Kavanaugh Feared Looking ‘Silly’ on Flip-Flop on Presidential Records

Documents show Supreme Court nominee fretted about position switch while working in White House

Aides attend a news conference with Republican members of the Senate Judiciary Committee Chairman in Dirksen Building on August 2, 2018, with boxes representing roughly 1 million pages of documents to be submitted to the committee on Supreme Court nominee Brett Kavanaugh. (Tom Williams/CQ Roll Call file photo)

Long before the current Senate fight over access to presidential records as part of his Supreme Court nomination, Brett Kavanaugh sent an email to his co-workers in the White House counsel’s office about a soon-to-be-published article on access to presidential records that “makes me look very silly.”

Kavanaugh let the office know that Washington Post columnist Al Kamen planned to write a blurb to highlight how he had switched legal positions — now that he was a lawyer in the George W. Bush administration — when it comes to how much power former presidents and their families had to block the release of presidential records.

“I apologize in advance,” Kavanaugh wrote in the email, one of about 88,000 pages of documents about his work in the White House released Sunday as part of the confirmation process. “I will be screaming into a pillow at staff meeting in the morning. Uggghhhhh.”

Kavanaugh’s anguish became public as Senate Republicans released tens of thousands of pages of White House records in a press to confirm him before Oct. 1, while Senate Democrats complain that only a fraction of records about Kavanaugh’s work in the White House will be released before then — and only through a partisan review process.

Watch: Senate GOP Stacks 167 Boxes to Illustrate Amount of Kavanaugh Papers Getting Released

Back in 2001, Kamen wrote that Kavanaugh, as part of then-independent counsel Kenneth W. Starr’s legal team, had argued President Bill Clinton needed to turn over “everything, no executive privilege, posthaste and pronto.” But as a lawyer for the George W. Bush administration, Kavanaugh crafted an executive order that gave former presidents the right to block the release of presidential papers.

It embodied the important legal doctrine of “illa tunc, haic nunc — that was then, this is now,” Kamen wrote.

That Kavanaugh email stands out amid a sea of generally unrevealing presidential records that made up the latest batch released through Republicans on the Senate Judiciary Committee, such as thousands of pages of documents from the Heritage Foundation that went to Kavanaugh’s account.

The Senate Judiciary Committee said the records were released after Bush’s representative determined whether any paperwork is privileged and should be withheld from Congress as part of the Presidential Records Act. Records will continue to be released via that process in the coming weeks, ahead of the confirmation hearing set to start Sept. 4.

The National Archives said its process for releasing records directly — not through the Senate Judiciary Committee — won’t be done until late October, so Democrats contend the confirmation process will only feature documents that the Bush representative approves.

“If the tiny portion of Judge Kavanaugh’s record that has been made public seems unrevealing, it’s because those docs have been cherry-picked by his former deputy, a long-time political operative,” Minority Leader Charles E. Schumer, D-N.Y., said Sunday on Twitter. “Congress — and the public — still have seen no records from the National Archives.”

Sen. Dianne Feinstein of California, the top Democrat on the committee, sent a memo Monday that said Grassley’s “alternative process allows partisan lawyers to unilaterally withhold documents for any reason, with no accountability.”

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