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Brett Kavanaugh’s unlikely story about Democrats’ stolen documents

Supreme Court nominee Brett M. Kavanaugh has faced scrutiny about his use of documents stolen from Democratic senators several years ago. (Video: Elyse Samuels, Patrick Martin/The Washington Post)

Sen. Richard J. Durbin (D-Ill.): “I guess what it boils down to is this. Since you’ve worked up here for so long, you had to be able to spot things that were being said that looked revealing. When Manny Miranda has a revelation about questions that might be asked of a nominee or what the schedule is going to be under a Democratic chairman, did that ever come up? And did it ever raise a question in your mind that perhaps he knew just a little bit too much for a staffer on Capitol Hill?”

Brett M. Kavanaugh: “I have thought about this, Senator. There was nothing out of the ordinary of what Senate staffs would tell us or what we would hear from our legislative affairs folks. That said, I cannot tell you whether something that he said at some point, directly or indirectly, derived from his knowledge that may have come from these documents. I just cannot speak to that at all. I can say, in direct response to your question, that, no, I never suspected anything untoward. Had I suspected something untoward, I would have talked to Judge Gonzales about it, who I know would have talked to Senator Hatch about it, but I never did suspect anything untoward.”

Exchange at Kavanaugh’s confirmation hearing for the Court of Appeals for the D.C. Circuit, April 27, 2004

“I knew Mr. Miranda, as he and many other Senate staffers were part of regular meetings, telephone calls, and emails about the judicial confirmation process. These meetings, calls, and emails were typical of how judicial confirmations have been handled in past Administrations. I never knew or suspected that he or others had obtained information from Democratic computer files.”

Part of Kavanaugh’s response to written questions from Sen. Patrick J. Leahy (D-Vt.), Nov. 19, 2004

Sen. Edward M. Kennedy (D-Mass.): “Have you ever gone back, now that you are aware of it, and seen what decisions you may or might not have taken on the basis of documents that were illegally taken? …”

Kavanaugh: “Senator, there’s a very important premise in your question that I think is incorrect, which is, I didn’t know about the memos or see the memos that I think you’re describing. So, I think —”

Kennedy: “Oh, you never saw any of those?”

Kavanaugh: “No, Senator. That’s correct. I’m not aware of the memos. I never saw such memos that I think you’re referring to. I mean, I don’t know what the universe of memos might be, but I do know that I never received any memos and was not aware of any such memos. So, I just want to correct that premise that I think was in your question.”

Exchange at Kavanaugh’s confirmation hearing for the D.C. Circuit, May 9, 2006

Leahy: “Did any of this raise a red flag in your mind?”

Kavanaugh: “It did not, Senator, because it all seemed consistent with the usual kinds of discussions that would happen. And sometimes people do say things of here’s what my boss is thinking, but don’t share it around. I mean I must’ve had so many conversations in the course of my life like that where someone’s saying like that about something. In other words, trying to give you a heads up on something. And that just seems standard Senate staff.”

Exchange at Kavanaugh’s confirmation hearing for the Supreme Court, Sept. 6, 2018

Did Kavanaugh know he was getting stolen information while he worked at the White House? This is one of the biggest questions Democrats have raised about Kavanaugh’s credibility, and we set out to investigate.

Manuel Miranda, a Republican Senate staffer who was quarterbacking the GOP’s moves on judicial nominees, stole a trove of internal documents from Democrats on the Judiciary Committee between 2001 and 2003, assisted by a clerk.

Miranda shared some of those documents, or key details gleaned from them, with Kavanaugh and other GOP allies working to secure Senate confirmation for some of President George W. Bush’s polarizing judicial nominees.

As strategic advantages go, Miranda had struck gold, gaining real-time access to the opposition’s innermost thinking during a bitter partisan standoff over the composition of the federal courts.

The stolen documents covered the Democrats’ tactics and plans in minute detail — and also their talking points, potential lines of inquiry for some nominees, eerily precise details about Democratic maneuvering inside caucus meetings, specific news articles Democrats were circulating among themselves as they researched nominees and other juicy insider information. (And that’s just what’s in the limited amount of records released from Kavanaugh’s time at the White House.)

Kavanaugh has maintained since 2004 that he had no inkling he was privy to stolen information. Our review of all the records and testimony on this issue shows that Kavanaugh’s repeated pleas of ignorance warrant heavy skepticism.

The Facts

In 2001, Jason Lundell, a clerk in the Senate’s nominations unit, found a security lapse in the Judiciary Committee’s network that gave wide access to any files stored in Democrats’ or Republicans’ folders, according to a March 2004 report by the Senate sergeant-at-arms. Miranda often told Lundell where to search “and would sometimes tell him that there was something new in a particular folder and ask the clerk to print it for him,” according to the report.

Miranda “admitted accessing the computer files of Democratic staff himself on one or two occasions,” the report added. A forensic analysis of Lundell’s computer identified 4,670 files taken over 18 months from 2001 to 2003, most of which appeared to belong to Democratic staff. Lundell told investigators he “frequently searched the folders of some Democratic staff on an almost daily basis while working on the nomination of Judge Priscilla Owen,” Bush’s pick for a seat on the U.S. Court of Appeals for the 5th Circuit. Owen’s nomination did not sit well with Democrats and became a sticking point.

Miranda, now a lawyer in private practice in Maryland, did not respond to our request for comment. He previously told The Washington Post that he never told Kavanaugh he was sharing stolen information. [Update: Miranda noted that he was not prosecuted for these events and sent us a law review article with his side of the story.]

“I never told him that I got this from the Democrats,” Miranda said. “There was never anything like that.”

Regardless, did Kavanaugh have any reasons of his own to suspect something wasn’t quite right? Even if Miranda never told Kavanaugh precisely how he got the information, the information itself was richly detailed and yielded a ton of clues.

We put together a timeline of the intel Miranda was feeding in real time to Kavanaugh and other GOP allies in Washington. Some question marks in the documents released by the Senate that were meant to be apostrophes or quotation marks have been changed for clarity.

July 18, 2002, email from Miranda to Kavanaugh and Viet Dinh and Don Willett of the Justice Department: “Brett, It looks like [then-Sen. Joe] Biden’s staff is asking him not to attend the hearing. This does not bode well. It means that they will depend on paper since they have refused to meet with her. … On a related note, the Nation article linking Owen to Rove is being distributed by the Leahy staff.” (The email subject line was “Highly confidentail [sic].")

Although it’s possible that Democrats leaked Biden’s tentative plan not to attend Owen’s hearing, it’s not clear why any Democrat would want to share this information with Republicans, as it could have made it seem as though Biden was running from a thorny issue. Still, it’s possible this tidbit slipped past the gates. (Notice how Miranda can pinpoint precisely which article Leahy’s staff was distributing.)

July 19, 2002, email chain initiated by Miranda to Kavanaugh, Willett and Nathan Sales and Steve Koebele of the Justice Department: “Any answer to this below? And why the Leahy people are looking into it?” Below, he added two questions, seemingly written by Leahy’s staff: “What is the connection between Owen and Texans for Lawsuit Reform (larger issue) and the Texas Civil Justice League (smaller)? Is their [sic] any coincidence in her donors and theirs?”
Koebele wrote back that research would indicate “many similarities in specific donors” and theorized that Leahy would ask Owen about her connection to the tort reform movement in Texas. Miranda replied in part, “Intel suggests that Leahy will concentrate on all things Money.”

Again, Miranda seemed to know in specific detail what Leahy’s staff was up to. It’s possible he was hearing some of these details through the grapevine, but the questions he’s relaying seem oddly specific. Notice, also, the reference to “intel” about Leahy’s potential line of questioning for Owen.

July 28, 2002, email chain initiated by Miranda to Kavanaugh, Sales, Koebele and Willett: “I would ask that no action be taken by any of your offices on this for now except as I request. It is important that it be confidential to the recipients of this email and up your chains of authority only. As I mentioned on Friday, Senator Leahy’s staff has distributed a ‘confidential’ letter to Dem Counsel on Thursday from Collyn Peddie, who served as the attorney for ‘Jane Doe’ in some or several of the Texas bypass cases. According to either the letter or the Leahy staff Ms. Peddie sent this letter in the strictest confidence because she is up for partner, and believes she will be fired if it is publicized. Several members of her firm are lead supporters of the Owen nomination. Leahy’s staff is only sharing with Democratic counsels. However, we might expect this letter to be used like the Brenda Polkey in Pickering at a moment when we are unable to respond. …
“I have not seen the letter but it strongly criticizes Owen’s actions on the Doe cases, especially for her ‘appalling insensitivity’ To the pregnant minors before her court.
“Specifically, Peddie accuses Owen of publishing ‘dissents and concurrences in which paragraph after paragraph of confidential testimony was quoted in great detail.’ ”
Later on in the same email: “Peddie criticized Owen’s dissent in Jane Doe 4 which argued that parental rights should trump the risk that ‘parents would throw a minor girl out on the street upon finding out she was pregnant.’ ”

This email is a big tell. Miranda was describing in detail the contents of a “confidential” letter that Leahy’s office had received from an Owen critic, Collyn Peddie.

Miranda in this email claimed not to have seen the letter itself, but that raises the questions: How could he go on to quote from the letter seemingly verbatim, and how could he have summarized Peddie’s points with such precise detail?

“Specifically, Peddie accuses Owen of publishing ‘dissents and concurrences in which paragraph after paragraph of confidential testimony was quoted in great detail,’ ” Miranda wrote. Notice how he seems to be quoting directly from Peddie’s letter.

Kavanaugh responded the same day with a detailed, point-by-point counterargument.

We can’t imagine why Democrats would share this confidential information willingly with Republicans. It would be absurd to tip off Republicans about this secret weapon if Democrats were planning to use it “at a moment when we are unable to respond,” as Miranda wrote. But let’s leave that aside for a second. Peddie had requested confidentiality because she didn’t want to endanger her chances of becoming a partner at her law firm. Why would Democrats throw her to the wolves?

July 28, 2002, email chain initiated by Miranda to Kavanaugh and Willett, seeking an in-person meeting: “I can provide useful info to map out Biden and [Sen. Dianne] Feinstein, and others.” Kavanaugh replies that he may have a conflict at the suggested time and later confirms he can’t meet but says, “Can the three of us get on the phone instead?” Willett says he can meet Miranda, “receive whatever paper he has, and we can talk sometime today.”

It may be a coincidence that Miranda sought an in-person meeting to hand over what Willett described as “paper” on the same day he was emailing Kavanaugh, Willett and others about Peddie’s confidential letter. In any case, notice how he offers “useful info to map out Biden and Feinstein, and others.”

July 30, 2002, email chain initiated by Miranda to Kavanaugh, Willett, Dinh and White House aide Heather Wingate: “I have it on 100% info that Leahy is trying to convene the Dems this afternoon after Policy Lunch to check on where they stand on Owen. He is seeking to place Owen on for this Thursday with the view that we would hold over. Feinstein and Feingold are still not saying how they will vote and this bothers them. The bad news is that they are not concerned about Biden. That bothers me. Suggested action. WH should intervene with Feingold and Feinstein as soon as possible. OLP might write Leahy and remind him that he promised Owen the ample opportunity to respond to questions (Kennedy’s came out today. In either case, refer only to rumor, not to me.”
Kavanaugh replied, “What about Kohl?” Miranda wrote, “They appear not to be worried about Kohl.”

Once again, this richly detailed update might have been the product of fortuitous eavesdropping or an innate talent for buttonholing gossipy Democrats at the Senate water-coolers. But by this point a thoughtful White House lawyer might have begun to surmise that Miranda was getting too much insider information from Democrats too quickly. Also note Miranda’s final line: “refer only to rumor, not to me.”

August 13, 2002, email from Miranda to Kavanaugh and Willett: “Two things about Sept. 5th. My info is that it is a go unless, according to the Leahy staff, there is a problem with the Dem vote count. This means that, as of today, they are not certain about their count.”

Vote counts on sensitive political issues are not the sort of stuff that gets shared with the other party. Once again, this could have been filtered to Miranda in some innocent way, but we would have started to notice a pattern by this point.

January 13, 2003, email from Miranda to Kavanaugh, appending the text of a letter about judicial nomination matters from Democratic senators on the Judiciary Committee to then-Senate Majority Leader Tom Daschle (D-S.D.). Kavanaugh replied, “Who signed this?” Miranda wrote, “I am told that all the Dems on JC.”

Kavanaugh may have noticed that this letter landed in his inbox the day before it became public. Or maybe not. After all, no one asked the golden goose why its feathers were made of gold.

March 8, 2003, email chain initiated by Miranda to Kavanaugh and others about Bush’s nomination of Carolyn Kuhl to the Court of Appeals for the 9th Circuit: “Dem JC counsel have all received copies of 2 news articles from 1982 …”
He recapped the salient parts of the articles and added, “Dems are trying to track down testimony and the related documents from that Finance Committee hearing.”
Kavanaugh responded later that day: “Kuhl has dealt with this in her answers to boxer and feinsteins written questions that she did before she was ever nominated. Note that she is catholic so any attempt to accuse her of pro bob jones sympathy can be countered. This case and roe are 2 big issues with her.” Miranda then asked for these answers, and Kavanaugh replied in part, “I will get them for you.”

More detailed insider information and counter-strategizing.

March 18, 2003, email from Miranda to Kavanaugh with the subject line, “For use and not distribution,” appending a long internal memo from Democrats fighting Bush’s nomination of Miguel Estrada to the Court of Appeals for the D.C. Circuit.

This is the closest thing to a smoking gun here.

Democrats were marshaling their resources to block Estrada’s nomination to the Court of Appeals for the D.C. Circuit. This memo, written by Leahy’s counsel for nominations at the time, Lisa Graves, was basically the entire playbook on the most heated issue concerning Estrada: access to his records.

Graves — who published an op-ed arguing that Kavanaugh lied, and a joint op-ed with others along the same lines — had compiled all known precedents for releasing a nominee’s records from the Office of the Solicitor General in the Justice Department. The White House was arguing that Estrada’s records from that time were not subject to release, because prior nominees who had done stints in the solicitor general’s office had not released them, either.

Democrats expected that the records would show Estrada taking “far-right positions” on Miranda v. Arizona and on litigants’ basic right to counsel, Graves recalled. She set out to find all known instances of such records being released and gathered the examples in a memo.

Democrats never would have shared the memo, Graves said. It not only included all their best arguments — it also included their weakest ones, she said.

“It was written in case we had to hold the floor entirely,” she said. “It was our entire strategic defense.”

She added: “Kavanaugh was certainly a hardcore political operative. He would know exactly what this was, that this was secret research from the Democrats, from a Democratic lawyer, on the most important fight they were having, in the middle of that fight, on the most important issue that fight was about.”

We can’t imagine any reason Democrats would give away the store like this to Miranda, or any reason Kavanaugh would just keep assuming everything was normal at this stage.

Leahy’s office sent us its own copy of the nearly 4,000-word memo, which is virtually identical to what Miranda sent Kavanaugh.

April 9, 2003, email from Miranda to Kavanaugh and a colleague: “Brett, sorry for the slow reply to your message. Below is what I know prior to the yesterday’s Caucus. My understanding is that they are now trying to keep powder dry while they strong arm those listed below, this suggests that we should file early for cloture rather than letting pressure build on them over Recess …what do you think?
“The Democrat caucus has not yet decided whether they intend to filibuster Owen’s confirmation but will likely do so on Tuesday. Today, Senator Kennedy is seeking a meeting with Democrat leadership to convene a meeting of Democrat leadership with Judiciary Democrats to discuss a filibuster. Owen will be discussed by the Democrat Caucus today. Senator Kennedy is expected to ask Democrats to keep their powder dry until leadership makes a decision.
“Yesterday, Senator Feinstein convened Democrat women on Owen. Last week, Naral Pro-Choice America notified Democrat Senators that it will score votes on Owen.
“According to Democrat sources, several Democrat Senators have expressed concern about any filibuster of a judicial nominee that is based on substance, as opposed to process. The Senators that may be wavering or opposed to an extended debate are: Lincoln, Pryor, Carper, Graham, Nelson (Fl), Nelson (NE), Bayh, Landrieu, Breaux, Dorgan, Conrad, Baucus, Hollings, Bryd [sic] and Miller.”
Kavanaugh forwarded that last paragraph to a colleague with the subject line “From Manny on Frist’s staff.”

Another impressively detailed compendium of insider information.

April 10, 2003, email from Miranda to a large group including Kavanaugh: “Please do not distribute this. … On Monday, Senator Feinstein convened Democrat women on Owen. Although she has told GOP Senators that she is troubled and against a filibuster. My info is that she attempted to see if they could be rallied. She discovered she could but for Lincoln. On Tuesday, the Democrat leadership, together with Cantwell and Kennedy, tried to rally their caucus but left without a decision. Kennedy is asking Democrats to keep their powder dry until leadership makes a decision. Their hope is that pressure can be brought on the hesitant Democrats over break.” (He then listed the same Democratic senators he mentioned to Kavanaugh in the email the day before.)

By this point, it might have been clear something highly unusual was happening.

“I have served in the Senate for 44 years, including 20 years as the top Democrat on the Judiciary Committee,” Leahy wrote in a Washington Post op-ed on Sept. 13. “It has never been normal to obtain sensitive, inside information from the opposing party, conveyed in secret and in real time involving the most contentious issues before our committee. A smart political operative on the frontlines of these battles would have seen these glaring red lights for what they were: clear evidence of nefarious acts.”

The White House did not respond to our requests for comment.

The Pinocchio Test

Kavanaugh since 2004 has faced dozens of questions from senators of both parties about this issue and has given essentially the same answer: Nothing seemed fishy because Senate staffers often shared this kind of information across party lines.

Questions arose once again at Kavanaugh’s confirmation hearing for the Supreme Court this month, and once again, he gave the same see-no-evil answer. Even in hindsight, years after the document breach was revealed, Kavanaugh has maintained that nothing raised red flags and that he never received documents that appeared to be stolen or obtained in an “untoward” manner.

These claims defy logic. An elite Republican lawyer who was immersed at the time in Washington’s inside baseball, Kavanaugh strains credulity by claiming this extraordinary window he had into Democrats’ thinking seemed aboveboard. He received a steady stream of insider information over nine months from Miranda, according to the documents available. It reminds us of Sergeant Schultz in the 1960s TV show “Hogan’s Heroes” — “I see nothing! I hear nothing! I know nothing!”

Particularly questionable are Kavanaugh’s claims about the Peddie letter (Miranda seemed to quote directly from material Democrats had received confidentially) and about the Graves memo, which went on in breathtaking detail about Democrats’ strategy for a big, contentious political battle that year.

The best-case scenario is that Kavanaugh, who is up for a seat on the nation’s highest court, has a glaring lack of curiosity or a superficial level of discernment. The worst-case scenario is that he has been feigning ignorance since his first confirmation hearing in the Senate in April 2004, which was held after the Senate sergeant-at-arms had released his report documenting Miranda’s serial theft.

In any case, Kavanaugh’s response to Leahy this month — describing all this as “the usual kinds of discussions that would happen” — is not accurate. Neither was his answer to written questions in 2004: “These meetings, calls, and emails were typical of how judicial confirmations have been handled in past Administrations.” Neither was his response to Durbin at the 2004 hearing: “There was nothing out of the ordinary of what Senate staffs would tell us or what we would hear from our legislative affairs folks.” All three statements merit Three Pinocchios.

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Three Pinocchios
"I have thought about this, Senator. There was nothing out of the ordinary of what Senate staffs would tell us or what we would hear from our legislative affairs folks. That said, I cannot tell you whether something that he said at some point, directly or indirectly, derived from his knowledge that may have come from these documents. I just cannot speak to that at all. I can say, in direct response to your question, that, no, I never suspected anything untoward."
testifying before the Senate Judiciary Committee
Tuesday, April 27, 2004