Home » Advice & Consent 2.09: Memogate Redux and The Letter

Advice & Consent 2.09: Memogate Redux and The Letter

On this episode: The hearings are over, the nominee has responded (note I didn’t say “answered”) written questions by the Senators… and the aftermath leaves us with some very unsettling things to cover.


It appears Brett Kavanaugh lied to the committee on more than three occasions

  • When Kavanaugh worked for the GWB WH, he was responsible for elements of judicial selection.
  • As Adam and I can attest, this was not a period of collegiality across party lines. In fact, it was a bitter period of time when the President was pushing forward some very controversial nominees.
  • There is a zero percent chance that Brett Kavanagh could believe for a moment that any confidential information from Democrats on the Committee (or anywhere really) would have been obtained without being stolen.
  • Zero. Ask (former staff counsel to Sen. Feingold) Bob Schiff if you need to. Or ask (Dem Jud Com staff attorney) Lisa Graves.
  • A Senate staffer named Manny Miranda hacked into the backend of Senate Dems servers and stole a raft of information from committee Dems, including strategy memos and a lot more.
  • Manny got caught… he was eventually fired and Sen. Hatch called his actions “improper, unethical, and simply unacceptable breach of confidential files.”
  • How else? Well remember those docs that Republicans have been holding onto so they didn’t end up in public? Some of them include these stolen documents that ended up in that hands of… survey SAYS! Brett Kavanaugh.
  • How do we know? Some of the documents Republicans didn’t want to get into the public. Kavanaugh received stolen confidential memos, letters, and talking points of Democratic staffers, including research and talking points. Docs were labled as “confidential” and “not for distribution” and by their very nature were Democratic strategies that had a ZERO percent chance of being shared
  • Kavanaugh was asked about these stolen materials before the Committee in 2004, 2006 and last week. He denied knowing these were stolen documents.
  • That. Is. Ridiculous. He’s a savvy guy. There is no way he could have looked at information like that, some of which came in an email with the subject line SPYING, and believe it was somehow
  • At minimum, let’s take him at his word… he is *remarkably* naive and unfit to serve on the highest Court. Chance of this being true, about zero.
  • Most likely? He’s playing the memory game and we can see – in stark relief- that he is a partisan’s partisan, and is *this close* to getting on SCOTUS, despite being a person who openly lies to the Committee about knowingly or recklessly peddling in stolen documents.
  • One of the Senate staffers who had her docs stolen thinks he should be impeached, not ratified as the next Associate Justice…
  • Kavanaugh continued to evade questions on this matter in his written responses.



That’s not even close to the only falsehood Kavanaugh has told, however. He lied about even working on the nomination in which Miranda stole those documents (so he wouldn’t answer questions about it). He lied about working on one of the other most controversial nominations Bush made–Charles Pickering who was a hanging judge for every criminal defendant to come before him except for the ones convicted of cross burning.

The other major thing that came across is that he is dishonest about whether he believes Roe is settled law. In fact, he was presented with a Bush administration-friendly draft op-ed that he was helping to edit claimed that law professors across the spectrum believe Roe is settled law. He specifically took issue with that claim, saying that many don’t believe it to be settled law. Now, he didn’t say “I don’t believe it’s settled law,” but it’s clear that Kavanaugh doesn’t believe that it’s settled law to a large majority of law professors, so it’s pretty clear that he doesn’t believe Roe is settled law in the same way that Brown v. Board or Marbury v. Madison is settled law. It’s also clear that he was trying to mislead people into thinking he did believe that. Otherwise, why did he say that to Collins and why did she make a big deal about it


The Letter

The following is based on reporting from The New York Times and The New Yorker. Vox also has a good summation of what we know.

  • In July a woman approached Democratic members of Congress, to report she was a victim of an attempted sexual assault by two people in the early 1980s, one of whom was Brett Kavanaugh.
  • One of these approaches was a letter to Rep. Ana Eshoo (her member of Congress), who forwarded the allegation to Sen. Diane Feinstein, ranking member of the Senate Judiciary Committee.
  • The letter detailed the allegation of attempted sexual assault (without going into the details, it notes she was able to escape).
  • According to the reporting in today’s New Yorker, the woman was contemplating coming forward/going public.
  • Sen. Feinstein received the information and kept the matter to herself – she says at the request of the woman.
  • Again, according to the New Yorker, the woman had interactions with Sen. Feinstein’s office subsequent to the July letter. Quoting directly from the New Yorker:

After the interactions with Eshoo’s and Feinstein’s offices, the woman decided not to speak about the matter publicly. She had repeatedly reported the allegation to members of Congress and, watching Kavanaugh move toward what looked like an increasingly assured confirmation, she decided to end her effort to come forward, a source close to the woman said. Feinstein’s office did not respond to requests for comment.


A source familiar with the [Senate Judiciary C]ommittee’s activities said that Feinstein’s staff initially conveyed to other Democratic members’ offices that the incident was too distant in the past to merit public discussion, and that Feinstein had “taken care of it.” On Wednesday, after media inquiries to the Democratic members multiplied, and concern among congressional colleagues increased, Feinstein agreed to brief the other Democrats on the committee, with no staff present.

  • Over the last week, Democratic members of the Judiciary Committee became aware of the letter and asked for access. They were rebuffed. Eventually they were given access in a Democrats only, closed-door, no staff meeting.
  • Yesterday, on the advice of members of the Committee in that meeting, Sen. Feinstein gave the letter to the FBI and put out a press release saying she did it, and was keeping details of the woman private at her request. Staff statement:

The Senator took these allegations seriously and believed they should be public. However, the woman in question made it clear she did not want this information to be public. It is critical in matters of sexual misconduct to protect the identity of the victim when they wish to remain anonymous, and the senator did so in this case.

    • The White House and Brett Kavanaugh are not pleased and are denying all allegations.
    • This is a sensitive subject considering this is a serious allegation about a serious crime, there is a victim who wishes to remain anonymous, and the reports about the tick-tock since July are likely incomplete. We raise this because it is a part of the story now, but we tread very carefully.
    • Dahlia Lithwick’s piece is must reading: Our System Is Too Broken to Assess the Sexual Assault Claim Against Kavanaugh: No wonder the accuser wants to stay silent (H/T to Lena for sharing via Twitter)

      • We don’t know a lot of things including whether the FBI already had been aware of this allegation
      • FBI background checks include a question – have you ever committed a crime?
      • Lying to the FBI on this point is a federal crime
      • Questions about what happened since July that are unclear from the New Yorker article.
  • Collins and Murkowski have more power than Mitch McConnell… if they have questions and want more time to get answers, they can tell McConnell they’re not voting yes without more time. They’ll get that time.

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