President Donald Trump’s nomination of Brett Kavanaugh to the Supreme Court presents a band of government archivists and White House officials with a herculean task: wading through what could be millions of pages of records to produce what senators demand to prepare for confirmation hearings certain to be highly contentious.
Kavanaugh’s paperwork predicament — stemming from two years he spent in President George W. Bush’s White House counsel’s office and just over three as Bush’s staff secretary — is not unique. Several recent Supreme Court nominees, including Chief Justice John Roberts and Justice Elena Kagan, also had White House stints that led to review and release of large volumes of records prior to their hearings.
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But the quantity of files potentially at issue in Kavanaugh’s case could be unprecedented. Former officials believe millions of pages of emails and other documents circulated through Kavanaugh’s office during his time as staff secretary. If Senate Democrats insist on receiving every page, the confirmation process could grind to a crawl.
“People are going to claim they want every document that passed through the staff secretary’s office. That’s insane. … To me, that’s where the battle is going to be pitched,” said one GOP veteran of Supreme Court confirmation battles.
Democrats say they’re only asking for the same thing the Senate has demanded for other high court nominees. When President Barack Obama tapped Kagan in 2010, the National Archives undertook a massive effort to release 170,000 pages of records from her tenure as a policy adviser and lawyer in President Bill Clinton’s White House.
“Brett Kavanaugh spent 5 years in the Bush White House. He undoubtedly sent tens of thousands of emails. All of those are public record and Democrats and the media should demand that they be posted online like Elena Kagan’s emails were,” former Obama spokesman Tommy Vietor wrote on Twitter Monday night. “It’s unlikely that the Federalist Society had access to these documents during the [White House] outsourced vetting process, which means there may be actual revelations.”
The volume of records at issue is likely to slow the timeline for confirmation hearings and may make any hearing before the August recess out of the question.
Asked Monday about the idea that archivists could review a million pages of records within the next month, former National Archives official Sharon Fawcett said: “Not possible.” Fawcett, a former director of the presidential libraries division, said the only way to handle that kind of volume would be for someone to “prioritize” some subset of the records.
“The staff will probably be working seven days a week to get it done. It’s a big job, and the Archives will take it very seriously. Undoubtedly, with the speculation, work has already begun,” she said.
Assuming not all Kavanaugh records will be ready before his hearing, one key question will be who decides which ones are released.
“The due diligence duties of the legislative branch come into play,” one former Democratic Senate Judiciary staffer said. “If I’m a senator, I’m not going to say, ‘Don’t worry about that stuff he’s just cc’d on.’ I just don’t buy it. [But] the Republicans are going to say they’ve released more pages than any nominee in history. … They’re going to take that talking point and run with it.”
The former aide, who asked not to be named, said Democrats are likely to try to play to Senate Judiciary Committee Chairman Chuck Grassley’s historical interest in transparency issues and the Freedom of Information Act to make sure senators have robust access to Kavanaugh’s record.
A White House spokesman and current officials at the Archives did not respond to requests for details on the Kavanaugh-related records and what efforts are being made to prepare them for release. Legally, both Trump and Bush are entitled to more than two months’ notice before any files are released, but they can waive those rights.
A spokesman for Bush said Monday night that the former president is committed to getting senators the documents they need about Kavanaugh.
“President Bush has instructed his team to work with the National Archives and Records Administration and the George W. Bush Presidential Library to expeditiously review and provide relevant documents to the Senate Judiciary Committee,” Bush spokesman Freddy Ford told POLITICO.
In addition to the Bush White House files, senators are also expected to demand access to about 20,000 pages of documents Kavanaugh assembled while working as a prosecutor for Whitewater independent counsel Kenneth Starr.
Most of those records remain under wraps, but a few of the pages that were made public some years ago give a sense of what White House lawyers, reporters and Senate aides will be digging through.
The National Archives sent POLITICO a few documents Monday that were apparently released in response to inquiries about the apparent suicide of Clinton White House attorney Vince Foster in 1993, one of the matters Starr investigated.
One extremely graphic set of notes in Kavanaugh’s files documents an interview with Park Police Sgt. John Rolla, who responded to the scene where Foster’s body was found in Fort Marcy Park, along the George Washington Parkway.
“Arm flaccid. Blood moist on face. Not much rigor. Blood starting to congeal,” the handwritten notes say. “When body rolled, still flaccid….May not be dead that long….Puddle of blood c/head about size of hands….Reached behind head & felt exit wound – felt mushy.”
Also in Kavanaugh’s files: receipts for Foster’s two-night stay at the Tidewater Inn on Maryland’s Eastern Shore a few days before his death. The records document Foster’s purchase of a few drinks at the Inn’s Decoy Lounge and his extensive use of his room phone to make calls in a time before the ubiquitous presence of cellphones.
Kavanaugh’s file boxes also include grand jury testimony by White House counsel Bernard Nussbaum about a call from Clinton adviser Susan Thomases on the day after Foster’s death. The transcript was withheld from public release due to grand jury secrecy rules, but the call was the focus of inquiries by congressional Republicans about whether it prompted the White House to resist law enforcement efforts to search Foster’s office.
A broader index of Kavanaugh’s files shows still-unreleased folders containing memos on “perjury (obstruction/false statements),” shredding of records by Hillary Clinton’s former law firm, impeachment, grand jury secrecy issues related to President Bill Clinton’s interview about Foster’s death, and a conspiracy theory at the time known as the INSLAW Affair.
Some Republicans who expressed concern about Trump picking Kavanaugh for the Supreme Court say those documents and others could put him and Trump in an awkward spot by giving fodder to Democrats to ask questions about parallels between Clinton’s alleged misdeeds and accusations that Trump lied to the public and obstructed justice.
The publicly available listing of Kavanaugh’s files doesn’t suggest there will be much documenting any interaction with the media, but after Trump’s announcement Monday night, one prominent reporter foreshadowed what may be another line of attack on Kavanaugh.
“While working for Ken Starr in 1998, [Kavanaugh] routinely skirted or violated Rule 6 (e) of the Federal Rules of Criminal Procedure by leaking details of Lewinsky probe. Mueller’s team obeys the law; Starr’s didn’t,” author and Daily Beast columnist Jonathan Alter wrote on Twitter. “Reporters didn’t bust Brett because they benefited. Will one now?”
The amount of paper involving Kavanaugh is bound to far exceed what other recent Supreme Court nominees yielded.
Last year, the Justice Department sent the Senate more than 144,000 pages of records relating to Justice Neil Gorsuch’s service as a top official in the Justice Department’s Civil Division from 2005 to 2006.
In 2005, when Bush named Roberts to be chief justice, archives officials released more than 70,000 pages of records he compiled while serving as an attorney in President Ronald Reagan’s White House and at the Justice Department. His nomination was announced on July 19, and the confirmation hearings opened on Sept. 12. He was confirmed on Sept. 29.