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Senate Democrats know that Supreme Court nominee Brett Kavanaugh lied under oath to them before, in 2006 during his confirmation hearing to sit on the D.C. Circuit Court of Appeals. That lie is central to the documents fight they've been having with Republicans, who are pushing Kavanaugh's confirmation hearing weeks before the National Archives can even produce the fraction of documents they're willing to allow. Democrats have been forced to unprecedented measures in trying to get the documents, having to file a Freedom of Information request from the National Archives and threatening a lawsuit if the documents aren't released ahead of the scheduled September 4 hearing.
"We stand ready to sue the National Archives for Judge Kavanaugh’s full records if necessary," Democratic Leader Chuck Schumer said. "The American people deserve a methodical and thorough examination of a nominee to the Supreme Court who will yield immense influence on their lives." Particularly when they know that that nominee lied to them previously about the degree to which he was involved in President George W. Bush's illegal activities in conducting the Iraq war, including torture and warrantless wiretapping, when he served as Bush's staff secretary. Sens. Dianne Feinstein (D-CA), Patrick Leahy (D-VT) and Dick Durbin (D-IL) raise that point in a letter to Judiciary Chairman Chuck Grassley.
"As you know," they write to Grassley, "in 2006, Judge Kavanaugh told the Committee under oath that he was 'not aware of any issues' regarding 'the legal justifications or the policies relating to the treatment of detainees'; was 'not involved in the questions about the rules governing detention of combatants'; had nothing to do with issues related to rendition; and was unaware of, and saw no documents related to, the warrantless wiretapping program conducted without congressional authorization." But there's a little problem for Kavanaugh—and Grassley—here, the senators point out.
There are at least two publicly available documents on the Bush Library website that show he was absolutely involved in all of those things during his staff secretary tenure. One of the documents is a set of talking points about the secret torture policy of the administration that then-Deputy White House Chief of Staff Harriet Miers sent to him right after the "torture memos" from the Office of Legal Counsel had drafted were publicly revealed. Miers's email accompanying the memo "makes clear that then-Deputy National Security Adviser Stephen Hadley had personally asked for Judge Kavanaugh's review," the senators write. "Similarly, another email shows that Judge Kavanaugh was included on an email chain circulating talking points on rendition and interrogation."
In his hearings, Kavanaugh also told the committee "that he had not seen or heard anything about the President's warrantless wiretapping program until December 2005." But as Leahy, Feinstein, and Durbin point out, he was Associate White House Counsel on 9/11 and was integral in the White House legal team that reviewed the legal justification Office of Legal Counsel lawyer John Yoo drafted for a program that would allow warrantless wiretapping of American's emails and phone calls. That memo was drafted just six days after the 9/11 attack. His director supervisor, Deputy White House Counsel Timothy Flanigan, was the recipient of Yoo's warrantless wiretapping memo. It's simply not believable that Kavanaugh was kept out of that particular loop.
This is all very fishy, made even stinkier by the fact that political operative Bill Burck, the lawyer who is representing Steve Bannon, Reince Priebus, and White House counsel Don McGahn in the Mueller Russia probe, is also the guy the Bush has tapped to vet and redact the files the library is making available.
There has never been so much secrecy and political maneuvering behind a Supreme Court nominee. Clearly, Kavanaugh has a lot to hide and he's got a powerful political team trying to keep it all from the public.