Senate Republicans have pushed back against the Democrats’ demand, calling it a delaying tactic and arguing that staff secretary papers would give no insight into how Kavanaugh — President Trump’s pick to replace retiring Justice Anthony M. Kennedy — would act as a judge. But Schumer argued to Bush that releasing all the nominee’s records is “consistent with your commitment to transparency and is strongly in the public interest.”
“While the country may be divided on whether Judge Kavanaugh should join the Supreme Court, there ought to be no disagreement on whether the process that leads to a confirmation vote should be a fair and impartial one,” Schumer wrote to Bush in the two-page letter, obtained by The Washington Post in advance of its release.
In the letter, Schumer also raises concerns about what he deemed an “irregular” approach to dealing with Kavanaugh’s records — which are voluminous and could top 1 million pages, according to estimates from both Democratic and GOP senators.
Schumer says Senate Republicans plan to ask for what Schumer called a “prescreened subset” of Kavanaugh’s White House counsel records that will be vetted by Bush’s legal team, which Schumer argued could exclude the National Archives from the screening process. Republicans dispute that the Archives will be excluded.
“I understand that you have a right to review your administration’s documents before they are released, and there is nothing wrong with that,” Schumer wrote to Bush. “My concern is that the Archivist of the United States, who is responsible for guiding the review and release of responsive documents, would be cut out of this new process being contemplated by Senate Republicans.”
The National Archives, in a letter to Sen. Dianne Feinstein (D-Calif.) dated Thursday and also obtained by The Post, confirms that it has already provided copies of some of the Kavanaugh-related records to Bush representatives. The Presidential Records Act allows a former president or his aides special access to the papers, which usually remain private until 12 years after the president leaves office.
Bush has asked for access to Kavanaugh’s records in advance of a formal request from the Senate Judiciary Committee so he can get a “jump-start” on going through the nominee’s significant paper trail, according to a person familiar with the review process. Presidents review the paperwork to determine if any should be deemed privileged and should not be released.
The National Archives will have ample input, Republicans say, because any document deemed not a presidential record by Bush’s legal team would be sent back to the Archives to be verified.
“After Sen. Schumer’s bizarre and inaccurate intervention, we can now add fabrication to the fearmongering and deception that Democrat leaders are deploying to smear a well-qualified nominee to the Supreme Court and obstruct the vetting process,” said Taylor Foy, a spokesman for Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa). “In the end, none of this changes the fact that Judge Kavanaugh’s significant record on the D.C. Circuit demonstrates his fitness for the high court.”
Grassley had wanted Feinstein, the ranking Democrat on the committee, to sign off on a request that asks for Kavanaugh’s documents from his time in the White House Counsel’s Office — which Republicans agree are fair game — but not his staff secretary records. Democrats say that is insufficient and that all his papers should be released.
Without support from Democrats, Grassley sent the formal request on Friday evening for Kavanaugh’s counsel office records. He said he had tried for almost two weeks to reach a documents deal with Feinstein, and that the papers produced under his request will be the “largest ever in the Senate’s consideration of a Supreme Court nominee.”
Foy said the process Grassley is using is the “same nonpartisan process used to obtain government records for the Neil M. Gorsuch and Elena Kagan nominations. Unfortunately, the Democrats have not even agreed to start by requesting the material both sides want to review.”
Democrats point out that Kavanaugh himself has said his tenure as Bush’s staff secretary was “among the most instructive” in his role as a federal judge and that therefore the Senate should examine the related records. Republicans respond that senators did not request records from now-Justice Kagan from her time as solicitor general under President Barack Obama for sensitivity reasons, and that a staff secretary role is similarly sensitive.
Schumer also noted in his letter that the Bush legal team that is vetting the papers is led by a former Bush attorney “who also has close ties to President Trump through his current representation of Stephen K. Bannon, Reince Priebus and Donald McGahn” — a reference to veteran attorney Bill Burck, who has represented the three men in the Russia-related investigations.
Burck has been Bush’s point person for his presidential records since Bush left office in January 2009.
“If implemented, this irregular approach to the nominee’s document production will inevitably raise serious questions about the fairness and impartiality of the process,” Schumer wrote to Bush, “and about whether crucial information regarding the nominee is deliberately being withheld from public scrutiny.”