not a puppet,” Nickles retorted. “I believe after 45 years in the legal profession, I’m entitled not to be called a puppet.”

With the confirmation battle looming, Nickles engaged in what could be interpreted as an effort to win Cheh’s heart. He pursued some of the aggressive public-interest-minded litigation that Singer had been known for. In April, he filed suit against dozens of alleged slumlords, aiming to have a judge appoint a receiver to force repairs.

He played populist at a standing-room-only meeting of TENAC, the feisty tenant advocacy organization, in May. Nickles stood in front the group—one of the hardest outfits in town to please—and delivered a virtuoso performance, plugging his efforts to take local slumlords to court while simultaneously dodging audience members’ attempts to change the subject. Several times, he mentioned Cheh’s name in glowing terms.

More recently, Nickles launched another public-interest lawsuit, this time against local health insurer CareFirst BlueCross BlueShield. The suit came in concert with legislation sponsored by Cheh to force more community-benefits money out of CareFirst based on its nonprofit status.

As for Mendelson, Nickles has been liberally dropping his name when mentioning their joint efforts to rewrite the city’s gun laws in order to comply with the Heller decision and to stave off congressional meddling.

Nickles says his work has never been meant as a sop to anyone: “My job is to do my job. If as part of my job, I please someone, that’s great,” he says. “If I offend someone, that’s part of the territory.”

In any case, it looks like la détente est finie.

That’s due to the Wiggins affair. To give a thumbnail sketch of the matter, Wiggins was fired abruptly in August, months after her pro-tenant ruling regarding the Kennedy-Warren building in Cleveland Park aroused the ire of local landlords, developers, and lawyers. Tenant advocates have cried foul play ever since the firing.

On Sept. 25, the matter came before the council’s housing and urban affairs committee, chaired by Ward 8 Councilmember Marion S. Barry Jr. At the hearing, Leila Edmonds, chief of the Department of Housing and Community Development, appeared along with her deputy in charge of the Housing Regulation Administration, Anita Visser. Also appearing was Phillip Lattimore, general counsel from the city’s Department of Human Resources, there to make sure nary a peep was uttered about Wiggins’ firing, lest the hallowed prohibition on discussing matters of personnel go asunder.

Under questioning from Barry, Edmonds repeatedly refused to respond after Lattimore whispered in her ear. Barry pressed hard, threatening to “subpoena any and all records…written, e-mails, telephone logs, satellite.”

When Nickles showed up, he stonewalling came to a head. He continued to direct Edmonds and Visser to stay mum. At one point, Nickles audibly shushed the witnesses.

Later, Nickles made it clear that he felt too much had already been aired prior to his arrival. Cheh pressed for an answer on a seeming contradiction in the DHCD honchos’ testimony, noting that Edmonds and Visser had spoken to the point earlier in the hearing. Said Nickles, “I think the initial questions were on the edge and perhaps should not have been answered,” Nickles said.

Things cooled off once Nickles promised to provide committee members with personnel files and other documents behind closed doors—and that, Nickles says, is why he appeared at the hearing.

But the confrontation wasn’t over.Accounts differ, but the end result was that Barry dropped subpoenas on Edmonds and Visser on Sept. 30, leading Nickles to write an Oct. 8 letter rebuffing the council on a veritable kitchen sink full of legal rationales.

Don’t care for the personnel-record excuse? OK, how about the deliberative process privilege? No? There’s attorney-client privilege, executive communications privilege, and the common-law defamation tort, too.

Nickles says he just wants everyone to get along. Having Edmonds and Visser appear, he says, “would be a show and would lead to further confrontation. My goal here was to bring the level of noise down.”

Sometimes, though, noise has a point. Nickles’ stance is reminiscent of the George W. Bush administration’s decision last year not to allow former White House Counsel Harriet Miers to testify before Congress about the fishy U.S. attorney firings. So what did Congress do? It sued the executive-branch bastards. The case is now wending its way through the federal judiciary, after a favorable initial ruling in July.

A lawsuit is an option. Cheh says there is “no legal authority” for the executive simply refusing to have a subpoenaed witnesses appear. In order to take the dispute to a judge, the committee has to refer the matter to the full council, which then votes on whether to pursue legal action. In other words, it’s in Barry’s hands.

Cheh admits that she’s the biggest bulldog on the council when it comes to Nickles’ various assertions of executive power. “I respect this council; I respect this legislative branch,” she says. “We have a right to be informed…and we have to insist on the role we’re supposed to play. There’s a reason why we talk about checks and balances.”

In the meantime, Nickles could be looking at the very real possibility that his nomination doesn’t get out of the five-member judiciary committee. Where Mendelson and Cheh are clear Nickles skeptics, Ward 2 Councilmember Jack Evans and Ward 4 Councilmember Muriel Bowser are reliable supporters.

That leaves Ward 7 Councilmember Yvette M. Alexander, who says she is “most definitely” ready to vote down Nickles if he doesn’t provide satisfactory answers to her questions on several matters, including the Trinidad police checkpoints and recovering funds lost in the tax scandal.

Of course, seconds later, Alexander says, that “since this is the mayor’s appointee it would only be fair to have it go to the full council.” Then she adds: “If it gets disapproved [by the committee] then that should be it….I would never just pass something through.”

So all the makings of a blockbuster hearing, right?

Mendelson, despite all of the Nickles-fueled drama in recent weeks, says he’s expecting a snoozer. “What am I gonna do? Just argue with him about the [Trinidad] roadblocks?” he says. “We’re not going to get him to agree that we’re right.”

Nickles’ take: “It’s gonna be a walk in the park. The councilmembers and I get along great!”

The Greening of Michael A. Brown?

For months, LL and others have been speculating about whether Fenty would be throwing his political weight behind a candidate for the non-Democratic at-large council seat, hoping to get someone more reliably in the mayor’s corner than incumbent Carol Schwartz.

My God, could it be Michael A. Brown? You know, the guy who ran against Fenty for mayor two years ago, dropping out and endorsing Linda Cropp shortly before the primary? The guy who ran against Bowser, Fenty’s hand-picked successor, for a Ward 4 council seat months later? A guy who Fenty personally cannot stand?

LL makes the suggestion because on Wednesday (after LL’s deadline), Brown was the guest of honor at a fundraiser hosted by former At-Large Councilmember Bill Lightfoot and his wife Cynthiana at their Shepherd Park home. Lightfoot, of course, has been a major supporter and fundraiser for Fenty, having been a crucial early supporter of his insurgent 2000 council run against Charlene Drew Jarvis, not to mention co-chair of his mayoral transition committee.

In addition, the host committee includes another major Fenty fundraiser—socialite Judith Terra, who had been supporting candidate Adam Clampitt for the Schwartz seat before he dropped out to endorse Brown.

Lightfoot demurs on whether his endorsement carries the Fenty imprimatur. “I can only speak for myself,” he says. “I feel that Michael Brown is the best candidate for the city.”

A look at the rest of the host committee list reveals this is less about Fenty and more about the District’s Gold Coast coming out for one of their own. There, in the upper, affluent reaches of Ward 4, the candidate’s mom, Alma Arrington Brown, still cuts a wide swath. “A lot of us have known Michael since he was growing up, going to Shepherd Elementary,” says Bob Malson, president of the D.C. Hospital Association and, along with wife Deborah Royster, a Brown supporter. “People supported him a lot or a little depending on where he was in the mayor’s race.”

As notable as who is on the host committee list for the party—former councilmembers Jim Nathanson and Vincent B. Orange Sr., Cora Masters Barry, Pedro Alfonso—is who isn’t. Other key figures from the Fenty finance machine—Jim Hudson, Ben Soto—don’t show up on the invitation or on Brown’s recent campaign finance report—which has swollen considerably, with more than $140,000 in receipts since August. And the key parts of the Big Green Machine—Fenty’s ace political operation—sure as hell aren’t on his list of expenditures.

Nor do they show up on the report submitted by Mark Long, the Ward 7 resident also running as an independent at-large candidate. His associations with mayoral allies Soto and Sinclair Skinner have had folks chattering about him possibly being Fenty’s guy in the at-large race. No such luck—yet. As of Oct. 10, he’s raised $21,300, mostly from out of town, and spent all but about $4,000 of it. (Wondering how he got all those signs around town so fast? He hired the best sign-hanger of them all: Scott Bishop.)

So, with less than three weeks to election day, Fenty—thanks to his reticence to release his political hounds on behalf of Clampitt, Long, or another pick—is faced with a situation where the candidates most likely to support him as legislators are either unknown (Long), unelectable (Dee Hunter), or Republican (Patrick Mara).

One wag tells LL that Brown “would make Phil Mendelson look like Jack Evans” on the council, but at least one guy thinks a council seat for Michael Brown could be good for the mayor—that’s Lightfoot. “I have spoken to Michael,” he says, “and he has assured me he supports the mayor’s agenda for change.”

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