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Burck: Archives Agrees Leaked Docs are Legally Restricted from Public

Bush Records Rep. Consulted with DOJ and/or NARA on Every Kavanaugh Record

WASHINGTON – The National Archives and Records Administration (NARA) concurred with President George W. Bush representatives’ assessment that confidential records leaked by several Democrats are legally restricted from public release.  In a letter dispelling misrepresentations about the handling of records related to Supreme Court nominee Judge Brett Kavanaugh, Bush’s Presidential Records Act representative noted that several Democratic senators ignored established processes for responsibly releasing sensitive material. 
“By leaking sensitive material that the National Archives has agreed should not have been released under the law, I fear that my colleagues have damaged the faith in this committee’s ability to responsibly handle delicate information. This could have been avoided if Senators worked with me to ensure the records were properly reviewed and prepared for public release.  Every request I received to use confidential records in the public hearing was honored.  Breaking the rules for the sake of breaking the rules is no way to govern, especially when doing so tarnishes the trust in our ability to take seriously sensitive matters,” Grassley said.
During prior nominations, NARA produced similar material to the committee on a confidential basis if it was restricted from public access under the Presidential Records Act (PRA) or Freedom of Information Act (FOIA). Grassley offered to help his colleagues seek waivers for confidential material that they wished to discuss in the public portion of last week’s Supreme Court nomination hearing. Alternatively, any committee member could have questioned the nominee in the closed session on Friday about any committee confidential document.   Only one Senator took Grassley up on his offer to help obtain public disclosure of documents prior to the hearings.  Several senators unilaterally leaked some confidential records during and after the hearing.
“We understand that, despite our willingness to accommodate, one Member has unilaterally “released” over 40 “Committee Confidential” documents without seeking consent from you, the Bush team, or the current Administration. We have the benefit of NARA’s assessment of 18 of these documents (we do not yet know NARA’s assessment of the others), and consistent with our review team, NARA determined 17 of them should be restricted from public release. The one NARA would have released publicly is attached to this letter,” William Burck said in the letter to Senate Judiciary Committee Chairman Chuck Grassley.
The letter also outlined the process for reviewing and sharing records with the Committee in a timely, transparent and responsible manner after having consulted with either NARA, the Justice Department or both.
“We gave to the Committee every page of every document given to us by the National Archives and Records Administration (NARA), except personal documents—which the Committee did not request and which NARA agreed should not be produced—and constitutionally privileged documents identified by the Department of Justice—which the current Administration directed that we not provide,” the letter said.
Consistent with the precedent established by then-Chairman Leahy, records containing material restricted from public release under the PRA or FOIA were provided to the committee on a confidential basis.  Given the large volume of records from Judge Kavanaugh’s extensive public service, Bush’s records team provided the material to the committee on an expedited basis while NARA conducted the same review of the same material.  Bush’s team also applied the same criteria as NARA when identifying material that should be held confidential.
“This means that the Committee has received—months earlier than it otherwise would have—the same records, either for public release or on a “Committee Confidential” basis, that it would have received through NARA’s own review process. NARA would have withheld the same personal documents and would have been required to follow the direction of the current Administration with respect to constitutionally protected documents,” the letter said.
Last week, Burck provided an updated accounting of the records his team had received from NARA.  Burck’s latest letter is available HERE.