In a dramatic interaction Thursday morning during the Senate Judiciary Committee hearings on the nomination of Brett M. Kavanaugh to serve on the Supreme Court, Sen. Cory Booker announced that he would deliberately violate rules against releasing protected information — risking, in his own estimation, the loss of his position.
Here’s why he did so, what's likely to happen as a result — and why the moment wasn't quite what it seemed.
At issue are documents provided to the committee before the hearings. (Kavanaugh must be evaluated by the committee before his nomination can be sent to the full Senate for confirmation.) Booker (D-N.J.) took issue with how and when some of those documents were released, including a set released after having been vetted by William Burck, an attorney for President George W. Bush. (Kavanaugh served in Bush’s administration.)
One of the documents included in the Burck-reviewed set was an email revealing the nominee's views on racial profiling — but because it had been deemed “committee confidential” after a review, Booker was not allowed to refer to it or ask Kavanaugh questions about it. Committee Chairman Charles E. Grassley (R-Iowa) established a process for review of that confidentiality, but Booker argued that the process was too cumbersome, perhaps deliberately, to allow him to make reference to the document in time.
He explicitly criticized the withholding of the profiling document.
“The fact that there is nothing in that document that’s personal information, there’s nothing national-security-related, the fact that it was labeled as committee confidential exposes that this process, sir, is a bit of a sham,” Booker said.
“We are holding back not only — not only holding back documents, labeling committee confidential, but not even giving us the time to review those documents,” he continued. “I’m sure you can understand, sir, how it puts all of us in a very difficult situation when it’s not you . . . it’s somebody you have to go — then go back to a person named Bill Burck to decide if some document — who is an associate, who is an associate and colleague of the nominee — to figure out which documents are going to be released.”
“It’s inappropriate to raise these in an open session before the committee,” replied Sen. John Cornyn (R-Tex.). “And I think our colleagues understand that, but, nevertheless, decided to go ahead anyway. So I just think it’s important that we remind one another that there are clear rules about the discussion of confidential material and that there can be consequences to the violations of those rules.”
Cornyn said it was “outrageous” that an invocation of attorney-client privilege by a lawyer working for a president would not be respected by the Senate.
“I thought we were doing pretty well yesterday,” he said, “but things went off the rails, it looks like, last night.”
Booker embraced the idea that he could face punishment for releasing the document anyway.
“No Senate rule accounts for Bill Burck’s partisan review of the documents,” Booker said in response to Cornyn. “No Senate rule and no history of the Senate accounts for what is going on right now.” Referring to Burck as a “partisan operative,” Booker argued that Burck’s involvement undermined the process.
He went further.
“Senator Cornyn made a very good point. I knowingly violated the rules that were put forth,” Booker said. “I come from a long line, as all of us do as Americans, of understanding what that kind of civil disobedience is, and I understand the consequences.”
“So I am, right now, before your process is finished, I am going to release the email about racial profiling,” he said. “And I understand that, that the penalty comes with potential ousting from the Senate. And if Senator Cornyn believes that I have violated Senate rules, I openly invite and accept the consequences of my team releasing that email right now.”
He was releasing it, Booker said, to show that what was being withheld had nothing to do with national security.
“Instead, what I’m releasing this document right now to show is we have a process here for a person — the highest office in the land, for a lifetime appointment — we’re rushing through this before me and my colleagues can even read or digest the information,” Booker added.
The documents were released.
As it turns out, though, the documents Booker released had already been cleared by Burck. What’s more, in a statement to The Washington Post on Thursday afternoon, Burck noted that Booker knew the documents were no longer confidential.
“We cleared the documents last night shortly after Senator Booker’s staff asked us to,” he said. “We were surprised to learn about Senator Booker’s histrionics this morning because we had already told him he could use the documents publicly. In fact, we have said yes to every request made by the Senate Democrats to make documents public.”
Booker’s office responded by criticizing the process — while acknowledging Burck’s point about the documents.
Note, though, that Cornyn’s and Booker’s comments above refer to something that had already happened. “Our colleagues … decided to go ahead anyway,” he said, noting that things went off the rails “last night.” Booker, too, used the past tense — “I knowingly violated the rules” — before the release of the documents this morning.
That’s a reference to Booker’s having confronted Kavanaugh with the information in the racial-profiling emails on Wednesday night, as our Seung Min Kim reported.
“I have letters here, sir, that have asked for — now, the one email specifically entitled racial profiling that somehow — I mean, literally the email was entitled racial profiling, that somehow was designated as something that the public couldn’t see,” Booker said at that point. The email was, at that point, still confidential and therefore Booker shouldn't have referred to it.
“Cory said this morning that he was releasing committee confidential documents, and that’s exactly what he’s done. Last night, he was admonished by Republicans for breaking the rules when he read from committee confidential documents. Cory and Senate Democrats were able to shame the committee into agreeing to make last night’s documents publicly available, and Cory publicly released those documents as well as other committee confidential documents today,” read a statement from Booker spokeswoman Kristin Lynch that was provided to The Post on Thursday.
Cornyn’s office confirmed this timeline to the Daily Beast, though the senator didn't point that clearance out during the hearing. In the moment, Cornyn, too, made a political point.
“Running for president is no excuse for violating the rules of the Senate or of the confidentiality of the documents that we are privy to,” Cornyn said in response, highlighting Booker’s broadly acknowledged future ambitions. Booker releasing the information was no different from releasing classified information, Cornyn said.
“No senator deserves to sit on this committee — or serve in the Senate, in my view — if they decide to be a law unto themselves and willingly flout the rules of the Senate and the determination of confidentiality and classification,” he added. “That is irresponsible and conduct unbecoming a senator.”
After this exchange, White House principal deputy press secretary Raj Shah tweeted a reference to the rules of the Senate, rules that Cornyn read during the hearing: “Any Senator . . . who shall disclose the secret or confidential business or proceedings of the Senate, including the business and proceedings of the committees, subcommittees and offices of the Senate, shall be liable, if a Senator, to suffer expulsion from the body.”
During the hearing, Booker colleagues Richard J. Durbin (D-Ill.) and Mazie Hirono (D-Hawaii) joined him, saying they would take similar actions and accept the same punishments. Senate Minority Leader Charles E. Schumer (D-N.Y.) tweeted his support.
“Let’s jump into this pit together,” Durbin said. Hirono tweeted out documents stamped with “committee confidential.”
“If he is not a tempest in a teapot, but sincerely believes that, then bring the charges,” Booker said later, referring to Cornyn. “I hope that they will bring charges against us,” he added, “and I am ready to accept the full responsibility for what I have done, the consequences for what I have done, and I stand by the public's right to have access to this document and know this nominee's views on issues that are so profoundly important, like race and the law, torture and other issues.”
This is mostly political melodrama. No senator has been expelled from that body since 1862, and most of the 15 who have been expelled were ousted for expressing support for the Confederacy.
Most of the more recent inquiries into expelling members have resulted in either no action or resignations. Those were for more-traditional offenses: fraud, corruption, abuse of power.
Put another way, Booker — and the handful of colleagues who joined his act of “civil disobedience” — will almost certainly not face expulsion. They may very well face some form of punishment, such as censure, but the likelihood of removal is very low.
The melodrama that played out Thursday that focused on the release of the already-cleared documents was itself the point. Expulsion is the most serious consequence a senator can face, and few do. The net result is that Booker got what he wanted — release of information he saw as incriminating — with the most likely result even if he had violated the rules being the equivalent of a write-up from your boss. And, as Cornyn pointedly noted, Booker's stock with a Democratic base champing at the bit for partisan confrontation gained a few points.
It may run contrary to how the Senate has traditionally operated, but it’s very much in line with how politics operates in 2018.
This article was updated with the statements from Burck and Booker's office and throughout to reflect the new information.