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This is why the Senate should care about Brett Kavanaugh’s time as Bush’s staff secretary

Sen. Thom Tillis (R-N.C.), left, and Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) hold a news conference Aug. 2 on Capitol Hill to refute Senate Democrats, who are intensifying their fight over documents related to Supreme Court nominee Brett Kavanaugh’s stint as staff secretary at the White House. The GOP members of the Judiciary Committee used a wall of empty boxes and charts to dramatize the volume of documents. (J. Scott Applewhite/AP)

On Thursday, Republican members of the Senate Judiciary Committee built a large wall of boxes to show how dedicated they are to reviewing the public records produced by Supreme Court nominee Brett Kavanaugh during his career. Kavanaugh worked for Kenneth Starr’s investigation of then-President Bill Clinton, served in President George W. Bush’s Office of White House Counsel and, of course, spent more than a decade on the U.S. Court of Appeals for the District of Columbia Circuit — resulting in hundreds of thousands of pages of documents and emails. Kavanaugh’s paper trail is so extensive, in fact, that Senate Majority Leader Mitch McConnell reportedly urged the president to choose someone else for the court.

But it’s the boxes not on display that have attracted attention — the ones containing perhaps 1 million pages of records from Kavanaugh’s three years in the Bush White House as the president’s “staff secretary.”

So far, Sen. Charles E. Grassley (R-Iowa), the Judiciary Committee chairman, has refused to ask the National Archives to process those papers. Nearly every document that goes to the president — and many that do not — are supposed to pass through the staff secretary’s office. Republicans have argued that reviewing those files is “a bridge too far,” that Kavanaugh was merely “a traffic cop” controlling the flow of the paper but not its contents. Sen. Susan Collins (R-Maine), touted as a Republican swing vote, seems to buy this, saying, “It does not make sense for documents that Judge Kavanaugh was only involved in essentially organizing for the president’s review and did not play a role in creating would be subject to this document request.”

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A staff secretary helps make policy — precisely by controlling the paper

Luckily for Collins and her colleagues, the Senate has just recessed. That gives them time to read up on both the role of the White House staff secretary and on why “organizing [documents] for the president’s review” matters so much for decision-making generally.

They might begin with a report on the Office of the Staff Secretary written by political scientists Kathryn Dunn Tenpas and Karen Hult for the invaluable White House Transition Project. Tenpas and Hult detail this “critical” post’s history and functions over time, starting with its creation in the Eisenhower administration.

As Bush aide Karl Rove recently said of Kavanaugh, people tend to “sort of underplay” the role of staff secretary — but “he had a very difficult job.” These days, Tenpas and Hult conclude, “the Staff Secretary is best described as the last substantive control point before papers reach the Oval Office.” As noted, nearly every document flowing toward the president should be vetted by the staff secretary. Thus, the job includes deciding which memos go to the president; deciding whether other views should be solicited on a given question, and if so, whose; and making sure that others respond to “directives or questions elicited by the materials the president sees.”

This is a crucial role — “a job that is huge,” said James Cicconi, the staff secretary for the senior Bush, George H.W., “because you’re really having to be involved with everything that passes through the President’s hands for a decision.” And the decisions the president makes rest heavily on the information the president gets.

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Organizational theorists, including Herbert SimonThomas Hammond and Bryan Jones, show that for any chief executive to function, the vast amount of advice at the bottom of any staff pyramid must be reduced to a sprinkling at the top. What’s in that sprinkling is partly up to the staff secretary. And even the most “honest broker” will influence the content. As Nixon counsel Leonard Garment once put it, the “old rule in physics that the ingredients of the screen affect the material that passes through the screen.”

Indeed, in 1992, Maureen Dowd noted that among hall-of-fame political bureaucrat Richard Darman’s rules for winning a substantive debate was to “get control of the paper.” Darman served as President Ronald Reagan’s staff secretary — a job he “happily took,” Dowd notes, “because it allowed him to control what papers went to the desk of the president and other top officials.”

Note that this sort of agenda-setting influence comes before the staff secretary offers his or her own advice, whether at the request of the president or in the form of cover memos further shaping the policy discussion. As two of Clinton’s staff secretaries argue: “Staff secretaries do get pulled into active debates about options. As trusted senior advisers, we often offered our thoughts on the right course for the president to take.”

Kavanaugh himself, we know, had a crucial role in the shaping of Bush’s speeches — we know this because Kavanaugh said so, in an interview with Tenpas for the report, noting that Bush:

. . . worked very closely with the speechwriters and the Staff Secretary on editing speech drafts. . . . During my tenure as Staff Secretary, we started a very small weekly Oval Office meeting that included only the president, the top three speechwriters, the Communications Director, the Chief of Staff, and me as Staff Secretary. . . . This innovation worked very well in preventing situations where the president would get a speech draft only to respond that it did not represent what he wanted to say in the speech. It also allowed me as Staff Secretary to better perform my function as referee between the speechwriters and the policy advisors.

As Kavanaugh added, this mattered. Speeches, at least in the pre-tweet era, were a way of resolving policy debates. “Speeches are the primary way the president communicates decisions and proposals to the Congress, the Nation, and the world,” he observed. “As such, they are critical. Speeches force policy decisions and force policy clarity.”

Thus, while the title of staff secretary sounds dull, and the addition of “paper flow” makes that dullness eye-glazing — well, in the White House, “paper flow” plus “staff secretary” equals “power.”

None of this means there is any kind of smoking gun in the staff secretary files. And even the more limited request already made by  Grassley will take until Oct. 20 to process, the National Archives estimates, even before accounting for subsequent review allowed in law for both President Trump and Bush. Senators will have to decide whether that time is worth what the files might reveal about Kavanaugh as adviser and thinker and potential justice.

If they have made that decision already, though, they should not pretend it is on the grounds that those boxes won’t tell them anything new.

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