Bush Claimed Power to Override a Torture Ban. What Did Kavanaugh Think About That?

WASHINGTON — When Brett Kavanaugh came before the Judiciary Committee in May 2006 for his nomination to be an appeals court judge, senators pressed him on his role in President George W. Bush’s use of signing statements to claim the power to bypass new laws — like a much-disputed assertion the previous December that he could override a ban on torture.

Kavanaugh, who at the time was the White House staff secretary, acknowledged handling draft signing statements to ensure that “relevant members of the administration have provided input” before presenting them to Bush. But the nominee sidestepped questions about any advice or views he had about them, refusing to discuss “internal matters” and pivoting instead to a description of a 1952 Supreme Court opinion that explains how to analyze separation-of-powers disputes in general.

Now that President Donald Trump has nominated Kavanaugh to the Supreme Court, the opacity of his testimony about Bush’s signing statements, including about the torture ban, is becoming a case study for Democrats’ vehement arguments that the Senate must see his staff secretary files before any confirmation hearing. Democrats have already been raising concerns that Kavanaugh may hold too expansive a view of executive power in other contexts, like his skepticism about the wisdom of forcing a president to answer questions in criminal investigations.

“Judge Kavanaugh played a key role in clearing President Bush’s use of signing statements,” said Sen. Chuck Schumer, D-N.Y., the minority leader. “Understanding the nature of his involvement in those actions is absolutely critical to evaluating the type of justice he would be on the bench. The Senate and the American people deserve full access to the documents from his time as staff secretary.”

A White House spokesman declined to comment on whether the staff secretary files contained anything Kavanaugh had written about signing statements on the torture ban or any other legislation.

But, either way, Senate Republicans are pushing to move forward on the nomination without asking the National Archives to provide those documents. They argue that a staff secretary’s role is to handle the flow of paper into and out of the Oval Office, not to render substantive advice, so it is not necessary to see what he wrote in that position.

“These documents are both the least relevant to Judge Kavanaugh’s legal thinking and the most sensitive to the executive branch,” Sen. Charles E. Grassley, R-Iowa, who is chairman of the Judiciary Committee, said in a July 24 speech on the Senate floor.

Still, two White House staff secretaries from the Obama administration, Lisa Brown and Rajesh De, said that it was misleading to portray the staff secretary as a mere traffic cop or inbox and outbox for other officials’ writings.

Typically, they said, before sending documents into the Oval Office, the staff secretary canvasses senior administration officials to give them a chance to object to a draft’s analysis or recommendations. Especially if there is a disagreement, they said, a staff secretary often writes a cover memo to the president explaining the issue.

“The staff secretary role is potentially very influential, depending upon how he is utilized by the president,” said De, who now leads the national security practice at the law firm Mayer Brown. “This is the last person to review, comment on, or adjudicate differences with respect to material sent to the president, and may need to synthesize or explain differing points of view on issues of significance.”

Bush’s aggressive use of presidential signing statements became a contentious issue toward the end of Kavanaugh’s tenure as staff secretary from 2003 to 2006. By then, Bush had already challenged more provisions of new laws than all previous presidents combined, but those claims attracted little attention until he asserted that he could bypass a December 2005 law in which Congress, over his objections, had tightened restrictions against torture.

Emails disclosed last year during the confirmation of Justice Neil Gorsuch, another Bush administration veteran, revealed that there had been a high-level internal fight about what the signing statement on the torture ban should say. But those emails did not show how Kavanaugh eventually presented the matter to Bush.

Pressed at his 2006 hearing to express an opinion about whether the president could legally override the torture ban, Kavanaugh gave an ambiguous answer. He said the president must “follow the Constitution and the laws passed by the Congress” — without saying whether he thought, in that instance, the statute conflicted with the Constitution.

Grassley has said he does want to see Kavanaugh’s papers from his time as an associate White House counsel from 2001 to 2003; it is not clear whether any of those address signing statements. Republicans also point out that the Senate has access to years of his judicial opinions, published writings, speeches, and other such materials. Since he became a judge, his writings show, he has spoken more extensively about two major issues raised by Bush’s use of signing statements.

The first is the legitimacy of a sweeping theory of executive power that Bush’s legal team often advanced: that the president, as commander in chief, can override statutes in which Congress has regulated the executive branch’s conduct in national security matters.

In a favorable review last year of a book written by another judge, David J. Barron, Kavanaugh said “it seems settled” that Congress cannot interfere with presidents’ power “to supervise, direct and remove subordinate officers in the national security realm” and “to direct specific troop movements.”

But beyond those issues, he wrote, Barron “advances a forceful originalist and historical-practice case that presidents must and do comply with congressional regulation of wartime activities such as surveillance, detention, interrogation and the use of military commissions.”

Still, Kavanaugh pointed out a catch: It is often “not easy” to tell whether an action should be analyzed as defying a law, because presidents often argue that statutes should be interpreted as blessing their policies. (Indeed, during the Bush administration’s internal debate over the December 2005 signing statement on the torture ban, some officials had argued for declaring that the new law was best read as essentially codifying their existing interrogation policies, rather than suggesting any plans to defy Congress. Earlier that year, the Justice Department had secretly concluded, in a memo that was later rescinded, that interrogation tactics like waterboarding and sleep deprivation did not violate the humane-treatment standard that Congress had included in the new law.)

And even when a president unambiguously defies a law, he noted, sometimes that is legal. He cited a 2015 ruling in which the Supreme Court upheld presidents’ constitutional authority to disregard a statute about passports and Israel.

Kavanaugh has also addressed the other big issue raised in the signing statements debate: whether it is legitimate for presidents to sign bills but effectively nullify some provisions by deeming them unconstitutional, or whether the Constitution gives presidents only the choice of signing a bill — and then obeying all of it — or vetoing it.

In 2006, the American Bar Association took the latter view, arguing that signing statements were “contrary to the rule of law and our constitutional system of separation of powers.” But former executive branch lawyers of both parties have rejected that position as going too far.

In a 2015 lecture to law students, Kavanaugh made clear that he shared the view that presidents may decline to obey statutes if they have a “reasonable” constitutional objection — unless a court issues a final order telling them otherwise.

That said, he warned, “It’s about the most controversial thing a president can do.” His advice to executive branch officials considering making such a claim was “you’d better know what you’re doing legally, you’d better have a thick skin politically, and you’d better hope you don’t have a Senate confirmation process in the near future.”