SCOTUS: Grassley Seeks Documents for Supreme Court Nomination
WASHINGTON – Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) today requested special access to documents related to Judge Brett Kavanaugh’s legal work in the White House, as the committee evaluates his nomination to the Supreme Court. In a letter to National Archives staff at the George W. Bush Presidential Library, Grassley sought all emails sent to or from Judge Kavanaugh during his time in the White House Counsel’s Office, all paper files maintained by Judge Kavanaugh in that position and all documents relating to his nomination to the U.S. Court of Appeals for the D.C. Circuit.
“For nearly two weeks, I’ve attempted to seek a good-faith agreement from the Ranking Member to jointly request documents relating to Judge Kavanaugh’s legal work in the White House. For nearly two weeks, I’ve found myself either waiting for a response to my proposals or faced with unprecedented and unreasonable counter-proposals.
“Even when I suggested that we jointly request documents that both sides want while continuing to negotiate other categories, the Ranking Member declined. The Minority rejected out of hand multiple accommodations that I’d offered to assist in targeting material they believe is relevant. Instead, they demanded that we expand the request to require a search of every email from every one of the hundreds of White House staffers who served alongside Judge Kavanaugh for nearly six years, to find records that merely mention his name.
“So today, on behalf of the committee, I submitted a request for documents related to Judge Kavanaugh’s time in the White House Counsel’s Office. I expect the production to be the largest ever in the Senate’s consideration of a Supreme Court nominee. In the meantime, I’m eager to review Judge Kavanaugh’s 307 judicial opinions, the hundreds of other opinions that he joined and the 6,168 pages he already provided to us, which are publicly available right now and will provide the greatest insight into his fitness for the high court. As I have said repeatedly, I am not going to put the American taxpayers on the hook for the Senate Democrats’ fishing expedition.”
Text of Chairman Grassley’s letter to the archivists at the Bush Library follows:
July 27, 2018
The Honorable Patrick X. Mordente, Brigadier General
George W. Bush Presidential Library and Museum
2943 SMU Boulevard
Dallas, Texas 75205
Dear General Mordente:
Pursuant to 44 U.S.C. § 2205(2)(C), I ask that you provide Presidential records to the United States Senate Committee on the Judiciary in connection with the President’s nomination of Judge Brett M. Kavanaugh to serve as an Associate Justice on the Supreme Court of the United States. Consistent with the Presidential Records Act (PRA), 44 U.S.C. § 2201(2), (3), this request is for access to Presidential records only, not personal records.
Kavanaugh served in the White House under President George W. Bush, first as Associate Counsel from 2001 to 2003 and later as Senior Associate Counsel in 2003. He served as Assistant to the President and Staff Secretary from 2003 to 2006. I request that you provide the following documents to the Committee on an expedited basis, consistent with the guidelines described in this letter:
- Emails sent to or received from Kavanaugh, including emails on which he was a carbon copy or blind carbon copy recipient, during the period Kavanaugh served as Associate Counsel and Senior Associate Counsel to the President, including any documents attached to such emails;
- The textual records contained in Kavanaugh’s office files from the period during which he served as Associate Counsel and Senior Associate Counsel to the President; and
- Documents relating to Kavanaugh’s nomination to the U.S. Court of Appeals for the District of Columbia Circuit
The Committee has previously made official requests of Presidential Libraries in connection with nominees who served in the White House. I believe it appropriate to follow past Committee precedent concerning requests for records from Presidential Libraries in several respects.
Section 2205 of the Presidential Records Act (PRA), 44 U.S.C. § 2205, provides this Committee access to Presidential records in response to an official Congressional Committee request, notwithstanding the limitations on public disclosure set forth in section 2204 of the PRA, 44 U.S.C. § 2204(a)(1)–(6). Such access is, by statute, subject to “any rights, defenses, or privileges which the United States or any agency or person may invoke.” 44 U.S.C. § 2205(2). While I hope that documents responsive to our request will not raise these concerns, I also recognize that responsive documents may be subject to statutory or other rights, defenses, or privileges.
Section 2205(2)(C) entitles the Committee to access any non-privileged Presidential record that is responsive to the Committee’s special-access request, notwithstanding the limitations on public access set forth in section 2204. I recognize, however, that in the context of prior Supreme Court nominations, the Committee and the Archivist have agreed that some documents containing PRA-restricted material would be produced to the Committee on a “Committee Confidential” basis. The Committee further agreed that such documents could be discussed only during a Closed Session of the Committee. I also acknowledge that the Committee previously has agreed that the Archivist could withhold certain PRA-restricted material in its entirety. In these respects, I intend to adhere to established custom and accept certain PRA-restricted material on a Committee Confidential basis and to permit the Archivist to withhold some PRA-restricted material in its entirety.
I ask that with each production, you similarly abide by established custom and (1) identify the total number of documents produced, (2) identify the number of documents containing PRA-restricted material that the Committee agreed to treat as “Committee Confidential,” and (3) identify the number of documents being withheld entirely pursuant to assertions of constitutional privilege or pursuant to the Committee’s agreement not to receive certain PRA-restricted material. I further ask that you produce documents on a rolling basis as you identify documents responsive to our request.
I note that in connection with Justice Gorsuch’s nomination, the Bush Library attempted to withhold as little as possible and provided portions of documents, rather than withholding entire documents, where possible. I hope you will adopt the same approach. As the Committee has done in the past while considering Supreme Court nominations, I intend to respect the invocation of privilege by a co-equal branch of our government. For the documents requested by this letter, I further intend to abide by the Committee practice of declining to receive materials reflecting classified national security information or personal privacy information.
Please begin the rolling production to the Committee of records responsive to this request no later than August 1, 2018, at 6:00 PM EDT. Please complete the rolling production to the Committee of all remaining records responsive to this request no later than August 15, 2018 at 6:00 PM EDT.
I recognize that reviewing the archives and producing these documents is a significant task. I thank you in advance for your cooperation and efforts.
Mr. Donald F. McGahn
Counsel to the President
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500
The Honorable David S. Ferriero
Archivist of the United States
National Archives and Records Administration
700 Pennsylvania Avenue, NW
Washington, DC 20408
The Honorable Dianne Feinstein
Ranking Member, Committee on the Judiciary
United States Senate
Washington, DC 20510