White House Cites Executive Privilege to Withhold 100,000 Pages of Kavanaugh Records

WASHINGTON — The Trump White House, citing executive privilege, is withholding from the Senate more than 100,000 pages of records from Judge Brett Kavanaugh’s time as a lawyer in the administration of former President George W. Bush.

The decision, disclosed in a letter that a lawyer for Bush sent Friday to Sen. Charles Grassley, R-Iowa, chairman of the Senate Judiciary Committee, comes just days before the start of Kavanaugh’s Supreme Court confirmation hearings Tuesday. It drew condemnation from Sen. Chuck Schumer, D-N.Y., the minority leader.

“We’re witnessing a Friday night document massacre,” Schumer wrote on Twitter on Saturday. “President Trump’s decision to step in at the last moment and hide 100k pages of Judge Kavanaugh’s records from the American public is not only unprecedented in the history of SCOTUS noms, it has all the makings of a cover up.”

Democrats and Republicans have been arguing for weeks over access to documents relating to Kavanaugh’s time working for Bush. Democrats say Republicans are blocking access to the documents as part of an effort to ram through the nomination without proper scrutiny.

The bulk of the records being withheld “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,” wrote Bush’s lawyer, William A. Burck.

They also reflect “advice submitted directly to President Bush,” Burck wrote, as well as communications between White House staff members about their discussions with Bush, and other internal deliberations.

Kavanaugh spent two years, from 2001 to 2003, in the White House Counsel’s Office and later served as staff secretary to the president, a role that required him to vet documents before they reached the president’s desk. None of the staff secretary records have been released, because Grassley did not request them — another point of contention between Republicans and Democrats.

Burck has been heading a team of dozens of lawyers who are reviewing tens of thousands of pages of the Bush White House records, which are held by the National Archives and subject to release under the Presidential Records Act. But the White House, after consulting with the Justice Department, decided that certain records should not be released, Burck wrote.

Senate Democrats said this was the first time a sitting president has exerted executive privilege under the Presidential Records Act in order to prevent documents from going to Congress during a Supreme Court confirmation process. Schumer issued his angry tweets alleging a holiday weekend cover-up just minutes before the start of the funeral for his Senate colleague John McCain, which Schumer attended.

Presidents have claimed executive privilege under the Constitution to prevent other branches of government from gaining access to certain internal executive branch information, so that the president and top White House officials can communicate freely with one another.

So far, Burck said, he has produced more than 415,000 pages of records to the committee, adding, “We believe we have faithfully followed President Bush’s instruction to review these documents accurately, neutrally, expeditiously and, with a presumption of disclosure.”