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Kavanaugh’s Missing Records

Yeah, I know. The transparency and separation of powers issues that everyone thought were so important with respect to the Kavanaugh nomination a week or so ago are now yesterday’s news. For that very reason, I am putting a longer piece on the Presidential Records Act and its application to the Kavanaugh hearing on the back burner. But I want to make a relatively brief point on the subject at this time.

With all the charges and countercharges relating to what documents were and were not produced from Kavanaugh’s prior government employment, it is easy to become confused as to what is actually at issue. In my view, the most important question has to do with the documents from Kavanaugh’s service at the White House counsel’s office that were withheld from the Senate Judiciary Committee.

Under the PRA, all of Kavanaugh’s documents from his service in the GW Bush White House are in the custody of the Archivist of the United States (and his agency the National Archives and Records Administration or NARA). At the outset, the committee majority and minority disagreed whether to request that NARA produce Kavanaugh’s documents from both his service as an attorney in the White House counsel’s office and later as President Bush’s staff secretary. Chairman Grassley decided that the former employment was far more relevant to Kavanaugh’s nomination and that requesting the latter would unreasonably delay the process. Accordingly, the committee requested that NARA produce only the White House counsel documents. While people may disagree with Grassley on this, the decision was one for him to make (and, for what it’s worth, seems reasonable to me).

The problem arises from the fact that the committee did not receive all of Kavanaugh’s White House counsel documents. Instead, some 27,110 documents (amounting to 101,921 pages) were withheld entirely from the committee on grounds of constitutional privilege. Other documents were withheld for other reasons (e.g., lack of responsiveness) and some documents were produced to the committee on a confidential basis, but it is the roughly 100,000 pages of material withheld as constitutionally privileged that present by far the most important issue, both in terms of compliance with constitutional and legal requirements and from the perspective of obtaining the information most relevant to Kavanaugh’s confirmation.

For purposes of discussion, we will assume that all of the documents in question were plausibly within the scope of constitutional privilege (or, as it is more commonly called, executive privilege). It should be understood that the word “plausibly” is doing a lot of work here. The scope of executive privilege is a highly contested matter, and executive branch lawyers (not surprisingly) tend to take a broader view than others. Moreover, as anyone who has had to review documents for privilege can attest, applying even an agreed-upon standard to particular documents is often more of an art than a science. So if one starts with a broad view of executive privilege and errs on the side of withholding anything that might arguably fall within that broad scope, one can “plausibly” withhold quite a bit of material. Indeed, one might be able to withhold nearly everything from Kavanaugh’s records that would be of actual relevance to assessing his performance as a White House lawyer.

So what exactly was withheld from the committee? According to a letter from a private law firm retained by former President Bush, the “most significant portion of these documents reflect deliberations and candid advice concerning the selection and nomination of judicial candidates, the confidentiality of which is critical to any President’s ability to carry out this core constitutional executive function.” One can certainly understand why the executive branch might be reluctant to share these files with Congress. Presumably they would contain candid discussion, including negative information and opinions, regarding actual and potential judicial nominees. To give one hypothetical but realistic example, there could be a file on a candidate who was not nominated because of alleged misconduct that may or may not have occurred in the distant past. The potential leak of such information might undercut the ability of future presidents to find qualified judicial candidates and to obtain information and candid advice regarding the exercise of the nomination power.

Of course, it is possible that the nomination files would have information that would be in some way relevant to Kavanaugh’s confirmation. They might show something about his judgment, about what qualities he thinks are important in a judge, or about his inclinations with regard to judicial philosophy. Nonetheless, I can see a strong argument that the relevance of this information is outweighed by the potential harm to the president’s nominating power and collateral damage to the judicial branch. (Needless to say, nothing in the events of the past week has inspired confidence in the ability of Congress to avoid such consequences). Thus, the withholding of judicial nomination files seems relatively defensible.

Less so is the withholding of the remaining documents at issue, which include “advice submitted directly to President Bush; substantive communications between White House staff about communications with President Bush; and substantive, deliberative discussions relating to or about executive orders or legislation considered by the Executive Office of the President.” These categories seem broad enough to encompass all of Kavanaugh’s work that would be of the most interest, including the subjects I discussed in my last post.

Let’s take one of those subjects as an example. As I mentioned previously, Kavanaugh was intimately involved in a controversial Bush executive order regarding the procedures for complying with the requirements of the PRA. (Yes, it is ironic, as Amy Howe notes, that we are discussing the use of the PRA to obtain access to documents involving legal work on the interpretation of the PRA). The documents produced to the committee confirm Kavanaugh’s deep involvement in the subject; Howe notes “another White House lawyer jokingly referring to him as ‘Mr. Presidential Records.’” Thus, there are hundreds if not thousands of pages of printouts of public or external materials related to the PRA (legal opinions, law review articles, court pleadings, congressional testimony and correspondence, etc.).

What is missing, as far as I can tell, is any evidence of Kavanaugh’s legal analysis, his participation in drafting and promulgating the executive order, or his role in deciding how to respond to criticism of the executive order by Congress and others. To illustrate the point, take a look at a printout of an August 15, 2001 email from Kavanaugh to White House counsel Alberto Gonzales. The subject is “New draft Presidential Records EO.” The brief email states: “The plan is to get this into the OMB process by the end of the week. Note new Section 5, which both is accurate and should deflect criticism.” And a handwritten note on the printout, apparently from Gonzales, instructs Kavanaugh to “prepare a cover memo . . . explaining what this is and the need—as well as possible negative repercussions.”

Although this non-substantive email was produced to the committee, the attached draft executive order was not, nor was the memo that Kavanaugh presumably prepared in response to Gonzales’s instruction.  Among other things, there is no way to tell how Kavanaugh initially drafted the executive order (if he did), what legal analysis or policy thinking underlay that draft or subsequent revisions, what the problem was with the troublesome Section 5 or how it was fixed, or what Kavanaugh’s memo identified as the need for the new executive order or the “possible negative repercussions.” All of the documents that would provide insight into Kavanaugh’s actual work on this matter appear to have been withheld.

Again, we can concede that internal deliberations related to the executive order were plausibly within the scope of executive privilege at the time they occurred (2001-03). It should be noted, however, that at least 15 years have elapsed since these deliberations took place, and the Supreme Court has recognized that executive privilege is “subject to erosion over time after an administration leaves office.” Nixon v. Administrator of General Services, 433 U.S. 425, 451 (1977). In contrast to the judicial nomination files, it is difficult to identify any particularized harm that might occur from making these materials public, still less from making them available to the committee on a confidential basis.

Even more important than the question of whether these documents could be properly withheld on grounds of executive privilege is whether the decision was made in a legally authorized manner. Because there is a wide range of views on when executive privilege can or should be asserted, it is essential that the decision to assert the privilege be made in a proper and accountable manner. As recognized by the PRA, the primary interest in asserting executive privilege in presidential records, particularly with respect to matters that do not involve classified information or state secrets, belongs to the former president from whose administration they originate. See Hearings Regarding Executive Order 13233 and the Presidential Records Act Before the House Subcomm. on Gov’t Efficiency, Financial Mgt. & Intergovernmental Relations of the Comm. on Government Reform 24 (Nov. 6, 2001) (testimony of Acting Asst. Atty. Gen. Edward Whelan) (“In short, in enacting the PRA, Congress envisioned a balancing act—an orderly process for making presidential records ‘available to the public as rapidly and completely as possible,’ while preserving opportunities former Presidents, at least, to assert constitutionally based privileges as grounds for withholding documents from mandatory disclosure.”) (citations omitted). Even where the privilege constitutionally may be asserted, moreover, there is nothing in the Constitution requiring that it must be asserted. Id. at 29.

Here President Bush did not assert executive privilege. Instead, Bush’s lawyers have informed the committee that they have withheld documents on grounds of executive privilege because “the White House, after consultation with the Department of Justice, has directed that we not provide these documents.” NARA, while still at an early stage in terms of reviewing Kavanaugh’s documents, has informed the committee that certain records are being withheld based on the determination by “representatives of the former and incumbent Presidents” that the documents concern “internal assessments about the qualifications of a judicial candidate, the confidentiality of which is critical to the process of advising the President regarding potential nominations.” This is clearly not a claim that President Bush has asserted executive privilege.

To be sure, Executive Order 13489, the executive order currently governing presidential records (which replaced the Bush executive order previously discussed), provides for the possibility that the incumbent president may assert executive privilege with respect to the records of a former president even where the latter has declined to do so. However, section 3(c) of E.O. 13489 provides specific procedures under which the issue must be presented to the incumbent president by the White House counsel and Attorney General, and section 3(d) requires that the president’s decision to assert executive privilege be specifically documented by the White House counsel. No one has suggested that the issue has been presented to President Trump or that he has made any such decision, nor has the required documentation been generated. Thus, it seems clear that no proper assertion of executive privilege has been made pursuant to the PRA or E.O. 13489. See also 44 U.S.C. §2208(b)(1) (“For purposes of this section, the decision to assert any claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) must be made personally by a former President or the incumbent President, as applicable.”).

In short, the decision to withhold more than 100,000 pages of White House counsel records from the Senate Judiciary Committee on grounds of executive privilege is substantively questionable with regard to those documents other than judicial nomination files, and the entire withholding appears to be procedurally improper under the PRA and E.O. 13489. Apart from legal infirmities, moreover, the broad withholding of these documents appears to have defeated the purpose of the committee’s request by depriving it of any information that would provide a significant insight with regard to how Kavanaugh performed his duties as a White House lawyer.

 

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