Supreme Court nominee Brett Kavanaugh appeared confused during an unusual exchange with Sen. Patrick Leahy (D-VT) on Wednesday, which concerned documents that were allegedly stolen from Senate Democrats in 2002 and 2003.
A 2004 report by the Senate Sergeant at Arms concluded that Manuel Miranda, a staffer who worked for Sen. Orrin Hatch (R-UT) and for then-Senate Majority Leader Bill Frist (R-TN), accessed Democratic emails and internal memorandum without authorization. Many of these memos were confidential strategic documents laying out Senate Democrats’ plan to oppose some of President George W. Bush’s judicial nominees.
After news of this hacking became public, Hatch condemned the actions of his former staffer, saying that he was “mortified that this improper, unethical, simply unacceptable breach of confidential files occurred.”
Much of Leahy’s exchange with Kavanaugh concerned a handful of emails between Kavanaugh and Miranda, where the two men also discussed Democratic opposition to Bush’s nominees. In one of those emails, which Miranda sent to Kavanaugh and three other Bush administration officials, Miranda said that “Intel” suggests that Leahy “will concentrate on all things Money” in making a case against then-Texas Supreme Court Justice Priscilla Owen.
This “Intel”, Leahy told Kavanaugh on Wednesday, “appears to come from a stolen email” that Miranda discovered by hacking Democratic senators.
Owen, who was eventually confirmed to a seat on the United States Court of Appeals for the Fifth Circuit, reportedly accepted campaign contributions from the disgraced Enron Corporation, then wrote an opinion saving the company $15 million.
In a second email, Miranda copied the text of a confidential draft letter from Senate Judiciary Democrats to then-Senate Majority Leader Tom Daschle (D-SD), which asked Daschle to “include negotiations over blue slip practices,” an arcane process that sometimes allows senators to veto judicial nominees from their state, “…in your discussions with the Republican leadership regarding reorganization of the Senate.”
Leahy told Kavanaugh on Wednesday that this draft letter had “never been made public.”
Taken without additional context, these two emails provide additional evidence regarding the scope of Miranda’s breach of Democrats’ internal communications, but it is unclear how they implicate Kavanaugh. There are, however, two other pieces of information that appear to have aroused Leahy’s ire.
The first is Kavanaugh’s testimony during confirmation hearings in 2004 and 2006, where he repeatedly asserted that he had no knowledge of Miranda’s actions. “I was not aware nor did I suspect that information related to the Senate’s judicial confirmations process had been obtained from Democratic computer files,” Kavanaugh claimed at the time.
The other is a third email, which is not public and which was deemed “COMMITTEE CONFIDENTIAL” by Senate Judiciary Chair Chuck Grassley (R-IA). Committee confidential emails can be reviewed by senators on the committee but are not available to the public.
Leahy, however, alluded to one of these confidential emails during Kavanaugh’s hearing on Wednesday. “When you worked at the White House,” Leahy asked Kavanaugh, “did anyone tell you they had a ‘mole’ that provided them secret information relating to nominations?”
It was, as Kavanaugh noted, a “highly specific” question. Kavanaugh also said that he does not recall receiving such an email.
But a Democratic source within the Senate tells ThinkProgress that such an email does, indeed, exist. According to this source, a Republican Senate staffer sent an email to Kavanaugh during the period when Miranda was taking information from Democratic senators. This email had the subject line “spying” and it informed Kavanaugh that “we have a mole” within the Democrats’ ranks that was providing Republicans with information.
Taken together, this information suggests that Kavanaugh may have had reason to believe that Senate Republicans or their staff were engaged in underhanded tactics to gather information regarding Democratic tactics. What is unclear, however, is whether Kavanaugh actually knew of Miranda’s actions. Or whether he even suspected that his Senate counterparts were behaving unethically.
During Wednesday’s hearing, Kavanaugh explicitly denied such knowledge. At the beginning of his questions, Leahy’s staff displayed a poster which including several quotes from Kavanaugh’s past testimony, including Kavanuagh’s claim that he “never knew or suspected” what Miranda was doing.
“What you’ve got up on the board,” Kavanaugh told Leahy about his past testimony, “is 100 percent accurate.”