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Debate boils over about ‘confidential’ Kavanaugh documents

Democratic demands for confidential documents about Supreme Court nominee Brett M. Kavanaugh turned into a full-fledged revolt on Sept. 6. (Video: JM Rieger/The Washington Post)

The dramatic release Thursday of once-concealed documents from Supreme Court nominee Brett M. Kavanaugh’s tenure in the George W. Bush White House spotlighted the simmering frustrations from Democrats over how Republicans have kept secret vast parts of Kavanaugh’s voluminous paper trail. 

Tens of thousands of pages from Kavanaugh’s records have been hidden from public view, only available to senators and certain congressional aides in advance of Kavanaugh’s confirmation hearings this week.

On Thursday, a small sample of the “committee confidential” documents were disclosed after Democratic senators asked that they be approved for public release, raising questions about why the documents had been considered confidential in the first place. 

At the beginning of his confirmation hearings this week, nearly 200,000 pages of Kavanaugh’s records from his tenure in the Bush White House had remained classified as “committee confidential,” meaning senators and certain aides could review them but not release them to the public. A team of lawyers vetting the documents on Bush’s behalf throughout the confirmation process had been giving them to the Senate Judiciary Committee on the condition that they remain “committee confidential,” as officials determined which of the records were appropriate for public release.

On day 3 of Supreme Court nominee Brett M. Kavanaugh's confirmation hearing, Democrats released previously withheld emails and asked the judge tense questions. (Video: Jenny Starrs/The Washington Post, Photo: Melina Mara/The Washington Post)

A separate batch of more than 100,000 additional pages were withheld from the Senate Judiciary Committee altogether, because the Trump administration believes they would be covered by executive privilege.

Democrats have furiously contested the Republicans’ decision to mark so many of the documents as “committee confidential,” arguing that the records were not all sensitive and contained noteworthy information that should be relayed to the public — a furor that boiled over Thursday.

“I want to make it absolutely clear that I do not accept the process of this committee-confidential routine that we went through,” Sen. Sheldon Whitehouse (D-R.I.) said. “I do not accept its legitimacy. I do not accept its validity.” 

Sen. Cory Booker (D-N.J.) vowed to disclose them in defiance of Senate rules. 

“I openly invite and accept the consequences of releasing that email right now,” Booker said. “The emails are being withheld from the public have nothing to do with national security.” 

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Later Thursday morning, Booker and Sen. Mazie Hirono (D-Hawaii) posted on their websites some of the documents that had been marked “committee confidential.” But at the time they had been posted, the records had already been cleared for public release, according to Democratic and Republican aides on the Senate Judiciary Committee. Those documents were cleared earlier Thursday morning, according to spokesmen for both sides. 

Bill Burck, Bush’s presidential records representative who is leading the review of Kavanaugh’s records, said later Thursday that the team has “said yes to every request made by the Senate Democrats to make documents public.” 

“We cleared the documents last night shortly after Senator Booker’s staff asked us to,” Burck said in a statement. “We were surprised to learn about Senator Booker’s histrionics this morning because we had already told him he could use the documents publicly.” 

Booker spokeswoman Kristin Lynch pushed back, saying the senator said Thursday morning that “he was releasing committee-confidential documents, and that’s exactly what he’s done.

“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,” Lynch said. “And he’ll keep releasing them because Republicans are hiding Brett Kavanaugh’s record from the American people.”

Later Thursday afternoon, Booker released a new batch of committee-confidential records that had not been cleared by the committee, according to a spokesman for committee Chairman Charles E. Grassley (R-Iowa). 

Booker may have violated Senate rules anyway earlier in the week, when he spoke about the content of emails that technically were still under committee-confidential status at that point. He quoted one in which Kavanaugh “used a lot of legalisms and disguises to mask what is, in reality, a naked racial set-aside.”

Releasing committee-confidential information violates Senate rules and could result in expulsion from the Senate. But it is rare that the Senate pursues such violations and there is no sign leaders plan to sanction Booker.