On July 27, 2018, the Senate Judiciary Committee
exercised its right under the Presidential Records Act (PRA) to request that
the National Archives produce presidential records from Judge Kavanaugh’s
service as an Executive Branch lawyer. This includes his time in the
White House Counsel’s Office and his work for
Independent Counsel Kenneth Starr. The
Archives has begun an expedited review of those records for release to the
Committee and the public.
Earlier in July, President George W. Bush also exercised
his right under the same statute to obtain copies of the very same presidential
records from the Archives. He and his PRA representatives have been
reviewing those documents at a very swift pace, following the highest
professional standards and seeking to categorize documents using the same
principles that the Archives uses for its own review.
President Bush has offered to provide the committee with copies
of the non-privileged presidential records he received—the same records the
committee requested—on a rolling basis as he finishes reviewing them.
This is a significant public service. It allows the committee to begin
quickly performing the important task of reviewing Judge Kavanaugh’s record, while
also speeding up the timetable for the records’ public release, as appropriate
under law. President Bush has agreed to perform this service at
non-taxpayer expense.
Some have argued that the committee’s use of President
Bush’s copies of the records—the very same presidential records the committee
requested from the Archives—means the Archivist has been cut out of the
process. This is simply not true, and those making the argument know
it. While the committee is reviewing the copies of presidential records
received from President Bush, the Archives is going to be reviewing the very
same records that it provided to President Bush to prepare those documents
for formal public release under the PRA and other laws, as the committee
requested. When the Archives has finished its review, the committee fully
expects that the Archives will provide to the committee and the public any
non-privileged presidential record to which the committee is entitled that
President Bush has not already provided.
In other words, the committee will get presidential
records it requested from two sources. The committee will get copies
first from President Bush, who is able to produce records to the committee more
quickly than the Archives. Any non-privileged record to which the
committee is entitled that President Bush declines to produce will then be
produced from the Archives. This process ensures that no time is wasted
and should give added comfort to those seeking access to the documents because
it provides yet another means of ensuring committee access to all
non-privileged presidential records.
Some have further argued that the committee's use of
President Bush’s copies of records means that the committee’s review will be a
partisan process. This is wrong for two reasons. First, the lawyers
leading President Bush’s review are
highly
respected lawyers undertaking a professional, not partisan, representation.
They are doing what they and their firms do in case after case all across the
country: review documents to respond appropriately to requests for records in a
manner consistent with applicable law. Second, because the committee will
receive records from President Bush
and the Archives, any non-privileged
presidential record withheld by President Bush will be produced to the
Committee by the Archives. There is thus a check against any partisan
interference.
The path the committee has taken allows access to the
requested presidential records on an expedited basis so that committee members
can review an unprecedented volume of documents in a timely and efficient
fashion. Anyone insisting that the committee review copies of records only
from the Archives is a transparent effort to delay and obstruct the
confirmation process.
The presidential records requested by Chairman Grassley
are already starting to arrive, courtesy of President Bush. The committee
received over 125,000 pages of those records Thursday and will soon receive
hundreds of thousands more. This initial production alone generated
nearly three quarters of the total pages produced during each of Justices
Kagan’s and Gorsuch’s nominations. Committee staff are already hard at
work reviewing the documents in order to perform the Senate's constitutional
duty of advice and consent.
More on the Presidential Records Act
President
Bush has a statutory right of access to documents created during his
administration, and nothing in the Presidential Records Act (PRA) restricts his
ability to review those documents and handle them however he pleases, including
making them public or sharing them with Congress. He moreover has a legal
right to assert privilege over any document requested by the committee, and
documents over which he claims privilege cannot be produced to anyone—including
the committee—if President Trump also agrees they are privileged. Any
records that the former president declines to share with the committee for
reasons other than privilege—e.g., because he believes they are personal,
rather than presidential, records or because they contain PRA-restricted
material—will be reviewed by the Archivist. The Archivist will review those
records that President Bush declined to produce based on their status as
personal records or on PRA grounds and make his own determination about whether
they should be withheld. If the Archivist determines they should not be
withheld—and President Bush does not assert privilege—the Archivist will
provide them to Congress even if President Bush has not.