Kavanaugh’s Most Sensitive White House Records Won’t Be Released And Democrats Aren’t Happy


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Kevin Daley Supreme Court correspondent
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  • Almost 30,000 documents detailing Supreme Court nominee Brett Kavanaugh’s work as a White House lawyer will not be released to the Senate. 
  • The Trump administration says those documents reveal constitutionally-protected information, like advice the president receives from subordinates. 
  • Democratic leaders were furious, and accused the administration of a cover up. 

Democratic congressional leaders cried foul Friday night when the Trump administration revealed it would withhold some 27,000 records relating to Supreme Court nominee Brett Kavanaugh’s work as a White House lawyer.

According to the letter, which was first obtained by The Associated Press, the Trump administration directed the Bush Library to withhold certain documents Kavanaugh produced in the White House counsel’s office, because they implicate core presidential activities that the Constitution protects from public disclosure.

The announcement, which came by way of a letter President George W. Bush’s records representative sent to GOP Sen. Chuck Grassley of Iowa, prompted Senate Minority Leader Chuck Schumer to draw comparisons to the Nixon administration.

“President Bush directed us to proceed expeditiously and to err as much as appropriate on the side of transparency and disclosure, and we believe we have done so,” the letter reads.

Read the letter

Bush’s presidential records representatives, supplemented by a team of lawyers from several elite law firms, processed approximately 275,000 documents spanning almost one million pages arising from Kavanaugh’s White House service, many of which were then forwarded to the Senate Judiciary Committee.

Of that body of documents, 27,000 were deemed subject to some form of presidential privilege, meaning they would not be released. Any record the Bush team believed privileged was sent to the Department of Justice, which consulted with the White House before a final determination was made to withhold a given document. (RELATED: The Man Who Took Down Richard Nixon Will Testify Against Brett Kavanaugh)

The letter broadly describes the nature of those records that will not be released:

The most significant portion of these documents reflect deliberations and candid advice concerning the selection and nomination of judicial candidates, the confidentiality of which is critical to any president’s ability to carry out this core constitutional executive function. The remaining documents not provided likewise reflect functions within the Executive Office of the President the confidentiality of which has traditionally been considered at the core of a president’s constitutional privileges, including: advice submitted directly to President Bush; substantive communications between White House staff about communications with President Bush; and substantive, deliberative discussions relating to or about executive orders or legislation considered by the Executive Office of the President.

Republicans and Democrats have split bitterly over the scope of work product lawmakers should review as they consider Kavanaugh’s nomination. Democrats want access to any record Kavanaugh processed or generated in the Bush White House, while Republicans, finding the request too capacious, have limited the Senate’s review to documents Kavanaugh produced as a lawyer for Bush.

From 2001 to 2003, Kavanaugh was associate counsel to the president — from 2003 to 2006 he was White House staff secretary.

Democrats say the circumscribed review limits insight into the legal and political views of a man tapped for a lifetime appointment to the Supreme Court. But the GOP says the Democratic request for total disclosure is extraordinary in view of Kavanaugh’s tenure as staff secretary. The White House staff secretary controls the flow of paper into and out of the oval office, meaning Democrats are essentially demanding an unprecedented publication of extremely sensitive presidential records.

Schumer and other Senate Democrats have threatened to sue the National Archives under the Freedom of Information Act is they withhold certain Kavanaugh records from the Senate.

Kavanaugh’s confirmation hearings will begin on Tuesday.

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