August 05, 2018

Committee Framework to Review Kavanaugh Records Ahead of Hearing

On July 27, 2018, the Senate Judiciary Committee exercised its right under the Presidential Records Act (PRA) to request that the National Archives produce presidential records from Judge Kavanaugh’s service as an Executive Branch lawyer.  This includes his time in the White House Counsel’s Office and his work for Independent Counsel Kenneth Starr.  The Archives has begun an expedited review of those records for release to the Committee and the public. 
 
Earlier in July, President George W. Bush also exercised his right under the same statute to obtain copies of the very same presidential records from the Archives.  He and his PRA representatives have been reviewing those documents at a very swift pace, following the highest professional standards and seeking to categorize documents using the same principles that the Archives uses for its own review.   
 
President Bush has offered to provide the committee with copies of the non-privileged presidential records he received—the same records the committee requested—on a rolling basis as he finishes reviewing them.  This is a significant public service.  It allows the committee to begin quickly performing the important task of reviewing Judge Kavanaugh’s record, while also speeding up the timetable for the records’ public release, as appropriate under law.  President Bush has agreed to perform this service at non-taxpayer expense. 
 
Some have argued that the committee’s use of President Bush’s copies of the records—the very same presidential records the committee requested from the Archives—means the Archivist has been cut out of the process.  This is simply not true, and those making the argument know it.  While the committee is reviewing the copies of presidential records received from President Bush, the Archives is going to be reviewing the very same records that it provided to President Bush to prepare those documents for formal public release under the PRA and other laws, as the committee requested.  When the Archives has finished its review, the committee fully expects that the Archives will provide to the committee and the public any non-privileged presidential record to which the committee is entitled that President Bush has not already provided. 
 
In other words, the committee will get presidential records it requested from two sources.  The committee will get copies first from President Bush, who is able to produce records to the committee more quickly than the Archives.  Any non-privileged record to which the committee is entitled that President Bush declines to produce will then be produced from the Archives.  This process ensures that no time is wasted and should give added comfort to those seeking access to the documents because it provides yet another means of ensuring committee access to all non-privileged presidential records. 
 
Some have further argued that the committee's use of President Bush’s copies of records means that the committee’s review will be a partisan process.  This is wrong for two reasons.  First, the lawyers leading President Bush’s review are highly respected lawyers undertaking a professional, not partisan, representation. They are doing what they and their firms do in case after case all across the country: review documents to respond appropriately to requests for records in a manner consistent with applicable law.  Second, because the committee will receive records from President Bush and the Archives, any non-privileged presidential record withheld by President Bush will be produced to the Committee by the Archives.  There is thus a check against any partisan interference. 
 
The path the committee has taken allows access to the requested presidential records on an expedited basis so that committee members can review an unprecedented volume of documents in a timely and efficient fashion. Anyone insisting that the committee review copies of records only from the Archives is a transparent effort to delay and obstruct the confirmation process.
 
The presidential records requested by Chairman Grassley are already starting to arrive, courtesy of President Bush.  The committee received over 125,000 pages of those records Thursday and will soon receive hundreds of thousands more.  This initial production alone generated nearly three quarters of the total pages produced during each of Justices Kagan’s and Gorsuch’s nominations.  Committee staff are already hard at work reviewing the documents in order to perform the Senate's constitutional duty of advice and consent.     
 
More on the Presidential Records Act

President Bush has a statutory right of access to documents created during his administration, and nothing in the Presidential Records Act (PRA) restricts his ability to review those documents and handle them however he pleases, including making them public or sharing them with Congress.  He moreover has a legal right to assert privilege over any document requested by the committee, and documents over which he claims privilege cannot be produced to anyone—including the committee—if President Trump also agrees they are privileged.  Any records that the former president declines to share with the committee for reasons other than privilege—e.g., because he believes they are personal, rather than presidential, records or because they contain PRA-restricted material—will be reviewed by the Archivist. The Archivist will review those records that President Bush declined to produce based on their status as personal records or on PRA grounds and make his own determination about whether they should be withheld.  If the Archivist determines they should not be withheld—and President Bush does not assert privilege—the Archivist will provide them to Congress even if President Bush has not.