Last week, Democratic Sen. Dianne Feinstein accused Judge Brett Kavanaugh of repeatedly misleading the Senate Judiciary Committee during his confirmation hearings. “Brett Kavanaugh used materials stolen from Democratic senators to advance President Bush’s judicial nominees,” the committee’s ranking member tweeted. “He was asked about this in 2004, 2006 and this week. His answers were not true.”
Citing an essay in Slate by Lisa Graves, a former staffer for Sen. Patrick Leahy, Feinstein presented a line of argument that’s gaining currency among Democratic senators: that Kavanaugh’s lack of honesty makes him unfit to serve on the Supreme Court. In this case, Kavanaugh has repeatedly sworn that he never received documents stolen by Republican Senate aide Manny Miranda—documents that he did, in fact, receive.
For the most part, Senate Republicans have ignored this line of attack. Since they seem to have the votes to confirm Kavanaugh, there is apparently little reason for them to respond to any criticism of the nominee. One exception is Sen. Orrin Hatch, who called the allegations that Kavanaugh lied a “desperate“ attempt to torpedo his nomination. The Utah Republican cited an editorial by National Review, which described the charges against Kavanaugh as a Democratic “smear” campaign. The arguments regarding the stolen documents in that editorial, though, are flimsy at best.
National Review describes the key portions of Kavanaugh’s testimony correctly:
During Kavanaugh’s Senate testimony in 2004, Orrin Hatch asked him if he had received “any documents that appeared to you to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee.” Kavanaugh said no. In 2006, Ted Kennedy asked him about the same documents, and Kavanaugh issued another denial, saying, “I don’t know what the universe of memos might be, but I do know that I never received any memos, was not aware of any such memos.”
From there, National Review’s case quickly falls apart.
“At the same time, however, Kavanaugh was careful to say that he might have unknowingly seen information ‘derived’ from the memos,” the editorial continues. “So, to be clear, to demonstrate perjury the Democrats would have to show clearly and unequivocally that Kavanaugh didn’t just see information taken from the memos but that he clearly and knowingly viewed the actual memos themselves.” The essay then asserts, “There is not a single email or document showing that he actually received a stolen memo, much less that he did so knowingly.”
National Review both misstates the standard for demonstrating that Kavanaugh lied and misstates the facts of the case. First, Kavanaugh said that he never received any memos or any documents that appeared to him to be prepared by Democrats. He repeated this throughout his testimony in 2004 and 2006. He didn’t say, “I didn’t knowingly receive memos or stolen documents.” He didn’t say, “I may have received memos or stolen documents but only realized this after the fact.” Rather, he flatly denied this possibility.
Kavanaugh said to Hatch in 2004 that he didn’t receive “documents that appeared to [me] to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee.” He said to Sen. Chuck Schumer in 2004 that “Mr. Miranda never provided these documents” and that he had never “come across memos from internal files of any Democratic members.” And Kavanaugh said to Kennedy in 2006, “I do know that I never received any memos.”
The bar for a lie here is to demonstrate that Kavanaugh had received any memos from Democratic staff or documents from Miranda that appeared drafted or prepared by Democratic judiciary staffers. By the plainest meaning of those words, Kavanaugh received both things.
Documents released last week reveal that in early 2003, Miranda sent Kavanaugh an email with the subject line “Judiciary Dems obstruct on reorganization.” That email contained a draft letter from Democratic Judiciary Committee members to Senate Minority Leader Tom Daschle laying out their desired negotiating position over a new process for judicial confirmations. Miranda indicated to Kavanaugh that the document was not public at the time he sent it, saying, “I am told that all [Democrats] on the [Judiciary Committee]” were signing on to the document.
Another email released last week included a bullet-pointed memo written by Graves for Democratic staff. The memo contains a laundry list of research Graves put together for Judiciary Committee staff laying out legal arguments Democrats planned to make regarding a controversial Bush judicial nominee. As Graves noted in her Slate piece, it would have made no logical sense for Democrats to surrender their legal research in these highly combative proceedings. But you don’t have to take her at her word that the material clearly came from Democratic staff and was clearly confidential. Miranda’s email to Kavanaugh describes this memo as “confidential information” from “Dem staffers.”
In its editorial, National Review cites legal scholar and Above the Law founder David Lat to bolster its pro-Kavanaugh argument. On Twitter, Lat made a legalistic, Clintonian argument about what the meaning of the word memo is.
Given that Kavanaugh, who worked for Kenneth Starr’s independent counsel’s Office, accused Bill Clinton of perjury because he “parse[d] the meaning of the words ‘is’ and ‘sex’ and on and on,” this would not seem to be an ideal defense.
Graves, who wrote the stolen memo, noted that there were many ways for Kavanaugh to know he had verbatim content including the common sense that Democrats would never have revealed this confidential information to political rivals and the fact Miranda said the email included “confidential information” from “Dem Staffers.” But even if Kavanaugh didn’t suspect at the time that this was a stolen memo, it should have been obvious after Miranda’s theft became a major news story. And yet he insisted under oath that nothing that Miranda stole ever crossed his desk.
Other former staffers whose material was stolen argue it’s absurd to contend that Kavanaugh would not have known that this detailed information wasn’t ripped off directly from the Democrats themselves. “These were the most contentious, contested things that came before the judiciary committee,” Seth Bloom, the nominations counsel for Sen. Herb Kohl at the time of the episode, said during a conference call with reporters on Monday. “I think Judge Kavanaugh’s description of how common that was [to receive this information] is completely untrue.”
“Judicial nominations were not something that was a bipartisan effort,” Bob Schiff, former chief counsel for Sen. Russ Feingold, added. “To hear Judge Kavanaugh testify recently that this was kind of common for there to be information shared across the aisle as his way of explaining why key Democratic arguments and plans [were not suspicious to him] does not ring true.”
If the documents that have been released in recent weeks had come to light in 2006, they could have easily torpedoed Kavanaugh’s nomination to the U.S. Court of Appeals for the District of Columbia Circuit. Even without those documents, which clearly demonstrate that Kavanaugh has misled the Senate, his appointment was incredibly controversial. The vote fell just four short of the margin needed for a filibuster, with seven senators abstaining. “Mr. Kavanaugh is a political operative,” said Kennedy at the time. “I can say with confidence that Mr. Kavanaugh would be the youngest, least experienced and most partisan appointee to the court in decades.”
Kristine Lucius, who worked for Leahy on the Senate Judiciary Committee from 2002 through 2017, argued that these revelations would have stopped Kavanaugh’s judicial career cold. “I sincerely believe that if this information had been out at the time of his lower court confirmation hearing, he would not have been confirmed,” she argued. Lucius noted that Kavanaugh’s nomination to the D.C. Circuit occurred just after a sergeant-at-arms report was released detailing Miranda’s theft, when feelings on the subject were “still quite raw.”
Indeed, even Hatch himself at the time equated Miranda’s behavior to stealing documents from a Senate office. “None of us would walk into another person’s office and take papers from their desk, and this is, in a sense, exactly that,” Hatch said after the revelation. “I am mortified that this improper, unethical and simply unacceptable breach of confidential files occurred,” the Republican from Utah added. “There is no excuse to justify these improper actions.”
Kavanaugh has been given chance after chance after chance to tell the truth about what Miranda gave him, and he has continually declined to do so.
“Kavanaugh basically used these stolen documents during his time in the White House Counsel’s office and he repeatedly misled the committee,” Lucius said. “He didn’t just mislead the Judiciary Committee last week, he misled the Judiciary Committee in 2004 and 2006 when he was asked about this very dark chapter, and he did so, I believe, for personal and partisan gain.”
There is no indication that Kavanaugh will face any consequences for misleading the committee. Instead, he’ll get rewarded with a seat on the Supreme Court.