In Wednesday’s first round of questioning during Brett Kavanaugh’s confirmation hearings, Sen. Patrick Leahy made a significant allegation against the Supreme Court nominee. The Democrat from Vermont claimed to have evidence showing that Kavanaugh lied to the Senate Judiciary Committee during the 2004 and 2006 hearings regarding his nomination to the U.S. Court of Appeals for the District of Columbia Circuit.
The key testimony came when Leahy questioned Kavanaugh about previous testimony in which he denied that he had any knowledge of confidential electronic communications that had been pilfered from Democratic senators by Republican staffer Manuel Miranda and used to help advance President George W. Bush’s judicial nominations in the early 2000s. Kavanaugh, who worked for the Bush administration as part of the White House counsel’s office, worked with Miranda on matters relating to those judicial nominations.
As Leahy put it to Kavanaugh, the judge had been asked in prior hearings “extensively about your knowledge of this theft” and “testified repeatedly that you had never received any stolen materials.” (The GOP staffer was never charged with a crime; more on that later.) Indeed, in the April 2004 hearing, when asked directly by Sen. Orrin Hatch if he had so much as seen any documents that Miranda had taken, Kavanaugh answered in unequivocal terms.
Hatch: Now, this is an important question. Did Mr. Miranda ever share, reference, or provide you with any documents that appeared to you to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee?
Kavanaugh: No, I was not aware of that matter ever until I learned of it in the media late last year.
Hatch: Did Mr. Miranda ever share, reference, or provide you with information that you believed or were led to believe was obtained or derived from Democratic files?
Kavanaugh: No. Again, I was not aware of that matter in any way whatsoever until I learned it in the media.
In that hearing 14 years ago, Sen. Chuck Schumer reiterated the concern and got the same answer:
Schumer: I just want to clear up the questions that Orrin asked. You had said that Mr. Miranda never provided these documents, you know, that were from this.
Schumer: Had you seen them in any way? Did you ever come across memos from internal files of any Democratic members given to you or provided to you in any way?
In his 2006 hearing, Kavanaugh was asked by Sen. Ted Kennedy whether he had any indication that materials he had seen might have been stolen. Kavanaugh rejected the premise of the question, again stating that he’d never laid eyes on such materials:
Kennedy: Have you ever gone back, now that you are aware of it, and seen what decisions you may or might not have taken on the basis of documents that were illegally taken? …
Kavanaugh: Senator, there’s a very important premise in your question that I think is incorrect, which is I didn’t know about the memos or see the memos that I think you’re describing. So, I think –
Kennedy: Oh, you never saw any of those?
Kavanaugh: No, senator, that’s correct. I’m not aware of the memos, I never saw such memos that I think you’re referring to. I mean, I don’t know what the universe of memos might be, but I do know that I never received any memos and was not aware of any such memos. So, I just want to correct that premise that I think was in your question.
On Wednesday, Leahy pointed to newly released emails that he says contradict Kavanaugh’s previous testimony. Leahy began by asking, “Did Mr. Miranda ever provide you with highly specific information regarding what I or other Democratic senators were planning in the future to ask certain judicial nominees?” This time, though, Kavanaugh hedged, refusing to directly answer a question that would seem to elicit a simple “no” based on his previous testimony. Instead, he offered that it was typical in his role in the White House counsel’s office to meet and discuss what senators on both sides of the aisle were thinking about asking a given nominee:
During those meetings, of course it would be discussed, “Well, I think here’s what Sen. Leahy will be interested in.” That is very common. I’m sure in President Obama’s administration when they had similar meetings, they would probably have meetings and say, “I think this is what Sen. [Lindsey] Graham will be interested in.”
Leahy then pointed the Supreme Court nominee to an email Kavanaugh had received from Miranda describing Leahy’s line of questioning about a nominee on July 19, 2002, four days before a hearing with that nominee.
Again, Kavanaugh argued it was not uncommon to discuss the individual interests of particular senators. Leahy then followed up with what appeared to be smoking gun evidence that Kavanaugh was being untruthful when he repeatedly testified that he had never seen the materials Miranda had stolen.
Leahy: In January of 2003, let me go to something very specific. Mr. Miranda forwarded you a letter from me and other Judiciary [Committee] Democrats to then Majority Leader Tom Daschle. The letter was clearly a draft. It had typos and it wasn’t signed. Somebody eventually—we never put it out, but somebody eventually leaked its existence to Fox News. I’m not sure who. I could guess. It was a private letter. At the time, I was shocked to learn its existence had been leaked. But here is the thing: You had the full text of my letter in your inbox before anything had been said about it publicly. Did you find it at all unusual to receive a draft letter from Democratic senators to each other before any mention of it was made public?
Kavanaugh: The only thing I said on the email exchange, if I’m looking at it correctly, senator, was, “Who signed this?” Which would imply that I thought it was a signed letter.
Leahy: It was sent to you. Were you surprised to get it? It is obviously a draft. It has got typos and everything else in it. Were you surprised that a draft letter circulated among Democrats ended up in your inbox from Mr. Miranda?
Kavanaugh: I think the premise of your question is not accurately describing my apparent recollection or understanding at the time. Because I wouldn’t have said, “Who signed this?” if I thought it was a draft. My email says, “Who signed this?”
Leahy: So you didn’t realize what you had was a stolen letter [sent] by me, that you had a letter that had not been sent to anybody, had not been made public?
Kavanaugh: All I see that I said was “Who signed this?” That’s all I see.
In his previous testimony, Kavanaugh didn’t say that he didn’t realize that some of the materials he had received were stolen. Instead, he stated definitively that he had received no stolen materials. He went further, in fact, stating to Hatch that he had never seen “any documents that appeared […] to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee.” On Wednesday, Kavanaugh acknowledged receiving an email with exactly that material.
In 2004, the Senate sergeant-at-arms released a 65-page report laying out how Miranda and another Republican aide improperly accessed and distributed 4,670 files showing Democrats’ private tactics in opposing Bush’s judicial nominations. The New York Times reported at the time that the information in question was “about how Democrats would question some nominees” and included the files of staff aides for Sens. Leahy, Kennedy, Dick Durbin, Joe Biden, Dianne Feinstein, and Russ Feingold. The files were taken after “an inexperienced computer coordinator did not make files properly inaccessible,” according to the Times. Neither Miranda nor anyone else was ever charged with a crime for accessing those private Democratic files.
On Wednesday, Leahy hinted that materials that haven’t been made public indicate Kavanaugh was given very strong hints that Miranda’s materials were not acquired legitimately. The Vermont senator asked Kavanaugh about documents that have been listed as “committee confidential” by Judiciary Committee Chairman Chuck Grassley that, according to Leahy, demonstrate that Kavanaugh was told of “a mole that provided … secret information related to nominations.”
Kavanaugh indicated he couldn’t recall such an email, and this time Leahy was unable to pull out the receipt because of that committee confidential designation.
“I am concerned because there is evidence that Mr. Miranda provided you with materials that were stolen from me. And that would contradict your prior testimony,” Leahy concluded. “It is also clear from public emails—and I’m restraining from going into not public ones—that you have reason to believe materials were obtained inappropriately at the time.”
Leahy then said he had six other “committee confidential” emails that would prove his case, but they were being kept from the public without any rational basis.
“These other six contain no personal information, no presidential records, restricted material,” he said. “There is simply no reason they can’t be made public.”