The Mercury News

Kavanaugh documents offer minor clues into his Bush years

- By Stephanie McCrummen

An additional 88,000 pages of documents from Supreme Court nominee Brett Kavanaugh’s time as a lawyer for the George W. Bush White House were released Sunday, even as Senate Democrats complain about the unusual process by which a former Bush aide is vetting which documents can be made public.

A review of the latest trove revealed no obvious bombshells about Kavanaugh, the federal judge whose confirmati­on hearing is set for the first week in September.

Some of the documents released Sunday show Kavanaugh dealing with issues that arose in the immediate aftermath of the Sept. 11, 2001, attacks, while others show him being invited to conservati­ve think tank events or being asked about minor issues such as parking.

The new batch contains thousands of copies of the same documents and lengthy press releases and clips sent to his attention.

In one series of emails, Kavanaugh is beginning to grapple with the issue of presidenti­al war powers, seeking “the best con law treatises” on the subject.

Another exchange with then-White House spokeswoma­n Anne Womack discusses a question that arose about the prospect of Bush creating a tribunal for the Sept. 11 suspects rather than putting them through the U.S. court system.

On Sept. 13, 2001, Kavanaugh advises Womack to say that the administra­tion was not discussing legal options, adding that “even talking about this kind of issue can pose problems down the road.”

Other emails show Kavanaugh being called on for ethics-related advice about gifts and presidenti­al travel, and his work as part of a team that assembled a batch of federal court nominees for a major rollout early in the Bush presidency.

At one point, Kavanaugh polled members of the legal staff about whether they were members of the Federalist Society and the American Bar Associatio­n, explaining that he had been asked to gather the informatio­n “for possible press purposes.”

Sprinkled throughout the new batch of documents are many others that reveal nothing about Kavanaugh’s fitness for the Supreme Court.

Kavanaugh is asked whether memos should be single or double-spaced. There are invitation­s to Heritage Foundation events that hundreds of White House officials also received. There’s correspond­ence related to keeping the airline industry afloat and White House talking points.

So far, Senate Judiciary Committee Chairman Charles Grassley’s team of lawyers and aides have reviewed more than 200,000 pages of documents while vetting Kavanaugh.

These include legal opinions he has written, his committee questionna­ire and, mostly, documents from his tenure working as associate counsel for Bush and as a deputy in independen­t counsel Ken Starr’s investigat­ion into the Clinton White House.

But Senate Democrats have taken issue with the fact that the committee as of Sunday has released to the public only half of the 175,000 pages it has received since early August related to Kavanaugh’s time in the Bush administra­tion.

The reason is the unusual way the committee is handling the Bush administra­tion documents.

Though Grassley, RIowa, followed the usual procedure of requesting presidenti­al documents from the National Archives, officials there said there are so many documents that it would take them until the end of October to review and send them to the committee.

Archives officials said they have “several million” pages of Kavanaugh documents, significan­tly more than prior Supreme Court nominees such Judge Elena Kagan, who had roughly 170,000 documents in the archives.

As a workaround, Bush himself requested the Kavanaugh records directly, and he enlisted former aide and current Bush records representa­tive Bill Burck to oversee the process of releasing them to the public.

In a letter to the committee last week, Burck said his team was producing “publicly releasable versions of documents that, in our view, do not contain informatio­n covered by a Presidenti­al Records Act exemption or applicable privilege.”

Sen. Dianne Feinstein, DCalif., the Judiciary Committee’s top Democrat, said in a letter to Grassley on Friday that the panel is unjustifia­bly keeping certain documents confidenti­al.

“Simply stated, this is unacceptab­le,” she wrote. “The senators and the public must have access to Mr. Kavanaugh’s full record. Additional­ly, this committee has never allowed a third party to control what informatio­n is kept confidenti­al, and should not do so now when we are considerin­g a lifetime appointmen­t to the U.S. Supreme Court.”

White House spokesman Raj Shah said Friday that the process has been “open, transparen­t and fair.”

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