Senate

Senate Dems make ‘unprecedented’ FOIA request for Kavanaugh documents

by Jordain Carney - 08/08/18 12:06 PM ET

Senate Democrats filed Freedom of Information Act (FOIA) requests on Wednesday to try to force the Trump administration to hand over documents from Supreme Court nominee Brett Kavanaugh’s time working in the White House.

“Every Democratic member of the Senate Judiciary Committee is joining in a series of Freedom of Information Act requests … requesting records from Brett Kavanaugh’s time in the Bush White House,” Sen. Richard Blumenthal (D-Conn.) told reporters during a conference call.

{mosads}Democrats submitted the FOIA requests to the CIA, the National Archives, the Department of Justice and the Department of Homeland Security for documents tied to Kavanaugh’s three-year period as staff secretary for President George W. Bush.

Blumenthal added that the move was an “extraordinary step,” “unprecedented” and a “last resort” but that Judiciary Committee Chairman Chuck Grassley (R-Iowa) “left us no other choice.”

“We need these documents to do our job,” Blumenthal said. “There is too much at stake to accept anything less than a complete picture of Judge Kavanaugh’s background.”

Blumenthal said Democrats are asking for an expedited response and, if the administration doesn’t respond, Democrats have potential legal options to try to force the administration to hand over the documents.

The move, according to Blumenthal, marks the first time senators have had to use a FOIA request to get documents tied to a Supreme Court nominee.

“There is too much at stake to accept anything else than a complete picture of Judge Kavanaugh’s background. … There are very serious questions about how closely Brett Kavanaugh was involved in critical Bush administration policies,” he added.

The move escalates a stalemated fight over Kavanaugh’s paper trail going back decades.

Democrats appeared to have hit a wall with their weeks-long effort to get Republicans to secure documents from Kavanaugh’s work as a staff secretary for Bush.

Republicans have refused to ask the National Archives to turn over paperwork, arguing that Democrats are going on a fishing expedition.

“The staff secretary documents consist largely of materials Judge Kavanaugh didn’t write. They were prepared by policy advisers across the executive branch. The materials are also saturated with irrelevant documents—including miscellaneous news clippings, the daily schedule, and even the White House lunch menu,” Grassley wrote in a Wall Street Journal op-ed on Tuesday.

Grassley sent a letter late last month to the National Archives requesting documents solely from Kavanaugh’s time as a White House lawyer, and not from his tenure as staff secretary.

Because Democrats are in the minority, they can’t force Republicans to request the additional documents. Potential Republican swing votes, including Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), have dismissed the Democratic documents request as excessive, signaling they won’t help pressure GOP leadership.

“One of the requests made by the Democrats is for emails among White House staff that mention Brett Kavanaugh’s name. That is clearly an unreasonable request that is intended to delay the proceedings,” Collins told reporters before the Senate’s two-week August recess.

The back-and-forth over records comes after McConnell reportedly warned the White House — while it was contemplating who to pick to replace retiring Justice Anthony Kennedy — that Kavanaugh’s lengthy record could be used by Democrats to try to slow down or stall his confirmation.

Republicans initially said they wanted Kavanaugh in place before the Supreme Court starts its next term in October. GOP leadership has since shifted its timeline, saying a vote on his nomination would not get pushed past the November midterm elections.

The National Archives warned Grassley last week that it would not be able to fulfill his documents request until the end of October.

But a GOP Judiciary Committee aide said that Republicans are still expecting Kavanaugh to get a confirmation hearing before the panel next month, adding that the Bush library will be able to hand over documents at a quicker pace than the National Archives.

The tactics have infuriated Democrats and their outside group allies, who warn that Republicans are trying to hide something in Kavanaugh’s record.

“The urgency of this request could not be greater. What we are facing is nothing less than a full-scale Republican effort to conceal Kavanaugh’s work during a critical part of his career,” Nan Aron, the president of Alliance for Justice, said on Wednesday.

She added that review process set up between the Bush team and Grassley was “partisan,” “secretive” and “run by a private team of Republican lawyers.”

But the decision to FOIA Kavanaugh’s documents stops short of the hardball tactics being called for by some outside groups.

Demand Justice — an outside group overseen by Brian Fallon, a former aide to Senate Minority Leader Charles Schumer (D-N.Y.) — is urging Democrats to sue for the documents.

“It’s clear that Republicans are going to conceal more than a million records from Brett Kavanaugh’s time as Staff Secretary in the White House. Enough is enough, and we need to urge Democrats in the Senate to sue for these hidden documents,” the group wrote in a petition aimed at Senate Democrats.

Blumenthal left the door open on Wednesday to taking the documents fight to court, but added that he hoped the National Archives would be responsive to the Democrats’ FOIA requests.

“We have an obligation to move as quickly as possible and to use every tool available, quite frankly every tool available that we have available under the law,” he said.

Pressed about challenging the interpretation of the Presidential Records Act, Blumenthal added that “if necessary we need to avail ourselves of every tool.”

“Obviously going to court is an option. We’re hoping for full compliance,” he said.

The National Archives has rebuffed Democrats’ requests for documents under that law, saying they will only respond to committee requests that come from a chairman, who are all Republicans.

Sen. Dianne Feinstein (Calif.), the top Democrat on the Judiciary panel, urged the Archives to reconsider its position, writing in a letter sent this week that she was “alarmed” they would refuse Democratic requests for information.

But archivist David Ferriero previously told Schumer, after consulting with general counsel and the Justice Department, that the Archives “remains unable to respond to [Presidential Records Act] special access requests from ranking minority members.”

Updated at 12:49 p.m.