Bench Memos

Law & the Courts

Refuting Anti-Kavanaugh Smears—Manny Miranda Controversy

Let’s start with the lead item in the Left’s litany of lies—the claim by Senator Leahy and others that Judge Kavanaugh, a man widely acclaimed for his sterling character, lied at his D.C. Circuit hearings, and again last week, when he testified that he was not aware until the matter became public (in November 2003) that Senate staffer Manny Miranda had obtained access to the confidential memos of Senate Democratic staffers. As I will show, there is no evidence that casts any doubt on Kavanaugh’s testimony or on his integrity.

Background. As this investigative report by the U.S. Senate’s Sergeant at Arms explains, in December 2001 Senate Judiciary Committee staffer Manny Miranda learned that he could obtain access to the files of Democratic staffers that were stored on a shared computer drive. Over the course of the next eighteen months, a clerk operating at Miranda’s direction downloaded thousands of Democratic files. Miranda made use of the information he obtained from those files as he communicated with the Bush administration on judicial nominations.

In November 2003, newspapers published excerpts from some of the downloaded documents. At the committee’s request, the Sergeant at Arms then launched his investigation to determine how those documents had been obtained.

Kavanaugh’s 2004 and 2006 testimony. The Sergeant at Arms issued his report on March 4, 2004. The initial hearing on Brett Kavanaugh’s nomination to the D.C. Circuit took place less than two months later, on April 27, 2004. A second hearing on the nomination took place in May 2006. (The 2004 hearing transcript is here; the 2006 transcript is here.)

I set forth in this document relevant excerpts from the 2004 and 2006 hearings. For the sake of succinctness, I discuss the key passages here.

At his 2004 hearing, senators explored whether Kavanaugh had been aware of Miranda’s access to confidential Democratic memos:

Chairman HATCH. Now, this is an important question. Did Mr. Miranda ever share, reference, or provide you with any documents that appeared to you to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee?

Mr. KAVANAUGH. No, I was not aware of that matter ever until I learned of it in the media late last year.

Chairman HATCH. Did Mr. Miranda ever share, reference, or provide you with information that you believed or were led to believe was obtained or derived from Democratic files?

Mr. KAVANAUGH. No. Again, I was not aware of that matter in any way whatsoever until I learned it in the media.

In light of current confusions among some folks, I will highlight that Kavanaugh did not deny that he might have received information from Miranda that was derived from those files. On the contrary, he specifically stated in response to Senator Durbin:

I cannot tell you whether something that he [Miranda] said at some point, directly or indirectly, derived from his knowledge that may have come from these documents. I just cannot speak to that at all.

Likewise, in response to a set of post-hearing questions from Senator Leahy, Kavanaugh wrote:

As I explained to Senator Durbin at my hearing, I cannot be sure which of the information orally or in writing by Senate staffers or others may have been derived in whole or in part from information obtained from Democratic computer files.

It is important to distinguish this matter—on which Kavanaugh said he could not speak with any confidence—from the separate question whether Kavanaugh ever saw any of the Democratic memos themselves. When Senator Schumer inquired whether Kavanaugh had ever seen “memos from internal files of any Democratic members given to you or provided to you in any way,” Kavanaugh flatly answered “No.” Schumer, satisfied, replied, “Thank you.”

Let’s understand why Schumer inquired whether Kavanaugh had seen the Democratic memos themselves (as distinct from materials from Miranda that might have drawn from those memos). Simply put, seeing the Democratic memos themselves would have been far more likely to set off alarm bells in Kavanaugh’s mind about how they had been obtained. Assume, for example, that Miranda gave Kavanaugh a memo from Leahy’s chief counsel to Leahy setting forth three specific topics of interest on a judicial nominee at an upcoming hearing. Now compare an email from Miranda to Kavanaugh in which he states that he expects Leahy to explore three specific topics. The memo itself would likely have led Kavanaugh to ask Miranda how the heck he obtained that memo, but the email would reasonably have struck Kavanaugh as setting forth just the sort of everyday information that Senate staffers glean.

By the time of Kavanaugh’s second hearing two years later, Senate Democrats were doing all they could to defeat Kavanaugh’s confirmation. Had they misperceived Kavanaugh’s response to Schumer to be inconsistent with his response to Durbin and with his written response to Leahy—had they, in other words, thought that Kavanaugh was flatly denying to Schumer that he had ever seen emails from Miranda that contained materials derived from the Democratic memos—they would surely have pounced. But they knew why Schumer asked the narrow inquiry that he did, and they also knew that Kavanaugh had not denied that he might have received materials derived from those memos.

At his 2006 hearing, Senator Kennedy asked Kavanaugh a question that began:

Just finally, on the documents that were taken here from the Committee and that you have the familiarity— and you have indicated that you, in reviewing them, had no understanding or awareness that they had been taken, been stolen.

In response, Kavanaugh stated:

Senator, there’s a very important premise in your question that I think is incorrect, which is I didn’t know about the memos or see the memos that I think you’re describing.

The colloquy continued:

Senator KENNEDY. Oh, you never saw any of those?

Mr. KAVANAUGH. No, Senator, that’s correct. I’m not aware of the memos, I never saw such memos that I think you’re referring to. I mean, I don’t know what the universe of memos might be, but I do know that I never received any memos and was not aware of any such memos. So I just want to correct that premise that I think was in your question. [31-32]

Again, in context, Kavanaugh was plainly testifying—and everyone attentive to the matter would have understood that he was testifying—that he never saw the Democratic memos themselves (and thus had no reason to wonder how they had been obtained), not that he had never seen materials that, unbeknownst to him, Miranda might have derived from those memos.

Last week’s Supreme Court confirmation hearing. At last week’s hearing, Kavanaugh re-affirmed his 2004 and 2006 testimony. Senator Leahy presented several documents from Kavanaugh’s White House record that Leahy claimed showed that Kavanaugh must have known that Miranda had access to Democratic files. I will address here Leahy’s leading examples.

Let’s start with the “spying” email about which former Leahy staffer Lisa Graves, in this Slate piece, says “it’s hard to imagine a more definitive clue” that Miranda was improperly obtaining confidential files from Democrats. Two tiny problems with Graves’s claim (and with Leahy’s use): First, the email isn’t from Miranda. Indeed, he’s not on the chain at all. Second, it appears to be completely unrelated to Miranda: it refers to “a friend who is a mole on the Left” who provided news about funding by outside abortion groups for a Supreme Court confirmation battle. What possible reason would Kavanaugh have to infer from that email that Miranda had access to Democratic files? None at all. (Given the substance of the email, Kavanaugh also likely would have taken the eye-catching “spying” subject line and the term “mole” to be tongue in cheek.)

So much for the most “definitive clue.” It doesn’t get any better. The first document that Leahy presented at the hearing was a July 19, 2002, email from Miranda (in this chain) to three DOJ lawyers and Kavanaugh asking why Leahy’s staff was looking into the connection between a judicial nominee and two organizations. As Kavanaugh explained his understanding of things in his 2004 hearing, and as I can attest from my own former experience as a Senate Judiciary Committee staffer, information of this sort routinely flows informally among staffers, whether directly (from Leahy’s staff to Hatch’s) or indirectly (say, from Leahy’s staff to staffers for other Democratic senators, and then to Hatch or other Republicans). There is zero reason to think that this email would have triggered an alarm bell in Kavanaugh’s head.

Well, what about Leahy’s next item, a January 13, 2003, email from Miranda to Kavanaugh that included the text of a letter from committee Democrats to Democratic leader Tom Daschle about blue-slip practice? Leahy claimed at the hearing that the letter “was clearly a draft.” But Kavanaugh’s actual response to the email at the time—“Who signed this?”—shows that he did not take it to be such. So Kavanaugh surely wouldn’t have thought that what he took to be a signed letter from senators would be confidential.

I could plow ad nauseam through Leahy’s lesser pieces of supposed evidence. But only someone suffering from myopic hindsight bias could charge that Kavanaugh must have known from these pieces of Miranda’s access to confidential files. (As if, amidst his heavy work burden and the hundreds of emails he was poring through every day, Kavanaugh would have been spending his scarce time scrutinizing emails from Miranda to try to discern where Miranda’s information came from.)

There is, in short, no evidence that calls into question Kavanaugh’s testimony that he was unaware of Miranda’s activities at the time they were occurring. Suggestions that Kavanaugh testified deceptively (much less that he committed perjury) are a baseless smear of a man of outstanding character.

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