Battle Over Documents Renewed at Kavanaugh Confirmation Hearing

WASHINGTON (CN) – Secret documents from the George W. Bush White House took immediate refocus Thursday as the Senate began its third day of confirmation hearings for Supreme Court nominee Brett Kavanaugh.

Sen. Cory Booker, D-N.J., left, next to Sen. Kamala Harris, D-Calif., questions Supreme Court nominee Brett Kavanaugh at a hearing of the Senate Judiciary Committee on Sept. 5, 2018. Currently a sitting judge on the D.C. Circuit, Kavanaugh was tapped in July by President Donald Trump to replace retired Justice Anthony Kennedy. (AP Photo/Jacquelyn Martin)

Having used an email marked confidential on Wednesday night to question Kavanaugh about his views of racial profiling in security measures, Senator Cory Booker upped the ante Thursday morning by publicly releasing 12 pages of emails involving Kavanaugh when he worked for the White House from 2001 to 2006.

Booker, a Democrat from New Jersey, said he is aware that there are consequences, including ouster from the Senate, to releasing documents provided to the committee with the understanding senators keep them confidential.

“I am going to release the email about racial profiling, and I understand the penalty comes with potential ousting from the Senate,” Booker said this morning. “And if Senator Cornyn believes that I violated Senate rules, I openly invite him and accept the consequences of my team releasing that email right now.”

Senator John Cornyn, R-Texas, is the Senate majority whip. Fellow Democratic Senators Dick Durbin, Chris Coons, Sheldon Whitehouse, Mazie Hirono, Richard Blumenthal and Dianne Feinstein all said they would stand alongside Booker if Republicans attempt to sanction him for the document release.

Booker said the documents are not sensitive in any way and exemplify the Republican effort to unnecessarily darken the understanding of Kavanaugh’s White House work.

“The fact that there is nothing in that document that is personal information, there’s nothing national security related, the fact that it was labeled as committee confidential exposes that this process, sir, is a bit of a sham,” Booker said.

Booker’s mere threat earlier this morning to release the documents prompted Cornyn to swiftly accuse the congressman of “conduct unbecoming a senator.”

“Running for president is no excuse for violating the rules of the Senate or the confidentiality of the documents that we are privy to,” Cornyn said.

By the time Booker released the documents on Thursday morning, they had been approved for public release. It is not clear, however, if Booker knew this when he threatened to release them.

Sen. Thom Tillis, R-N.C., said the documents were cleared early Thursday morning and suggested Booker should have known they would be publicly released before he took his seat on the dais.

“You got what you wanted, you could have come in here and started up, had the discussion about it if you wanted to, incorporated it into the discussion today,” Tillis said.

The threatened records release came shortly after The New York Times reported this morning on a leaked confidential document from Kavanaugh’s time in the White House in which Kavanaugh objected to language in a draft op-ed that said “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”

According to the Times, Kavanaugh wrote in response: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since court can always overrule its precedent and three justices on the court would do so.”

D.C. Circuit Judge Brett Kavanaugh leaves the Senate Judiciary Committee room for a short break on the third day of his confirmation hearing on Sept. 6, 2018. (AP Photo/J. Scott Applewhite)

When Feinstein asked Kavanaugh about the email Thursday, the judge said he thought at the time the way the op-ed was originally written was “overstating” how legal scholars viewed Roe.

“The broader point was simply that I think it was overstating something about legal scholars,” Kavanaugh said Thursday. “And I’m always concerned with accuracy and I thought that was not quite an accurate description of all legal scholars.

Kavanaugh also repeated his answer that Planned Parenthood v. Casey, which reaffirmed Roe, is “precedent on precedent,” giving it stronger standing in conversations about precedent. He would not say, however, whether Roe was correctly decided, citing nominee practice of not publicly taking positions on past Supreme Court cases.

As Kavanaugh’s hearing continues, the senators are afforded less time than they had on Wednesday to grill the nominee. Senator Amy Klobuchar, D-Minn., on Thursday meanwhile renewed her questions about a 2009 article from the Minnesota Law Review in which Kavanaugh pondered whether presidents should be subject to criminal investigations or lawsuits.

Kavanaugh has explained he does not believe presidents should be forever immune from criminal or civil liability, but that the question is simply one of whether they should face lawsuits after they leave office, either at the end of a term or after impeachment. He also said the law review article was a proposal for Congress to consider and not a reflection of his views on the constitutional questions at issue.

But Klobuchar wondered how Congress could ever use its impeachment power if presidents cannot even face criminal investigations in office.

“I’m trying to understand in practicality, when you look at the last impeachment proceedings, how you would in effect do this if you didn’t have an investigation,” Klobuchar said. “These other ones have used independent counsel, they’ve used special counsel and if you don’t have that, don’t you effectively eviscerate the impeachment part of the Constitution?”

Kavanaugh responded that, even without a special counsel, Congress has a role in investigating the president before beginning impeachment proceedings.

“Historically, Congress has often had investigative bodies that have done the work,” Kavanaugh said.

Kavanaugh also sought to distinguish the special-counsel system as it exists today from the now-defunct independent-counsel law, having questioned the constitutionality of the latter in the past.

The current Justice Department regulations have multiple differences from the independent-counsel law, which Congress allowed to expire in 1999, Kavanaugh explained.

“I want to emphasize that the special-counsel system that is in place now is something that I’ve specifically and repeatedly and expressly said is consistent with our traditions,” Kavanaugh said Thursday.

The documents released Thursday by Senator Booker detail White House deliberations on a case regarding an affirmative action program in federal government contracting. In one email, Kavanaugh raises concerns about the fate of the regulation before the Supreme Court.

“The fundamental problem in this case is that these DOT regulations use a lot of legalisms and disguises to mask what in reality is a naked racial set-aside,” Kavanaugh wrote in an August 2001 email. “I have no doubt that Rehnquist, Scalia, Thomas and Kennedy will realize as much in short order and rule accordingly – unless the court DIGs the case. I assume O’Connor will so rule as well, although that is less certain.”

Another email shows Kavanaugh discussing the use of racial profiling programs in the wake of 9/11. He talked with co-workers in the White House about a “working group” on security policy and raised the question of how to approach airport security in the short term.

Kavanaugh explicitly says in the emails he “generally” favors a “race-neutral” security policy, but acknowledges such a program might take time to implement.

“The people who favor some use of race/natl origin obviously do not need to grapple with the ‘interim’ question,” Kavanaugh wrote. “But the people (such as you and I) who generally favor effective security measures that are race-neutral in fact DO need to grapple – and grapple now – with the interim question of what to do before a truly effective and comprehensive race-neutral system is developed and implemented.”

The committee posted on its official website on Thursday a set of documents Leahy, Coons, Blumenthal and Booker requested be made public. The documents Booker released are included in the now-public cache.

Taylor Foy, a spokesman for Senator Chuck Grassley, said Booker made the request to publicly release the documents just after midnight Thursday.

In a statement Thursday Booker’s office said the pressure by Senate Democrats was “able to shame the committee” into making the documents public.

Booker will keep releasing documents, spokeswoman Kristin Lynch said, “because Republicans are hiding Brett Kavanaugh’s record from the American people.”

Democrats have continued to press Kavanaugh about whether he has had discussions about Special Counsel Robert Mueller’s investigation into the Trump campaign’s suspected collusion with the Russian government.

Senator Kamala Harris, D-Calif., asked Kavanaugh late Wednesday night if he had ever talked about the investigation with anyone at the law firm Kasowitz Benson Torres, which has long represented President Donald Trump. Kavanaugh seemed surprised by the question last night and did not directly answer, saying he was hesitant to do so without knowing everybody who is employed at the firm.

On Thursday, Kavanaugh told Blumenthal he does not believe he has talked about the Mueller probe with anyone at the firm, including Ed McNally, who worked in the Bush White House along with Kavanaugh.

Kavanaugh was careful when Blumenthal asked if he had ever talked about the investigation with anyone at the White House. He said he prepared for questions about Mueller with the team marshaling his nomination, but assured Blumenthal he did not have inappropriate conversations about the investigation with people in the White House.

“I have not had discussions, if I’m understanding your question correctly, I haven’t had such discussions, but I want to make sure I understand your question correctly,” Kavanaugh said.

He also definitively said he has not given assurances or expressed his opinion to anyone about the Mueller investigation.

As for whether a sitting president can be indicted, Kavanaugh told Booker he would have an “open mind” should the question come before the high court.

The judge would not commit to recusing himself from cases involving Trump in the future, saying doing so would undermine his judicial independence.

“Discretionary recusal as a commitment to get a job or discretionary non-recusal as a commitment to get a job, either direction, would be violating my independence as a sitting judge and as a nominee to the court,” Kavanaugh told Harris later in the hearing.

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