White House counsel Donald McGahn met privately with key Senate Republicans on Tuesday to discuss how many of Supreme Court nominee Brett Kavanaugh’s documents should be publicly released — a major point of contention in the confirmation process.
Democratic senators are demanding that Kavanaugh hand over any document he touched during his time at the George W. Bush White House, where he served in the counsel’s office and as staff secretary. That document production could top 1 million pages, and Republicans have deemed the Democrats’ demand a fishing expedition that will not be particularly revelatory.
Senate Majority Whip John Cornyn (R-Tex.), a member of the Senate Judiciary Committee, confirmed the meeting with McGahn. Cornyn said the White House counsel visited with the panel’s Republicans to describe what a “reasonable, relevant document production would look like.”
Cornyn declined to describe directly what McGahn advised senators. But the influential No. 2 Republican said that documents from Kavanaugh’s time in the White House Counsel’s Office were “fair game” but that the paperwork from his service as staff secretary was not.
“The one that just seems to be a bridge too far that the Democrats never requested before his 2006 confirmation to the D.C. circuit are the staff secretary documents, which aren’t really his documents,” Cornyn said. “He was more or less a traffic cop.”
Another official briefed on the meeting said McGahn was asked by Senate Republicans what sections of Kavanaugh’s documents would be relevant for the Senate to review, and McGahn did not tell senators what they should do.
Based on the standard set during the confirmation process for Justice Elena Kagan, who served in the White House Counsel’s Office under President Bill Clinton, McGahn told senators that Kavanaugh’s documents from his time in the counsel’s office would, too, be relevant, according to the official.
Kavanaugh submitted thousands of pages to the Judiciary Committee over the weekend, but that collection includes his legal writings, public speeches and interviews. Democrats are seeking thousands of documents from the George W. Bush Presidential Library and Museum that span Kavanaugh’s five-year service in that Bush White House, as well as paperwork from his time aiding former independent counsel Kenneth Starr.
Republicans have dismissed the Democrats’ expansive document request, saying the most relevant insight into Kavanaugh as a jurist would be in the hundreds of opinions he has written as a judge on the U.S. Court of Appeals for the D.C. Circuit.
But in May 2010, Kavanaugh singled out his tenure as Bush’s staff secretary as particularly “instructive” in his role as a federal judge.
“When people ask me which of my prior experiences has been most useful to me as a judge, I tell them that all of them have been useful, and I certainly draw on all of them,” Kavanaugh said then, according to documents submitted to the Judiciary Committee. “But I also do not hesitate to say that my five and a half years in the White House — and especially my three years as Staff Secretary for President Bush — were the most interesting and in many ways among the most instructive.”
As the documents impasse has dragged on, top Democrats have refused to even grant Kavanaugh his customary, one-on-one meetings until the two sides strike some sort of a deal. But moderate Democrats have resisted participating in that blockade; Sen. Joe Donnelly (D-Ind.) announced Tuesday that he would meet with Kavanaugh on Aug. 15, and Sen. Joe Manchin III (D-W.Va.) has a meeting scheduled for July 30.
Sen. Dianne Feinstein (Calif.), the top Democrat on the Judiciary Committee, has drafted a letter requesting all documents, which Democrats want Sen. Charles E. Grassley (R-Iowa) to co-sign, but the Judiciary Committee chairman and other Republicans have insisted that only “relevant” documents from Kavanaugh’s time in the Bush White House should be released.
“The American people deserve to know who is being nominated and what his record shows,” Feinstein said. “They’re the ones who will be affected for generations if he is confirmed. What are Republicans and the White House trying to hide?”
Senate Minority Leader Charles E. Schumer (D-N.Y.) sent his own letter to Grassley on Tuesday evening, writing that he is “so troubled by the apparent unwillingness” for a full examination of Kavanaugh’s record. In the letter obtained by The Washington Post, Schumer said that “one need look no further than Judge Kavanaugh’s own statements to understand why review of his White House Staff Secretary records is so critically important.”
Grassley said Tuesday that the two sides were still negotiating over the extent of documents to ask for publicly. But he said “it’s fair to assume that there’s going to be three times the number of documents available compared” with the amount of paperwork released for Kagan during her 2010 confirmation process.
Back then, more than 170,000 pages of Kagan’s paperwork were turned over to the Judiciary Committee after demands from Republicans, who were then in the minority.
Grassley, who will helm Kavanaugh’s confirmation hearings later this year, also said Tuesday that it is “still a couple of weeks” until he can announce a date for them.
Kavanaugh continued his courtesy visits on Tuesday, sitting down with Sen. Rand Paul (Ky.) — the nominee’s most vocal Republican critic in the Senate — in a meeting that lasted nearly 90 minutes. Paul has been critical of Kavanaugh’s legal views on the Fourth Amendment and privacy issues.