Vermont Sen. Patrick Leahy, the dean of the Senate and the senior member of the Senate Judiciary Committee, said that Supreme Court nominee Brett Kavanaugh gave “untruthful testimony, under oath and on the record,” to the committee.
Kavanaugh’s lies came in response to questions from Leahy and others about an incident involving Republican committee staffers who, between 2001 and 2003, hacked into the private computer files of six Senate Democrats and stole 4,670 files. Those files, Leahy explained, were then “used to assist in getting President Bush’s most controversial judicial nominees confirmed.”
The scheme was exposed in 2003, when The Wall Street Journal published some of the stolen materials, revealing what Leahy described as a “scandal” that “amounted to a digital Watergate — a theft not unlike Russia’s hacking of the DNC.”
What concerns Leahy at this point is the fact that Kavanaugh, as a Bush administration lawyer who focused on judicial nomination fights, “worked hand-in-hand with (GOP Senate aide Manuel) Miranda to advance these same controversial nominees. Not surprisingly, Judge Kavanaugh was asked extensively about his knowledge of the theft during both his 2004 and 2006 hearings. And I mean extensively: 111 questions from six senators, both Republicans and Democrats.”
Leahy recalled that Kavanaugh “testified under oath — and he testified repeatedly — that he never received any stolen materials, and that he knew nothing about it until it was public.” With the release of emails from the time when Kavanaugh served the Bush administration, Leahy said it is now evident that “there were numerous emails sent to him that made it very clear this was stolen information, including a draft letter from me.”
Sen. Dianne Feinstein, D-Calif., the ranking member of the Senate Judiciary Committee, has concluded: “Brett Kavanaugh used materials stolen from Democratic senators to advance President Bush’s judicial nominees. He was asked about this in 2004, 2006 and this week. His answers were not true.”
Lying under oath to the Senate is a serious matter. Kavanaugh’s nomination for a life term on the high court should, of course, be put on hold.
But the response to Kavanaugh’s lies must not end there.
Lisa Graves was the chief counsel for nominations for the ranking Democratic member of the Senate Judiciary Committee during the period in question and wrote some of the notes that were stolen from the Senate server by Republican staffer Manuel Miranda. In a recent Slate article, she explained: “Kavanaugh actively hid his own involvement, lying to the Senate Judiciary Committee by stating unequivocally that he not only knew nothing of the episode, but also never even received any stolen material.”
Graves, who now lives in Dane County, wrote: “Even if Kavanaugh could claim that he didn’t have any hint at the time he received the emails that these documents were of suspect provenance — which I personally find implausible — there is no reasonable way for him to assert honestly that he had no idea what they were after the revelation of the theft. Any reasonable person would have realized they had been stolen, and certainly someone as smart as Kavanaugh would have too. But he lied. Under oath.”
Because of those lies, Graves said it is necessary to raise the question of “whether (Kavanaugh) should be impeached from the federal judiciary.” Graves is a realist. She understands that getting a Republican Congress to impeach a Republican judge is not an easy task. Yet she also understands that lying to the Senate should be a concern for conservatives as well as liberals, for Republicans as well as Democrats.
This is a view shared by the constitutional advocacy group Free Speech for People, which argues, “Kavanaugh should face impeachment proceedings for committing perjury before the U.S. Senate Judiciary Committee.”
The impeachment power is most frequently discussed with regard to presidents — especially since Donald Trump took office — but it also applies to federal jurists. Some of the first impeachments, during the presidency of Thomas Jefferson, involved a federal judge from New Hampshire and an associate justice of the Supreme Court.
A Free Speech for People memorandum on the Kavanaugh controversy notes that federal judges “can be impeached and removed from the judiciary for committing perjury. Federal Judge Thomas Porteous was impeached by the U.S. House and convicted (90-6) by the U.S. Senate in 2010 on grounds which included that he ‘knowingly made material false statements about his past to … the United States Senate … in order to obtain the office of United States District Court Judge.’ The Senate subsequently voted to disqualify him from ever holding federal office again.”
Free Speech for People argues, “The Framers of the U.S. Constitution understood that corruption in the process of obtaining a federal office is an impeachable offense. In the constitutional debates over the impeachment power, George Mason asked rhetorically: ‘Shall the man who has practiced corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?’ Judge Kavanaugh’s perjury in the process of obtaining his current position on the U.S. Court of Appeals for the D.C. Circuit should, as with Judge Porteous, lead to his removal from the federal judiciary and should disqualify him from ever holding a future federal office.”
John Nichols is associate editor of The Capital Times, and the author of numerous articles and books on the history of impeachment. He wrote the foreward to the book "The Constitution Demands It: The Case for the Impeachment of Donald Trump" (Melville House), to which John Bonifaz contributed, along with constitutional lawyers Ron Fein and Ben Clements. firstname.lastname@example.org and @NicholsUprising.
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