Oregon’s Senator Jeff Merkley is filing a lawsuit arguing that the Trump Administration’s actions to withhold substantial parts of Judge Brett Kavanaugh’s record have violated the constitutional separation of powers and hindered Senators from fulfilling their constitutional duty of advice and consent on the President’s nominee to the Supreme Court of the United States.
Merkley’s suit asks the courts to intervene to prevent the process from continuing until Kavanaugh’s full record is available for public scrutiny.
“The events of the past ten days have only underscored how critical it is that the Senate conduct a careful and comprehensive review of a nominee before giving its consent,” Merkley said. “But this President has gone to lengths never seen before to make sure we can’t do that job. The unprecedented obstruction of the Senate’s advice and consent obligation is an assault on the separation of powers and a violation of the Constitution. The President and Mitch McConnell want to ram through this nomination come hell or high water, without real advice or informed consent by the Senate, but that’s just not how our Constitution works.”
Currently, key Republicans are pushing for a vote as early as the end of this week, despite the fact that critical unanswered questions about Judge Kavanaugh’s character and record hang over his nomination.
Specifically, the lawsuit names as defendants President Donald J. Trump; Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley, who worked with the Trump White House to conceal documents; and William Burck, a lawyer and personal friend of Kavanaugh’s who has been screening Kavanaugh’s documents on behalf of the Bush and Trump White Houses. It also names Julie Adams, Secretary of the Senate; and Michael Stenger, Senate Sergeant at Arms, as agents of McConnell and Grassley; and the National Archives, as an indispensable party in producing the documents.
The lawsuit emphasizes “Three Acts of Direct Interference” by which President Donald Trump, the Senate leaders who conspired with the White House, and lawyer William Burck concealed from the U.S. Senate vast troves of documents necessary for senators to fulfill their constitutional duty, violating the separation of powers and the advice and consent clause.
The Defendants conspired to conceal from the Senate and public all of the documents from Kavanaugh’s three most formative professional years, as Staff Secretary in the George W. Bush White House.
The Defendants conspired to conceal 100,000 documents from Kavanaugh’s time of service as a lawyer in the White House Counsel’s Office under President George W. Bush. The Defendants empowered Mr. William Burck, a partisan lawyer with profound conflicts of interest, to utilize executive privilege on behalf of President Trump to block Senate access to the relevant documents.
The Defendants conspired to further limit access to documents by utilizing the services of William Burck to label 141,000 pages “Committee Confidential,” limiting the ability of Senators to speak about them and to communicate with experts and members of the public about the contents.
The suit seeks to end the massive violation of the separation of powers by remedying the executive branch interference in the advice and consent deliberations of the Senate. Specifically, it seeks injunctive relief by ordering that President Trump withdraw his excessive invocation of executive privilege and produce a privilege log for documents truly subject to executive privilege, and that Senator McConnell, Chairman Grassley, Secretary Julie Adams and Senate Sergeant at Arms Michael Stenger not hold or permit a vote on the Judge Kavanaugh’s confirmation until the National Archives releases his records, and there is sufficient time for the US. Senate to review the documents and conduct a careful review of the newly released documents. Further, it asks the court to order the National Archives to expedite the production of the documents to the earliest date practical. Finally, it asks the court to order defendant Burck to cease and desist from usurping the traditional role of the National Archives.
“We are witnessing a U.S. Supreme Court nomination process that, from its onset, is an executive branch power grab giving the President unchecked authority over choosing this important lifetime appointment without a vigorous review of the nominee’s records,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “At every turn, this process has been one shrouded in secrecy and is discordant with the process as laid out in the Constitution. Americans deserve a Justice whose lifetime appointment is not tainted by political gamesmanship and whose appointment comes after full release and examination of his records. The Chairman’s torturous logic in continuing the nomination process without the full record of the nominee is an affront to our constitution. We must protect and defend the ‘Advice and Consent’ role of the Senate, an essential and necessary check on Presidential power. Through obstruction, and concealment of tens of thousands of relevant records, the President and Senate leadership are preventing Senator Merkley and his Senate colleagues from exercising their constitutional obligation to provide advice and consent on the fitness of the nominee.”
Civil rights firm Mehri & Skalet is serving as co-counsel with the Lawyers Committee.