In order to provide ammunition for their unprecedented kitchen-sink document request, the leading Democrats on the Senate Judiciary Committee, Senators Dianne Feinstein, Patrick Leahy, and Richard Durbin, are trotting out another baseless attack. On Thursday, they sent a letter to Chairman Chuck Grassley transparently trying to smear Kavanaugh by claiming there is a “serious question whether Judge Kavanaugh was truthful about his involvement in the Bush Administration’s post-9/11 terrorism policies when he testified before this Committee during his 2006 nomination hearing” for the D.C. Circuit.
This line of attack is as mendacious as it is unoriginal. Senator Durbin made the same attack over a decade ago, and it is no more valid today than it was then. To review, when Kavanaugh worked for the Bush administration—in the White House Counsel’s office between 2001 and 2003 and then as Staff Secretary until his appointment to the D.C. Circuit—researching and advising on issues of national security were never part of his portfolio. His answers to questions during his 2006 nomination hearing reflected as much.
At the time of his hearing, there was much public discussion about enhanced interrogation techniques and the detention of those captured during counterterrorism operations, which were subjects of a memo approved by Jay Bybee as head of the Justice Department’s Office of Legal Counsel and leaked to the media in 2004, a year after Bybee was appointed to the Ninth Circuit. There was also debate over warrantless wiretapping under the National Security Agency (NSA)’s Terrorist Surveillance Program, a practice widely reported by the news media after the New York Times broke the story in December 2005.
As would be expected given his portfolio, Kavanaugh answered no when asked in his 2006 hearing if he was involved with the issues of interrogation or rendition, and he told Senator Durbin he was “not involved in the questions about the rules governing detention of combatants.” When Durbin asked whether he knew Bybee had authored the controversial memo at the time of his Ninth Circuit nomination, Kavanaugh replied no; in fact, he “was not aware of that memo until there was public disclosure of it in the news media” in 2004. Durbin also asked what role he played in the nomination of William “Jim” Haynes—who as general counsel of the Defense Department helped formulate the administration’s interrogation policy—to the Fourth Circuit. Kavanaugh replied, “I know Jim Haynes, but it was not one of the nominations that I’ve handled.” Senator Leahy asked Kavanaugh whether he had seen documents or heard about the NSA’s warrantless wiretapping program, and Kavanaugh replied that he “learned of that program” when the New York Times reported it and not heard of it before then.
For that matter, former Attorney General Alberto Gonzales has stated, “I don’t recall having any conversations with Brett about torture or anything related to the war on terror.” So what is the problem with Kavanaugh’s testimony? There is only one actual conversation Kavanaugh’s opponents have attempted to make an issue: During a 2002 discussion in the White House Counsel’s office, Brad Berenson, a member of the legal team who had once clerked for Justice Kennedy, was debating another staff member on the question of how Kennedy would rule on detainee treatment issues if they ever reached the Court. Berenson asked Kavanaugh, as another former Kennedy clerk, to join the conversation in order to offer his view regarding their former boss. Significantly, the two former Bush administration officials who relayed this account to the Washington Post added that the White House’s policy regarding interrogation was tightly compartmentalized and that they thought Kavanaugh was out of the loop on that policy. That would explain why he would be called in to be asked about Justice Kennedy’s views instead of his own.
Under modern recusal practices, a judge is not supposed to review his or her own homework performed in a prior capacity, and legal ethics expert Stephen Gillers, who is no conservative, told NPR in an interview that the 2002 conversation would not rise to the level of requiring Kavanaugh’s recusal from detainee cases.
Perhaps even Feinstein, Leahy, and Durbin have come to recognize the conversation is not a serious hook to support their innuendo, because they do not cite it or any other conversation in their letter. The only documents they do cite are two emails Kavanaugh did not write, which provide no less flimsy support for their fishing expedition. One is a June 12, 2004, email that then Deputy White House Chief of Staff Harriet Miers forwarded to Kavanaugh with a two-word message: “Brett, fyi.” The forwarded email contained seven talking points that were drafted and approved by others in the White House after the release of the Bybee memo. Of course, this is consistent with Kavanaugh’s testimony that he was not involved with formulating such policy and that he did not learn of the Bybee memo before its release. It is also unremarkable he would have received an FYI on a topic of discussion in the White House after it had already become front page news.
Keep that in mind to highlight just how deceptively provocative the Democratic senators are when they describe the second email, from Mar. 15, 2005, as “show[ing] that Judge Kavanaugh was included on an email chain circulating talking points on rendition and interrogation.” No, the three-email chain actually went like this: (1) White House Press Secretary Scott McClellan sent an email to Counselor to the President Dan Bartlett and Kavanaugh with the subject line “possible questions” and no content, perhaps a reference to an upcoming press conference. (2) Bartlett replied only to McClellan, “do u have the points on rendition?” (3) McClellan sent Bartlett the requested talking points, with Kavanaugh again not on the email.
Tellingly, the Senate Judiciary Democrats do not quote the content of either email, because there is nothing to quote that would help their case. But they are hoping this fiasco of a strategy masquerading as a good-faith inquiry will succeed in impugning Judge Kavanaugh’s character instead of continuing to embarrass them.