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Democrats say Brett M. Kavanaugh made a false testimony before the Senate Judiciary Committee in 2004 and 2006, while answering questions about some of the biggest political storms of George W. Bush's presidency.
Kavanaugh worked for Bush as White House Associate Counsel from 2001 to 2003 and as Bush's Staff Secretary from 2003 to 2006. Since then, he has been a US Court of Appeals Judge for the DC Circuit. . The Supreme Court.
Democratic senators allege that Kavanaugh gave false testimony during his pre-appeal hearings held in 2004 and 2006, and that these lies disqualify him as a Supreme Court candidate.
They say that Kavanaugh misled senators into believing he had no role to play in the process of selecting and selecting three of Bush's most controversial candidates for the federal courts: Jim Haynes, Charles Pickering and Bill Pryor. Democrats also said that Kavanaugh had misled the Judiciary Committee in 2006 about his knowledge of a Bush-era surveillance program without a Bush mandate led by the NSA to monitor terrorists.
The general charge is that Kavanaugh cleared his record, distancing himself from thorny political events instead of fulfilling his role. A cache of emails and documents published in recent weeks proves that Kavanaugh has not told the truth, according to Democrats. At his confirmation hearing of the Supreme Court this month, Kavanaugh rejected these allegations and the White House rejected them.
"Time and time again, Kavanaugh seems to have misled the Senate under oath," wrote Senator Patrick J. Leahy (D-Vt.), Former chairman of the Judiciary Committee, in a September 13 editorial of the Washington Post.
The Democrats have not gone so far as to accuse Kavanaugh of perjury, even if their allegations go straight to the point. Two Liberal groups, People for the American Way and the Democratic Coalition, filed formal complaints.
We reviewed all of Kavanaugh's testimony and written responses to follow-up questions from Senators after the 2004 and 2006 hearings. As a reading service, we will summarize our findings and give Pinocchio's notes.
Facts
In his 2004 and 2006 hearings, Kavanaugh was asked what role he had played in the screening of several controversial Bush candidates. A team of lawyers from the White House advisor's office, including Kavanaugh, would share the work of verifying and preparing candidates for the bench. For some nominees, Kavanaugh was the main White House leader. For others, he was not the main handler but still had a role to play in discussions and preparations.
Jim Haynes had been General Counsel of the Department of Defense and had recommended the use of "abusive interrogation techniques, such as threatening detainees with dogs, forced nudity, and forcing prisoners into painful stressful situations." According to Senator Richard J. Durbin. D-Ill.), Who interviewed Kavanaugh about his role in Haynes' appointment in 2006. Bush appointed Haynes to the 4th US Appeals Circuit in 2003, but he was not confirmed.
Charles Pickering was a Judge of the Mississippi Federal Court when Bush appointed him to the US Court of Appeals for the 5th Circuit in 2001. Pickering had asked for lawyers practicing in his court, including lawyers for his appointment to the United States. 5th circuit to the judicial committee. Pickering's appointment was a filibuster, Bush gave him a recess appointment and the judge retired in less than a year.
Bill Pryor was the Attorney General of Alabama when Bush appointed him to the 11th Circuit Court of Appeals in 2003. The appointment was controversial because Pryor had called Roe v. Wade the "worst abominations in the history of constitutional law," the Supreme Court had casually described as "nine octogenarian lawyers," who had criticized the court's decision in Miranda c. Arizona, and made critical remarks about President George H.W. Bush's decision to appoint Judge David H. Souter to court.
Kavanaugh has been questioned several times about these candidates and other controversial candidates by senators on both sides. During his hearings in 2004 and 2006, he gave confidential, legal and confused answers.
At times, Kavanaugh stated that he was not "managing" or was not "assigned" an application, distancing himself in a technically accurate but misleading way. At all other times, Kavanaugh qualified his response by saying that he did not have the "primary" responsibility for these appointments, while leaving the possibility that he was playing a supporting role . During his hearing in 2006, he told Senator Charles E. Schumer (D-N.Y.) That he was involved in discussions about Haynes' appointment.
A full review of the transcripts and Kavanaugh's responses to the written questions shows that he revealed – but hardly – his involvement in the three appointments. Kavanaugh said he participated in the discussions on the three nominees and helped Pryor prepare for his confirmation hearing during a pleading session.
Let's review the chronology of each case.
Jim Haynes
"We continue to find other evidence that Judge Kavanaugh and the Judiciary Committee misled under oath. The 2002 and 2003 e-mails show that then-associate White House Councilor Brett Kavanaugh played an important role in the decision to name Haynes.
– Tweets from DurbinSeptember 11, 2018
In written questions after the 2004 hearing, Durbin asked whether Kavanaugh had recommended Haynes, Pickering, Pryor or 16 other candidates, and about the nature of Kavanaugh's involvement in their appointments.
Kavanaugh replied, "I attended meetings of a judicial selection committee charged with making recommendations to the president. During my time, each of the candidates listed in your questions has been evaluated and discussed. "
He also wrote in response to Durbin: "It is fair to say that all White House lawyers who worked on judges (usually 10 lawyers) participated in discussions and meetings regarding all appointments. Judicial Committee.
At the 2006 hearing, Durbin asked Kavanaugh, "What was your role in the initial appointment of Haynes and his decision to rename him?" Kavanaugh replied, "I know Jim Haynes, but it's not a appointments. I have handled a number of applications in the board office. This was not one of those I handled. "
Later, at the same hearing, when Schumer asked about Haynes' appointment, Kavanaugh gave a more qualified answer: "I did not have a primary responsibility".
Schumer asked, "Can you give me a yes or no? Have you been involved in any discussions involving the Haynes or Bybee nominations? Kavanaugh said, "Senator, I think it was when I was still in the council office, then the answer would be yes. "
So, what is it?
When he told Durbin, "It was not one of the appointments I've dealt with," and left it in 2006, Kavanaugh could have easily been led to believe he had no role in the appointment of Haynes. That's the impression Durbin had. But at the same hearing, Schumer asked a yes or no question and Kavanaugh said yes, he was involved in Haynes' appointment. His responses to the 2004 written questions also indicated that he had been working on Haynes' appointment.
"We continue to find more evidence that Judge Kavanaugh and the Judicial Committee have misled under oath," Durbin wrote on Twitter, highlighting Haynes' appointment. He added several emails.
In an email in November 2002, Kavanaugh wrote, "If the package is Boyle, Duncan and Haines [sic]they could be arranged. Needless to say, we must resolve quickly. But what is he relying on to say that he would be a general judicial conservative? I have no reason to think in one way or another outside the defense / military field – and I know others have questions about it. In another email of the same month, Kavanaugh was asked [questions] about Haynes ", and he answered" call me ".
In an email from July 2003, Alberto Gonzales, then White House advisor, wrote to Kavanaugh: "Will Brett be interested in golf tomorrow at 130 years old in Andrews? We have room for two more with Jim Haynes. Let me know. (It's unclear if Kavanaugh has joined the golf game.)
These e-mails do not show that Kavanaugh played a "substantial role" in the appointment of Haynes. The full record here shows that Kavanaugh's past revelations about his work on Haynes' candidacy align with these emails. Durbin made a mistake at the 2006 hearing, but Kavanaugh revealed his involvement in Haynes' appointment two years ago – in response to Durbin's questions. Later, at the 2006 hearing, Kavanaugh told Schumer that he had participated in discussions about Haynes' appointment. The problem here is that Kavanaugh contradicted himself between these revelations and told Durbin that he was not involved.
"The document that Senator Durbin published last week showed that Judge Kavanaugh believed and told other White House members that Haynes was a" judicial conservator "in the defense / military field. to his question about what Judge Kavanaugh knew about Haynes' role in developing detention and interrogation policies, "said a Democratic assistant." Because Judge Kavanaugh testified that this n & # 39; 39; was not one of the number of appointments that he handled, that ended this line of questions. "
The assistant added: "In his written response to Senator Durbin's written question about the nature of Judge Kavanaugh's participation in the selection and confirmation of 19 candidates, including Haynes, Kavanaugh J. only stated that he participated in meetings of the judicial selection committee. each of the 19 candidates was evaluated and discussed by the committee. He did not recognize any personal role in the appointment of Haynes, including when he even attended committee meetings where Haynes was discussed. Judge Kavanaugh specifically mentioned his work on other nominees in his written response, but not Haynes.
Nevertheless, Durbin's assertion that there is new evidence that Kavanaugh misled the Judicial Committee about Haynes's appointment is worth two Pinocchios.
Charles Pickering
"There are similar concerns that Kavanaugh misled the Senate about his work on other controversial appointments, including … Charles Pickering, who reduced the sentence of a man who burned a cross in front of the house. 'an interracial couple.'
– Leahy op-edSeptember 13, 2018
Kavanaugh at the hearing in 2006 then told Sen. Russ Feingold (D-Wis.), Unaware that Pickering improperly asked lawyers to send letters in support of his appointment. "This was not one of the judicial candidates I was dealing with primarily," Kavanaugh said.
"I was not the Associate Attorney at the White House Law Office in charge of appointing Judge Pickering," Kavanaugh added in response to Feingold's written questions.
The word "mainly" does a huge job in this case. A series of e-mails shows that Kavanaugh had a large part in Pickering's appointment, even though he did not treat him "primarily" and despite being "assigned" to another person in the counselors' office. White House.
The New York Times found:
Many of the e-mails showing glimpses of Justice Kavanaugh's involvement in Pickering's candidacy were minor, such as the circulation of articles or remarks by public officials about him.
Yet when a room was reserved for a Pickering event, Judge Kavanaugh was consulted. When the White House press office needed documents about Judge Pickering, it was Judge Kavanaugh who asked the records at the Justice Department and relayed them. When a senator's chief of staff came to the White House to discuss Judge Pickering and another candidate, it was Judge Kavanaugh who intended to meet her.
And in May 2003, another White House official told Judge Kavanaugh that she had "asked for the Pickering package they were distributing" and "sent her for consideration." When he asked who "they" were referring to, she replied: The Pickering Chip team, Chip's COS and anyone else they use. You should know them "- adding" hehe "(Pickering J.'s son, Charles Pickering, known as Chip, was a member of the Republican Congress at the time, and COS means" chief of staff ").
The office of Senator Cory Booker (D-N.J.) Stated that the emails showed that Kavanaugh "organized meetings with and about Pickering; prepared remarks, updates for members of Congress and at least a tribune for Alberto Gonzales about Pickering; met with Senate staff regarding the appointment of Pickering; He liaised with the Department of Justice, Senate Judiciary staff, Congressional staff member Chip Pickering (Judge's son) and other White House staff members about Pickering; advised White House advisor Alberto Gonzalez on Pickering's strategy; and more."
In this case, Kavanaugh's responses to Feingold were accurate in the narrowest sense: he was not the first on this one. But he made no mention of the substantial work he did on Pickering's bid, and his answers were therefore misleading.
His work on this nomination far exceeded Kavanaugh's general responses to Durbin's written questions in 2004, when he revealed that he had participated in meetings and discussions on Pickering and 18 other candidates.
No Pinocchios for Leahy in this case.
Bill Pryor
"Kavanaugh has distanced himself from Pryor. He denied any involvement in his review, stating that it was not [he] The emails suggest that Kavanaugh not only recommended Pryor for the headquarters, he also participated in a working group on the appointment, talked to him about a reporter and seems to have interviewed him.
– Leahy op-edSeptember 13, 2018
At the 2004 hearing, Kavanaugh said about Pryor: "This was not one of the people who had been assigned to me". Then he said, "I usually know Mr. Pryor, but it's not me who worked personally. "A little later, he said," I have not been involved in managing his appointment. "
Note a pattern here? Kavanaugh once again spoke in terms of "assigned" nominees and noted that he did not "treat" the nomination. But Senator Edward M. Kennedy (D-Mass.) Did not ask Kavanaugh when he had primary responsibility on the appointment of Pryor, but had he been involved in the control of Pryor.
At one point, Kavanaugh said that "it was not the one I was working on personally" when he did.
But Kavanaugh then told Kennedy: "I may have attended a pleading session. Often, we will go to court to prepare hearing candidates to prepare them for this process. In response to Kennedy's written questions after the 2004 hearing, Kavanaugh said, "I participated in the preparation of the military court.
Recently published emails fill in a few details, including the fact that Kavanaugh had recommended Pryor for the 11th place circuit.
In the company of several other officials, Kavanaugh received a copy of Benjamin A. Powell's June 2003 e-mail, with the subject line "Pryor Working Group Contact List", requesting contact information for Kavanaugh.
In an email in December 2002, Kavanaugh wrote: "We should perhaps consider recommending Pryor for CA11 and Steele to one of the district court seats, which would be a very solid outcome for CA11 and the court. district. can discuss. "
Adam Charnes of the Department of Justice responded the next day: "Brett, at your request, I asked Matt to talk to Pryor about his interest. Pryor replied that he was "intrigued" but had to talk with his wife. Incidentally, he will be at the WH today for a Christmas party and will stay at Willard, so you may want to talk to him directly. In addition, we should probably communicate, either directly or through Matt, a deadline for him to let us know definitively, because of the time constraints imposed by Steele's appointment.
In December 2002, an email from Kyle Sampson to Kavanaugh: "How was Pryor's interview?" Kavanaugh responded about an hour later, "call me".
A June 2003 e-mail from Joel Pardue, on which Kavanaugh was blindly copied: "There will be an emergency coordination meeting tomorrow at 2:30 pm (just after the 1:30 pm call) at the Baker & Law firm. Hostetler … We need to discuss the hearing of candidate Bill Pryor next Wednesday and there are significant confirmation issues with Judge Kuhl that need to be resolved. (Published documents do not know if Kavanaugh attended this meeting.)
Another June 2003 email from Benjamin Powell to a group including Kavanaugh: "We have a call at 4 pm to discuss Pryor and coordinate plans and efforts. Let me know if you are not available. (We do not know if Kavanaugh was available.)
In that case, Kavanaugh disclosed an important detail (his work on Pryor's pleading session) and omitted an important detail: Kavanaugh had recommended Pryor to the court of appeal.
With respect to meetings and conference calls, it is not certain that Kavanaugh has succeeded. If that were the case, it is important to bear in mind that he revealed in his written replies to Durbin and Kennedy in 2004 that he had participated in meetings and discussions on Pryor and 18 other candidates.
"There is an ethical obligation to correct false statements and to do so explicitly," said David Carle, Leahy spokeswoman. "A vague sentence among hundreds of pages of written answers to questions submitted six months after his hearing does not correct the unfounded and unfounded denials of Judge Kavanaugh that he was not involved in the trial of Judge Pryor.
"Senator Leahy has never said that Judge Kavanaugh committed perjury. But his testimony was clearly misleading. For example, not a single senator left Kavanaugh's hearing in 2004 under the impression that he had a role to play in the Pryor appointment, aside from a conventional pleading session. "
This one deserves two Pinocchios for Leahy.
Telephone tapping without warrant
"Kavanaugh would also have misled the Senate by denying any involvement in detention policies or any knowledge of documents related to a warrantless surveillance program."
– Leahy op-edSeptember 13, 2018
We also examined the back and forth of the NSA's terrorist surveillance program under Bush and whether Kavanaugh had been made aware of it.
Leahy asked Kavanaugh in 2006 when he knew the program before the New York Times revealed its existence in a December 2005 article.
"Did you see anything, or did you hear anything about it, before the New York Times article?" Leahy asked.
"No," said Kavanaugh.
"Nothing at all?" Said Leahy.
"Nothing at all," said Kavanaugh.
In his written responses in 2006, Kavanaugh added, "I only learned of this program after a New York Times article about it appeared on the Internet late on Thursday, December 15, 2005. I was not involved in meetings, briefings or other discussions to define the program or the legal justification for the program. "
In an e-mail sent to John Yoo in the days following the 9/11 terrorist attacks, Kavanaugh asked questions about the legal implications of warrantless surveillance given the fourth amendment's right to privacy. Yoo was then head of the justice policy office of the Justice Department.
"Results to date on the 4A implications of the random / constant surveillance of telephone and electronic conversations of non-citizens in the United States when the purpose of surveillance is to prevent terrorist / criminal violence?" 17, 2001.
Leahy took up this set of questions at Kavanaugh's confirmation hearing in the Supreme Court earlier this month: "When you were at the White House, did you ever work with John Yoo on the constitutional implications of any program? surveillance without a warrant?
Kavanaugh: "Well, I can not exclude that. In the wake of September 11, everything was at hand on all fronts, then we did agricultural work, but we were all involved. … On September 12, when we entered the White House, we had to work on everything.
Finally, he added, White House associate advisers were given specific questions after 9/11, and Kavanaugh worked on compensation for victims and airline issues.
Timothy Flanigan, who was working with Kavanaugh at the White House at the time, said that Kavanaugh had not "read" the terrorist activity monitoring program. He stated that White House lawyers had received many instructions in the aftermath of the terrorist attacks and that the question of Kavanaugh at Yoo seemed to be part of this preliminary work.
"Literally, a few hours after the attack, the White House council office and the Justice Department were already talking about the type of legal authority allowing the president to face an unprecedented threat of violence. attacks on American soil, "said Flanigan. .
"Basically, we were getting a lot of advice from the Department of Justice, and one of the questions we asked, I believe, was: what is the ability of the president to order from the NSA or to other agencies to monitor terrorists? the attacks? It was a general question. It was supposed to be, "Just give us a glimpse of the president's authority here."
"Later – I think weeks later – a program was developed, somewhat related to this legal opinion, but which did not depend on it. The legal advice for this program was, I believe, much deeper and much more specific. At that time, people knew the type of questions they wanted to ask. At that time, they knew the capabilities of the NSA. They knew what the NSA could and could not do. It became a program when people started talking about how to proceed, what would be the level of approval, would there be a warrant, if it had not been there? mandate, that kind of thing.
White House Deputy Press Secretary Raj Shah said Kavanaugh's testimony on this issue was "absolutely accurate".
In a statement issued by the White House, Gonzales said: "Brett Kavanaugh has said accurately that in the aftermath of the 9/11 attacks we were" all on the bridge ". But it was not read in the terrorist surveillance program. authorized after sending this e-mail. "
The White House also provided a statement from Yoo: "This email is prior to the existence of the program. Brett Kavanaugh did not participate in meetings or writing memos related to the Terrorism Monitoring Program.
According to a report by the inspectors general of the defense and justice departments and the CIA, the NSA and the office of the director of national intelligence, Yoo then wrote a memo of the warrantless wiretap program.
Given the context, Kavanaugh's e-mail, in the days following September 11, is a thin sentence on which it is possible to accept an allegation of potentially misleading testimony under oath. Leahy asked if Kavanaugh had seen or heard anything about a specific program, and Kavanaugh said no. No evidence shows that Kavanaugh knew at the time that an espionage program was being developed before or after sending e-mail to Yoo.
Although Leahy is careful to say that Kavanaugh "may" mislead the Senate, he still throws red meat without much support, and receives three Pinocchios for it.
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