On Thursday morning, Democratic members of the Senate Judiciary Committee leaked documents from Brett Kavanaugh’s time in the George W. Bush White House that had previously been marked as committee confidential, a designation meant to protect matters of national security.

The documents that were released by Senators Cory Booker, Mazie Hirono, and Patrick Leahy were not however related to national security, but rather to issues such as racial profiling, Constitutional protections for Native Hawaiians, and Kavanaugh’s knowledge of stolen Democratic memos in 2002 respectively. Some of these materials suggest that Judge Kavanaugh knowingly lied under oath during his confirmation hearings for the US Court of Appeals for the DC Circuit in 2004 and again in 2006.

In addition to the committee confidential materials that Senators were barred from discussing publicly, there were 100,000 documents that were excluded from Committee review altogether after the Trump administration cited executive privilege over their contents.

Private lawyer Bill Burck is responsible for reviewing and classifying all requested documents related to Kavanaugh’s time as White House counsel and then as staff secretary to President Bush. In an opening statement on Tuesday morning, Judiciary Committee member Dick Durbin stated, “By what authority is this man holding back hundreds of thousands of documents? Who is he? Who is paying him?”

Durbin wasn’t the only Democrat to raise concerns over Burck’s conflict of interest. Burck previously worked for Brett Kavanaugh in the George W. Bush White House, and currently represents multiple players in the Mueller investigation, including former-chief of staff Reince Priebus, former-chief strategist Steve Bannon, and soon-out-the-door White House counsel Don McGahn.

The National Archives acknowledged that the inclusion of an outside group has never been done before in the document review process and there is fear that it may set a precedent for future confirmations. A growing concern regarding the outsourcing of the document review process lies in the fact that Mr. Burck’s team is not responsible for following the same legal standards as are outlined for the National Archives.

Democrats have consistently questioned the validity of holding hearings without access to all relevant materials. From the start, Chairman Chuck Grassley had requested the National Archives provide only a fraction the relevant documents and refused to consider pleas from Democrats for a greater scope. The National Archives said it would take them until late October to completely fulfill Grassley’s limited document request, which is expected to total over 900,000 pages.

Republicans are rushing to confirm Kavanaugh before the Supreme Court term begins in October, and before the November elections in which they risk losing control of the Senate. The vote on Kavanaugh’s nomination is expected to take place in approximately two weeks, a full month before all of the documents have been vetted by the National Archives.

 

Media Resources: NPR 9/6/18, 9/8/18; Vox 9/4/18; The Washington Post 9/4/18; Grabien 9/4/18; The National Law Journal 9/4/18; The New York Times 9/2/18; Daily Hampshire Gazette 9/3/18, Time 9/4/18; Slate 9/7/18

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