House Judiciary Committee Chairman Jerrold Nadler (D-NY) and Subcommittee on Courts, Intellectual Property and the Internet Chairman Hank Johnson (D-GA) sent a letter to the National Archives and Records Administration to request that the National Archives complete its review and release records to the Committee related to Justice Brett M. Kavanaugh’s service in the White House from 2001 to 2006, when he served as Staff Secretary and in the White House Counsel’s Office.

The Members note that during Kavanaugh’s Senate confirmation process, the Senate Judiciary Committee received only a small fraction of Justice Kavanaugh’s White House record before voting on his nomination.

The Members wrote, “In the coming year, the Supreme Court will again address important matters regarding civil rights, criminal justice, and immigration. The Court may also review certain high-profile cases related to reproductive rights, the separation of powers, and the limits of executive authority—all topics within the jurisdiction of the House Judiciary Committee. Now and as always, the Court’s fidelity to the principles of equal and impartial justice, as well as the public’s faith in the integrity of the judiciary, are foundational to maintaining the rule of law.”

The Members also noted that the Judiciary Committee exercises jurisdiction with respect to “the judiciary and judicial proceedings” and “federal courts and federal judges,” and that the Committee continues to assess legislation to promote ethics, accountability, and transparency in the federal courts.

Under the Presidential Records Act, 44 U.S.C. § 2205(2)(C), Congressional committees of jurisdiction can access records that “contain information that is needed for the conduct of [their] business and that is not otherwise available.”

Full text the letter is available here and below.

August 6, 2019

The Hon. David S. Ferriero
Archivist of the United States
The National Archives and Records Administration
8601 Adelphi Road
College Park, MD 20740-6001

Dear Mr. Ferriero:

The business of the Supreme Court has profound implications for the American people and the institutions of our government.   In the coming year, the Supreme Court will again address important matters regarding civil rights, criminal justice, and immigration.  The Court may also review certain high-profile cases related to reproductive rights, the separation of powers, and the limits of executive authority—all topics within the jurisdiction of the House Judiciary Committee (the Committee).  Now and as always, the Court’s fidelity to the principles of equal and impartial justice, as well as the public’s faith in the integrity of the judiciary, are foundational to maintaining the rule of law.

The Committee also exercises legislative authority, including investigative and oversight authority, with respect to “[t]he judiciary and judicial proceedings, civil and criminal,” and “federal courts and judges.”[1]  The Committee’s jurisdiction encompasses the laws governing judicial ethics and the judicial oath of office; judicial disqualification, and misconduct; and the organization of the Supreme Court.  In that capacity, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet recently held a hearing to consider possible legislation promoting ethics, accountability, and transparency in the federal courts.[2]  As it has in the past, the Committee is considering legislative proposals to create a code of conduct for Supreme Court Justices.[3]  It has also reviewed other proposals in recent years regarding transparency in the Supreme Court’s proceedings, the adequacy of the Justices’ financial disclosures, and the circumstances in which Justices or judges must disqualify themselves from cases.[4]

In light of these and other legislative and oversight responsibilities, we write to request that the National Archives complete its review of certain presidential records related to Justice Brett M. Kavanaugh’s service in the White House from 2001 to 2006 and provide these records to the Committee, as provided for in 44 U.S.C. § 2205(2)(C).

On July 27, 2018, former Senate Judiciary Committee Chairman Charles Grassley requested certain records from the National Archives related to Justice Kavanaugh’s service in the White House Counsel’s Office from 2001 to 2003.[5]  He did not, however, request any records related to Justice Kavanaugh’s service as Staff Secretary from 2003 to 2006.  Former Chairman Grassley later withdrew his request for Justice Kavanaugh’s White House Counsel’s Office records, noting that the Senate Judiciary Committee had received some (though not all) of the requested records during the Senate’s confirmation process.[6]  The Senate Judiciary Committee received those records after they were processed by a private attorney, who indicated that he had withheld tens of thousands of documents as a result of his review.[7]

As a result of this process, the Senate Judiciary Committee received only a small fraction of Justice Kavanaugh’s White House record before voting on his nomination.  Nevertheless, we understand that the National Archives has now completed its processing of records related to Justice Kavanaugh’s time in the White House Counsel’s Office.  Additionally, under the Presidential Records Act, Justice Kavanaugh’s fuller White House record will begin to be made available to the American people in January 2021.

We now ask that the National Archives produce the records related to Justice Kavanaugh’s service in the White House Counsel’s Office, as originally requested by former Chairman Grassley, to the House Judiciary Committee.  We further request that the Archives process and produce the same categories of records requested by former Chairman Grassley as they pertain to Justice Kavanaugh’s tenure as White House Staff Secretary.  Namely, we ask that you provide:

(1)        Emails sent to or received by Justice Kavanaugh, including emails on which he was a carbon copy or blind carbon copy recipient, during the period in which Justice Kavanaugh served as Staff Secretary, including any documents attached to such emails; and

(2)        The textual records contained in Justice Kavanaugh’s office files from the period during which he served as Staff Secretary.

Please produce documents on a rolling basis, beginning with records requested by former Chairman Grassley related to Justice Kavanaugh’s service in the White House Counsel’s office.  For the records related to Justice Kavanaugh’s service as Staff Secretary, we welcome the opportunity to work with the Archives on finding aids and search terms to prioritize and streamline the production of documents.

Please note that documents provided to Congress pursuant to 44 U.S.C. § 2205(2)(C), in contrast to those released to the public, are not governed by the Freedom of Information Act or the exemptions outlined in 5 U.S.C. § 552(b).  If any document is withheld on the basis of any claim of privilege, please describe each document by date, author(s), addressee(s), recipient(s), title, and subject matter, and set forth the nature of the claimed privilege with respect to each.

We recognize that reviewing the archives and producing these documents is a significant task, and thank you in advance for your efforts.

Sincerely,

________________________________

Jerrold Nadler

Chairman

House Committee on the Judiciary

________________________________

Henry C. “Hank” Johnson, Jr.

Chairman

Subcommittee on Courts, Intellectual Property, and the Internet

House Committee on the Judiciary

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