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Lawsuit to compel release of Kavanaugh docs inches forward

September 28, 2018
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FILE - In this Sept. 20, 2018 file photo, Sen. Jeff Merkley, D-Ore., speaks at a rally and news conference in Portland, Ore. Charging that the Trump administration violated the separation of powers by withholding from the Senate 100,000 pages of documents on Supreme Court nominee Brett Kavanaugh, Merkley has filed suit, asking a federal court to order the administration to produce the papers and to delay confirmation hearings. Backing Merkley are fellow Oregon Democrats, from right, Gov. Kate Brown, Rep. Suzanne Bonamici, Rep. Earl Blumenauer and Sen. Ron Wyden. (AP Photo/Gillian Flaccus, file)

SALEM, Ore. (AP) — A lawsuit filed by a Democratic senator from Oregon aiming to compel the Trump administration to release 100,000 pages of documents on Supreme Court nominee Brett Kavanaugh is inching forward in federal court, with an Obama nominee assigned to hear it.

Sen. Jeff Merkley’s lawsuit, filed Wednesday in federal court in the nation’s capital, has been overshadowed by sexual harassment accusations against the nominee, but the case remains alive, with summonses prepared for U.S. Attorney General Jeff Sessions and others, court documents show.

Ironically, in 2010, Sessions — then a senator from Alabama — was the ranking member of the Senate Judiciary Committee when he and then-committee chairman Sen. Patrick Leahy, D-Vermont, jointly requested documents related to the nomination of Elena Kagan to be a Supreme Court justice.

In Merkley’s lawsuit, Sessions is quoted as saying on the Senate floor that the public record of a nominee “is of such importance that we cannot go forward without these documents. I hope we will get those in a timely fashion. If not, I think we will have no choice but to ask for a delay in the beginning of the hearings.”

Then-President Barack Obama did not assert executive privilege over any documents, and Kagan was confirmed by the Senate.

Now Merkley is asking the federal court to order the Trump administration, which has claimed executive privilege in withholding the 100,000 documents on Kavanaugh, to delay hearings until they’re produced and senators can digest them.

Merkley told reporters in a conference call Wednesday that “we’re seeking the court to intervene and give senators access to the nominee’s record.”

The judge assigned to the case, Amy Berman Jackson, was nominated to the federal court by then-President Barack Obama in 2011. She has handled some high-profile cases.

Jackson was to have presided over the trial of former Trump campaign manager Paul Manafort until he pleaded guilty in a plea bargain earlier this month. Jackson said Manafort’s plea deal requires him to cooperate “fully and truthfully” with the special counsel’s investigation of Russian interference in the 2016 presidential election. Jackson said Manafort must participate in interviews and debriefings, provide documents and testify in future cases.

The charges against Manafort were related to his Ukrainian consulting work — not election interference.

At the center of Merkley’s lawsuit are records from when Kavanaugh worked in the George W. Bush White House as legal counsel and then as staff secretary. The Trump administration says disclosing records from his tenure as legal counsel would disrupt the functions or decision-making processes of the executive branch.

Merkley said when a president asserts executive privilege, it’s normally done on a very small number of documents with a log that lays out the justification for each piece.

“In this case there is no log ... there is no explanation. It is a wholesale censorship of relevant documentation being done at the direction of the president of the United States of America,” he said Wednesday.

The lawsuit names Trump, Senate Majority Leader Mitch McConnell, Senate Judiciary Committee Chairman Chuck Grassley and others.

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Follow Andrew Selsky on Twitter at https://twitter.com/andrewselsky

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