Democratic senators allege that Kavanaugh gave untruthful testimony at his prior confirmation hearings for the appeals court, which were held in 2004 and 2006, and that those untruths disqualify him as a Supreme Court nominee.
They say Kavanaugh misled senators into believing he had no role in the selection and vetting process for three of Bush’s most controversial candidates for the federal courts: Jim Haynes, Charles Pickering and Bill Pryor. Democrats also say Kavanaugh misled the Judiciary Committee in 2006 about his knowledge of a Bush-era warrantless surveillance program run by the NSA to monitor terrorists.
The overarching accusation is that Kavanaugh whitewashed his record, distancing himself from thorny political events instead of owning up to his role. A cache of emails and documents that have been released over the last few weeks proves Kavanaugh did not tell the truth, Democrats say. At his confirmation hearing for the Supreme Court this month, Kavanaugh rejected these allegations, and the White House has denied them.
“Time and again, Kavanaugh appears to have misled the Senate under oath,” Sen. Patrick J. Leahy (D-Vt.), a former chairman of the Judiciary Committee, wrote in a Washington Post op-ed on Sept. 13.
We reviewed all the testimony and Kavanaugh’s written answers to senators’ follow-up questions after the 2004 and 2006 hearings. As a reader service, we’re going to summarize our findings and give Pinocchio ratings.
At his 2004 and 2006 hearings, Kavanaugh was asked what role he played in screening several of Bush’s controversial judicial nominees. A team of lawyers in the White House Counsel’s Office, including Kavanaugh, would split up the work of vetting and preparing judicial nominees. For some nominees, Kavanaugh was the primary handler in the White House. For others, he was not the primary handler but still had a role in discussions and preparations.
Jim Haynes had been general counsel of the Department of Defense and had recommended the use of “abusive interrogation techniques, like threatening detainees with dogs, forced nudity, and for forcing detainees into painful stress positions,” according to Sen. Richard J. Durbin (D-Ill.), who questioned Kavanaugh about his role in the Haynes nomination in 2006. Bush nominated Haynes to the 4th Circuit U.S. Court of Appeals in 2003, but he was not confirmed.
Charles Pickering had been a federal district court judge in Mississippi when Bush nominated him to a seat on the 5th Circuit U.S. Court of Appeals in 2001. Pickering had asked lawyers who practiced in his court, including lawyers with pending matters, to send letters in support of his 5th Circuit nomination to the Judiciary Committee. Pickering’s nomination was filibustered, Bush gave him a recess appointment, and the judge retired within a year.
Bill Pryor was the attorney general of Alabama when Bush nominated him to the 11th Circuit U.S. Court of Appeals in 2003. The nomination was controversial because Pryor had called Roe v. Wade the “worst abomination in the history of constitutional law,” had flippantly called the Supreme Court “nine octogenarian lawyers,” had criticized the court’s decision in Miranda v. Arizona, and had made critical remarks about President George H.W. Bush’s decision to nominate Justice David H. Souter to the court.
Kavanaugh was asked repeatedly about these and other controversial nominees by senators of both parties. He gave guarded, lawyerly and confusing answers at his 2004 and 2006 hearings.
At some points, Kavanaugh said he didn't “handle” or was not “assigned” a nomination, distancing himself in a technically accurate but misleading way. At other points, Kavanaugh qualified his answer, saying he didn't have “primary” responsibility for these nominations, while leaving open the possibility that he played a supporting role. At one point in his 2006 hearing, he told Sen. Charles E. Schumer (D-N.Y.) point-blank that he was involved in discussions about the Haynes nomination.
A full look at the hearing transcripts and Kavanaugh’s responses to written questions shows that he disclosed — but just barely — his involvement in all three nominations. Kavanaugh said he participated in discussions about all three nominees and helped Pryor prepare for his confirmation hearing in a moot court session.
Let’s review the timeline of each case.
“We continue to find more evidence that Judge Kavanaugh misled me and the Judiciary Committee under oath. … Emails from 2002 and 2003 show that then-Associate White House Counsel Brett Kavanaugh played a substantial role in the decision to nominate Haynes.”
— Tweets from Durbin, Sept. 11, 2018
In written questions after the 2004 hearing, Durbin asked whether Kavanaugh had recommended Haynes, Pickering, Pryor or 16 other nominees, and about the nature of Kavanaugh’s involvement in their nominations.
Kavanaugh answered, “I participated in the meetings of a judicial selection committee that was responsible for making recommendations to the president. During my time, each of the nominees listed in your questions was evaluated and discussed.”
He also wrote in response to Durbin, “It is fair to say that all of the attorneys in the White House counsel’s office who worked on judges (usually 10 lawyers) participated in discussions and meetings concerning all of the president’s judicial nominations.”
At the 2006 hearing, Durbin asked Kavanaugh, “What was your role in the original Haynes nomination and decision to renominate him?” Kavanaugh answered, “I know Jim Haynes, but it was not one of the nominations that I handled. I handled a number of nominations in the counsel’s office. That was not one of the ones that I handled.”
Later at the same hearing, when Schumer asked about the Haynes nomination, Kavanaugh gave a more qualified answer: “I did not have primary responsibility.”
Schumer asked, “Can you give me a yes or no answer? Were you involved in discussions involving the nominations of Haynes or Bybee?” Kavanaugh said, “Senator, I believe those were when I was still in the counsel’s office, so the answer would be yes.”
So, which is it?
When he told Durbin, “it was not one of the nominations that I handled,” and left it at that in 2006, Kavanaugh easily could have left the impression that he did not have any role whatsoever in the Haynes nomination. That’s the impression Durbin said he got. But then Schumer at the same hearing asked a yes-or-no question and Kavanaugh said, yes, he was involved in the Haynes nomination. His responses to written questions in 2004 also indicated that he had worked on the Haynes nomination.
“We continue to find more evidence that Judge Kavanaugh misled me and the Judiciary Committee under oath,” Durbin wrote on Twitter, teeing off on the Haynes nomination. He appended several emails.
In one email from November 2002, Kavanaugh wrote: “If the circuit package is Boyle, Duncan, and Haines [sic], they could be amenable. Needless to say, we need to resolve quickly. But what is the basis for saying he would be an across-the-board judicial conservative? I have no reason to think that one way or another outside the defense/military area — and I know others have questions about that.” In another email that month, Kavanaugh was asked “who has the qs [questions] about Haynes,” and he replied, “call me.”
In a July 2003 email, then-White House Counsel Alberto Gonzales wrote to Kavanaugh: “Brett are you interested in golf tomorrow at 130 at Andrews. We have room for two more with Jim Haynes. Let me know.” (It’s unclear whether Kavanaugh joined the golf game.)
These emails do not show Kavanaugh played a “substantial role” in the Haynes nomination. The full record here shows that Kavanaugh’s past disclosures about his work on the Haynes nomination line up with these emails. Durbin felt misled at the 2006 hearing, but Kavanaugh had disclosed his involvement in the Haynes nomination two years prior — in response to Durbin’s questions. Later on in the 2006 hearing, Kavanaugh told Schumer he was involved in discussions on the Haynes nomination. The issue here is that Kavanaugh contradicted himself in between these disclosures and told Durbin he wasn’t involved.
“The document Sen. Durbin released last week showed that Judge Kavanaugh believed and told other White House staffers that Haynes was a ‘judicial conservative’ within the ‘defense/military area,’ which would have been highly relevant for Senator Durbin to learn in response to his question about what Judge Kavanaugh knew of Haynes’ role in crafting detention and interrogation policies,” a Democratic aide said. “Because Judge Kavanaugh testified that it was not one of the number of nominations he handled, it ended that line of questioning.”
The aide added: “In his written response to Senator Durbin’s written question that asked about the nature of Judge Kavanaugh’s involvement in the selection and confirmation of 19 nominees including Haynes, Judge Kavanaugh only said that he participated in meetings of the judicial selection committee and that each of the 19 nominees was evaluated and discussed by the committee. He did not acknowledge any personal role in the Haynes nomination including whether he even attended the meetings of the committee where Haynes was discussed. Judge Kavanaugh did specifically mention his work on other nominees in his written answer, but not Haynes.”
Nevertheless, Durbin’s statement that there’s new evidence that Kavanaugh misled the Judiciary Committee regarding the Haynes nomination is worth Two Pinocchios.
“There are similar concerns that Kavanaugh misled the Senate about his work on other controversial nominations, including … Charles Pickering, who reduced the sentence of a man who burned a cross in front of an interracial couple’s house.”
Kavanaugh at the 2006 hearing told then-Sen. Russ Feingold (D-Wis.) that he did not know Pickering had improperly asked lawyers to send letters in support of his nomination. “This was not one of the judicial nominees that I was primarily handling,” Kavanaugh said.
“I was not the associate counsel in the White House counsel’s office assigned to Judge Pickering’s nomination,” Kavanaugh added in a response to Feingold’s written questions.
The word “primarily” is doing a colossal amount of work in this case. A ream of emails shows that Kavanaugh had a big hand in the Pickering nomination, even though he was not “primarily handling” it and despite the fact it had been “assigned” to someone else in the White House counsel’s office.
The New York Times found:
Many of the emails showing glimpses of Judge Kavanaugh’s involvement with the Pickering nomination were minor, such as circulating articles or remarks by public officials related to him.Still, when a room was being reserved for a Pickering event, it was Judge Kavanaugh who was consulted. When the White House press office needed materials about Judge Pickering, it was Judge Kavanaugh who asked the Justice Department for the files and relayed them. When a senator’s chief of staff was coming to the White House to discuss Judge Pickering and another nominee, it was Judge Kavanaugh who planned to meet with her.And in May 2003, another White House official told Judge Kavanaugh that she had “asked for the Pickering package they are distributing” and was “sending it your way to review.” When he asked whom “they” referred to, she replied: “The Pickering team. Chip, Chip’s COS and whoever else they are using. You should know them” — adding “hehe.” (Judge Pickering’s son, Charles Pickering, known as Chip, was a Republican congressman at the time, and COS means “chief of staff.”)
The office of Sen. Cory Booker (D-N.J.) said the emails show Kavanaugh “coordinated meetings with and about Pickering; drafted remarks, updates for members of Congress, and at least one op-ed for Alberto Gonzales about Pickering; met with Senate staffers about Pickering’s nomination; liaised with the Department of Justice (DOJ), Senate Judiciary staff, staff of Congressman Chip Pickering (the judge’s son), and other White House staff about Pickering; advised White House Counsel Alberto Gonzalez [sic] on Pickering strategy; and more.”
In this case, Kavanaugh’s answers to Feingold were accurate in the narrowest sense of the word: he wasn’t the lead on this one. But he made zero mention of the substantial work he did do on the Pickering nomination, and therefore his answers were misleading.
His work on this nomination went substantially beyond the blanket responses Kavanaugh gave to Durbin’s written questions in 2004, when he disclosed that he participated in meetings and discussions about Pickering and 18 other nominees.
No Pinocchios for Leahy in this case.
“Kavanaugh distanced himself from Pryor. He denied any part in vetting him, testifying that it was ‘not one that [he] worked on personally.’ Yet emails suggest that Kavanaugh not only recommended Pryor for the seat, he also participated in a working group on the nomination, talked to a reporter about him and appears to have interviewed him.”
At the 2004 hearing, Kavanaugh said of Pryor, “That was not one of the people that was assigned to me.” Then he said, “I am familiar generally with Mr. Pryor, but that was not one that I worked on personally.” A bit later, he said, “I was not involved in handling his nomination.”
Notice a pattern here? Kavanaugh once again spoke in terms of “assigned” nominees and noted that he wasn’t “handling” the nomination. But Sen. Edward M. Kennedy (D-Mass.) was not asking Kavanaugh whether he had primary responsibility over Pryor’s nomination, but whether he had been involved in vetting Pryor.
At one point, Kavanaugh said “that was not one that I worked on personally,” when he had, in fact.
But then Kavanaugh told Kennedy: “I might have attended a moot court session. Oftentimes, we will go to moot courts to prepare nominees for hearings, to prepare them for this process.” And in response to Kennedy’s written questions after the 2004 hearing, Kavanaugh clarified, “I participated in moot court preparation for Judge Pryor.”
Recently released emails fill out some more details, including the fact that Kavanaugh had recommended Pryor for the 11th Circuit seat.
Along with several other officials, Kavanaugh was copied on a June 2003 email from Benjamin A. Powell, with the subject line “Pryor Working Group Contact List,” asking for Kavanaugh’s contact information.
In a December 2002 email, Kavanaugh wrote: “We perhaps should think about recommending Pryor for CA11 and Steele for one of the district court seats, which would be a very solid result on both CA11 and district court and avoid a potentially serious problem that we can discuss.”
Adam Charnes at the Department of Justice wrote back the next day: “Brett, at your request, I asked Matt to speak with Pryor about his interest. Pryor responded that he was ‘intrigued’ but needed to speak with his wife. Incidentally, he will be at the WH today for a Christmas party, and is staying at the Willard, so you might want to speak with him directly. Also, we should probably communicate, either directly or through Matt, a deadline for him to let us know definitively, because of the time pressure imposed by Steele’s renomination.”
A December 2002 email from Kyle Sampson to Kavanaugh: “How did the Pryor interview go?” Kavanaugh responded about an hour later, “call me.”
A June 2003 email from Joel Pardue, on which Kavanaugh was blind-copied: “There will be an emergency umbrella meeting tomorrow at 2:30 PM (right after the 1:30 call) at the law firm of Baker & Hostetler … We need to discuss nominee Bill Pryor’s hearing next Wednesday and there are important confirmation process issues with Judge Kuhl that need to be addressed.” (It’s unclear from the documents released whether Kavanaugh attended this meeting.)
Another June 2003 email from Benjamin Powell to a group including Kavanaugh: “We are having a 4pm conf call to discuss Pryor and coordinate plans and efforts. Let me know if you are not available.” (It’s unclear whether Kavanaugh was available.)
In this case, Kavanaugh disclosed an important detail (his work on Pryor’s moot court session) and omitted an important detail: Kavanaugh had recommended Pryor for the appeals court.
As for the meetings and conference calls, it’s unclear whether Kavanaugh ended up in them. If he did, it’s important to keep in mind that he disclosed in his written answers to Durbin and Kennedy in 2004 that he had been involved in meetings and discussions about Pryor and 18 other nominees.
“There is an ethical obligation to correct false testimony, and to do so explicitly,” said David Carle, Leahy’s spokesman. "One vague sentence among hundreds of pages of written responses to questions submitted six months after his hearing doesn’t correct Judge Kavanaugh’s adamant and false denials that he wasn’t involved in vetting Judge Pryor.
“Senator Leahy has never asserted that Judge Kavanaugh committed perjury. But his testimony clearly was misleading. For example, not a single senator left Kavanaugh’s 2004 hearing under the impression that he had any role in the Pryor nomination other than a standard moot session.”
This one merits Two Pinocchios for Leahy.
“Kavanaugh might have also misled the Senate by denying any involvement with detainee policies or any knowledge of documents related to a warrantless surveillance program.”
We also reviewed the back-and-forth about the NSA’s Terrorist Surveillance Program under Bush, and whether Kavanaugh was clued in on it.
Leahy asked Kavanaugh in 2006 whether he knew about the program before the New York Times revealed its existence in a December 2005 article.
“You had not seen anything, or had you heard anything about it, prior to the New York Times article?” Leahy asked.
“No,” Kavanaugh said.
“Nothing at all?” Leahy said.
“Nothing at all,” Kavanaugh said.
In his written responses in 2006, Kavanaugh added: “I did not learn of the existence of this program until after a New York Times story about it appeared on the Internet late on the night of Thursday, December 15, 2005. I had no involvement in meetings, briefings, or other discussions in shaping the program or the legal justification for the program.”
In an email sent to John Yoo in the days after the 9/11 terrorist attacks, Kavanaugh asked about the legal implications of warrantless surveillance considering privacy rights under the Fourth Amendment. Yoo was then head of the Office of Legal Policy in the Justice Department.
“Any results yet on the 4A implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?” Kavanaugh wrote on Sept. 17, 2001.
Leahy returned to this line of questioning in Kavanaugh’s confirmation hearing for the Supreme Court earlier this month: “When you were in the White House, did you ever work with John Yoo on the constitutional implications of any warrantless surveillance program?”
Kavanaugh: “Well, I can't rule that out. Right in the wake of September 11th, it was all hands on deck on all fronts, and then we were farming out assignments, but we were all involved. … On September 12th, when we came into the White House, it was — we have to work on everything.”
Eventually, he added, the associate White House counsels were assigned specific post-9/11 issues, and Kavanaugh worked on victim compensation and airline issues.
Timothy Flanigan, who worked with Kavanaugh in the White House at the time, said Kavanaugh was not “read into” the Terrorist Surveillance Program. He said White House lawyers were given a flurry of instructions in the immediate aftermath of the terrorist attacks and that Kavanaugh’s question to Yoo seemed to be part of that preliminary work.
“Literally within hours of the attack, the White House Counsel’s Office and the Justice Department were already talking about what kind of legal authority existed for the president to deal with really an unprecedented threat of attacks occurring on U.S. soil,” Flanigan recalled in an interview.
“We were basically getting a lot of advice at the same time from the Justice Department, and one of the questions that we asked, I believe, was, What is the president’s ability to order the NSA or other agencies to conduct surveillance in thwarting terrorist attacks? That was a general question. It was meant to be, ‘Just give us a survey of the president’s authority here.’
“Later — I believe weeks later — there was a program developed, somewhat related to that legal advice, but not dependent on it. The legal advice for that program was, I believe, much deeper and much more specific. By then, people knew the types of questions they wanted to ask. By then, they knew the capabilities of the NSA. They knew what the NSA could and couldn’t do. It became a program when people started talking about how to do this, what the approval level would be, would there be a warrant, would there not be a warrant, that sort of thing.”
Deputy White House press secretary Raj Shah said Kavanaugh’s testimony on this issue had been “entirely accurate.”
In a statement provided by the White House, Gonzales said, “Brett Kavanaugh accurately said that in the immediate aftermath of the September 11 attacks, we were ‘all hands on deck.’ But he was not read into the Terrorist Surveillance Program, which was authorized after this email was sent.”
The White House also provided a statement from Yoo: “This email predates the program’s existence. Brett Kavanaugh was not involved in meetings or drafting of legal memoranda related to the terrorist surveillance program.”
Yoo later wrote a memo fleshing out the warrantless wiretapping program, according to a report by the inspectors general at the Defense and Justice departments and the CIA, NSA and the Office of the Director of National Intelligence.
Considering the context, Kavanaugh’s email in the days after 9/11 is a slim reed on which to hang an allegation of potentially misleading testimony under oath. Leahy asked whether Kavanaugh had seen or heard anything about a specific program, and Kavanaugh said no. No evidence has surfaced showing Kavanaugh knew at the time that a spying program was being developed before or after he sent the email to Yoo.
Even though Leahy is careful to say Kavanaugh “might have” misled the Senate, he’s still throwing red meat out without much to back him up, and he gets Three Pinocchios for this one.
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