With U.S. Supreme Court nominee Judge Brett Kavanaugh’s Senate confirmation hearing just three weeks away, a battle is continuing to play out over the paper trail documenting his lengthy government career.
Prior to his appointment to the Washington, D.C., Court of Appeals in 2006, Kavanaugh assisted special prosecutor Kenneth Starr on his probe into former President Bill Clinton, as well as serving in the George W. Bush administration as White House counsel and staff secretary. Kavanaugh’s career in the executive branch has left behind a trove of documents; the National Archives and Records Administration noted that the agency holds millions of pages of records related to his career, as compared with just 70,000 and 170,000 pages for current Supreme Court justices John Roberts and Elena Kagan, respectively.
Senate Democrats have been pushing for the release of all documents related to Kavanaugh ahead of his Senate hearing, even going so far as to file a Freedom of Information Act request, reportedly a first for senators considering a Supreme Court nomination a Supreme Court. Yet with Republicans scheduling the hearing for the first week of September — and NARA reporting that it won’t have finished reviewing Kavanaugh’s full papers until the end of October — the full release seems unlikely.
A portion of the documents have already been released to senators and the public, beginning to illuminate aspects of Kavanaugh’s lengthy career. According to USA Today, more than 103,000 pages of material had been released as of Sunday.
The memos have sparked questions. While NARA has released some documents related to the Kenneth Starr investigation directly, thousands of document pages regarding Kavanaugh’s time in the Bush office were released by Bush lawyer and former Kavanaugh’s deputy, Bill Burck. Former President Bush has requested Kavanaugh’s records directly himself as a workaround for NARA’s delays in releasing the documents, enlisting Burck to oversee the process.
Senate Minority Leader Chuck Schumer accused Burck of “cherry-picking” what documents the Senate and public get to see, saying the selective document release was another layer of “unprecedented secrecy in what is quickly becoming the least transparent nominations process in history,” according to a statement published by the Washington Post.
Many of the released documents have been fairly mundane, including invitations to events, press releases and questions about minor issues. Yet there have been some more compelling bits of information in the thousands of document pages.
Kavanaugh’s time in the Bush White House
One of the key questions over Kavanaugh’s time working for Bush concerns his role in the administration’s handling of terrorism suspects. During his 2006 appeals court hearing, Kavanaugh told lawmakers that he was “not involved in the questions about the rules governing detention of combatants.” Several Democratic lawmakers have long questioned his contention that he did not participate in the policy, however, amid reports that Kavanaugh participated in a meeting about whether the Supreme Court would uphold the administration’s detention policies.
Those questions have been renewed during Kavanaugh’s vetting process, as an email from his time as White House counsel showed he helped prepare Attorney General John Ashcroft for a hearing regarding the Department of Justice’s post-9/11 actions.
“I am happy to help out with this on the attorney-client issue,” Kavanaugh wrote in response to a request for assistance with the hearing.
The New York Times noted that DOJ lawyers at the time had come under fire for informing federal prisoners that their conversations with lawyers were being monitored, in case prisoners were passing on information to terrorists.
“Even the cherry-picked documents we’ve seen so far include evidence that contradicts Judge Kavanaugh’s sworn testimony from 12 years ago,” Sen. Dick Durbin (D-Ill.) — one of the original senators to question Kavanaugh’s 2006 testimony — said in a statement. “I can only imagine what is in the documents they are refusing to make public.”
Documents obtained through a FOIA request by BuzzFeed News also showed that Kavanaugh was involved in such Bush administration actions as the 2001 decision to invoke executive privilege by rejecting a congressional subpoena for documents regarding how the FBI handled mob informants in Boston. The Washington Post reported at the time that lawmakers of both parties decried Bush’s decision as an “unprecedented effort to deny Congress access to records.”
Presidential treatment under the law
Beyond the executive powers of his former boss, Kavanaugh’s papers have also offered broader insights into how the nominee feels presidents should be treated under the law — which could prove relevant as Robert Mueller’s investigation into the Trump campaign continues.
In a 1995 memo as part of the Starr investigation, Kavanaugh supported the idea of a president testifying before a grand jury if subpoenaed. Citing “the deeply rooted history and tradition of this country’s jurisprudence that the president is not above the law,” Kavanaugh asked, “Why should the president be different from anyone else for purposes of responding to a grand jury subpoena ad testificandum?” using the legal term for a subpoena calling for someone to testify.
“Once in the grand jury room, the president might claim executive privilege if asked about certain communications, but that seems a different issue altogether,” Kavanaugh added.
The memo somewhat contradicts a comment Kavanaugh made in a 2009 Minnesota Law Review article, in which he argued that presidents should be exempted from questioning, calling the “burdens of a criminal investigation” “time-consuming and distracting.”
Kavanaugh also offered a more limited take on the idea that “the president is not above the law” in 1998. In a memo as part of the Starr investigation, Kavanaugh asserted that Bill Clinton, as the sitting president, should not be indicted while in office.
“I would send a letter to the attorney general explaining that we believe an indictment should not be pursued while the president is in office,” Kavanaugh wrote in December 1998.
Kavanaugh’s record also includes opinions on presidents with whom he had no direct involvement. A released transcript of a 1999 panel discussion revealed Kavanaugh called into question the Supreme Court’s ruling in United States v. Nixon, which struck down the idea of absolute presidential privilege and that the president can be immune from being subpoenaed. Under the ruling, then-President Richard Nixon was required to produce tapes and documents related to Watergate, and Nixon resigned shortly thereafter.
During the 1999 discussion, Kavanaugh questioned whether the “tensions of the time led to an erroneous decision,” arguing, “Maybe Nixon was wrongly decided — heresy though it is to say so.”
“Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official,” Kavanaugh said. “That was a huge step with implications to this day that most people do not appreciate sufficiently.”
A statement released by Starr and other members of his team pointed out that Kavanaugh has also defended the Nixon decision, describing it as one of the “greatest moments in American judicial history” in 2016. The prosecutors said their own “clear recollection of Brett’s views on Nixon is that they are entirely consistent” with Kavanaugh’s defenses of the ruling, rather than his 1999 comments.
Kavanaugh’s opinions on presidential legal standing that were revealed in the documents, however, remain consistent with other statements the nominee has made; in his 2009 law article, he advocated for Congress to pass a law protecting presidents from criminal investigations or civil lawsuits while in office. CNN reported that Kavanaugh has stuck behind these views in conversations with Senators, although he’s also said he views the Department of Justice’s appointment of a special counsel as “appropriate.”