Brett Kavanaugh’s perjury avalanche — 50 years in the making

The nomination process has been polluted by lies for decades, it's time to scrub the process

By Paul Rosenberg

Contributing Writer

Published September 8, 2018 6:00AM (EDT)

Patrick Leahy; Brett Kavanaugh (AP/Carolyn Kaster/ Jacquelyn Martin)
Patrick Leahy; Brett Kavanaugh (AP/Carolyn Kaster/ Jacquelyn Martin)

There’s been a flood of disturbing, formerly secret emails surfacing to and from Supreme Court nominee Brett Kavanaugh, but one of these is not like the others:  

As Elie Mystal wrote at Above The Law, the first two views “are problematic, but typical of modern American conservatives.” The third, however. . . . 

READ MORE: Another American happy warrior laid to rest: John McCain's legacy of gung-ho militarism

What’s atypical, or at least we’re told it’s atypical, is for American conservatives to suborn perjury. But that’s what they’re doing by supporting Brett Kavanaugh’s nomination to the Supreme Court. During today’s confirmation hearings, Brett Kavanaugh was shown to have perjured himself before Congress in 2006.

Unfortunately, it’s only atypical for conservatives to suborn perjury in confirmation hearings, not to passively accept it. Conservatives have been accepting perjured testimony from favored nominees at least since the time of William Rehnquist, who lied about two matters in 1971 and again in 1985: his involvement in voter suppression efforts in Arizona in the 1960s, and his intellectual authorship of a memo written for Justice Robert Jackson, 1952 opposing the unanimous decision in (Rehnquist could not deny writing the memo, but claimed — against all evidence — that it represented Jackson’s views, not his own. New evidence of Rehnquist’s views in 2012 further undermined his claim).

But conservatives have really outdone themselves this time, since the example Mystal called attention to is just one of at least five examples that have by now come to light. In fact, Mystal himself called attention to another one, also raised by Senator Leahy:

Kavanaugh had a good, albeit nefarious, reason to lie to Ted Kennedy. His involvement in those hearings was aided by documents stolen from Senator Leahy and other senators on the Judiciary Committee. Documents released today show that Kavanaugh was on emails which had, and I’m not making this up, “SPYING” in the actual subject head.

To be fair, this heading:

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referenced spying via a “mole for us on the left” possibly planted in a pro-choice group privy to meetings with Democratic Senate staff. So not directly inside the Senate staff. But it shows the kind of world that Kavanaugh inhabited at the time, one in which receiving stolen emails wouldn’t have crossed a bright line, simply because there were no such lines anywhere to be seen. As Leahy himself tweeted, along with the email documents:

Leahy’s last point is crucial: There’s no telling how many lies Kavanaugh has told about how many things. We only know, they’re hiding his record like no other nominee ever before.

But what we already know is damning enough, several times over. Consider the case of another controversial judicial nominee, Charles W. Pickering Sr. In a mid-August New York Times story, Charlie Savage reported:

"Testifying under oath before the Judiciary Committee in 2006, Brett Kavanaugh downplayed his role in shepherding the Pickering nomination through the Senate, but the limited documents from Kavanaugh’s time in the White House Counsel’s Office that Chairman Grassley has made public show that he led critical aspects,” said Senator Chuck Schumer of New York, the minority leader. The files, he said, raise “serious questions about whether Kavanaugh misled the Senate.

Was Kavanaugh lying about his involvement with Pickering, just as he was with Pryor?  There’s at least probable cause to investigate further, that much it obvious. And if he did, what else did he lie about? What else are Republicans hiding in his records?

How about his involvement with developing detainment and torture policy in the early Bush presidency? David Graham broached this subject in the Atlantic in mid-July. “Two Democrats feel that the Supreme Court nominee misled them about his awareness of terror-detainee policy during the Bush administration,” the story’s sub-head read. It’s telling that this seems to have gotten so little attention since — especially since it ties in so directly to much-focused concern about limitless presidential power:

Following the September 11 attacks, government officials wrote and approved memos justifying interrogation techniques for terror suspects that ran afoul of U.S. and international laws against torture. The Bush administration also secretly authorized warrantless surveillance of U.S. citizens under the top-secret Terrorist Surveillance Program. Bush attorneys argued that both approaches were legal under the president’s “inherent” authority as commander in chief, and the limits of executive authority are among the most important legal issues the high court deals with. Legal scholars have already focused on Kavanaugh’s vision of executive power as unusually expansive.

Kavanaugh was part of Bush’s legal team — first during the 2000 election, then at the White House. Bush nominated him first in 2003, then again in 2006:

During his confirmation hearings, Democratic Senators Patrick Leahy and Richard Durbin quizzed Kavanaugh on what he knew about administration decisions regarding the war on terror, and especially on the treatment of detainees. Senators were feeling burned, because they had in 2003 confirmed Jay Bybee, a former Bush Justice Department official, to a lifetime judgeship only to learn later of his role in the authorship of the so-called torture memos justifying coercive interrogation of individuals in U.S. custody.

During the 2006 hearing, Durbin asked Kavanaugh about the judicial nomination of William Haynes, who had also been involved in detainee decisions as the general counsel at the Pentagon. (Haynes was never confirmed.) “At the time of the nomination, what did you know about Mr. Haynes’s role in crafting the administration’s detention and interrogation policies?” Durbin asked.

“Senator, I did not, I was not involved and am not involved in the questions about the rules governing detention of combatants or—and so I do not have the involvement with that,” Kavanaugh replied.

Are you starting to see a pattern here? Are you starting to see it expand — from not knowing about/being involved with specific judicial nominees to not knowing about/being involved with morally and legally questionable policy decisions? Good! Because that’s exactly what’s going on here.

Graham first notes that “Leahy asked Kavanaugh about the warrantless wiretapping program, which Kavanaugh repeatedly said he’d learned of from news reports.” We’ll return to that below. But then Leahy turned his attention to torture of detainees:

Leahy: What about the documents relating to the administration’s policies and practice on torture; did you see anything about that, or did you first hear about that when you read about it in the paper?

Kavanaugh: I think with respect to the legal justifications or the policies relating to the treatment of detainees, I was not aware of any issues on that or the legal memos that subsequently came out until the summer, sometime in 2004 when there started to be news reports on that. This was not part of my docket, either in the Counsel’s Office or as Staff Secretary.

But after Kavanaugh’s confirmation, new doubts were raised, first in a Pulitzer Prize–winning Washington Post story on June 25, 2007, then in a follow-up NPR story, with more detail the next day. After quoting from Senator (Dem. Illinois) Dick Durbin’s questioning related to Haynes, and Kavanaugh’s denial, NPR reported:

In fact, in 2002, Kavanaugh and a group of top White House lawyers discussed whether the Supreme Court would uphold the Bush administration's decision to deny lawyers to American enemy combatants. Kavanaugh advised the group that the Supreme Court's swing voter, Justice Anthony Kennedy, would probably reject the president's assertion that the men were not entitled to counsel. Kavanaugh had worked as a clerk for Kennedy. 

Durbin now says he feels "perilously close to being lied to" at Kavanaugh's confirmation hearing.

Durbin said in a telephone interview, "I will just say that he might have decided that he could split the difference here and give me an answer in the negative. But he had to know he was misleading me and the committee and the people who were following this controversial nomination."

Leahy also sent a letter to Kavanaugh, in which he wrote:

In light of the Washington Post and National Public Radio reports, your sworn testimony appears inaccurate and misleading. You participated in a critical meeting in which the Administration made a decision on whether to extend access to counsel to detainees, an issue that is clearly a "rule governing detention of combatants." By testifying under oath that you were not involved in this issue, it appears that you misled me, the Senate Judiciary Committee, and the nation.

Therefore, I request that you provide the Senate Judiciary Committee with an explanation for this apparent contradiction.

And, Graham notes, Leahy also sent a letter to Attorney General Alberto Gonzales asking for an investigation into whether Kavanaugh had lied:

“False testimony by any witness is troubling and undermines the Senate’s ability to fulfill its constitutional duties on behalf of the American people,” Leahy wrote. “But my concern is heightened because the subject matter of the possibly false testimony was highly controversial and played a critical role in many Senators’ consideration of Mr. Kavanaugh’s appointment to one of the courts most involved in reviewing those very same detention policies.”

Bush’s Department of Justice cleared Kavanaugh, of course. Surprise! But now that we know that Kavanaugh has lied repeatedly under oath, surely these “misleading” statements could use a more impartial examination, at the very least. At worst, we could simply re-specify them as “lies.”

Finally, there’s the issue of Kavanaugh lying about his knowledge of and involvement with Bush’s domestic spying policies, a subject highlighted this week by Ian Millhiser at Think Progress:

In that 2006 hearing, Sen. Patrick Leahy (D-VT) asked if Kavanaugh ever saw “documents relating to the President’s NSA warrantless wiretapping program.” Kavanaugh’s response was unequivocal.

“I learned of that program when there was a New York Times story — reports of that program when there was a New York Times story that came over the wire, I think on a Thursday night in mid December of last year,” the judge-to-be claimed.

When Leahy pressed Kavanaugh, asking if the nominee heard “anything about it prior to The New York Times article,” Kavanaugh’s response was even more definitive — “nothing at all.”

There’s just one problem with Kavanaugh’s 2006 claim that he knew nothing about the program. This problem:

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Millhiser goes on to note that this email comes from a very stage, long before a policy was formed. “It is possible, in other words, that Kavanaugh did not know that this specific program had been authorized, even though he communicated with Yoo about the legal justification for such a program.” And he notes that “Kavanaugh also revised his answer” in questioning this week. So perhaps Kavanaugh is on firmer ground, this time. Or perhaps not. There are still an enormous number of emails being hidden from the American people. On three issues Kavanaugh’s perjury seems clear, on a fourth, highly likely. On this fifth, the surface may have only been barely scratched.

What are they hiding? Everything.

But this perjury explosion is not unprecedented. As I noted above, William Rehnquist lied during his confirmations — for Associate Justice in 1971 and for Chief Justice in 1986. Clarence Thomas also lied about two separate issues during his confirmation, as I wrote in 2013, “one notorious, his sexual harassment of Anita Hill, the other scandalously neglected, his attitude toward Roe v. Wade at the time of his confirmation.” Regarding the latter, Thomas said:

"Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not."

Many people immediately believed that was a lie, and substantial evidence has emerged since then to confirm this view — as I detailed at the time. As for Thomas’s lies about harassing Anita Hill, I cited Steve Kornacki “excellent summary of evidence that Thomas harassed Anita Hill—and others—and lied about it.”

Kornacki began with Anita Hill, then Hill's three supporting witnesses, whom she had confided in at the time, Susan Hoerchner, Ellen Wells and John Carr, then Angela Wright, “another victim of Thomas's whom Joe Biden decided to silence,” as I then wrote, as well as Rose Jourdain, a supporting witness for Wright. There was also testimony about “a more general atmosphere of sexual harassment.” In the end, I wrote:

It was not a case of “he said/she said”, it was a case of “he said/everyone else said,” but everyone else except for Anita Hill was kept from being heard. That's how Clarence Thomas lied his way onto the Supreme Court — and Democrats like Judiciary Committee Chair Joe Biden were instrumental in letting him get away with it.

My account of Thomas’s and Rehnquist’s confirmation lies were part of a series I wrote at Crooks and Liars, “The Structure of Lies in Conservative Jurisprudence,” but when Gorsuch was nominated, I condensed the essence of my argument in a story here, “Gorsuch, Thomas, Rehnquist and beyond: A short history of right-wing lies in Supreme Court confirmation hearings.” I began with a discussion of Rehnquist’s nomination, and wrote:

From then onward, one form of lie or another has figured significantly in the persistent conservative battle to turn back the hands of time and reverse the Warren court’s shining legacy that began with the Brown decision.

Generally speaking the lies take two main forms: a variety of different narrow lies about what specific individual judges have or have not done, and an array of broad lies about what judges in general should or should not do. All are variants of one big über-lie: That only conservatives act properly as judges. The first sort of lies most prominently involved Rehnquist and Clarence Thomas. The second set of lies divided neatly into two mutually contradictory clusters, one represented by Antonin Scalia, whose doctrine of "originalism" says there's only one right way for judges to approach the law (though he actually fudged things a lot, as we’ll see below), and the other represented by John Roberts (echoed by Neil Gorsuch today), who argues the exact opposite — that he uses everything he's got, and doesn't really have a philosophy at all, and it would be wrong if he did.

This is the backdrop for what’s unfolding today, with Kavanaugh, only now it’s been taken past the point of absurdity: instead of Nixon, Reagan or Bush’s lying and abuses of executive authority, we have Donald Trump’s, putting all of his predecessors to shame. And we have Kavanaugh’s blatant history of provable perjury being ruthless steamrolled over in pursuit of a solid 5-4 conservative majority, based on the big über-lie that only conservatives are moral enough to be judges.

Half a century of lies are enough. It’s time to let truth back into the Supreme Court, starting with the nomination process.

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By Paul Rosenberg

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News and columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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