Court Battles

Kavanaugh paper chase heats up

Brett Kavanaugh’s unusually lengthy paper trail and the president’s power to keep some documents confidential could become a flashpoint in Senate Democratic efforts to thoroughly vet the Supreme Court nominee.

Democrats on the Senate Judiciary Committee are signaling they are ready to do battle over any attempt by the Trump administration to keep certain documents under wraps.


And there are tens of thousands of items to go through.

Documents relating to the four years Kavanaugh spent working with independent counsel Kenneth Starr are with the National Archives and Records Administration (NARA) in Maryland, while records relating to Kavanaugh’s time in the White House counsel’s office and as staff secretary are at the George W. Bush Presidential Library and Museum in Dallas and administered by the National Archives.

An NARA spokeswoman told The Hill that there are eight boxes of documents totaling about 20,000 pages of attorney work files on Kavanaugh that have not yet been made public.

Meanwhile, Department of Justice spokeswoman Sarah Isgur Flores said any documents related to Kavanaugh’s time in the executive branch could be requested by the Senate Judiciary Committee but would need to be reviewed by the Justice Department for privileged records before being turned over to lawmakers.

Sen. Dianne Feinstein (D-Calif.), the panel’s ranking member, said Thursday that all documents should be turned over to the committee.

“This is going to be my 10th Supreme Court hearing, and I have never seen this amount of documentation that will need to be available for review for both sides,” Feinstein said. “While I understand the Justice Department will not be sharing its analysis of the documents, certainly all of what it is reviewing should be made available to both sides for our review.”

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has said that he will conduct a fair and thorough review process consistent with the committee’s past procedures for evaluating nominees to the Supreme Court, according to Taylor Foy, a spokesman for the Iowa Republican.

“This includes a review of records relevant to the nomination,” Foy said. “Committee staff has already been in preliminary discussions with various entities that maintain Judge Kavanaugh’s records from his public service.”

Feinstein has said she expects Kavanaugh’s confirmation hearings to begin sometime after Labor Day, and Republicans are aiming to get him confirmed before the Supreme Court’s next term starts in early October. 

Democrats and legal experts are pointing to Justice Elena Kagan’s nomination to the Supreme Court in 2010 in their effort to push Republicans to release all records pertaining to Kavanaugh.

Sen. Patrick Leahy (D-Vt.) said Thursday on Twitter that the Judiciary Committee received 170,000 pages of documents pertaining to Kagan’s time in the Clinton White House before her confirmation hearing.

“Given Judge Kavanaugh’s role in the Starr investigation, in Bush v. Gore, and in 5 controversial years in the Bush White House, the American people need to know, NOW, the full extent of his record. Lifetime seats on our nation’s highest court are too important. #KavanaughPapers,” he tweeted.

Former President Obama did not claim executive privilege on any of Kagan’s files.

“It’s an important seat and lifetime appointment, so it ought to be that the same rules apply with a person similarly situated with a person in 2010,” said a source familiar with Obama-era judicial nominations. “Optically, it’s going to look terrible if anybody tried to treat this differently.”

Fix the Court, a group working to make the Supreme Court more transparent, has filed lawsuits against the Department of Justice and the NARA for Kavanaugh’s files under the Freedom of Information Act.

The Bush library said 16,180 pages of materials had previously been made publicly available and are available in the library’s research room in Dallas, but another 13,934 pages are “exempted from release” under the Presidential Records Act, according to Fix the Court.

Under federal law, public access to certain documents can be restricted for as many as 12 years after a president leaves office. Former President George W. Bush left the White House in January 2009.

Tommy Vietor, a former Obama spokesman, said on Twitter earlier this week that Kavanaugh likely sent tens of thousands of emails while working for Bush.

The amount of Kavanaugh-related records has already led Deputy Attorney General Rod Rosenstein to take the unorthodox step of asking for three assistant U.S. attorneys from each of the 93 U.S. attorney’s offices across the country to help comb through the files.

The NARA has released 10 pages of documents from Kavanaugh’s work with Starr, which include handwritten notes from an interview he conducted with John Rolla, a former detective for the U.S. Park Police, about what he did to investigate the suicide of deputy White House counsel Vince Foster during the Clinton administration. The contents of the Rolla documents were first reported by Politico.

Other documents, including some first obtained by The Washington Post, show Kavanaugh racked up between $60,000 and $200,000 worth of debt buying Washington Nationals tickets. That debt has since been paid off.

Sen. Dick Durbin (D-Ill.) said Thursday that he sent Kavanaugh a letter in 2006 during the confirmation process for his U.S. Court of Appeals for the District of Columbia Circuit appointment asking him why sworn testimony before the Senate Judiciary Committee contradicted his role in the White House when it came to matters of interrogation and detention following the 9/11 attacks.

“He said under oath before this committee he had nothing to do with it — I can give you the quote right out of the record — and then came an article shortly afterwards that said from Vice President Cheney that he was an active participant in one of the most important meetings,” he said.

“I wrote the judge a letter,” Durbin said. “In 11 years he’s never responded. He’s going to get a chance to respond now when he appears before this committee under oath as to what he was trying to tell us and what he actually did tell us when it came to this important issue.”

Tags Chuck Grassley Dianne Feinstein Dick Durbin Patrick Leahy Rod Rosenstein

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