Sen. Patrick J. Leahy, D-Vt., cited emails that have not been made public in raising the issue during Kavanaugh’s Supreme Court nomination hearing.
WASHINGTON — A Democratic senator called into question on Wednesday Judge Brett Kavanaugh’s testimony a dozen years ago that he knew nothing about two disputed episodes from the George W. Bush era: Republicans’ infiltration of computer files belonging to Senate Judiciary Committee Democrats and a warrantless surveillance program created after the Sept. 11 terrorist attacks.
Sen. Patrick J. Leahy, D-Vt., cited emails that have not been made public in raising the issue during Kavanaugh’s Supreme Court nomination hearing. Leahy was referring to Kavanaugh’s testimony about the Bush-era disputes as an appeals court nominee during hearings in 2004 and in 2006.
At the time, Kavanaugh told the Senate he knew nothing about either episode until they became public knowledge. But Leahy said that Bush White House emails provided to the Judiciary Committee for Kavanaugh’s Supreme Court nomination — most of which were deemed “committee confidential,” meaning he cannot make them public — raise “serious questions” about the “truthfulness” of Kavanaugh’s statements to the Senate back then.
Kavanaugh, in turn, said his prior testimony had been “100 percent accurate.”
The conflict was difficult to parse because most of the documents cited by Leahy remained hidden from public view. The Judiciary Committee chairman, Sen. Charles E. Grassley, R-Iowa, told Leahy he would consider allowing him to disclose some of the files for his second round of questioning Thursday. But later on Wednesday, an unknown person provided what appeared to be one of the confidential emails, about warrantless surveillance, to The New York Times.
Many of the questions about the Judiciary Committee spying dispute centered on Kavanaugh’s interactions with Manuel Miranda, a Republican Senate staff member who in February 2004 resigned under pressure from his position as nominations adviser to the Senate majority leader, Bill Frist, R-Tenn.
From 2001 to 2003, Miranda and a lower-ranking Republican staff member had exploited an error on a shared Judiciary Committee computer server to infiltrate Democratic Judiciary Committee computer files, monitoring and copying thousands of memos that laid out which of Bush’s appeals court nominees Democrats would try to block, and with what tactics, and passing some on to the media.
During that period, Kavanaugh was working as a Bush White House lawyer and his duties included judicial nominations.
At his 2004 and 2006 hearings, Kavanaugh distanced himself from Miranda’s actions. He testified that while they knew each other because of the overlap in their work, Miranda had never told him about the infiltration or provided him with copies of Democrats’ memos. Kavanaugh said he “never suspected anything untoward” about the information Miranda provided.
Leahy, however, questioned that claim. He focused on three files in the Bush-era White House emails that the Judiciary Committee was provided and that were cleared for release, which he later posted on Twitter.
“There is evidence that Mr. Miranda provided you with materials that were stolen from me,” Leahy said at the hearing. “And that would contradict your prior testimony. It is also clear from public emails — and I’m refraining from going into nonpublic ones — that you had reason to believe materials were obtained inappropriately at the time.”
The three files, from 2002 and 2003, showed that Miranda alerted several White House officials, including Kavanaugh, that “intel suggests” what Leahy was planning to question a nominee about at a coming hearing and sent Kavanaugh and others a draft letter from Democratic senators whose existence was not yet public.
Another email chain referred to a proposed meeting with Kavanaugh and another Bush administration lawyer; its subject line was the names of two Democratic senators on the Judiciary Committee. In the emails, Kavanaugh said he could not make the meeting, so Miranda said he would provide “some info” to the other official and that they could talk by phone later.
Leahy suggested another part of that email chain, still deemed confidential, proposed holding the meeting away from their government offices.
In a phone interview Wednesday, Miranda said he recalled once inviting Kavanaugh and others who worked on nominations to have lunch at his apartment, but said that was because it was conveniently situated midway between their respective workplaces.
Miranda said he had never told Kavanaugh that Republican staff members had gained access to the Democratic files. While he had no memory of passing on a draft letter, he said Kavanaugh would not have known the source even if he did.
“I can tell you for certain that he had no knowledge of this,” Miranda said.
Kavanaugh pointed out that none of the emails referred to internal Democratic files and noted he had asked who signed the letter — a question that suggests he did not understand it was a nonpublic draft.
Still, Leahy also said there were other documents the committee had received that shed additional light on Kavanaugh’s interactions with Miranda, hinting that one may contain a Democratic file marked “confidential.” Leahy also brought up Kavanaugh’s testimony distancing himself from knowledge of a National Security Agency warrantless surveillance program, code-named Stellarwind. In May 2006, after asking about what Kavanaugh had seen in his role as staff secretary from 2003 to 2006, Leahy had asked whether he saw or heard anything related to “the president’s NSA warrantless wiretapping program.”
Kavanaugh had said he learned about it from a December 2005 article in The Times.
But on Wednesday, Leahy suggested that a “committee confidential” email may show that in 2001 Kavanaugh had asked John Yoo, a Justice Department lawyer who wrote secret memos blessing the program as legal based on a sweeping and disputed theory of executive power, to answer questions about the constitutionality of warrantless surveillance.
In an email, Yoo — now a professor at the University of California, Berkeley, law school — denied that, writing: “Kavanaugh was not cleared to know about Stellarwind or any other counterterrorism surveillance program that I worked on while at the Justice Department. I have never had any conversation with Kavanaugh about those programs, or even the general subject of presidential power and electronic surveillance. Ever.”
Still, Leahy referenced a Sept. 17, 2001, memo by Yoo to Timothy Flanagan, then the deputy White House counsel, entitled “Constitutional Standards on Random Electronic Surveillance for Counter-Terrorism Purposes.” It explored a “hypothetical” warrantless surveillance program, according to a declassified Justice Department inspector general report that portrayed that memo as a preliminary version of an Oct. 4, 2001, memo in which Yoo blessed Bush’s authorization that day of the Stellarwind program.
Later on Wednesday, an unknown person provided The Times with what appeared to be the email Leahy had been obliquely referring to. Marked “committee confidential,” the message appeared to have been sent by Kavanaugh to Yoo at 3:28 a.m. on Sept. 17, 2001, blind-copying Flanagan, asking whether there were “any results yet” on the Fourth Amendment implications of “random/constant surveillance of phone and email conversations of noncitizens who are in the United States” to prevent terrorist or criminal violence.
At the hearing, Leahy had pressed Kavanaugh to say whether he had ever raised questions “about the constitutional implications of a warrantless surveillance program” with Yoo in 2001.
Kavanaugh said he could not “rule anything out like that,” allowing that in the early days after the Sept. 11 attacks, White House lawyers worked on many things before regular assignments were sorted out. But, he said, his answer in 2006 was about the program The Times had revealed.
Raj Shah, a White House spokesman, said Kavanaugh’s testimony in 2006 and on Wednesday had been “entirely accurate.” He stressed that Kavanaugh had acknowledged the White House was “all hands on deck” in the immediate aftermath of the Sept. 11 attacks and portrayed his answer in 2006 as whether he had seen memos about the program “as staff secretary,” a role Kavanaugh did not take up until 2003.
“The only controversial thing about this email is that it was leaked to the media, despite being ‘Committee Confidential,’ a violation of committee rules,” Shah said.
This article originally appeared in The New York Times.