Lawsuits point to large trove of unreleased Kavanaugh White House documents

Luppe B. Luppen
Contributor
Supreme Court nominee Brett Kavanaugh testifying before the Senate Judiciary Committee on  Sept. 5, 2018, in Washington, D.C. (Photo: Chip Somodevilla/Getty Images)

New details have emerged about potentially thousands of Brett Kavanaugh’s White House emails and other records related to the Senate hacking scandal from early in the George W. Bush administration and other controversial subjects that have not been disclosed to the Senate, according to Democratic senators on the Judiciary Committee.

The undisclosed documents, which date from Kavanaugh’s time in the Bush White House, are set to be produced in coming weeks as a result of two Freedom of Information Act lawsuits, one pursued by Democratic senators on the Judiciary Committee and another by an outside privacy group, the Electronic Privacy Information Center (EPIC). Release of the documents is still subject to White House approval and other consultations. 

The Senate hacking scandal involved a Republican Judiciary Committee aide, Manny Miranda, who, according to an official investigation, infiltrated the electronic files of Democrats on the committee with the help of a co-conspirator, James Lundell, and passed the intelligence on to other senators, the White House, and friendly opinion columnists over a period of years. The pilfered material contained, among other things, Democrats’ research and prepared questions for judicial nominees.

With Kavanaugh facing a potential final confirmation vote over the weekend or early next week, the documents that are cleared for release by the FOIA lawsuits will likely emerge too late for senators to take them into account.

“This highlights how little we know about Judge Kavanaugh’s record,” Sen. Patrick Leahy, D-Vt., said in a statement. “More than 90 percent of his White House records remain hidden. The fact that he appears to have had so many conversations about a topic that he denied having involvement with, under oath, raises even more questions,” Leahy continued, referring to the Senate hacking scandal.

The tabulations provided to Democratic senators and EPIC by officials at the National Archives and Records Administration before the potential production of the documents show that potentially only a fraction of Kavanaugh’s correspondence related to several controversial subjects discussed at his confirmation hearings was made available to senators, according to Democrats on the committee. The tabulations indicate that the undisclosed documents concern the Bush-era Senate hacking scandal; Kavanaugh’s interactions with attorney John Yoo in the weeks following the terrorist attacks of Sept. 11, 2001; and Kavanaugh’s work on the USA Patriot Act and various domestic surveillance programs, airport screening programs and other privacy-related subjects.

The tabulations for EPIC, which are detailed in the table included below, were drawn from a subset of the overall records the privacy group requested from the National Archives, according to Alan Butler, EPIC’s legal director. In negotiations with EPIC, the National Archives agreed to tabulate first the records from the Judiciary Committee’s request that it has identified as being eligible for release to the public and that are undergoing a final 60-day review by former President Bush and President Trump. It is these records, already identified by the National Archives for publication, that are reflected in table below. “This further underscores the fact that there is important information out there that is pending release,” Butler said. “It’s why we’ve called for the Senate to postpone the vote on Kavanaugh’s nomination.”

Democratic aides compared the National Archives’ totals for these subjects to what they received shortly before the Judiciary Committee’s hearings, through an unprecedented process overseen by President George W. Bush’s private lawyer and Kavanaugh’s former deputy, William A. Burck. The Democratic aides found that the National Archives’ numbers are significantly higher in some cases. “However, Butler, EPIC’s legal director, pointed out that these documents had been identified as ready for public release by the National Archives, so he found it unlikely that they contained significant classified or privileged material.

Attorney William Burck. (Photo: Steve Helber/AP)

Because the documents have not yet come to light, there is no way to tell how many are merely duplicates of previously produced records. However, previous productions from Burck have included thousands of duplicate records, according to Democratic aides. It is also uncertain how many documents were withheld due to legitimate claims of constitutional privilege or because they contained classified or highly sensitive personal information.

While he was not willing to discuss the specific categories of documents identified by Democrats, Burck provided a statement listing the reasons why documents were held back.

“As we have informed the Senate Judiciary Committee, we gave to the Committee every page of every document given to us by the National Archives and Records Administration (NARA), except personal documents — which the Committee did not request and which NARA agreed should not be produced — and constitutionally privileged documents identified by the Department of Justice — which the current Administration directed that we not provide,” he wrote in a statement to Yahoo News. “We also excluded documents that were automatically removed from our review using industry-standard software, because they were exact duplicates of other documents that we did review; documents that were dated on or after July 7, 2003, when Judge Kavanaugh left the White House Counsel’s Office; State Department documents dating from the 1970s that were in Judge Kavanaugh’s White House Counsel’s Office hard copy files; documents with technical issues such that they could not be processed by our third-party vendor and thus were referred back to NARA to determine if NARA could provide reviewable copies; and documents which were either redacted or, in a few cases, withheld entirely on the basis that they contained personal privacy information, such as Social Security numbers, cell phone numbers, private email addresses, and personal medical or financial information.”

The White House and Republicans on the Judiciary Committee did not immediately respond to inquiries about the undisclosed documents.

Democratic senators are focused on what their aides say may be as many as 1,800 undisclosed records related to the Senate hacking scandal.

Before Kavanaugh’s confirmation hearing, Democrats received 1,721 Kavanaugh documents related to the scandal, which they used to call into question Kavanaugh’s previous testimony during his confirmation hearings for the D.C. Circuit. At those hearings, Kavanaugh said under oath that he had no knowledge of receiving the purloined documents from Miranda, the Judiciary Committee aide at the center of the Senate hacking scandal, either in real time or in retrospect. The National Archives’ tabulations indicate that there are approximately 3,500 total records related to Kavanaugh’s dealings with Miranda.

Democrats are particularly interested in indications in the National Archives’ tabulations that there are a handful of undisclosed emails from Miranda to Kavanaugh at the time that the committee aide’s misconduct came to light, in December 2003, which they say contain the word “Lundell,” the surname of the obscure staffer who conspired with Miranda in the hacking scandal. It is not confirmed that the December 2003 emails discussed the hacking scandal, but Democratic aides speaking on background noted that Kavanaugh and Lundell were not friends and, since Kavanaugh had left the White House counsel’s office by December 2003, he had no obvious reason — other than the hacking issue — to correspond with Miranda about Lundell.

Senate Minority Leader Sen. Chuck Schumer, center, holds a letter to Kenneth Hersh of the George W. Bush Presidential Library and Museum requesting documents on Kavanaugh on July 24, 2018, in Washington, D.C. (Photo: Al Drago/Getty Images)

“Judge Kavanaugh owes us some explanation about why he was corresponding with Manny Miranda about Jason Lundell in the month after their apparent criminal conspiracy was exposed,” Sen. Richard Blumenthal, D-Conn., said in a statement. “How can there be a plausible and innocent explanation for why almost 2,000 communications between Kavanaugh and Miranda were kept hidden from the Senate Judiciary Committee? These facts might be written off as coincidence if only Judge Kavanaugh hadn’t twice tried to mislead the Senate Judiciary Committee about his relationship with Miranda and his receipt of stolen documents.”

Because the December 2003 emails were sent to Kavanaugh after he transitioned to the staff secretary role, they would have been outside the scope of documents produced by Burck to the Senate Judiciary Committee. Kavanaugh did not appear to reply to any of the emails, the tabulations show.

One of the first controversies of the Kavanaugh hearings was fought over the document production process. Kavanaugh had a voluminous record of documents from his six years of public service in the Bush White House, first as an associate counsel in the White House counsel’s office and then, after July 2003, as staff secretary. Typically, a judicial nominee’s White House records would be requisitioned by the Judiciary Committee directly from the National Archives using a provision of the Presidential Records Act. The documents would be gathered and screened for classified information and privileged material in a process coordinated by the archivists, nonpolitical civil servants.

Judiciary Committee Chairman Chuck Grassley, R-Iowa, made his first controversial move by requesting only Kavanaugh’s records for his time in the counsel’s office, excluding his years of service as staff secretary. In early August, the National Archives wrote to Grassley that this limited request could not be completed before the end of October, significantly later than the Republicans wanted to hold Kavanaugh’s confirmation hearings.

Notwithstanding the National Archives’ timeline, Republicans were still able to hold Kavanaugh’s hearings in early September because they had developed a new strategy for producing documents, one that would controversially rely on a former president and an outside lawyer.

Under a separate provision of the Presidential Records Act, a former president is permitted to request records for his own or his representative’s use. This provision is typically understood to allow the president to review his administration’s records for personal pursuits, like writing a memoir. Republicans arranged to have former president George W. Bush and his public records lawyer, Burck, invoke it in Kavanaugh’s aid. Bush would request the documents, and Burck’s legal team would coordinate the process of reviewing them for privileged information and turn them over to the Judiciary Committee.

Senate Judiciary Committee member Sen. Thom Tillis, R-N.C., points to a poster comparing a stack of documents related to Kavanaugh to the size of landmark buildings during a news conference on Aug. 2, 2018, in Washington, D.C. (Photo: Chip Somodevilla/Getty Images)

While this approach was demonstrably faster, Democrats heavily criticized it throughout the summer. They objected to placing in private hands the determination of which documents elected senators would be able to review and also pointed to potential conflicts of interest. Burck is a lawyer for several current and former Trump White House officials in Robert Mueller’s special counsel investigation, and he also worked inside the Bush White House as Kavanaugh’s deputy staff secretary.

Burck managed the production before and during Kavanaugh’s hearings, with attorneys from the Department of Justice assisting him in determining which documents to withhold on claims of executive privilege and which to produce on the condition that they be maintained as “committee confidential.” The documents identified in the National Archives tabulations could include those withheld by Burck.

While it’s far from clear how important the undisclosed documents could be, and doubtful the mere prospect of their future disclosure will sway any votes, if new information emerges about divisive subjects after the Senate has already voted to confirm Kavanaugh, it could cast a permanent cloud on Kavanaugh’s service on the Supreme Court.

“If this process were designed to find the truth, we would be answering those questions before rushing to a vote,” Sen. Leahy said.

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