Fact-checking the bipartisan spinfest on Brett Kavanaugh's time at the White House

 
 
Updated 8/15/2018 7:08 AM
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  • In this Aug. 7, 2018, photo, President Donald Trump's Supreme Court nominee, Judge Brett Kavanaugh, officiates at the swearing-in of Judge Britt Grant to take a seat on the U.S. Court of Appeals for the Eleventh Circuit at the U.S. District Courthouse in Washington. Kavanaugh has expressed concern about federal agencies running amok. But his view that they should adhere strictly to laws passed by Congress worries liberals.

    In this Aug. 7, 2018, photo, President Donald Trump's Supreme Court nominee, Judge Brett Kavanaugh, officiates at the swearing-in of Judge Britt Grant to take a seat on the U.S. Court of Appeals for the Eleventh Circuit at the U.S. District Courthouse in Washington. Kavanaugh has expressed concern about federal agencies running amok. But his view that they should adhere strictly to laws passed by Congress worries liberals.

Democrats and Republicans have been arguing over the breadth of records being sought from Judge Brett M. Kavanaugh's time as a White House adviser to President George W. Bush.

Kavanaugh, who is now President Donald Trump's nominee to the Supreme Court, was a Republican lawyer investigating President Bill Clinton on independent counsel Kenneth W. Starr's team in the 1990s. He was an associate White House counsel and later staff secretary for Bush for nearly five tumultuous years after 9/11. He's written more than 300 opinions since becoming a judge on the U.S. Court of Appeals for the District of Columbia Circuit in 2006.

He is unique among Supreme Court nominees in that a small forest would have to be cut down to print his paper trail, which is millions of pages long.

We previously analyzed Kavanaugh's published views on whether a sitting president can be indicted, and found them to be ambiguous.

As a reader service, we're now rounding up some key claims from Democrats and Republicans about Kavanaugh's time as a White House adviser. Each of these talking points has some merit, but they give an incomplete picture, and that's a recipe for confusion. Let's dig in.

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We fact-checked some Republican senators' reasons for declining to seek Kavanaugh's records from his time as Bush's staff secretary, and two claims from Democratic senators -- that Kavanaugh gave inaccurate testimony in 2006 about his role in the Bush administration's internal debate over torture, and a separate claim that the public will get to see a relatively small amount of Kavanaugh's records compared with previous nominees to the high court.

-- 'He was more or less a traffic cop'

The Republicans who control the Senate have requested documents from Kavanaugh's stint in the White House Office of Legal Counsel from 2001 to 2003, but not from his time as Bush's staff secretary from 2003 to 2006. The staff secretary's influence has varied over the years depending on who held the office, but there's no question that this person works closely with the president and plays a role in policy decisions and debates.

Republicans say these records are not relevant because the staff secretary is merely a "traffic cop" for documents and memos going in and out of the Oval Office.

"Indeed, the White House staff secretary is essentially the inbox and outbox for the president of the United States," Sen. Chuck Grassley, R-Iowa, the chairman of the Judiciary Committee, said in a floor speech July 31.

"The staff secretary documents ... aren't really his documents," Sen. John Cornyn, R-Texas, said in an article published July 24 by The Washington Post. "He was more or less a traffic cop."

But Kavanaugh has said on several occasions that his time as staff secretary was the most "instructive" or "formative" preparation he had for becoming a judge.

"People sometimes ask what prior legal experience has been most useful for me as a judge," Kavanaugh said in remarks at Marquette University in 2015. "And I say, 'I certainly draw on all of them,' but I also say that my five-and-a-half years at the White House and especially my three years as staff secretary for President George W. Bush were the most interesting and formative for me."

Kavanaugh was a trusted adviser to Bush, said Paul Light, a New York University professor and expert on the White House, like David Gergen was to President Ronald Reagan and John Podesta was to Clinton. But that's not always the case. "You have some pretty heavy characters on your list of White House staff secretaries," Light said. "Podesta did it. Gergen did it. And then you have some people who you say, 'Who the hell is that?'"

He added: "There's a lot of influence in that traffic control; there always has been. Nobody takes on the staff secretary. You just don't do it. That person determines whether your memo goes in the garbage ... or ends up in front of the right person. It's an interpretive job, and it's important. I don't diminish it all."

Kathryn Dunn Tenpas, an expert on the presidency at the Brookings Institution, said that "while the job has an innocuous, vague title, it is a pivotal position in the president's senior staff."

The job description includes deciding which memos the president sees, which staff member's viewpoints are pertinent, and which advisers get to weigh in on key presidential speeches, according to a study Tenpas wrote with Karen Hult of the Virginia Polytechnic Institute and State University.

"I think it is less about weighing in on a particular decision and more about deciding which policy options merit the president's attention," Tenpas said. "The person needs to have close ties to the chief of staff and stature so that other senior staff are responsive."

Whether this setup makes Kavanaugh's staff secretary records essential to his vetting for the Supreme Court has been one of the biggest points of debate.

"We had our hands in nearly every important matter that went to the president," Podesta and Todd Stern, who also served as staff secretary to Clinton, wrote in an Op-Ed July 30. They added that "Kavanaugh himself has said he worked on legislation, drafted executive orders and had a frequent role on presidential speeches."

Yuval Levin, the editor of National Affairs and a former member of Bush's White House domestic policy team during the time Kavanaugh was staff secretary, wrote that "the staff secretary is basically the one senior White House staffer whose personal views are nearly never expressed in the paperwork that goes to the president." It's all about taking memos from the relevant policy staff and requesting changes on behalf of other White House offices, Levin wrote.

"One particularly frustrating part of the job is that it is in essence procedural and not substantive," he wrote. "The staff secretary can be influential in a few ways: by sheer proximity to the president (few people spend more time with the chief executive), by exercising some judgment about what documents flow to the president and which do not, and by making prudential choices in the staffing process about which of the competing views of various White House offices and officials to draw out or to insist are further represented in the papers that reach the president. But none of these things would really be evident by examining the documents that circulated through the staff secretary's office 15 years ago."

In sum, calling the position a mere "traffic cop" does a disservice to the essential nature of the job. But describing its impact is much like describing the hole in a doughnut -- it's important but invisible.

-- 'What he told us under oath is not accurate'

Some Democratic senators have alleged that Kavanaugh, at his 2006 confirmation hearing for the Court of Appeals, left out key details about his involvement in the Bush administration's internal debate over the torture of detainees.

Sen. Dick Durbin told The Washington Post's Michael Kranish that "what he told us under oath is not accurate." Responding to the allegation, White House spokesman Raj Shah said "Judge Kavanaugh's testimony accurately reflected the facts."

Here's the exchange Durbin and Kavanaugh had in May 2006:

Durbin: In September 2003, the President nominated William Haynes to be a judge on the Fourth Circuit. As General Counsel to the Department of Defense, Mr. Haynes had been the architect of the administration's discredited detention and interrogation policies. For example, Mr. Haynes recommended that Secretary [Donald] Rumsfeld approve the use of abusive interrogation techniques, like threatening detainees with dogs, forced nudity, and for forcing detainees into painful stress positions. During the 108th Congress, Mr. Haynes' nomination stalled after his involvement in this scandal came to light. Just this February, the President decided to renominate him. What was your role in the original Haynes nomination and decision to renominate him? And at the time of the nomination, what did you know about Mr. Haynes' role in crafting the administration's detention and interrogation policies?

Kavanaugh: Senator, I did not -- I was not involved and am not involved in the questions about the rules governing detention of combatants or -- and so I do not have the involvement with that. And with respect to Mr. Haynes' nomination, I've -- I know Jim Haynes, but it was not one of the nominations that I handled. I handled a number of nominations in the Counsel's Office. That was not one of the ones that I handled.

A year later, in June 2007, The Washington Post reported that Kavanaugh had been involved in one aspect of the Bush administration's internal debate over U.S. citizens who had been declared enemy combatants and denied access to lawyers.

An associate White House counsel at the time, Bradford Berenson, argued that the Supreme Court's swing vote, Justice Anthony Kennedy, would not accept the argument that the president could declare a U.S. citizen an enemy and "lock him up without giving him an opportunity to be represented and heard."

"Another former Kennedy clerk, White House lawyer Brett Kavanaugh, had made the same argument earlier," The Post reported. Berenson and Kavanaugh are both former Kennedy law clerks.

Kavanaugh testified in 2006 that he "was not involved and am not involved in the questions about the rules governing detention of combatants." Durbin said, "It is a critical element in detention and interrogation as to whether a person is represented by counsel."

The Post's Kranish reported July 18 that "a White House official, who spoke on the condition of anonymity because he was not authorized to speak on the record, said Durbin's line of questioning was about controversial torture policies and not specifically about whether detainees should be heard and have legal representation -- the issue that has since arisen."

Sen. Patrick Leahy, D-Vt., also asked Kavanaugh at the 2006 confirmation hearing about his role in the Bush administration's torture debate.

"What about the documents relating to the administration's policies and practice on torture; did you see anything about that, or did you first hear about that when you read about it in the paper?" Leahy asked.

Kavanaugh responded: "I think with respect to the legal justifications or the policies relating to the treatment of detainees, I was not aware of any issues on that or the legal memos that subsequently came out until the summer, sometime in 2004 when there started to be news reports on that. This was not part of my docket, either in the Counsel's Office or as staff secretary."

This answer was slightly more problematic than the one Kavanaugh gave Durbin, since he was speaking of the "policies relating to the treatment of detainees" and said "I was not aware of any issues on that."

No evidence has surfaced to show that Kavanaugh worked on the Bush administration's 2002 memo (later retracted) that laid a legal basis for torturing detainees. However, "treatment of detainees" is a broader phrasing than "torture of detainees" -- and it could fairly encompass Kavanaugh's role in the Bush administration's internal debate over these detainees' right to legal counsel.

"The CIA and military interrogators opposed any outside contact, fearing relief from the isolation and dependence that they relied upon to break the will of suspected terrorists," The Post reported in 2007.

Kranish reported: "Two former White House officials who were in the meeting with Kavanaugh said they don't think Kavanaugh was in the loop on Bush's overall torture policy. One of those officials, former deputy White House counsel Tim Flanigan, said that the policy was tightly 'compartmentalized' and that Kavanaugh was not authorized to know about it. The second official agreed to speak only on the condition of anonymity and confirmed Flanigan's recollection."

Leahy asked the Justice Department in June 2007 to investigate whether Kavanaugh made false statements to the Judiciary Committee. Brian A. Benczkowski, then the principal deputy assistant attorney general, wrote back in March 2008 that career prosecutors "reviewed this matter and determined that there was not a sufficient basis to initiate a criminal investigation."

-- '0.08 percent of Brett Kavanaugh's records are public now'

Sen. Dianne Feinstein, D-Calif., the ranking Democrat on the Judiciary Committee, has said that Republicans are withholding an unprecedented share of Kavanaugh's records compared with previous Supreme Court nominees.

"99 percent of Elana [sic] Kagan's White House records were made public before her nomination hearing. 0.08 percent of Brett Kavanaugh's records are public now," Feinstein tweeted Aug. 11. "It's unprecedented to go to these lengths to hide a Supreme Court nominee's records from the American people."

Let's first break down the categories of documents in the universe of Kavanaugh records. According to rough estimates from the National Archives, Kavanaugh amassed a whopping 3.8 million-plus pages of records during his time at the White House.

"NARA holds several million pages of records related to Judge Kavanaugh, which is significantly more than for prior Supreme Court nominees who worked in the White House -- for example, NARA processed and released roughly 70,000 pages on [Chief] Justice [John] Roberts and 170,000 pages on Justice Kagan," according to the Archives.

Kavanaugh's White House documents include:

-- 3,800 pages of judicial nomination records.

-- 60,000 pages of paper files from his time at the Office of Legal Counsel.

-- 170,000 emails Kavanaugh sent, received or was copied or blind copied on; this translates to 850,000 pages, using the Archives' average of "approximately five pages per email."

-- 560,000 pages of paper files from Kavanaugh's time as staff secretary.

-- 475,000 emails Kavanaugh sent, received or was copied or blind copied on; which averages out to 2.375 million pages.

The grand total of pages here is 3,848,800. The Archives have another 20,000 pages of records from Kavanaugh's work on the Starr investigation.

Trump announced Kavanaugh's nomination July 9, and Grassley has scheduled his confirmation hearing to start Sept. 4. In the meantime, his documents are released first to the Judiciary Committee and then, after the committee decides what's appropriate for public consumption, to the public.

When Feinstein tweeted Aug. 11 that 0.08 percent of Kavanaugh's records from the White House had been released, she was referring only to the documents released to the public and to the 79 senators who don't sit on the Judiciary Committee. The committee had received 174,379 pages of documents from Kavanaugh's time at the White House before Aug. 11, but only 5,735 pages had been cleared for public release at that time.

To get to 0.08 percent, though, Feinstein assumed that there were 7 million pages of Kavanaugh records from his White House days, much more than 3.8 million. A spokeswoman for Feinstein, Ashley Schapitl, said that's because Democrats also requested any documents in which Kavanaugh was mentioned, not just those that landed on his desk or email inbox or outbox. These types of documents "were part of the bipartisan request for Elena Kagan's White House record, which asked for 'documents referencing Elena Kagan by name, initials, or title,'" Schapitl said.

"This is part of the White House record on Brett Kavanaugh, as it illuminates what he worked on," she said. "The Archives has told us that when you include those 'references,' the total Kavanaugh record is approximately 6-7 million pages."

A couple of caveats here: 5,735 is indeed 0.08 percent of 7 million. But a lot of the email records are duplicative or trivial. In addition, the Judiciary Committee has been releasing documents to the public on a rolling basis, and has released more since Feinstein's tweet. That process continues. So far, 93,533 pages of Kavanaugh's White House records have been released to the public, according to Taylor Foy, a spokesman for Grassley, and an additional 9,714 pages from the Starr investigation.

"It's the largest volume of material that we've ever sought, and in large part due to the fact that this nominee is one of the first nominees to have served in the White House in the age of email, where email is so ubiquitous," Foy said.

There's also the 300-plus legal opinions Kavanaugh has written on the D.C. Circuit, and roughly 17,500 pages in Kavanaugh's response to the Judiciary Committee's questionnaire for judicial nominees, he added.

It's worth noting that 93,533 pages is only 2.4 percent of the 3.85 million total the National Archives has identified from Kavanaugh's time at the White House. And it's also worth noting that Democrats and Republicans agreed not to request Kagan's documents from her time as solicitor general, one of the highest-ranking Justice Department positions, responsible for representing the administration at the Supreme Court.

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