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With Kavanaugh hearing set, Senate releases records

Although the battle over records related to Judge Brett Kavanaugh’s tenure in the George W. Bush White House continues, the Senate Judiciary Committee has recently released over 100,000 pages of documents. The first batch of documents, released last week, contained over 5,000 pages of emails from Kavanaugh’s stint as an associate White House counsel, a position in which he served from January 2001 until 2003. Hundreds (if not thousands) of pages from the initial batch of documents are completely nonsubstantive, made up of – for example – email headers from mass emails and computerized legal alerts to which Kavanaugh subscribed. Many other emails are somewhat cryptic, giving the distinct impression that staffers were trying to avoid getting into too much substantive discussion over email. But the emails also provide a detailed look into the operation of the White House counsel’s office, including the extent to which the lawyers’ work is often enmeshed with politics. And the emails are likely to provide fodder for members of the Senate Judiciary Committee to question Kavanaugh about his role in the Bush administration’s war on terror when the confirmation hearing begins in early September.

The emails indicate that the White House counsel’s office runs, as another White House attorney described it in a draft of a speech that appeared in Kavanaugh’s emails, much like a small law firm. At the beginning of the Bush administration, the “managing partner” was Alberto Gonzales, a former Texas judge; an early email appeared to instruct White House lawyers not to schedule meetings with Gonzales over lunch because “Al” “doesn’t do lunch.” Another email indicated that when a new lawyer in the office started, the veterans tried to offload the less desirable parts of their portfolios onto the newcomer.

While Kavanaugh was a White House lawyer, his portfolio was eclectic, ranging from participating in the Bush administration’s efforts to select new federal judges and ensure their confirmation to being the office’s in-house ethics expert. Kavanaugh fielded a steady drumbeat of questions regarding ethics issues, involving everything from approving invitations for political events at the White House to signing off on what kind of stationery to use for graduate school recommendations and the use of private planes by White House officials for political travel. Perhaps ironically, the preservation of presidential records was also part of Kavanaugh’s portfolio, with another White House lawyer jokingly referring to him as “Mr. Presidential Records”: Kavanaugh weighed in, for example, on whether White House official Josh Bolten could have his Lotus Notes email database downloaded to a CD before his email was converted to Outlook.

After the September 11, 2001, terrorist attacks, Kavanaugh’s work came to include a variety of issues related to the country’s response. He was involved in or received requests regarding compensation for victims of the attacks, liability for airplane manufacturers, and (maybe most significantly) the drafting of talking points for anti-terrorism laws. Kavanaugh received an email about John Walker Lindh, the American captured as an enemy combatant in Afghanistan, from Ben Wittes, now a prominent national security expert who was at the time a member of the editorial board at the Washington Post; Kavanaugh passed off Wittes’ question to others, but Kavanaugh clearly seemed aware of the situation. Kavanaugh also worked on the USA Patriot Act, a law passed in the wake of the attacks that gave the government (among other things) new surveillance powers – a fact that came out in the context of an email about a Capitol Hill staffer applying to the White House counsel’s office. (Kavanaugh’s emails also show that, after the September 11 attacks, he was one of many senior White House staffers who received an email from Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas. Ginni Thomas, then at the Heritage Foundation, wrote that her “prayers and support are heightened for each of you in the Bush administration. It is my personal belief that God has you here for a reason.”)

Although Kavanaugh was acting as a White House lawyer, his work often overlapped closely with politics. One email, for example, suggests that Kavanaugh was involved in meetings regarding “asset deployment,” which a 2007 Washington Post article described as a strategy of coordinating official announcements, trips and grants to promote the Bush administration’s  agenda and re-election. And in an email to Don Willett, then an official at the Department of Justice but now a judge on the U.S. Court of Appeals for the 5th Circuit best known for his prolific use of Twitter while a justice on the Texas Supreme Court, Kavanaugh asked whether any “Clinton judicial appointees who had been state judges” had received contributions from Enron, the energy company that collapsed after its widespread accounting-fraud scheme became public.

The emails also show that a day in the life of a White House lawyer was a long one: Kavanaugh often began emailing shortly after 6 a.m. and would continue to do so until after midnight. In a 2002 email, Kavanaugh summarized a typical day, which started with a senior staff meeting at 7:30 a.m. and continued with several more meetings (including a “message meeting”).

The emails sometimes reflect the minutiae of day-to-day life working in the White House, including updates on parking passes, efforts to expand the capacity of Kavanaugh’s voicemail or to hunt down library  books checked out of the Department of Justice, bills for the food that Kavanaugh ate during a stay at Camp David (“I had 3 meals and some drinks and snack out of the refrigerator,” wrote Kavanaugh) and arrangements to interview paralegals. Other emails are strictly personal, such as those from Ashley Estes, Bush’s personal secretary, whom Kavanaugh would marry in 2004, inquiring about when Kavanaugh might be free for dinner or whether she should RSVP for a Republican National Committee gala.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, With Kavanaugh hearing set, Senate releases records, SCOTUSblog (Aug. 14, 2018, 11:40 AM),