The Trump administration will hold back more than 100,000 pages of documents related to Supreme Court nominee Brett Kavanaugh's service because the White House and the Department of Justice have determined they are protected by constitutional privilege, according to a letter to the Senate Judiciary Committee.
William Burck, a lawyer charged by former President George W. Bush with reviewing the documents housed in the presidential library, disclosed the exemptions in a letter to Judiciary Committee Chairman Chuck Grassley on Friday. Burck explained that, in all, he received just under 664,000 pages of documents and that Bush had directed him to "proceed expeditiously" and "err as much as appropriate on the side of transparency and disclosure."
Burck said he has given the committee "every reviewable" document that he received except those that fell into exemptions that included "presidential records protected by constitutional privilege."
The disclosure comes days before Kavanaugh's confirmation hearings, which are slated to begin Tuesday, and intensifies a battle between Grassley, who says he has produced a record number of documents, and Senate democrats who question the review being led by lawyers for the Trump administration and Bush. Democratic senators argue that Grassley is refusing to produce documents from Kavanaugh's years serving as staff secretary in the White House from 2003 to 2006.
Senate Minority leader Chuck Schumer called the decision to withhold the documents a "Friday night document massacre."
"President Trump's decision to step in at the last moment and hide 100,000 pages of Judge Kavanaugh's records from the American public is not only unprecedented in the history of Supreme Court nominations, it has all the makings of a cover up," he said in a statement.
Republicans on the Senate Judiciary Committee countered that Burck's letter provided a "full accounting" of Kavanaugh's records and that Grassley has expanded access to confidential material beyond that for any other Supreme Court nominee. In a release, the committee pointed out that Grassley had promised to facilitate the release of another set of documents, currently available only to members, if senators keep their requests targeted to specific documents.
White House principal deputy press secretary Raj Shah responded on Twitter to Schumer by saying that the Senate Judiciary Committee requested access to "non privileged" presidential records. "That has been satisfied to the tune of over 440,000 pages of executive branch documents, more than what was produced for the past five #Scotus nominees combined," he wrote.
Kavanaugh's confirmation is complicated by the sheer number of emails that exist during his years in the White House. In 2005, for instance, Massachusetts Sen. Edward Kennedy, a Democrat who was then in the minority, requested documents from then-chief justice nominee John Robert's service in the Office of Solicitor General during Robert's confirmation battle.
Then-Assistant Attorney General William E. Moschella wrote back that the department had determined that documents pertaining to "internal discussions" among lawyers were covered by both "deliberative process privilege" and "attorney-client privilege." But the privilege was never formally asserted.
In his letter, Burck defined the withheld documents as those that "reflect deliberations and candid advice concerning the selection of judicial candidates" as well as advice submitted directly to Bush, substantive communications between White House staff about discussions with the President and "substantive deliberative discussions relating to or about executive orders or legislation considered by the Executive Office."