The Washington PostDemocracy Dies in Darkness

New Kavanaugh documents prompt partisan debate over vetting

Supreme Court nominee Brett M. Kavanaugh during meetings on Capitol Hill last month. (Manuel Balce Ceneta/AP)

A Senate committee released a sliver of the voluminous White House record of Supreme Court nominee Brett M. Kavanaugh on Thursday, amid a rancorous partisan debate over how the documents are being released to the public.

The Senate Judiciary Committee released 5,700 pages of about 125,000 that a Republican lawyer representing former president George W. Bush turned over to the committee. Kavanaugh, a judge on the U.S. Court of Appeals for the D.C. Circuit, worked in the Bush White House from 2001 to 2006.

Among them were inconclusive emails about what role, in any, Kavanaugh played in discussions about legal issues in the wake of the 9/11 terrorist attacks. Mostly, the documents detailed minutiae from the daily life of a White House lawyer, such as ethics questions about accepting baseball tickets or plane rides.

But overshadowing the documents was a debate about how the records were selected. Democrats said the Republican-led committee is using an unprecedented process.

National Archives says it cannot produce Kavanaugh documents quickly

Sen. Richard J. Durbin (D-Ill.) wrote on Twitter: “Take note: Unless it was produced by the National Archives, every document you see from Judge Kavanaugh’s White House tenure was selectively chosen for release by his former deputy, Bill Burck. This is not an objective process.”

Durbin was referring to lawyer William Burck, who is heading a team of about 50 lawyers reviewing the documents. In a letter, Burck said his team has stepped in because National Archives staff members were busy working on the official committee request for documents.

His team determined some documents could be released before the National Archives passed judgment.

“In the interest of expediting appropriate access to President Bush’s presidential records in furtherance of education and research about the Bush administration, we are producing to the committee on a rolling basis commencing today publicly releasable versions of documents that, in our view, do not contain information covered by a Presidential Records Act exemption or applicable privilege,” Burck wrote.

He noted that under the act, White House files are generally not open for public inspection for 12 years after a president leaves office.

“President Bush is under no obligation to produce records of his administration but has authorized this production to assist [the committee] in its assessment of Judge Kavanaugh’s nomination to the United States Supreme Court and to advance education and research about his administration,” Burck wrote.

Democrats have complained about two aspects of the document research. One is the decision by Sen. Charles E. Grassley (R-Iowa), the Judiciary Committee’s chairman, to ask only for papers from Kavanaugh’s service in the White House counsel’s office from 2001 to 2003. Grassley said it is not relevant to examine documents from Kavanaugh’s longer service as staff secretary to Bush.

Kavanaugh served as staff secretary from 2003 to 2006, when he was confirmed as a judge on the U.S. Court of Appeals for the D.C. Circuit.

The other is the role of Burck, who served as Kavanaugh’s assistant during part of his White House years. Besides representing Bush, Burck has also represented former White House staffers Stephen K. Bannon and Reince Priebus in Russia-related investigations, as well as current White House counsel Donald McGahn.

Senate Minority Leader Charles E. Schumer (D-N.Y.) said that the “Republican obstruction of Kavanaugh’s record gets worse and worse.”

In his statement, Schumer added: “Not only is a massively conflicted Republican lawyer, who previously worked for Judge Kavanaugh, cherry-picking what documents the Senate Judiciary Committee can see, he is now telling the committee what the rest of the Senate and the American public can see — and Republicans are playing along. We are seeing layer after layer of unprecedented secrecy in what is quickly becoming the least transparent nominations process in history.”

Republicans said that Democrats such as Schumer and Durbin already have made up their minds to oppose Kavanaugh and that their demands are fishing expeditions to try to stop his nomination.

There already are thousands of documents relating to Kavanaugh’s work on independent counsel Kenneth W. Starr’s team investigating President Bill Clinton. Republicans say that more important to a decision about whether Kavanaugh should be elevated to the Supreme Court are the more than 300 opinions he has participated in as a judge.

Democrats are particularly interested in what role Kavanaugh might have played in the administration’s treatment of detainees suspected of terrorism. They allege he was not forthcoming with senators during his nomination proceedings for the appeals court.

The released documents contained holes in the record, including an absence of emails in the critical days and weeks after the terrorist attacks of Sept. 11, 2001.

One email, from Oct. 24, 2001, shows that Kavanaugh had a hand in formulating “Anti-Terrorism law,” a set of talking points apparently to be used by Bush at the signing ceremony of the USA Patriot Act.

The emails also show that Kavanaugh was in the loop on discussions about how to prepare then-Attorney General John D. Ashcroft for congressional hearings about the government’s actions after 9/11. A senior Justice Department official specifically asked Kavanaugh to help out.

“High on the list of topics to be explored are military tribunals, monitoring of atty/client conversations, racial profiling, etc,” the email said. “We would very much like the participation of WH Counsel in the prepartion of the AG — especially on military tribunals.”

Kavanaugh responded that someone else would be better to comment on tribunals and that he could provide material on attorney-client privilege.

White House spokesman Raj Shah said the documents did not show any discrepancies.

“As several colleagues have stated and Judge Kavanaugh accurately said in his 2006 testimony, he was not involved in crafting legal policies that formed the rules governing detention of combatants,” Shah said. “In fact, he was not even read into these compartmentalized conversations that pertained to drafting these legal memoranda and rules, and first learned of them from the news media.”

Karoun Demirjian, Seung Min Kim, Robert O’Harrow, Felicia Sonmez and Elise Viebeck contributed to this report.