Attorneys For Bernard Kerik Respond To Fraudulent Claims by Jan. 6 Committee

Timothy C. Parlatore, Esq.
Managing Partner
[email protected]
Direct:212-679-6312
November 23, 2021
Rep. Bennie G. Thompson, Chairman

January 6th Select Committee
1540A Longworth House Office Building
Washington DC 20515
Re: Subpoena to Bernard B. Kerik
Dear Rep. Thompson:
I represent Bernard B. Kerik and am writing regarding the subpoena dated

November 5, 2021. The purpose of this letter is to inform you, pursuant to paragraph 13
of the “Document Production Definitions and Instructions,” that we will need additional
time to fully comply with this subpoena. However, before addressing those points, I need
to first discuss issues with your press release and cover letter which were apparently based
on a fabricated claim.
False Statements in the Subpoena Letter and Press Release
In your letter to Mr. Kerik, you wrote that:
The Select Committee's investigation and public accounts have

revealed credible evidence of your involvement in the events within
the scope of the Select Committee's inquiry. You reportedly
participated in a meeting on January 5, 2021 at the Willard Hotel in
Washington D.C., in which Rudolph Giuliani, Stephen Bannon, John
Eastman, and others discussed options for overturning the results of
the November 2020 election such as, among other things, pressuring
Vice President Pence not to certify the electoral college results.
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. 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.
This passage in your letter had a footnote, citing two sources for this allegation,
Bob Woodward’s book, Peril, as well as a Washington Post article. However, a review of
both cites quickly demonstrates that no such allegation was ever made. The Washington
Licensed to Practice by the States of New York and New Jersey
U.S. District Courts in New York, New Jersey, Connecticut, Pennsylvania, Texas, and the District of Columbia
Post article does discuss Mr. Kerik’s involvement in investigating fraud, but makes no
mention of this alleged meeting, whereas Woodward’s book does not claim that Mr. Kerik
was at the meeting. In fact, a text search of Woodward’s book reveals that the word
“Kerik” isn’t even mentioned once.
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. Someone either intentionally fabricated this claim, or
someone failed at the simple task of carefully reading the sources before writing a letter
claiming that the sources “have revealed credible evidence.” There was no “credible
evidence,” because it never happened.
Before providing us with a copy of the subpoena, you also issued a press release,
which contained some concerning statements. In addition to repeating the same
fabricated claims about a January 5 meeting, and including a copy of the letter, you also
stated that Mr. Kerik “worked with Mr. Rudolph Giuliani…promote baseless litigation.”
This is not the statement of someone who is attempting to conduct a fact-based
investigation and unfortunately indicates that you have already reached your verdict
before receiving any evidence. Similarly, when you stated that Mr. Kerik was “involved in
efforts to promote false claims of election fraud,” this statement also cannot be credibly
made before reviewing any of the evidence that Mr. Kerik has to provide. The evidence
that Mr. Kerik has that would be responsive to your subpoena, support true claims of voter
fraud which could have been used in legitimate litigation, but before reviewing any of it,
you have already made a public statement on behalf of the committee that you have
prejudged the issue. How can anyone expect the committee to review the documents with
an eye towards legitimate investigative efforts?
I am also concerned because when I brought some of these issues to the attention
of Daniel George, your Senior Investigative Counsel, he asked me repeatedly if we would
not comply with the subpoena. This happened at least three times during the call, despite
my clear assertions that we did intend to comply. When someone continuously invites
non-compliance in this manner, it gives the distinct impression that the goal was never to
have him comply, but rather to cause him to not comply and face indictment, like Mr.
Bannon. The combination of a subpoena issued on fabricated pretenses, and false
statements, and the repeated push for non-compliance severely undermines the
appearance of credibility in your investigation.
For these reasons, Mr. Kerik demands that both the letter and press release be
withdrawn or corrected and an apology issued. Whether intentional or negligent, allowing
these false statements to stand on the website of this Committee is improper and should
be corrected.
Update on Subpoena Compliance
Notwithstanding the significant issues outlined above, Mr. Kerik still intends to
comply with the subpoena. However, we will need additional time to comply due to the
volume of documents and privilege issues. To understand the privilege issues, we should
first clarify the background of Mr. Kerik’s involvement.
At the request of former New York City Mayor Rudy Giuliani, Mr. Kerik arrived in
Washington D.C. on November 5, 2020, to assist in the legal effort of addressing
improprieties in the presidential election, as well as allegations of voter/election fraud.
Mr. Kerik worked side-by-side with a small group of aids and attorneys under the direct
supervision of Mayor Giuliani who was acting as the personal counsel for President
Donald J. Trump.
Mr. Kerik was tasked with investigating and gathering credible, verifiable, and
admissible evidence as part of potential litigation. In this role, he compiled a significant
amount of information regarding the elections in the states of Arizona, Georgia,
Wisconsin, Michigan, and Pennsylvania. Mr. Kerik was involved in coordinating
witnesses, interviewing witnesses, collecting sworn affidavits, meeting with analysts,
reviewing statistical evidence, overseeing the preparation of briefing documents for both
Giuliani and the president, overseeing the scheduling of meetings for Giuliani and
witnesses, and whistle blowers, attorneys, and advisers.
To be clear, Mr. Kerik was not tasked with trying to overturn the will of the people,
only to ensure that the will of the people was accurately reflected. If there was no evidence
of fraud, he would have reported that. What he did find was significant evidence of fraud
but was unable to complete the investigation to determine whether any of evidence was
conclusive or whether the election result would have been any different. These
determinations would have required additional time, resources, and subpoena power.
The information we have compiled from Mr. Kerik comprises approximately 10 GB

of data and close to 900 separate files. We will need additional time to go through and
review these, remove duplicates and, potentially, make appropriate and permissible
redactions, as well as to organize them into the separate categories in the Schedule to the
subpoena.
Much of the information contained in these documents is not public because many
of the lawsuits were filed and dismissed before Mr. Kerik had an opportunity to complete
his work. However, I note that in the past several months, multiple states and even the
U.S. Attorney’s Office for the Southern District of New York have confirmed evidence of
various election frauds.
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.
As the Supreme Court has made clear:
At its core, the work-product doctrine shelters the mental processes

of the attorney, providing a privileged area within which he can
analyze and prepare his client's case. But the doctrine is an intensely
practical one, grounded in the realities of litigation in our adversary
system. One of those realities is that attorneys often must rely on the
assistance of investigators and other agents in the compilation of
materials in preparation for trial. It is therefore necessary that the
doctrine protect material prepared by agents for the attorney as well
as those prepared by the attorney himself.
United States v. Nobles, 422 U.S. 225, 238-39 (1975).
Mr. Kerik is not the privilege holder, President Trump is. Although the law is clear
that these documents are exempt from disclosure, we are working to see if some form of
limited privilege waiver can be obtained because Mr. Kerik very much wants to cooperate
and provide these documents to the Committee, so that the American people can witness
first-hand what he and others on the president’s legal team saw for themselves. We
therefore need additional time after compiling and organizing the documents to provide
them to counsel for President Trump so that they can decide what portions, if any, they
wish to exert privilege over. 1 To the extent that he does stand by the privilege, we will
need to then prepare a privilege log, in accordance with paragraph 14 of the “Document
Production Definitions and Instructions.” For these reasons, we will need an addition 30
days to complete our production and allow for an appropriate review by the privilege
holder.
The unavoidable truth that you will learn if Mr. Kerik is able to complete his
production to this committee is that there were several indicators of fraud. Some of which
were unfounded, and many of which were legitimate. Unfortunately, the majority were
never fully investigated, as there was insufficient time. One of the reasons why Mr. Kerik
is so interested in making these documents public is so that they can be properly
investigated. Ultimately, Mr. Kerik does not know what a proper investigation would
reveal and, even if it does show that fraud was widespread, he does not know if that would
have changed the outcome of the election. What he does know is that the American people
deserve to have confidence in the integrity of their elections and the only way to do that
is to conduct a proper and complete investigation of these issues.
We will continue to work on the production for the current subpoena. However,
given the falsity of your stated primary reason for subpoenaing Mr. Kerik and the lack of
any information he has on the January 6th attack, I suspect Mr. Kerik doesn’t have
anything that would assist in reaching your publicly stated conclusion.
1For many reasons, including the privilege issues, Mr. Kerik would prefer not to sit for a closed-door
deposition, but would prefer to testify in an open and public hearing where, in addition to Mr. Kerik’s own
counsel, counsel for President Trump may also be present to object to any privilege issues
If the committee wants to review the evidence of election fraud, we are happy to
comply, however if this is outside your purview, I would appreciate it if you could let me
know whether you intend to modify or withdraw the subpoena.
Respectfully submitted,
Timothy C. Parlatore, Esq.

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Timothy C. Parlatore, Esq.

November 23, 2021

Rep. Bennie G. Thompson, Chairman

Re: Subpoena to Bernard B. Kerik

Dear Rep. Thompson:

I represent Bernard B. Kerik and am writing regarding the subpoena dated

False Statements in the Subpoena Letter and Press Release

In your letter to Mr. Kerik, you wrote that:

The Select Committee's investigation and public accounts have

The information we have compiled from Mr. Kerik comprises approximately 10 GB

At its core, the work-product doctrine shelters the mental processes

United States v. Nobles, 422 U.S. 225, 238-39 (1975).

Timothy C. Parlatore, Esq.

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