By Akela Lacy
EVEN AS BRETT Kavanaugh inches closer toward his confirmation as a Supreme Court justice, congressional Democrats are making a last-ditch attempt to bring attention to the nominee’s potential perjury, including about his role in the warrantless surveillance programs of the post-9/11 Bush White House.
Dozens of members of the Congressional Progressive Caucus sent a letter Thursday to President Donald Trump committing to leverage subpoena power in an effort to investigate the full record of Kavanaugh’s time in the White House for evidence of perjury. House Democrats will have subpoena power if they retake the lower chamber in the midterm elections, and Rep. Jerrold Nadler, who will likely chair the House Judiciary Committee should that happen, has already promised to investigate any credible allegations of perjury if Kavanaugh is confirmed. Nadler did not sign the letter.
The Senate reviewed today the FBI’s report on its six-day investigation into claims by Christine Blasey Ford that Kavanaugh sexually and physically assaulted her in the early 1980s, when they were in high school. But the CPC letter raises distinct concerns regarding Kavanaugh’s credibility that extend far beyond his time at Georgetown Prep, the suburban Maryland high school that has drawn intense scrutiny for its partying culture in recent weeks.
The CPC members raised not only Kavanaugh’s involvement in the Bush administration’s widespread, secret, and illegal surveillance of Americans following the events of September 11, 2001, but also testimony he made before the Senate during his time in the Bush White House that has since been called into question.
Sen. Patrick Leahy, D-Vt., raised questions about the nominee’s Bush-era record on the second day of Kavanaugh’s nomination hearings last month, but the issue has otherwise received little of the Senate Judiciary Committee’s attention. In the lower chamber, House Minority Leader Nancy Pelosi has demurred when faced with questions of how Democrats would approach a Kavanaugh confirmation, post-midterm season. “We are not about impeachment,” she said Tuesday at the Atlantic Festival in Washington, D.C.
“Judge Kavanaugh has made misleading statements under oath on a variety of highly questionable actions and episodes,” the CPC letter, which is first being reported by The Intercept, reads. “For example, he likely misled the Senate about his alleged involvement in Bush-era warrantless surveillance” as well as “the administration’s legal rationale for torture and indefinite detention.” As of now, the Senate Judiciary Committee has been given access to “only roughly 10 percent” of Kavanaugh’s White House record, the signatories to the letter point out.
The letter also notes the possibility that Kavanaugh perjured himself, as The Intercept previously noted, in statements he made denying any knowledge of the sexual misconduct allegations against his mentor, former 9th Circuit Judge Alex Kozinski, prior to their being made public in 2008.
Thirty-nine CPC members signed the letter to the White House. By asking Trump to withdraw Kavanaugh’s nomination before the upcoming confirmation vote, they joined a growing chorus of calls from Georgetown Prep alumni, members of the Yale Law community, law professors, and Senate Judiciary Democrats.
Some Democratic members of the House Judiciary Committee — Pramila Jayapal of Washington, Jamie Raskin of Maryland, Zoe Lofgren of California, Hank Johnson of Georgia, Karen Bass of California, David Cicilline of Rhode Island, Ted Lieu of California, and Steve Cohen of Tennessee — are among the signatories.
Trump has doubled down on his support for Kavanaugh in recent days, and the White House is unlikely to be moved by the CPC’s efforts. Meanwhile, another organization has been attempting to get the Senate Judiciary Committee to revisit Kavanaugh’s record on civil liberties. They’ve gotten little response.
EPIC, THE ELECTRONIC Privacy Information Center, a leader in advocacy on issues of privacy and civil liberties, submitted three letters to the Senate Judiciary Committee — on August 8, September 4, and September 12 — outlining concerns over the handling of documents related to Kavanaugh’s time in the Bush White House, as well as Kavanaugh’s own interpretation of privacy law.
The letters specify particular concern over “the ongoing secrecy” surrounding “documents from Judge Kavanaugh’s years in the White House.” Those documents, which have only been partially released to the committee, contain “strong evidence that Brett Kavanaugh was a central figure” in activities “including specifically the renewal of the unlawful warrantless wiretapping program and the secret expansion of the PATRIOT Act,” according to EPIC.
The group filed a lawsuit under the Freedom of Information Act seeking the public release of documents from Kavanaugh’s time as a top White House adviser. On Wednesday, the National Archives confirmed the existence of hundreds of records regarding Kavanaugh’s role in controversial surveillance programs. Those include at least 11 emails between Kavanaugh and John Yoo, who authored a legal opinion backing the Bush administration’s warrantless wiretapping program.
Those emails, in addition to 300,000 pages of Kavanaugh’s records from his time in the Bush administration, are expected to be released this month, pending White House approval, according to EPIC.
Yoo, the Bush-era Department of Justice lawyer who helped write the Patriot Act and built the legal case for the President’s Surveillance Program, was, according to a 2009 OIG report, “responsible for drafting the first series of legal memoranda supporting the program.”
During the same time period he was exchanging emails with Kavanaugh, Yoo was also arguing in favor of “the President’s authority to conduct warrantless searches” to justify “expanded electronic surveillance techniques” in the wave of nationalist posturing that followed the attacks on 9/11, he wrote in a May 2002 memo.
Between 2001 and 2003, Kavanaugh also sent “227 emails about ‘surveillance’ programs and the ‘Patriot Act’” and 119 emails concerning “CAPPS II” (passenger profiling), “Fusion Centers” (government surveillance centers), and the “Privacy Act,” EPIC learned through its FOIA litigation.
The cloud of sexual assault allegations surrounding Kavanaugh has overtaken the national conversation, but to EPIC, the nominee’s involvement in the surveillance programs is relevant, too. “It sure as heck matters if someone going on the Supreme Court believes that the government has the right to conduct warrantless surveillance,” EPIC spokesperson Marc Rotenberg told The Intercept.
Rotenberg said the organization’s only interest in the nomination debacle pertains to questions surrounding what Kavanaugh knew, and what official actions he took, as the federal government designed, implemented, and orchestrated the surveillance of American citizens.
“We believe he had a key role in the creation and expansion of the warrantless wiretapping, of the PATRIOT Act, of passenger profiling, of government surveillance [fusion] centers,” Rotenberg said. “All of this material, which had been previously withheld from the American public is now apparently in the possession of the National Archives and has been documented as a consequence of our FOIA case.”
The second EPIC letter, sent to the Judiciary Committee on September 4, references Kavanaugh’s dissenting opinion in Klayman v. Obama — concerns about which were also raised in a CATO Institute blog post on July 13. The majority found that the federal government did not have legal standing under the Fourth Amendment to collect bulk data from Verizon customers. EPIC argues that Kavanaugh, through his dissent, “went out of his way to set out theories to defend the suspicionless surveillance of the American public that surprised even conservative legal scholars.”
EPIC has submitted similar concerns to the Senate over Supreme Court nominees — including Chief Justice John Roberts, and Justices Samuel Alito, Sonia Sotomayor, and Elena Kagan — in the past, but it has never taken an official position.
“The Senate simply can’t vote on the nominee until we know more about his role in the surveillance programs,” Rotenberg said.
With no filibuster, Senate Republicans need 51 votes to confirm Kavanaugh.
Republican Sens. Lisa Murkowski of Alaska, Susan Collins of Maine, and Jeff Flake of Arizona are considered key swing votes. On Thursday, both Collins and Flake described the FBI’s most recent investigation into Kavanaugh, much decried by the Democrats, as “thorough.”
Flake is still undecided and has asked his Judiciary Committee colleague, Democratic Sen. Chris Coons of Delaware, to speak “at length later,” according to The Atlantic’s Elaina Plott. Coons has been a key force in attempts to further probe Kavanaugh’s relationship with Kozinski.
Sen. Heidi Heitkamp of North Dakota, another red-state Democrat, broke her silence Thursday afternoon, saying she’d vote “no” on Trump’s pick. Red-state Democrat Joe Manchin said he will not make a decision until tomorrow. The Judicial Crisis Network, the organization which, according to POLITICO, has spent the most money on ads related to Kavanaugh’s nomination, this week announced a $400,000 buy aimed at pressuring both Manchin and Heitkamp to support Kavanaugh.
Correction: October 4, 2018, 8:01 p.m. EDT
Due to an editing error, a previous version of this article misattributed a comment to EPIC spokesperson Marc Rotenberg. It has been updated.
Correction: October 5, 2018
A previous version of this article misstated the number of votes needed to confirm Kavanaugh. It has been updated.