Supreme Court document massacre

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Kavanaugh behind the curtain

Hearings start today on the nomination of Brett Kavanaugh to be the next Supreme Court Justice of the United States.

Here is the way it works: Republicans will work to reveal as little as possible about Kavanaugh’s history and legal views. Then they will hold a vote, as quickly as possible, on a nominee that could radically reshape the direction of the Supreme Court, and America, for decades.

They’d much rather have a debate about process -- a tedious discussion of document production and related issues -- than a debate about Kavanaugh’s actual views on executive power, same-sex marriage, torture, abortion or warrantless wiretapping.

Republicans have pulled this trick off before. When Obama nominated Merrick Garland to the Supreme Court, Mitch McConnell could have rallied Senate Republicans to vote against him on the merits. But he knew that was a losing battle.

Instead, McConnell simply refused to give Garland a hearing. The decision initially sparked outrage but, ultimately, the dull debate about process lost steam.

With Kavanaugh, Republicans are making a similar bet. They are doing whatever they can to obscure the substantive impact that Kavanaugh will have on the court. They believe the process used to conceal Kavanaugh’s views will quickly be forgotten.

Kavanaugh’s history

Kavanaugh served as Staff Secretary in the George W. Bush White House from 2003 to 2005. Staff Secretary is an obscure but powerful position, responsible for all the documents that are sent to the president. Kavanaugh also served in the White House counsel’s office from 2001 to 2003.

A uniquely partisan process

Historically, the National Archives has handled the disclosure of executive branch documents related to a Supreme Court nominee. Republicans, however, are attempting to jam through Kavanaugh’s nomination and the National Archives process will take too long. So in coordination with the George W. Bush library, they have created an entirely separate process run by a Republican lawyer, William Burck.

Burck is not a neutral party; Kavanaugh was previously his boss and today is “one of his closest friends.” Burck is receiving the documents directly from the library and making his own decisions about what will be released to the public.

An extraordinary statement from the scrupulously apolitical National Archives stated that the process being conducted by Burck is “completely apart from the National Archives” and “is something that has never happened before.”

Hundreds of thousands of secret documents

None of the documents from Kavanaugh’s time as Staff Secretary are being released because Senate Republicans did not even request them. This includes 560,000 pages of files and 475,000 emails.

In a meeting with Senator Dick Durbin, Kavanaugh revealed that, as White House Staff Secretary, he worked on “same-sex marriage, abortion, executive power, torture, Supreme Court nominations, warrantless wiretapping, and more.” The substance of that work is now being hidden from the public as the Senate considers him for a lifetime appointment to the Supreme Court.

On Friday night, Burck announced the Trump administration was asserting “presidential privilege,” and therefore he would be “withholding more than 100,000 pages” from Kavanaugh’s tenure in the White House counsel’s office.

The withheld documents, according to Burck, include “advice submitted directly to President Bush” and “communications between White House staff members about their discussions with Mr. Bush.”

It is “the first time that a sitting president has exerted executive privilege under the Presidential Records Act in order to prevent documents from going to Congress during a Supreme Court confirmation process,” according to Senate Democrats.

The numbers game

Republicans are putting a positive spin on the document production by emphasizing that it requested over 900,000 pages of documents from Kavanaugh’s White House tenure.

But numbers can be deceiving.

Many of the documents that have been requested and released are duplicates of irrelevant material. For example, “one tranche of emails… an invitation to Heritage Foundation events is repeated over tens of thousands of pages.”

Graham gives up the game on Roe

Kavanaugh’s confirmation effectively rests on the votes of two pro-choice Republican Senators -- Lisa Murkowski (AK) and Susan Collins (ME). Collins appeared pleased that Kavanaugh told her that he believed Roe v. Wade was “settled law.”

This is something Kavanaugh is likely to repeat in his hearing and is an effort to obscure his real views on abortion rights.

In an interview on Fox News Sunday, Senator Lindsay Graham (R-SC) explained why Kavanaugh’s assurance to Collins was meaningless and that he fully expects Kavanaugh to cast a vote on overturning Roe.

Graham’s candid answer is critical to understanding the impact Kavanaugh will have on abortion rights in America. Here is the transcript:

CHRIS WALLACE, FOX NEWS: Kavanaugh reportedly told [Collins and Murkowski] that Roe v. Wade is quote, settled law. Is that a firm commitment in your view not to overturn Roe and if it is firm, how can you as a pro-life senator support him?

GRAHAM: I wouldn’t vote for anybody who said that every decision of the Supreme Court cannot be revisited. They are revisited through a process. There is a process of overturning long precedent. There is a four-part test you have to apply.

From my point of view what he will do if that case comes -- if it ever does -- you don’t just wake up one day and say: “Hey, I’d like to overturn Roe v. Wade.” If there is a conflict that makes it to the Supreme Court, he will apply the test of precedent to that decision. Roe v. Wade and every other precedent.

WALLACE: But to make it clear you are saying that you don’t view his statement, for instance, to Senator Collins, a pro-choice Republican, that it is “settled law” means that therefore it can’t be reexamined and conceivably overturned.

GRAHAM: It would be disqualifying in my opinion if he would not listen to both sides of the story and decide accordingly. This idea that Roe v. Wade is going to be challenged at the state level. There are all kinds of laws out there. Some will work their way up to the Supreme Court. He will give great deference, I’m sure, to Roe v. Wade. But it can be overturned like every other decision. But that will be up to the facts and the record.

In other words, Roe v. Wade will be “settled law” until Kavanaugh and the other justices unsettle it, which Graham fully expects to happen. Graham’s words are significant since he has emerged as a key ally of Trump and, as a member of the Senate Judiciary Committee, has had extensive conversations with Kavanaugh.

Trump’s insurance policy

The Senate is considering Kavanaugh at a time when the president who nominated him is an unindicted co-conspirator in two felonies. Robert Mueller’s investigation into potential criminal conduct by Trump is ongoing.

There is speculation that Kavanaugh was selected due to his expansive views of executive power -- including that a sitting president cannot be subject to criminal legal processes like a subpoena.

According to ABC News, “Kavanaugh is not expected to offer any commitment to recuse himself from cases involving investigations of President Trump, including a possible constitutional fight over a subpoena of the president” at his confirmation hearings.

This position was embraced by the White House, which released a statement claiming that “Pledging a decision on a particular matter or case – including the decision whether to hear the case – for political reasons, like obtaining confirmation votes, would violate the bedrock constitutional principle of judicial independence.”

This, of course, is untrue. Pledging to recuse yourself on cases where you have a clear conflict is not a violation of judicial independence. It’s an affirmation of the core principle that the law should be applied equally to everyone. A president should not be able to select a Supreme Court nominee to give himself an edge in a criminal inquiry into his own conduct.

Trump’s view of the legal system

On Monday, Trump tweeted another attack on Attorney General Jeff Sessions, this time criticizing him for failing to stop the criminal indictment of two GOP Congressmen before the 2018 election.

Donald J. Trump@realDonaldTrump

Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff......

September 3, 2018

The tweet is a revealing insight into Trump’s view of the federal judicial system. Trump believes the people he appoints should not apply the law impartially but use their power to protect him and the interests of the Republican Party.

Sally Yates, the former Deputy Attorney General, called Trump’s tweet “an all-out assault on the rule of law.”

Sally Yates@SallyQYates

Repeatedly trying to pervert DOJ into a weapon to go after his adversaries, and now shamelessly complaining that DOJ should protect his political allies to maintain his majority in the midterms, is nothing short of an all out assault on the rule of law. https://t.co/DDtOQbWtp3

September 3, 2018

A question before the Senate this week: Should someone who holds these views be allowed to select the next Supreme Court Justice?  


If you are interested in learning a bit more about me and why I started Popular Information, I was recently on the Recode Media podcast. You can listen here or wherever you get your podcasts.


Muzzling Mueller

The New Yorker has an 8,000-word profile of Rudy Giuliani by Jeffrey Toobin which is worth reading in full. But there is one passage that stuck out to me. Giuliani tells Toobin that, when Mueller is prepared to file his report with the Justice Department, the White House expects to object to its full public release on the grounds of executive privilege.

Even if the question of Presidential testimony is resolved, Giuliani’s attacks on the investigation are likely to continue. Mueller will file a concluding report with Rod Rosenstein, the Deputy Attorney General, at the end of the investigation, and, in theory, Rosenstein has the option of releasing the report to Congress and to the public. But Giuliani pointed out a little-known aspect of the agreement that Trump’s original legal team struck with Mueller: the White House reserved the right to object to the public disclosure of information that might be covered by executive privilege. I asked Giuliani if he thought the White House would raise objections. “I’m sure we will,” he said, adding that the President would make the final call. In other words, the conclusion of the special counsel’s investigation could be the beginning of a contentious fight over whether Rosenstein is allowed to release a complete version of Mueller’s report.

This complicates matters for Democrats, who have said that accountability for Trump depends on the contents of the Mueller report. Rosenstein could decide not to make Mueller’s report public. Alternatively, Trump himself may block its full release.

Mueller has some options. He could fight Trump’s assertion of executive privilege in court. But that places the decision in the hands of the Supreme Court, which by that time could be stacked heavily in Trump’s favor.

A better alternative is to include the most meaningful information in indictments and other documents filed in federal court. This is what Mueller did in the case of George Papadopoulos and what New York federal prosecutors did in the criminal information against Michael Cohen. Documents filed in federal court are a way for Mueller to get information directly to the public without approval from Rosenstein or Trump.


Nike picks a side

Colin Kaepernick, the former San Fransisco 49ers quarterback who began kneeling during the national anthem to protest racism, can’t find a job in the NFL. But he has a new Nike contract anyway.

Nike resigned Kaepernick to a multi-year deal, and the quarterback will be “one of the faces of Nike's 30th anniversary ‘Just Do It’ campaign.”

Kaepernick unleashed a wave of protests throughout the NFL and other sports leagues that continued even as he was exiled from football. He has sued the NFL, alleging that owners conspired to keep him out of a league. A federal judge recently ruled against the NFL’s motion to dismiss, allowing the case to move forward.

Nike’s approach stands in contrast to ESPN which, under pressure from Trump and other conservatives who claim the network has a liberal bias, recently announced that “it is not our jobs to cover politics.”


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