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National Archives says it won’t be able to produce all Kavanaugh documents until end of October

Sen. Thom Tillis (R-N.C.), left, and Senate Judiciary Chairman Charles E. Grassley (R-Iowa) hold a news conference Thursday to discuss the document requests for Supreme Court nominee Brett M. Kavanaugh's time at the White House. (J. Scott Applewhite/AP)

The National Archives said Thursday it will not be able to produce the full cache of documents requested by the Senate on Supreme Court nominee Brett M. Kavanaugh until the end of October, but Republicans indicated they would press ahead with plans to hold confirmation hearings next month. 

Gary Stern, the Archives’ general counsel, told Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) in a letter that the records he has requested could total more than 900,000 pages. Grassley, backed by other Senate Republicans, asked for all documents from Kavanaugh’s tenure in the George W. Bush White House as an associate White House counsel. 

“Please note that we will not be able to complete our review of all of the records that you have requested by August 15, 2018,” Stern wrote to Grassley. He wrote that the Archives would be able to review emails received from Kavanaugh — about 49,000 emails, or 300,000 pages — by roughly Aug. 20 and that the rest of the pages would be reviewed by the end of October. 

Senate Minority Leader Charles E. Schumer told reporters on July 31 that he called the national archivist to produce documents on Brett Kavanaugh. (Video: The Washington Post)

But a committee spokesman said Senate Republicans are still on track for September hearings because senators will be able to obtain the documents more expeditiously through a separate process directly involving the Bush Presidential Library. 

“The committee will receive documents in an even more rapid fashion from the Bush Library as the Archives continues its statutory document review,” spokesman Taylor Foy said in a statement. “As a result, I expect the committee will be able to undertake its thorough review process along the same timeline set in previous Supreme Court confirmations.”

That review process has already been conducted on a parallel track by a group of lawyers led by Bush’s presidential-records representative, Bill Burck.

In a separate letter dated Thursday and obtained by The Washington Post, Burck says the legal team has already gone through 125,035 pages of Kavanaugh’s records and handed those documents over to the Senate Judiciary Committee for its review. 

“As you know, President Bush is under no obligation to produce records of his administration but has authorized this production to assist” the committee on its consideration of Kavanaugh to the Supreme Court, Burck wrote to Grassley. Bush also has “no objection to making these presidential records available to the public,” Burck wrote.

Earlier this week, Burck wrote to Senate Minority Leader Charles E. Schumer (D-N.Y.) that Bush asked his legal team to begin reviewing Kavanaugh’s records to help “expedite the committee’s access to the records,” as a “courtesy” to senators.

More than 50 lawyers from three law firms are on the Burck-led team, according to an official familiar with the process. It will take the group about two more weeks to complete the review, the official said.

Nonetheless, the Archives’ timeline throws more political obstacles into the confirmation process for President Trump’s pick to replace Justice Anthony M. Kennedy. Republicans had hoped to confirm Kavanaugh in time for the opening of the Supreme Court’s fall term on the first Monday in October.

After the Archives combs through all of the estimated 900,000 pages, more vetting would have to occur. And Democrats are already citing the Archives’ delayed timeline to cry foul on the process.

Politically, a delay in document production could give red-state Democrats a reason to wait on saying how they would vote on the Trump nominee. Among those in the spotlight are three facing tough reelections in November — Sens. Joe Manchin III (D-W.Va.), Heidi Heitkamp (D-N.D.) and Joe Donnelly (D-Ind.). All three voted to confirm Neil M. Gorsuch to the court.

Senate Majority Leader Mitch McConnell (R-Ky.) had foreshadowed these issues. In private calls to the White House before Kavanaugh was nominated, McConnell stressed that Kavanaugh’s significant paper trail could slow down his confirmation process, according to the New York Times

Democrats have raised concerns about Bush’s legal team going through Kavanaugh’s documents, warning that the Senate may not receive all of the documents that they are entitled to, because they are being reviewed by a group of lawyers outside the Archives.

“Today, the National Archives confirmed our worst fear — that the vast majority of even the small portion of records the American public will see from Brett Kavanaugh’s time in the Bush White House will be prescreened by a political operative and attorney for George W. Bush, Steve Bannon, Reince Priebus, and Donald McGahn,” Schumer said in a statement Thursday.

Schumer added: “This unprecedented process appears to be designed intentionally by Republicans to deny the Senate and the American people the information they need to evaluate this critically important nomination.”

Burck has represented Bannon, Priebus and McGahn in Russia-related investigations. The veteran lawyer said in the letter to Schumer that his “representation of other clients in unrelated matters . . . has no bearing on the advice I provide to President Bush.”

The scope of documents requested by Republicans does not touch on an even bigger group of documents from Kavanaugh’s three years as Bush’s staff secretary. Democrats are demanding those papers, but Republicans say they are out of bounds. 

In comparison, the Archives reviewed about 70,000 pages for John G. Roberts Jr. during his confirmation process for chief justice and about 170,000 pages for Elena Kagan.