The conservative jurist is settling into a lifetime appointment, but Democratic leaders think they can still discredit him and the GOP
Democrats are showing no signs of backing off their battle against newly minted Supreme Court nominee Brett Kavanaugh, pressing forward with legal fights to unearth potentially damaging records that didn’t go public during the white-hot nomination contest.
Democratic leaders are taking steps to obtain and release detailed documents and emails about the sexual assault allegations against him and disputed aspects of his service during the Bush administration.
While Democrats are strategizing to get what they consider the most potentially impactful records out soon, it’s all but certain that the process will drag on for years and perhaps even decades.
Many Democrats are skittish about talk of impeaching Kavanaugh, an effort that seems doomed in the Senate even if Democrats win control of the House in midterm elections next month. But there seems to be a broad consensus on the left to keep up the fight for documents lawmakers believe should have been made public before the vote on Trump’s second high court nominee.
Democratic lawmakers say it’s worth serving up a reminder of how Republicans tried to short-circuit the process and gave short shrift to Ford’s allegations.
House Minority Leader Nancy Pelosi followed through Wednesday on a promised Freedom of Information Act request demanding records related to the background investigation the FBI reopened into Kavanaugh after Dr. Christine Blasey Ford testified to the Senate Judiciary Committee that he sexually assaulted her during high school, a claim Kavanaugh categorically denied.
“The FBI’s supplemental background investigation appears to have been significantly limited in scope to ensure that a thorough investigation would not take place, numerous witnesses would not be questioned, and numerous questions would not be asked — including whether Justice Kavanaugh deliberately misled Congress on multiple subjects,” Pelosi wrote in her letter seeking documents about the FBI’s interviews and the ground rules for the inquiry. “The public must know what limitations were imposed on the FBI and who imposed them, so this never happens again.”
At a Senate hearing earlier Wednesday, FBI Director Christopher Wray confirmedthat the White House limited the scope of the re-investigation, but he said the bureau followed its usual process.
Pelosi’s call to force the release of more information on Kavanaugh comes despite the fact that she is opposed to talk of impeaching him. Asked at a San Francisco Chronicle editorial board meeting whether she thought such an effort would be productive, Pelosi said, “No, I don’t … It’s not about impeaching him.”
Sen. Richard Blumenthal and five of his Democratic Senate Judiciary Committee colleagues filed their own FOIA suit last month, demanding access to all the Kavanaugh-related records at the George W. Bush Library in Dallas as well as Kavanaugh’s correspondence with the CIA and the Justice Department while at the Bush White House.
One aide involved in the effort said Democrats are intent on finding records that could show Kavanaugh was less than candid during his confirmation hearing, when he denied involvement in discussions about Bush-era programs like warrantless wiretapping and aggressive interrogation practices, as well as knowing that Senate aide Manuel Miranda — who was in regular contact with Kavanaugh about judicial nominations — had access to Senate Democrats’ internal memos.
“We’re interested in credibility,” said the Democratic aide, who asked not to be named. “The question is whether he was up front with the committee. … We’re focused on Miranda.”
Last Friday, the Archives formally reported that it had finished processing a tiny fraction of the records the Senate Democrats are suing for. Archives officials have estimated they have between 1 million and 3 million documents and emails from Kavanaugh’s files and emails accounts. The notice sent Friday said just four items, totaling 20 pages, were processed for release thus far in connection with the Senate Democrats’ suit.
Under federal law, Bush and President Donald Trump have 60 business days to look over those records and any others before they are made public. A 30-day extension is allowed. In this case, however, the National Archives has determined that only part of the four items — believed to be emails — should be released at the moment.
Republican senators note that senators had access to a large chunk of Kavanaugh’s record: more than 500,000 pages, largely from his time as an attorney in the Bush White House counsel’s office. That’s a larger volume of records than was made public about any other Supreme Court nominee.
In August, National Archives officials said they could complete the review of about 900,000 pages of Kavanaugh records by late this month. However, that set included only the records formally requested by Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who invoked a “special access” process for congressional requests.
Democrats say the GOP should have waited at least until the Archives finished reviewing the 900,000 pages.
“Less than 10 percent of Judge Kavanaugh’s White House record has been disclosed,” Sen. Dick Durbin of Illinois said during debate on the nomination last week. “Those documents are going to come out some day, and those who are quickly voting for him now without reading them run the risk that they are making a mistake, which they are going to have to explain at a later time.”
Archives officials said Democrats were not entitled to use the “special access” process because they did not control any committee empowered by law to make such a request.
So, Blumenthal and the other Democratic senators turned to the FOIA process and the courts instead.
“I filed a FOIA suit to force disclosure of millions of pages of Judge Kavanaugh’s documents that have been hidden from the country,” Blumenthal said on the Senate floor. “The majority leader chose to vote without seeing those documents, I have no intention of stopping in this effort until they have been disclosed — and they will be. They will come out, adding to the cloud and the stain.”
National Archives spokeswoman Laura Diachenko said the agency is still working through those requests and that records recently processed by the archives remain subject to review by the White House and Bush’s representative.
“We will continue to respond to the numerous FOIA requests for Kavanaugh-related records,” Diachenko said Wednesday. “All of the existing PRA notifications, which include the one posted last Friday for the four records, are still currently pending review.”
A White House spokesman declined to comment on the continued campaign by Democrats to discredit Kavanaugh. Senate Republican leaders also declined to comment.
However, a Senate GOP aide portrayed the Democrats’ persistence as both sour grapes and overkill.
“I’m reminded of what Sen. Cornyn said over the summer when he outlined the Democrats’ extreme, no-holds barred strategy to try and take down this exemplary jurist: Get a grip,” said the aide, who asked not to be named.
Some of those pressing for access to the Kavanaugh files insist they’re already getting traction. A lawyer for the Electronic Privacy Information Center, which filed suit last month to obtain records about his work on surveillance issues, said it got more information Wednesday indicating the Bush Library has records likely to shed light on that topic.
Last week, officials notified the group that there are 11 emails Kavanaugh wrote while a White House lawyer to a key Justice Department attorney involved in the surveillance issue, John Yoo. EPIC was also told Kavanaugh sent more than 200 emails mentioning the PATRIOT Act or surveillance during his counsel’s office tenure.
On Wednesday, EPIC was informed that there’s an even larger pool of emails received that could be of interest. Yoo sent 183 messages to or copying Kavanaugh, while Kavanaugh received nearly 2,000 messages discussing the PATRIOT Act or surveillance.
“Any category he was generating emails on, there were a lot more emails he was receiving,” EPIC’s Alan Butler said. “I think we have substantial evidence that he was intimately involved in the process of developing these programs.”
Still, Butler acknowledged, they have yet to see the actual documents. Asked if many of the records could be just news clippings, the EPIC attorney said, “It’s possible.”
One major challenge Kavanaugh critics face is that the Presidential Records Act allows presidents to sharply restrict access to many of their records until 12 years after leaving office. That means many sensitive records about advice to Bush, discussions among his top advisers and about potential nominees for federal positions are unlikely to be released until 2021 at the earliest. And if the Archives deems the material restricted, there is no judicial review available.
Democrats may be able to speed up the process somewhat if they take control of the House or Senate after this fall’s elections. They could then issue priority “special access” requests like the one Grassley made. They could also issue subpoenas.
Records housed at government agencies like the Justice Department or the CIA aren’t subject to the 12-year rule, but other approaches can be used to withhold those files from the public, sometimes for even longer periods than those in presidential archives. Congress generally gets better access, but agencies have ways to resist. The president can also assert executive privilege to fight any disclosures.
Under the regular process, however, delays in obtaining records from presidential libraries can be prolonged — even staggering.
Last year, POLITICO asked the Bush Library for records about Deputy Attorney General Rod Rosenstein, who served as a top Justice Department official and was later nominated by Bush to serve as U.S. attorney for Maryland.
In May, the library provided an update. “There are 115 requests ahead of yours in this queue. Our best estimate at this time is that it may be completed in approximately 22 years,” supervisory archivist Shannon Jarrett wrote.
When files from President Bill Clinton’s White House became subject to public requests in 2006, the conservative group Judicial Watch asked for records on the failed health care reform effort spearheaded by then-first lady Hillary Clinton. The next year, the group sued.
The Archives said an estimated 3 million records were responsive to Judicial Watch’s request. The group later agreed to limit the request to about 1 million documents. Archives officials said that was still too many to require them to process. But a federal judge ruled that they had to process the whole set.
The records emerged over the past decade, often in chunks 50,000 or 100,000 pages at a time. The final set came earlier this year, some 12 years after the records were first requested.
At least one Supreme Court nominee has faced disclosure of their White House records after taking the bench: Justice Elena Kagan.
The vast majority of her records as a lawyer and policy adviser to President Bill Clinton were made public in 2010, when President Barack Obama nominated her to the Supreme Court. More than 160,000 pages of files were released to the media and sent to the Senate. However, about 1,600 pages were held back on privacy grounds. A small number of documents were also shared with the Senate under a “committee confidential” restriction, but were not released to the public at that time.
A smattering of those records went public in 2014. They included annotated, draft legal briefs from her files in connection with Clinton’s Supreme Court showdown with Paula Jones, the Arkansas state employee who accused him of sexual harassment.