Commentary Law and Policy

Did Kavanaugh Commit Perjury? Senate Democrats Have Until Noon to Call for an Investigation.

Jodi Jacobson

Senate Dems have until noon today to call for a perjury investigation into U.S. Supreme Court nominee Brett Kavanaugh.

Brett Kavanaugh drives carpool. He coaches girls’ basketball. He attends his daughters’ school events. He’s a good neighbor. Some of his students say he was a good teacher. And he is “well qualified” for the nation’s highest court, according to the sterile measures of the American Bar Association.
But he may have committed perjury, which even in Trump world should disqualify anyone for a lifetime appointment to the U.S. Supreme Court. Democrats have until noon today to call the question, and rights advocates are pulling out all the stops to make them do so.
There are any number of compelling reasons Kavanaugh, nominated by “an unindicted coconspirator” in the Oval Office, should not be confirmed. He has dangerous views on presidential power, race, disability rights, reproductive rights, voting rights, gun control, access to health care, and regulations. Name a set of fundamental rights that are not the sole province of wealthy white men and as a Supreme Court justice, he is almost certain to decimate them.
The main reason Republicans are rushing Kavanaugh’s confirmation process is to prevent more of the documents they’ve been hiding from coming out. As a New York Times editorial states, Republicans “appear terrified for the American people to find out much of anything about him beyond his penchant for coaching girls’ basketball.”
Their “terror” is justified. Under questioning last week, Senate Democrats, forced to scrounge for what should be public documents, found that Kavanaugh dissembled when he claimed that Roe v. Wade is “settled law,” a meaningless term in any case. He wants everyone to believe he has no intention of overturning Roe, despite being nominated by a president who promised to deliver judges who would do just that and being supported by a party that has relentlessly pushed the same. Kavanaugh has done everything he could as a district court judge to undermine reproductive rights. But documents literally pried out of the hands of the GOP show he is not nearly as firm a proponent of his own “settled law” argument as he makes himself out to be. So he’s not being truthful, y’all. And that is kind of important in a judge.
It gets worse.
There is the issue of “the emails.” (No, not hers. Someone else’s.) A trove of emails finally made public during Kavanaugh’s confirmation hearings reveal that Kavanaugh appears to have lied about handling of information stolen from the Senate Judiciary committee during the George W. Bush administration.
Lisa Graves—co-director of the corporate watchdog Documented and a former chief counsel of the Senate Judiciary Committee—thinks Kavanaugh lied under oath about these documents and should be impeached. While on the Senate Judiciary staff, Graves authored some of the confidential strategy memos that, after being stolen from Senate Democrats, found their way into Kavanaugh’s hands when he worked on judicial nominations in the Bush White House. Kavanaugh has repeatedly denied knowing—in this week’s and in prior judicial confirmation hearings—that the materials he received were stolen, but as Graves writes, this week he was busted: 
Newly released emails show that while he was working to move through President George W. Bush’s judicial nominees in the early 2000s, Kavanaugh received confidential memos, letters, and talking points of Democratic staffers stolen by GOP Senate aide Manuel Miranda. That includes research and talking points Miranda stole from the Senate server…  

Graves notes, “receiving those memos and letters alone is not an impeachable offense.”

“No,” she argues, “Kavanaugh should be removed because he was repeatedly asked under oath as part of his 2004 and 2006 confirmation hearings for his position on the U.S. Court of Appeals for the D.C. Circuit about whether he had received such information from Miranda, and each time he falsely denied it.”

“[H]e lied. Under oath,” Graves asserts. “And he did so repeatedly.”

At least some Senate Democrats agree, publicly accusing Kavanaugh of perjury.

That’s kind of a problem for a judge of any kind, not to mention a Supreme Court justice.

Policy analyst Marcy Wheeler argues it doesn’t even matter if Kavanaugh actually perjured himself, because using stolen materials is unethical—and disqualifying—behavior. Kavanaugh should be disqualified because he has been dishonest, dissembled, and shown a lack of ethics in handling the emails and related documents.

Wheeler writes: “[O]n one issue—Kavanaugh’s use of emails stolen from Democrats—we don’t need to determine whether he lied or not, because he irrefutably did something that should make him unacceptable to be confirmed.” She adds:

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Even those that argue Kavanaugh didn’t lie and those that argue that, because Manny Miranda wasn’t prosecuted (during a GOP Administration and benefitting from speech and debate protection) or because it wasn’t a technical hack but rather a permissions violation, these emails weren’t “stolen,” do agree that using them was wrong. Here’s David Lat, for example, who wrote most of a book’s worth of Twitter threads defending Kavanaugh this week, admitting that using the emails was “unethical and wrong.”

So at best, Brett Kavanaugh is unethical and dishonest, and at worst, he may have committed impeachable offenses. In either case, he does not deserve to be on the Supreme Court, but at the minimum an investigation is required.
There is “no point in Senators calling him a liar unless they are going to ask for an investigation,” Democratic strategist Christine Pelosi told me by phone.
And in response to a tweet citing House Judiciary Committee Ranking Member Jerry Nadler (D-NY) calling for an inquiry, she tweeted:

The Senate Judiciary committee record on Kavanaugh remains “open” until noon today, until which time Senate Democrats can insert a request for a referral for investigation on whether Kavanaugh lied under oath. “Leahy seemed extremely uncomfortable making a lifetime judicial appointment if there was clearly a prima facia case for lying under oath,” Pelosi said by phone. “Senators need to go deeper” by making a referral to the full committee.

In a Twitter thread, Pelosi called on Senators to act expeditiously:

The Twitter thread continued:

So @SenateDems should put the charges in the Judiciary Committee Record, even if the result is “voted out of committee with a request for perjury in the minority report” and ask every Senator “did Kavanaugh lie and should you investigate that before voting on confirmation?”

We #HamiltonElectors did this at the Electoral College. Made a demand for a Russia intel briefing. Passed a resolution at our #CA Electoral College session. Put a marker down. And now Mueller is doing the work. Each of us should use the power we have to follow the Constitution.

And I repeat – if a Democratic President nominate a Supreme Court Justice who was documented to have LIED in a confirmation hearing, the PERJURY referral would have already been made. With bipartisanship. As it should be. If he lied, investigate. Or don’t call him a liar. Full 🛑

“Senators need to do what they can with what they have,” Pelosi told me by phone. And they should publicly make the Republicans respond by asking all 100 members of the U.S. Senate: Are you comfortable with a prima facia case of perjury without investigation?”

Jeff Hauser, executive director of the Revolving Door Project, thinks it is critical for Senate Minority Leader Chuck Schumer to support an aggressive strategy to investigate Kavanaugh for perjury. In an email, he told me: “Kavanaugh answered questions for half the number of days as Sonia Sotomayor did in 2009, and did so while most relevant documents have been hidden from the Senate.” He continued, “This sham hearing underscores why Schumer was wrong to act like everything was normal while hastening confirmation for a flock of Trump nominations in August. Schumer has only imperfect tools available, but limited tools are far more than none. Schumer must never again pretend everything is normal and instead offer sustained maximum resistance to this lawless Trump-McConnell freight train.”

With so much at stake, this is a no-brainer, even for Senate Democrats. Calling for an investigation into Kavanaugh’s perjury is the least they can do when the republic literally is at risk.

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