Democrats in Congress are steadily working their way down the list of ways to potentially stop Brett Kavanaugh’s Supreme Court confirmation, and on Wednesday, Democratic Senator Jeff Merkley decided to try a lawsuit.
Merkley announced Wednesday afternoon that he was formally suing President Donald Trump and Senate Majority Leader Mitch McConnell, saying that the former’s decision to “withhold substantial parts of Kavanaugh’s record” violates the separation of powers between the branches of government.
Specifically, Merkley says the Trump administration is guilty of three individual actions that violate the Senate’s advice and consent obligation, the section of the constitution that says the Senate has the right to look into and confirm the President’s nominees for public office.
Per Merkley’s press release, here’s the three actions that “the Defendants” (Trump and McConnell) allegedly did that violate advice and consent:
- 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 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 in the release. “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.”
In early September, Trump claimed executive privilege to block the release of documents pertaining to Kavanaugh’s time as a lawyer in the Bush White House (the first item in the except of the suit above). Per New York:
In a letter sent to the Senate Judiciary Committee on Friday, Bush lawyer William Burck, who is in charge of compiling documents related to the presidency, wrote that Bush had advised him to err “on the side of transparency and disclosure,” but that the Trump administration directed him not to release certain files, citing executive privilege.
Merkley’s lawsuit specifically “seeks injunctive relief,” which is essentially asking a court to step in and order Trump to stop invoking executive privilege to block the documents’ release, and order McConnell, Senate Judiciary Committee Chair Chuck Grassley and others to halt any vote on Kavanaugh’s confirmation until those documents come out of the National Archives.
The suit is filed in the United States District Court for the District of Columbia, and names Trump, McConnell, Grassley, Senate Secretary Julie Adams, Senate Sergeant-at-Arms Michael Stenger, and the National Archives as defendants.
Kavanaugh is due to take the stand on Thursday in front of the Senate Judiciary Committee, where both he and Dr. Christine Blasey Ford, the first woman to publicly accuse him of sexual assault, will face questions from committee Democrats and Rachel Mitchell, an Arizona sex crimes prosecutor hand picked by the Republican committee members to lead their questioning. The Judiciary Committee is scheduled to vote on Kavanaugh’s confirmation almost immediately after Thursday’s hearings, at 9:30 a.m. ET on Friday, but it remains to be seen whether the lawsuit will further disrupt or change those proceedings.
Here’s Merkley announcing the lawsuit, which you can read in full here.