Bench Memos

Law & the Courts

Senate Democrats: Stop Expediting Release of Kavanaugh’s White House Records

The Senate Judiciary Committee will receive an unprecedented volume of White House records on Judge Brett Kavanaugh’s nomination to the Supreme Court. I’ve already addressed (in these three posts) Senate Democrats’ transparently obstructionist claim that the Committee should delay the confirmation process by many months in order to obtain the millions of pages of documents that passed through Kavanaugh’s office when he was White House staff secretary. I’ll address here the slipshod arguments that Senate Democrats are making against the provision of records from Kavanaugh’s years as White House counsel.

1. As this Washington Post article reports, Democrats are complaining that President George W. Bush has a team of lawyers involved in reviewing the documents. The Post article quotes this tweet from Senator Dick Durbin:

Take note: Unless it was produced by the National Archives, every document you see from Judge Kavanaugh’s White House tenure was selectively chosen for release by his former deputy, Bill Burck. This is not an objective process.

As Democrats surely know, the president whose White House records have been requested is always part of the process. President Obama issued the executive order that governs the disclosure of presidential records under the Presidential Records Act. Consistent with the Act, that executive order authorizes a former president to make a claim of executive privilege regarding requested records, and it further specifies that executive privilege covers records that reflect “the deliberative processes of the executive branch.”

It’s hardly a surprise that a president would rely on trusted lawyers for this sensitive executive-privilege review. I haven’t seen any specific account of who led the review of Elena Kagan’s records on behalf of the Clinton White House. But the Clinton presidential library is operated by the Clinton Foundation, and the longtime head of the Clinton Foundation—including during the time of Kagan’s confirmation process—is Clinton loyalist Bruce Lindsey. Lindsey was assistant to the president and deputy White House counsel, and Kagan worked under Lindsey during her time in the White House counsel’s office. She also worked with him in her later position as deputy director of the White House domestic policy council.

If Bruce Lindsey didn’t personally manage the review of Kagan’s records, it’s farfetched to imagine that he didn’t have another Clinton loyalist play the role.

Bill Burck is an accomplished lawyer and was deputy White House counsel to President Bush. So he’s an obvious excellent choice to lead Bush’s team of lawyers in reviewing the Kavanaugh documents.

2. Far from impeding the production of documents, Burck and his team are expediting it.

On August 2, Burck sent the Committee 45,083 documents totaling 125,035 pages and stated in a cover letter that “President Bush has no objection to making these presidential records available to the public, subject to any concerns that NARA [the National Archives and Records Administration] may have in that respect.” (As Burck pointed out, “President Bush is under no obligation to produce records of his Administration but has authorized this production to assist the United States Senate Committee on the Judiciary in its assessment of Judge Kavanaugh’s nomination to the United States Supreme Court.”)

On August 8, Burck further informed the Committee that he had learned from NARA that it was unable to conduct the requested review promptly. Therefore, Burck continued, “in the interests of expediting appropriate access,” President Bush and his team “are producing to the Committee on a rolling basis commencing today publicly releasable versions of documents that, in our view, do not contain information covered by a Presidential Records Act exemption or applicable privilege.”

3. Senate Democrats are complaining that, pending the Bush team’s executive-privilege review and NARA’s own review, documents that have not yet been deemed to be publicly releasable are temporarily being provided to the Committee on a “committee confidential” basis. Hmmm, why would Senate Democrats complain that Committee members—including, of course, the Democrats on the Committee—are receiving documents more quickly than they otherwise would? The Democrats’ game of obstruction and delay is transparent.

It is routine for privileged documents to be provided to the Committee only on a “committee confidential” basis. As this SCOTUSblog report on the Kagan nomination discusses (on page 2), “roughly two thousand documents” from the Clinton White House were deemed “committee confidential” and withheld from the public on that basis.

Because of the vastly larger volume of Kavanaugh documents, the Bush team is expediting the provision of potentially privileged documents. That is nothing that Democrats can fairly complain about.

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