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The story behind the withheld documents of the Kavanaugh hearing

The first day of Judge Brett Kavanaugh’s confirmation hearings on Sept. 4 was delayed nearly 90 minutes as Democrats made repeated motions to adjourn. (Video: JM Rieger/The Washington Post)

Democrats on Tuesday seized on the decision by the White House and Republicans to withhold hundreds of thousands of documents about Brett M. Kavanaugh’s record as a way to protest his nomination to the Supreme Court — and two moments on the first day of confirmation hearings dramatically illustrated that tactic.

The first moment came when Sen. Richard J. Durbin (D-Ill.) theatrically pulled out a copy of the Constitution and said he could not find the name of William Burck in the section where it says Congress should provide “advice and consent” to nominations.

Burck, a private attorney, is a Kavanaugh associate who works for George W. Bush and worked with Bush’s presidential library and is helping oversee the decisions about which documents from Kavanaugh’s time as Bush’s associate counsel should be given to Congress or made public.

Supreme Court nominee Brett M. Kavanaugh's confirmation hearing got off to a rocky start on Sept. 4, with multiple interjections from Democrats and protesters. (Video: Jenny Starrs/The Washington Post, Photo: Salwan Georges/The Washington Post)

The second came when Democratic aides held up a calendar with 35 months blacked out. That is the period of time when Kavanaugh served as Bush’s staff secretary — and for which Republicans have said no documents need to be produced because they involve confidential discussions.

Democrats said the volume of withheld files was so great that the session should be postponed. Republicans said, however, that hundreds of thousands of documents have been released and that the White House has the right to invoke presidential privilege to keep sensitive ones out of public view.

The theatrics came as Republicans opened four days of confirmation hearings on Kavanaugh, a federal judge who previously worked for the George W. Bush administration and the independent counsel’s office and has a long paper trail dating to the 1990s.

The controversy over the files has been growing for weeks, as Republicans try to seat him in time for the Supreme Court term that begins in October, and Democrats seek to push the process beyond the midterm elections when they hope to regain majorities in Congress.

In early August, the National Archives, which holds or has access to many records related to Kavanaugh’s time working for Bush and independent counsel Kenneth W. Starr, said it could not produce all of the Kavanaugh-related documents requested by the Senate until the end of October.

But the Senate Judiciary Committee, controlled by Republicans, said they could review many of the same documents sent directly by the Bush library in time for the hearings to begin Tuesday.

Republicans said at the end of August that they had received 415,000 pages of documents, 147,000 of which were deemed to be “committee confidential,” meaning they could be viewed by any senator but not publicly disclosed.

Then, on Friday, the White House said it would not release an additional 101,921 pages to the panel, so even senators haven’t seen them. Finally, hours before the hearing, the White House sent 42,000 pages to the committee with instructions that they be kept confidential by senators who viewed them.

Republicans said Tuesday that their staff had enough time to review the documents, but Sen. Amy Klobuchar (D-Minn.) said that no one could review 42,000 pages overnight “no matter how much coffee you drink.”

There have been significant disclosures in documents that have been made public. For example, most of the documents related to Kavanaugh’s work as an associate to Starr have been released. They include a 1998 memo in which Kavanaugh urged that Starr’s deputies pose sexually graphic questions to then-President Bill Clinton about his relationship with White House intern Monica Lewinsky.

Many of the documents that have been shielded from disclosure come from Kavanaugh’s three years as associate White House counsel. Democrats have been particularly interested in whether documents would reveal more about whether Kavanaugh played a role in developing Bush’s policy on torture. In his 2006 confirmation hearing for the federal appeals court, Kavanaugh said that “I was not involved and am not involved in the questions about the rules governing detention of combatants.”

The following year, The Washington Post reported that Kavanaugh had participated in a discussion in the White House Counsel’s Office about how Justice Anthony M. Kennedy, for whom he had clerked, would view the detainee policy. Durbin and other Democrats have said they felt misled by Kavanaugh’s denial and said they hoped that full disclosure of the files would reveal more on his role.

Kavanaugh is intimately familiar with the issue of White House documents and judicial nominations. In his role at the counsel’s office, he vetted potential nominees and worked on efforts to prevent disclosure of certain documents, citing presidential privilege.

A set of emails, which have been made public and were reviewed by The Post, showed that Kavanaugh and his associates were concerned that whatever they wrote might one day be made public. The email thread of Jan. 3, 2002, began when Kavanaugh noted that he had been “blasted” for his effort to protect presidential records. That prompted another White House official to say, apparently jokingly, that they were “denying historians and generations of American school children important information about their government.”

“Careful,” a second White House official responded in an email that was sent to Kavanaugh. “These e-mails will all be disclosed in 12 years.”

“Not if Brett can help it,” the first White House official responded.