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The Justice Department Was Behind The Decision To Keep 100,000 Pages Of Kavanaugh’s Record Secret

Both career lawyers and political appointees reviewed records from some of the Supreme Court nominee's time working in the White House, a source said.

Posted on September 3, 2018, at 11:36 p.m. ET

Attorney General Jeff Sessions
Allison Shelley / Reuters

Attorney General Jeff Sessions

After two days of questions about how it was decided that more than 100,000 pages of Supreme Court nominee Brett Kavanaugh's White House work would be withheld from the Senate Judiciary Committee's review, the Justice Department took responsibility for the decision on Monday night.

"The Department of Justice, which has advised both Democratic and Republican administrations on the application of the Presidential Records Act and constitutional privileges, was responsible for determining which documents were produced to the Senate Judiciary Committee," Justice Department spokesperson Sarah Isgur Flores said.

The Washington Post and Fox News first reported the acknowledgment earlier Monday evening — the eve of the start of Kavanaugh's confirmation hearing. The acknowledgment fits with what a source familiar with the process told BuzzFeed News.

The news that the documents were being kept from the public and the committee was reported on Friday night, when the lawyer overseeing the review sent a letter to congressional leaders about the final status of his review. The development was just the latest step in a series of fights over the millions of documents from Kavanaugh's time working in George W. Bush's White House from 2001 until when he was confirmed to his seat on the US Court of Appeals for the DC Circuit.

The office of former president Bush has been producing some of those documents to the committee in advance of the hearing — a decision that went outside of the usual process for congressional requests under the Presidential Records Act, which is handled by the National Archives.

Instead, lawyers for Bush, led by William Burck of Quinn Emanuel, reviewed the documents requested and then provided the presidential records they found to the Justice Department for review.

"[T]he White House and the Department of Justice have identified certain documents of the type traditionally protected by constitutional privilege," Burck wrote. "The White House, after consultation with the Department of Justice, has directed that we not provide these documents for this reason."

None of those involved — not the Justice Department, the White House, nor Burck — provided on-the-record comment over the weekend about who made those decisions, beyond what was contained in Burck's letter.

According to the source familiar with the process, both career lawyers and political appointees in the Justice Department's Office of Legal Counsel and Office of Legal Policy reviewed those documents, electronically tagging the documents that they believed should not be turned over as "withhold for executive privilege."

Ultimately, that decision was reached with 27,110 documents, amounting to 101,921 pages.

Although Bush could, theoretically, force the Trump administration to go to court to assert privilege to keep the documents under wraps, Burck made clear in his letter that Bush would not force such a step, writing, "[W]e have deferred to the White House, in consultation with the Department of Justice, on any documents not provided on constitutional privilege grounds."

Maintaining the line advanced by the White House and Senate Judiciary Committee Chair Chuck Grassley, DOJ's Flores noted, "The volume, depth, and breadth of the production of Judge Kavanaugh’s documents far surpasses the much smaller and narrower productions for previous nominees."

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