Six weeks after FTC’s FOIA request, no Kavanaugh documents from the Office of Legal Policy have been produced

Fix the Court filed a complaint in federal court today to uncover records documenting Supreme Court nominee Brett Kavanaugh’s interactions with members of the Justice Department’s Office of Legal Policy (OLP) during the five-and-a-half years in which Kavanaugh worked in the George W. Bush White House. FTC also filed a motion for a preliminary injunction this afternoon to compel the prompt release of these files.

FTC has learned from earlier document requests and news reports that Kavanaugh often communicated with OLP staff about President Bush’s judicial nominees and near-nominees – including Jay Bybee, Charles Pickering, Bill Pryor and John Yoo – and about other controversial Bush administration policies, many of which are at issue in his confirmation hearings. FTC is again represented in this suit by American Oversight, a fellow nonpartisan watchdog group.

“Judge Kavanaugh’s involvement with the Justice Department in vetting President Bush’s judicial nominees and discussing policies like warrantless wiretapping can give the public insight into the type of nominee he is,” FTC executive director Gabe Roth said. “We’ve been told countless times by the National Archives, Bush designee Bill Burck and others that the public won’t see Kavanaugh’s complete file before senators vote on his confirmation. Nevertheless, and down to the wire, Fix the Court will work to obtain as much of that record as possible.”

“Even after three days of testimony, we’re left with more questions than answers about Judge Kavanaugh’s record,” American Oversight executive director Austin Evers added. “The Justice Department is continuing to withhold documents that could shine a crucial light on Kavanaugh’s work in the White House, and it is more urgent than ever that these files be released to the public.”

FTC’s lawsuit was filed in the U.S. District Court for the District of Columbia and asks a federal judge to order the agency to comply with its July 24 request for “all correspondence sent by Office of Legal Policy personnel to Brett M. Kavanaugh and all correspondence sent by Brett M. Kavanaugh to Office of Legal Policy personnel from January 20, 2001, to May 30, 2006,” including memos and e-mails. Despite obtaining expedited processing from the agency on Aug. 3, FTC has yet to receive a single document from this request.

In addition to this suit, FTC also sued DOJ’s Office of Legal Counsel and the National Archives on July 10, 2018, over unfulfilled 2017 FOIAs to those agencies. Given the speed at which the Kavanaugh confirmation was proceeding, FTC then filed preliminary injunctions on July 16 to compel the prompt release of records ahead of his hearings.

In the following weeks, FTC agreed to expedited production schedules with those agencies. By August 20, the Archives had released all of Kavanaugh’s Office of Independent Counsel files located in College Park, even the most salacious ones, and by Sept. 14, DOJ is scheduled to release Kavanaugh’s OLC files that are not, in their estimation, subject to statutory FOIA exemptions. (The OLC files released to date are here, here and here.)

FTC’s FOIA request to the Bush Library remains pending, with one April 2018 estimate from a supervisory archivist stating that the request “may be completed in approximately 20 years.”

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.

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 www.americanoversight.org.