Fix the Court Sues National Archives, Justice Department for Kavanaugh Records
Watchdog seeks Starr Commission files and Bush White House correspondence
** NARA complaint | DOJ complaint **
Fix the Court filed complaints in federal court today to uncover records documenting Supreme Court nominee Brett Kavanaugh’s previous government service – including his work on the Starr commission in the 1990s and his time in the White House under President George W. Bush. FTC is represented by American Oversight, a fellow nonpartisan watchdog group.
“As we saw during the Gorsuch nomination, federal agencies often won’t make it easy to obtain public records from judicial nominees,” FTC executive director Gabe Roth said. “With heightened interest in Judge Kavanaugh’s eventful time in government, the National Archives and the Justice Department should seek to resolve these complaints quickly and release the documents so the American public and their representatives in the Senate can make a more informed judgment ahead of a confirmation vote.”
“Given the potential impact of this nomination, it is essential for the American people and the Senate to fully vet Judge Kavanaugh,” American Oversight executive director Austin Evers said. “It’s not unrealistic to think that the Supreme Court could be ruling on issues related to an investigation of the president or the relationship between the White House and the Justice Department, and the public has a right to examine Judge Kavanaugh’s track record before the Senate votes on his confirmation.”
The lawsuits against the National Archives and Records Administration and the Justice Department were both filed in the U.S. District Court for the District of Columbia and ask a federal judge to order the agencies to comply with requests submitted months ago under the Freedom of Information Act.
On April 4, 2018, FTC requested from NARA, which houses records from the Office of Independent Counsel Ken Starr, all of Kavanaugh’s correspondence, notes and memos from his time in the OIC (1994-98), as well as any complaints made against him by members of the public and any performance reviews, warnings or reprimands he was given. The response FTC received on June 12 stated that the combined volume of Kavanaugh files “is estimated at 20,000 pages,” and while some of those pages could be released within “approximately 22 months,” the bulk of the request would take more than five years to fulfill since the agency is “currently processing requests received in February 2013.” This delay would far exceed the statutory FOIA deadline and, more critically, would deny the public the ability to fully assess Kavanaugh’s record before the Senate votes on his confirmation. The NARA complaint can be found here.
On Sept. 5, 2017, FTC requested all correspondence sent by the assistant attorney general in charge of the Office of Legal Counsel and his or her primary deputy to Kavanaugh, and vice versa, during the years Kavanaugh worked in the White House (2001-06), both as staff secretary and in the counsel’s office. FTC has not received any records from DOJ. That complaint can be found here.
Bush Library request:
In addition to the two lawsuits filed today, FTC is also seeking Kavanaugh documents held by the George W. Bush Presidential Library and Museum. FTC submitted a request to the Library on May 8, 2017, and was told that 16,180 pages of materials had previously been made publicly available and are available in the Library’s research room in Dallas; 13,934 pages are “exempted from release” due to “the restrictions of the [Presidential Records Act] and applicable FOIA exemptions,” 117 pages of which were withheld due to their being categorized as “national security classified information.”
The Library also identified “approximately 429,870 pages and 667,824 electronic files of potentially responsive records” that still need to be processed and may be responsive to FTC’s request. “Our best estimate at this time,” the Library’s archivist wrote on April 17, 2018, is that the request “may be completed in approximately 20 years.”
The organization has not yet gone to court to obtain the Bush Library documents and is currently weighing its options on how best to proceed on this request.
Last year, FTC was actively involved in the Justice Gorsuch nomination, compelling via lawsuit the production of more than 100,000 pages of his DOJ file ahead of his confirmation hearing, and in the Chief Judge Garland nomination the year before.
About Fix the Court:
Fix the Court is a non-partisan grassroots organization created to take the Supreme Court to task for its lack of transparency and accountability and to push Chief Justice John Roberts and the court’s associate justices to enact basic yet critical reforms to make the court more open and honest. For more information on the reforms FTC is pursuing, click here.
About American Oversight:
American Oversight is a non-partisan, nonprofit ethics watchdog committed to holding the Trump administration accountable. Through public records requests and litigation, American Oversight identifies and extracts evidence of corruption, misconduct, or conflicts of interest in the administration. Follow us at @weareoversight and learn more at http://www.americanoversight.org.