A Bit on Privilege
Privilege Claims Are Nothing New
During the consideration of Chief Justice
John Roberts, the
Justice Department withheld roughly 10 percent of his Solicitor General records
on privilege grounds. DOJ said at the time:
“… we cannot provide to the Committee
documents disclosing the confidential legal advice and internal deliberations
of the attorneys advising the Solicitor General. It is simply contrary to the
public interest for these documents to be released. … These internal discussions
among lawyers have always been
considered privileged, covered by both the deliberative process privilege
and the attorney-client privilege, and the
Department has traditionally declined to make public the documents reflecting
those deliberations. To release these documents would cause grave harm to
the ability of the Solicitor General to fulfill his designated function…”
During the
consideration of Justice Kagan, the committee, on a bipartisan basis, declined
to seek her Solicitor General records for the same reason that they were
withheld for Justice Roberts.
The Committee Historically
Refrains from Requesting Privileged Material
Historically,
the Committee has respected claims of constitutional privilege and declined to
receive such material. Senators Grassley and Feinstein explicitly excluded privileged material from their records
request during the nomination of Justice Gorsuch:
“As the Committee has done in the past while
considering Supreme Court nominations, most recently in considering Justice
Kagan's nomination, we intend then to
respect the invocation of privilege by a co-equal branch of our government.”
In
Grassley’s request for Judge Kavanaugh’s
files, he again
pledged to respect claims of privilege. If the same standard was acceptable to
Democrats for Justice Gorsuch, why is it different now?
Privilege Traditionally Covers
Many of Judge Kavanaugh’s WHCO Duties
The
Constitution gives the President the authority to withhold from Congress
documents containing sensitive advice, attorney-client discussions, and
deliberations about federal judicial nominations. Judge Kavanaugh worked extensively on matters
covered by these privileges during his years in the White House Counsel's
Office. Therefore it is not surprising that some of those records would be
withheld as privileged by the Constitution.
