The Trump administration has directed that documents be withheld from the Senate that detail some of the key work that Supreme Court nominee Brett Kavanaugh did in the early 2000s in the George W. Bush White House, when he worked in the counsel's office.
A letter sent to Senate leaders on Friday night details that the Trump administration withheld documents including advice on judicial nominations and “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.”
In total, 27,110 of Brett Kavanaugh's documents from his time in the White House counsel's office under Bush — 101,921 pages — are not being turned over to senators considering his Supreme Court nomination at the direction of the Trump administration, a letter obtained by BuzzFeed News details.
Lawyers for the former president who have been reviewing Kavanaugh's papers told Senate leaders the news in a letter Friday that summed up their work.
“27,110 documents (101,921 pages) have not been provided because ... they have been identified as traditionally protected by constitutional privilege, and the White House, after consultation with the Department [of Justice], has directed that we not provide these documents for this reason,” William Burck, a partner at Quinn Emanuel who has been leading the review, wrote, along with Brigham Cannon from Kirkland & Ellis and Evan Young from Baker Botts.
The letter states that 127,902 documents (415,084 pages) have been provided to the Senate Judiciary Committee as a result of the review — although more than one-third of them have not been released to the public.
The Associated Press first reported about the letter and the Trump administration's decision to withhold the 100,000 pages of documents from the Senate Judiciary Committee.
The letter notes that the larger review by the outside lawyers for Bush only included records from Kavanaugh's time in the counsel's office. Kavanaugh also served for several years after leaving the counsel's office as Bush's staff secretary, but Senate Judiciary Committee Chair Chuck Grassley denied Democrats' request that those records be reviewed as well. Instead, he submitted a unilateral request that did not include those records.
Of 276,695 documents consisting of 937,176 pages that were initially identified by the National Archives and Records Administration as responsive, a software company identified 96,924 documents (273,359 pages) as “exact duplicates of other documents that NARA provided.” Those were not turned over to the Senate. (Although there were thousands of other apparent duplicates, the letter notes that they turned over any documents that might have appeared to have been duplicates so long as they weren't identified as duplicates by the outside vendor.)
Of the remaining 179,771 distinct documents (663,817 pages), less than half — 80,788 documents (267,834 pages) — were released to the public. Another 47,114 documents (147,250 pages) were turned over to the committee for its confidential review.
The final 46,250 documents (204,778 pages) were not turned over to the committee at all.
The letter details that roughly half were withheld by the Trump administration, which has the authority to do so under the Presidential Records Act, and half were “excluded for lack of responsiveness” because they were personal and thus not records covered by the law or from the period after Kavanaugh left the counsel's office.
As the letter puts it, “Chairman Grassley’s request was limited solely to documents from Judge Kavanaugh’s time in the White House Counsel’s Office.”
Here's how the letter describes the documents withheld by the Trump administration:
"Judge Kavanaugh, an Associate and Senior Associate White House Counsel, dealt with some of the most sensitive communications of any White House official. Every presidential record we reviewed was also provided to the Department of Justice for an independent assessment of its proper categorization and treatment. After completing this review, the Department of Justice and the White House have identified certain documents traditionally protected by constitutional privilege that have not been included in our productions to the Committee on that basis. Accordingly, the White House, after consultation with the Department of Justice, has directed that we not provide these documents. 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. The remaining documents not provided likewise reflect functions within the Executive Office of the President the confidentiality of which has traditionally been considered at the core of a President’s constitutional privileges, including: 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."