Litigation Update: Fix the Court and American Oversight Secure Production Schedules for Kavanaugh Records

On July 10, 2018, Fix the Court sued the Department of Justice (DOJ) and the National Archives and Records Administration (NARA) in order to obtain records related to Judge Brett Kavanaugh that Fix the Court had requested under the Freedom of Information Act (FOIA).

In the first suit, which is against DOJ, Fix the Court is seeking to releasee Judge Kavanaugh’s correspondence with the Assistant Attorney General in charge of the Office of Legal Counsel and his or her principal deputy during his time working at the White House for President George W. Bush. Fix the Court originally submitted a FOIA request to DOJ in May 2017, then narrowed its request in September 2017. Fix the Court had not received any records before filing its complaint.

On July 16, 2018, Fix the Court filed a Motion for Preliminary Injunction, asking the court to order DOJ to expedite processing of Fix the Court’s request. On July 17, 2018, Judge Kollar-Kotelly ordered DOJ to provide information about the number of records it would need to review to Fix the Court by July 23, 2018. DOJ has since identified approximately 650 records for review, consisting of about 1800 pages. DOJ and Fix the Court have agreed that DOJ will process 400 pages and release responsive, non-exempt records every two weeks (August 3, 2018) and will complete production by September 28, 2018. On July 24, 2018, the court ordered DOJ to comply with this schedule, and Fix the Court withdrew its Motion for Preliminary Injunction.

In the second suit, which is against NARA, Fix the Court is seeking to compel the release of records related to Judge Kavanaugh’s work for Independent Counsel Kenneth Starr during the Clinton Administration. Specifically, on April 4, 2018, Fix the Court requested complaints regarding Judge Kavanaugh, his correspondence, performance reviews, and any warnings or reprimands regarding his work. When Fix the Court filed its complaint, it had not received any records and had been advised that it would take several months to several years to produce the documents.

On July 16, 2018, Fix the Court filed a Motion for Preliminary Injunction, asking the court to order NARA to expedite processing of Fix the Court’s request. NARA and Fix the Court have since agreed that NARA will process 1000 pages per week and make weekly rolling productions beginning July 30, 2018. Given the estimate of 20,000 potentially responsive records, the agreed-to schedule will result in completion in approximately December 2018. After the parties agreed to this schedule, Fix the Court withdrew its Motion for Preliminary Injunction.

Original Post: July 16, 2018

Watchdog Seeks Injunctions to Force Release of Kavanaugh Records Before Senate Vote

American Oversight today filed motions on behalf of watchdog group Fix the Court seeking preliminary injunctions to compel the prompt release of release tens of thousands of pages of records from Supreme Court nominee Brett Kavanaugh’s previous federal service, including his work on the Starr commission and his time in the White House under President George W. Bush.

Last week, Fix the Court, represented by American Oversight, filed two lawsuits under the Freedom of Information Act seeking the release of documents from the National Archives and Records Administration and the Department of Justice. With Senate leaders suggesting that a vote on Kavanaugh’s confirmation could take place by early fall, if not sooner, Fix the Court’s motions seek to order the government to comply with the FOIA requests and release Kavanaugh’s records before such a vote occurs.

“Fix the Court was still in litigation with the Justice Department over the release of Neil Gorsuch documents more than five months after he had been sworn in as a justice. We’re not going down that road again,” FTC executive director Gabe Roth said. “Given the size of Kavanaugh record and the expected timeline to confirmation, we must be more assertive to guarantee a full vetting.”

“Everyone agrees that it is important to vet a Supreme Court nominee in an expeditious manner, and our objective is to ensure that the public can participate fully,” said Austin Evers, executive director of American Oversight. “A preliminary injunction is usually seen as ‘extraordinary relief,’ but given the speed Leader McConnell is seeking, it’s entirely reasonable to make this request.”

In the motions filed today, Fix the Court and American Oversight argue that the public interest would be irreparably harmed if the Senate votes on Kavanaugh’s confirmation before the American people have the opportunity to adequately review his record.

“These records,” FTC’s motion asserts (FTC v. NARA PI, p. 12), “possess unique value while Judge Kavanaugh’s nomination is pending and is a subject of widespread public debate, and that value will evaporate when the Senate makes its decision on Judge Kavanaugh’s nomination and the public debate ends.”

The records sought by FTC include an estimated 20,000 pages held by NARA potentially related to Kavanaugh’s work in the Office of Independent Counsel Ken Starr. FTC requested all of Kavanaugh’s correspondence, notes and memos from his time in the OIC (1994-98), as well as any complaints made against him by members of the public and any performance reviews, warnings or reprimands he was given.

When the Senate considered Justice Elena Kagan’s nomination to the Supreme Court in 2010, NARA processed and made nearly 170,000 pages of material from the Clinton Presidential Library available to the public over approximately six weeks.

FTC is also seeking all correspondence sent by the assistant attorney general in charge of the DOJ Office of Legal Counsel and his or her primary deputy to Kavanaugh, and vice versa, during the years Kavanaugh worked in the White House (2001-06), both as staff secretary and in the counsel’s office.

On July 10, 2018, FTC filed complaints against NARA and DOJ in the U.S. District Court for the District of Columbia after each agency failed to adequately respond to the FOIA requests for the Kavanaugh documents.

The complaints motions for preliminary injunctions in each case can be found here (v. NARA) and here (v. DOJ).