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Senate Democrats Are Suing The National Archives To Get Brett Kavanaugh's Records

Democrats have complained about the lack of access to documents from Kavanaugh's tenure in the White House under former president George W. Bush.

Posted on September 17, 2018, at 2:12 p.m. ET

Alex Wroblewski / Reuters

Six Democrats on the Senate Judiciary Committee filed a lawsuit Monday against the National Archives and Records Administration to force the agency to release documents about US Supreme Court nominee Brett Kavanaugh as soon as possible.

Access to records from Kavanaugh's tenure in the White House under former president George W. Bush have been a flashpoint in the fight over his nomination. The Democrats who sued — Sens. Richard Blumenthal, Patrick Leahy, Sheldon Whitehouse, Mazie Hirono, Cory Booker, and Kamala Harris — also filed papers asking for immediate court action to force the release of records.

"The Senate and the American public have a brief opportunity to sift the record of Judge Kavanaugh’s public career before the Senate is expected to make an effectively irreversible decision that would shape the federal judiciary for decades, and the individual Senators have a unique platform to probe and publicize Judge Kavanaugh’s record," lawyers for the senators at the watchdog group American Oversight wrote in Monday's filing.

The Presidential Records Act gives senators access to presidential records. Democrats accused Senate Judiciary Committee Chair Chuck Grassley of submitting too narrow a request for records about Kavanaugh's time in the White House to the National Archives. The National Archives estimated it would finish its review of documents by late October. In the meantime, a lawyer for the George W. Bush Presidential Library and Museum, William Burck, oversaw a parallel effort to review the same set of documents and produce them to the committee at a faster pace, allowing Senate Republicans to move ahead with Kavanaugh's confirmation hearing earlier this month.

Democrats have questioned relying on Burck and his team to decide what to turn over and what to mark as "committee confidential," a designation that means those records can't be released to the public. In protest, Booker and Hirono last week released several sets of records marked "committee confidential," potentially in violation of Senate rules.

The lawsuit filed Monday in the US District Court for the District of Columbia encompasses three requests that the 10 Democrats who sit on the Senate Judiciary Committee submitted on Aug. 8 — one to the National Archives, one to the Bush library, which falls under the National Archives, and one to the CIA, which is also named as a defendant.

The requests to the National Archives and the Bush library asked for records that encompassed the entirety of Kavanaugh's six-year tenure in the White House, as a senior associate counsel and also as assistant to the president and staff secretary. They also asked for records about Kavanaugh's nomination to the US Court of Appeals for the DC Circuit, where he's served since his confirmation in May 2006.

Grassley's request for records on behalf of the Judiciary Committee covered Kavanaugh's time as senior associate counsel — a job he held from 2001 to 2003 — and his DC Circuit nomination, but not the three years he spent as assistant to the president and staff secretary from 2003 until he was confirmed to the DC Circuit. Grassley has said those records are especially sensitive and not relevant to understanding Kavanaugh's "legal thinking."

The CIA request asked for all records that agency had that Kavanaugh sent or received, records that mentioned Kavanaugh, records about his DC Circuit nomination, and any other records he was involved in writing or editing, or that referred to him.

A representative of the National Archives did not immediately return a request for comment. A spokesperson for the CIA declined to comment.

The senators had asked for expedited processing of their Freedom of Information Act requests to the National Archives and the Bush library. According to the lawsuit, each of the agencies confirmed receiving the requests, but aside from a response from the Bush library about the request for records about Kavanaugh's DC Circuit nomination, there were no other communications.

Under the Freedom of Information Act, agencies have 20 days to notify a requester if a demand for documents is approved or denied, and 10 days to decide whether to grant a request for expedited processing. Agencies can get more time to respond if a request is deemed too complex, but they still have to notify the requester.

When an agency doesn't meet the deadlines under the law, requesters can sue. The federal district court in Washington, DC, is the primary venue for these lawsuits.

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