Courts & Litigation

Day 1 of Brett Kavanaugh Hearings: Documents Delayed and Documents Denied

Mikhaila Fogel
Tuesday, September 4, 2018, 9:53 PM

A kerfuffle erupted in the Senate Judiciary Committee on Tuesday over the committee’s access to a series of documents from Supreme Court nominee Brett Kavanaugh’s time in the Bush White House. The conflict concerned the withholding of material under an implied assertion of executive privilege and the relevance of the documents in question. There are a few different caches of documents and different reasons why senators do not have access to them.

Senate Judiciary Committee Chairman Chuck Grassley meets with Supreme Court nominee Judge Brett Kavanaugh, July 2018 (Source: Wikimedia/Office of Senator Chuck Grassley)

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A kerfuffle erupted in the Senate Judiciary Committee on Tuesday over the committee’s access to a series of documents from Supreme Court nominee Brett Kavanaugh’s time in the Bush White House. The conflict concerned the withholding of material under an implied assertion of executive privilege and the relevance of the documents in question. There are a few different caches of documents and different reasons why senators do not have access to them.

To give context before Kavanaugh’s testimony begins in earnest on Wednesday, what follows is an overview of the three different batches of documents at issue.

The 42,000 Pages

Roughly 42,000 pages (as part of 5,148 documents) from Kavanaugh’s time in the White House Counsel’s office were released to the Senate Judiciary Committee on Monday night. Senate Minority Leader Chuck Schumer was quick to respond that senators were unlikely to have time to review the documents before the hearing began Tuesday. The majority staff on the committee, however, tweeted only three hours later that they had finished their review:


Mikhaila Fogel was an associate editor at Lawfare and a research analyst at the Brookings Institution. She previously worked as a legislative correspondent for national security and foreign affairs issues in the Office of Sen. Susan Collins. She holds a bachelor’s degree from Harvard College, where she majored in history and literature and minored in government and Arabic.

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