A travesty of justice: GOP stonewalls on Judge Brett Kavanaugh documents while rushing his confirmation hearing

I previously explained that Judge Kavanaugh provided misleading testimony in his previous confirmation hearing.

Kavanaugh testified that he had no role in the Bush administration terrorist interrogation and torture program. A year after his confirmation, NPR reported Brett Kavanaugh may have been less-than-forthright with Congress at a crucial hearing last year to confirm his appointment to a seat on the powerful federal appeals court in Washington, D.C.  Federal Judge Downplayed Role in Detainee Cases.

In fact, in 2002, Kavanaugh and a group of top White House lawyers discussed whether the Supreme Court would uphold the Bush administration’s decision to deny lawyers to American enemy combatants. Kavanaugh advised the group that the Supreme Court’s swing voter, Justice Anthony Kennedy, would probably reject the president’s assertion that the men were not entitled to counsel. Kavanaugh had worked as a clerk for Kennedy. That meeting was first reported in The Washington Post. NPR independently confirmed the details with multiple sources.

Durbin now says he feels “perilously close to being lied to” at Kavanaugh’s confirmation hearing.

Let’s be clear: lying to Congress is a crime, and before the age of Trump, would have been a disqualifying event for any nominee, in particular a judicial nominee with a lifetime tenure.

This is now a major issue in the Kavanaugh confirmation hearing scheduled to begin September 4. Democrats question if Kavanaugh lied about work on terrorism policy:

Senate Democrats are raising questions about whether President Trump’s Supreme Court nominee, Judge Brett Kavanaugh, previously misled the Senate Judiciary Committee about his work on terrorism policy for the George W. Bush administration after 9/11.

Democrats say that documents handed over to the Judiciary Committee indicate that Kavanaugh wasn’t honest during his 2006 confirmation hearing for the D.C. Circuit Court of Appeals. They are asking the panel’s chairman, Sen. Chuck Grassley (R-Iowa), to publicly release those documents and request papers from Kavanaugh’s time as staff secretary.

“We have already seen records that call into serious question whether Judge Kavanaugh was truthful about his involvement in the Bush Administration’s post-9/11 terrorism policies when he testified before this Committee during his 2006 nomination hearing,” Democratic Sens. Dianne Feinstein (Calif.), Patrick Leahy (Vt.) and Dick Durbin (Ill.) wrote in a letter to Judiciary Chairman Chuck Grassley.

The Judiciary Committee has released more than 100,000 pages from Kavanaugh’s time working as a White House lawyer for President George W. Bush. Those documents are being vetted and given to the committee by the Bush legal team.

But Democrats argue that within the subset of papers still marked “committee confidential,” meaning they haven’t been released publicly, are documents that raise questions about Kavanaugh’s previous testimony.

“These documents are currently being withheld from the public at your insistence, but they shed additional light on Judge Kavanaugh’s involvement in these matters and are needed to question him in a public hearing,” the Democratic senators wrote to Grassley.

* * *

Kavanaugh is expected to be grilled during his committee hearing next month over his views on the Bush-era interrogation program and his work on terrorism policy after 9/11.

During his circuit court confirmation hearing in 2006, Kavanaugh told senators that he did not know about a now infamous memo that defined the Bush Justice Department’s interpretation of torture until it was leaked in 2004. He also said that he was not involved in the rules governing the detention of enemy combatants and that he did not learn about a National Security Agency warrantless surveillance program until its existence was leaked in the media.

But in addition to the “committee confidential” documents, Democrats say two emails released by the Bush Library from Kavanaugh’s work as staff secretary raise new questions about Kavanaugh’s testimony.

“At least two documents that are publicly available on the Bush Library website from Judge Kavanaugh’s time as Staff Secretary suggest that he was involved in issues related to torture and rendition after 9/11,” the Democrats wrote.

Kavanaugh, Democrats say, was included on an email that shared talking points on rendition and interrogation. In another email, Kavanaugh was forwarded talking points on the “torture memos” that had already been leaked and, more broadly, on U.S. policy, which Democrats say it was “clear” he was asked to review.

“These emails and talking points demonstrate why we need access to Judge Kavanaugh’s full record as Staff Secretary,” they add.

Democrats have been demanding that Republicans request documents from Kavanaugh’s work as a staff secretary for weeks. But so far Republicans have refused, arguing that Democrats want to go on a fishing expedition for a nominee most of the caucus will oppose.

Grassley has requested documents from Kavanaugh’s work as a White House lawyer, which the National Archives has estimated totals more than 900,000 pages.

Grassley and Feinstein also requested documents from Kavanaugh’s work on the ’90s Clinton investigations, and senators are reviewing documents from Kavanaugh’s 12 years on the court.

Senate Democrats have threatened to sue the National Archives to obtain documents from Supreme Court nominee Brett Kavanaugh’s career as a White House official during President George W. Bush’s administration. Senate Democrats Threaten Lawsuit Over Kavanaugh Documents:

Senate Minority Leader Chuck Schumer, D-N.Y., told reporters Thursday that Democrats will file a lawsuit if the National Archives does not respond to their Freedom of Information Act request. The suit is a last-ditch effort to obtain the documents ahead of confirmation hearings set begin Sept. 4.

“We stand ready to sue the National Archives for Judge Kavanaugh’s full records if necessary,” Schumer said. “The American people deserve a methodical and thorough examination of a nominee to the Supreme Court who will yield immense influence on their lives.”

Democrats filed their FOIA request with the archives Aug. 8. They also sent similar requests to the Department of Justice, the Department of Homeland Security and the Central Intelligence Agency. They gave notice on Thursday they will file a legal challenge specifically against the National Archives if their request is not fulfilled within 20 working days. This sets up a Sept. 6 deadline that could trigger a lawsuit on the third day of the planned confirmation hearings.

Democrats criticized Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, who they argue is rushing Kavanaugh through the confirmation process without sufficient information available on his record.

Grassley defended the committee process Thursday as “the most transparent confirmation process.”

“We’re working with the National Archives and President Bush to make as many documents publicly available as quickly as possible,” Grassley said at a hearing on the document process.

Staff at the National Archives informed Democrats earlier this week that they expect it will take until late October for the full set of remaining documents to be released. Republicans are relying on files from the George W. Bush Presidential Library to vet Kavanaugh — a process Democrats say is out of step with common practice. They say GOP-affiliated lawyers at the library are vetting and redacting the files.

The NewYork Times editorialized, Why Are Republicans Covering Up Brett Kavanaugh’s Past?

After what they did to Judge Merrick Garland in 2016 — obliterating Senate tradition by outright ignoring President Barack Obama’s third Supreme Court nomination for partisan political gain — you might think it would be hard for Mitch McConnell, the Senate majority leader, and Chuck Grassley, chairman of the Judiciary Committee, to inflict any more damage on the court.

Surprise! They’re now running the most secretive and incomplete confirmation process in modern history. They scrambled to set the start of Judge Kavanaugh’s confirmation hearing for Sept. 4, even as they have refused multiple requests by their Democratic colleagues to see more than one million documents covering his years as White House staff secretary to President George W. Bush. Judge Kavanaugh has called that job, which he held from 2003 to 2006, “the most interesting and informative” of his career in terms of preparing for his work on the bench.

These documents could contain important information about his role in some of the Bush administration’s most controversial actions, including its warrantless wiretapping program and its torture policy. Judge Kavanaugh was evasive during his 2006 confirmation hearing for a seat on the federal appeals court in Washington, D.C., where he currently sits. He denied any involvement in those policies, but Democratic senators have long believed that his answers to them were, at best, misleading. And at least one former Bush official appeared to directly contradict him. So what was his true role? The documents may or may not answer that question definitively, but we’ll never know without seeing them.

The documents could also shed light on Judge Kavanaugh’s ability to be impartial on important legal issues that may come before the Supreme Court. Before becoming a judge, he was a loyal Republican warrior, working on the Starr Report that recommended the impeachment of President Bill Clinton and helping Mr. Bush’s team during the 2000 election recount. He worked for the Bush administration during its push for, among other things, severe restrictions on women’s reproductive rights and a constitutional amendment banning same-sex marriage. The Senate should have access to anything in the judge’s record that reveals pre-existing views on issues like these.

Note: Brett Kavanaugh is a real life Forrest Gump character who has been present at defining historical events in the 20th century in the United States. It is uncanny.

This is precisely the kind of information about a Supreme Court nominee that senators need to consider before voting to provide a lifetime seat on the nation’s highest court. It would be a dereliction of their constitutional duty to do less. Indeed, Senate Republicans rightly demanded, and got, comprehensive information on Mr. Obama’s two successful nominees, Justices Sonia Sotomayor and Elena Kagan.

And yet, to everyone who now requests this basic information about Judge Kavanaugh, Mr. McConnell and Mr. Grassley say, take a hike.

Under normal circumstances, documents relating to Supreme Court nominees with federal government experience are released by nonpartisan researchers at the National Archives. They take requests from the Senate and send over whatever they deem relevant. That’s the process set out by the Presidential Records Act, a federal law that has been followed for every recent Supreme Court nominee, including President Trump’s first pick, Neil Gorsuch.

Judge Kavanaugh’s paper trail is far longer than those of prior nominees; the archives hold six million to seven million documents related to him. Mr. Grassley has requested only about 900,000 of them, none relating to his time as staff secretary. The archives staff has said it needs until late October to complete its review. So Mr. Grassley’s committee is instead getting the Kavanaugh documents directly from William Burck, a lawyer working for Mr. Bush — and not by any measure a neutral reviewer.

Mr. Burck — who served under Judge Kavanaugh in the White House and may well be named in many of the withheld documents — should be reviewing them only for possible assertions of executive privilege. Instead, he has chosen to withhold large numbers on the ground that they are personal to President Bush. To date, he has provided about 240,000 documents, many of which are irrelevant or duplicative. About 40,000 pages, for example, consist of copies of a single email from Ginni Thomas, the wife of Justice Clarence Thomas.

Mr. Grassley argues that the Senate has already gotten more documents on Judge Kavanaugh than it did for Justice Sotomayor or Justice Kagan, who was President Obama’s solicitor general when she was nominated. But 99 percent of Justice Kagan’s White House record was made public before her hearing. For Judge Kavanaugh, the proportion is around 2 percent.

This stonewalling by Republican leaders is so extreme that Democratic senators have been reduced to filing unheard-of requests for the missing documents under the Freedom of Information Act — a process that can take many months.

On Wednesday, the National Archives distanced itself from this shady process, calling it “something that has never happened before,” and saying Mr. Burck’s work “does not represent the National Archives.”

Republicans have had the nerve to complain that Democrats are trying to slow down the confirmation process. The White House press secretary, Sarah Huckabee Sanders, called it an “unprecedented” degree of stalling. But everyone knew about Judge Kavanaugh’s lengthy paper trail; Mitch McConnell was reported to have initially opposed Judge Kavanaugh’s nomination for that very reason. Either way, what’s the rush? We don’t recall Republicans expressing concern over delaying a confirmation when they were blocking Judge Merrick Garland.

This is a travesty of justice. If there is evidence that Brett Kavanaugh lied to or misled Congress in his previous confirmation hearing, that evidence must be produced before Judge Kavauagh testifies at his confirmation hearing so that he can be fully and fairly vetted by senators. If that means waiting until later this year until the National Archives can produce the full “paper” record, so be it. There is no justifiable excuse to rush this confirmation hearing. It is yet another example of the authoritarianism of the GOP and its abuse of power and the rule of law.





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