Were Ted Cruz's points accurate regarding the missing Kavanaugh documents complaint being misleading?

Question

Leading up to the Kavanaugh confirmation hearing I followed the news (mostly main stream media outlets) and saw a large number of articles claiming essentially that the Republicans were witholding lots of important documents.

The thing about politics is as a bystander without a ton of time to go through each story and fact check every claim rigorously, it can be really hard to know what's true.

Watching live, Ted Cruz just explained that most of the documents Democrats are complaining about not having are not really related to Kavenaugh and are essentially a pointless, unreasonable thing to demand. Is this true?

Answer 1

Below is the timeline of the events according to my, very limited, research. I'll leave it for you to decide whether Ted Cruz's points are accurate or not:

1. From 2001 to 2006 Brett Kavanaugh served in the George W. Bush White House. First, he worked as an associate in the Office of White House Counsel. From 2003 he served as White House Staff Secretary (potential nominee bio on SCOTUS blog). Official records of the White House are preserved indefinitely according to Presidential Records Act.

2. After his nomination, several Democratic senators from Judiciary Committee filed Freedom of Information Act requests to release all the records involving Kavanaugh's during his time in the White House.

   These requests were denied by National Archives, because, according to the Presidential Records Act, requests like these should come from the Senate as a whole, in this case, from the chairman of Judiciary Committee (official response from National Archives: to Minority Leader Schumer and Sen. Feinstein (D-CA)).

3. Senate Republicans decided not to request files from Kavanaugh's service as a staff secretary. Thus, Judiciary Committee officially requested only the documents during Kavanaugh's service as an assistant of the White House Counsel.

4. William A. Burck, the attorney of George W. Bush, was tasked with reviewing documents from national archives before releasing them to the public. Last Friday, he sent a response (full letter was released by Kevin Daley of The Daily Caller). Here's the relevant excerpt on the documents released or withheld:

   We reviewed these documents and have produced or withheld them as follows :

   • We produced 80,788 documents (267,834 pages) for public release.
   • We produced an additional 47,114 documents (147,250 pages) confidentially for the Committee’s (and, as permitted by you as Committee Chairman, the full Senate’s) use, for reasons described below.
   • We have not provided the remaining 46,250 documents (204,778 pages), which either are personal records, do not fall within the time period requested by the Committee, are State Department records from the 1970s that were in Judge Kavanaugh’s White House Counsel’s Office files for consultation on FOIA requests (as described below), or have been identified by the White House and the Department of Justice as traditionally protected by constitutional privilege.

   Later in the letter, Burck clarifies the number of documents protected by constitutional privilege:

   Excluded for Constitutional Privilege: 27,110 documents (101,921 pages) have not been provided because, as described above, they have been identified as traditionally protected by constitutional privilege, and the White House, after consultation with the Department, has directed that we not provide these documents for this reason

   And explains the nature of withheld documents:

   Constitutional Privilege. ... The most significant portion of these documents reflect deliberations and candid advice concerning the selection and nomination of judicial candidates, the confidentiality of which is critical to any President’s ability to carry out this core constitutional executive function. The remaining documents not provided likewise reflect functions within the Executive Office of the President the confidentiality of which has traditionally been considered at the core of a President’s constitutional privileges, including: advice submitted directly to President Bush; substantive communications between White House staff about communications with President Bush; and substantive, deliberative discussions relating to or about executive orders or legislation considered by the Executive Office of the President.

Well, this is the origin of controversy. At the moment, Democrats are complaining that:

1. they didn't receive all the information available;
2. they were not given enough time to review the documents (~415000 pages for a week)
3. the President Trump's White House is deliberately trying to hide 100000 pages of Kavanaugh's records from the public, presumably for nefarious reasons.

In response, Republicans claim that:

1. Kavanaugh's service as White House Staff Secretary is not relevant to his ability to serve on the SCOTUS.
2. Most of the records made during his work in the Office of White House Counsel are also irrelevant to this particular nomination.
3. The documents were withheld for a valid reason: to protect potentially sensitive information.
4. The Democratic Minority has no arguments against Kavanaugh's qualifications as a judge and is trying to obstruct his nomination for purely political reasons.

Without seeing those documents it's impossible to tell for sure whether these documents are important or not. There're valid reasons both for and against releasing them to the public. Again, I'll leave it for you to make an educated guess on that.

UPDATE on the documents released the day before hearings:

@BurnsBA notes in the comments:

This answer could be improved by: 1) giving dates for when the 415084 pages were released. and 2) Explaining how the ~42,000 pages released the day before hearings began fit in.

1) According to the previously mentioned letter from Burck, 415084 pages were already made available to the Senate at the date the letter was sent: August 31, 2018, four days before the hearings.

I have absolutely no idea how this process works technicall, but we have to assume that these documents were available to at least some members of the Judiciary Committee on August 31st.

2) Burck explains in the footprint that his team didn't finish reviewing hard copy documents on the date the letter was sent. He also promised to release them before hearings:

Of these, 10,488 documents (45,412 pages) consisted of hard copy files from Judge Kavanaugh’s White House Counsel’s Office staff files. In addition, earlier this week we received an additional set of 276 documents (23,054 pages) of hard copy files from Judge Kavanaugh’s White House Counsel’s Office staff files that had not previously been provided to our third-party document review vendor. We are reviewing these documents expeditiously and expect to produce any responsive, non-privileged documents to the Committee before the hearings begin.

So, on August 31st, 10764 documents (68466 pages) were still awaiting a release. I couldn't find any official statement on the schedule if there was one. According to the Washington Post, ABC News and the Senate Minority Leader ~42000 pages of these documents were released the night before hearings. This adds some weight to the Democrats' complaints.

Answer 2

If the documents of concern in the question are those that passed through Brett Kavanuaugh while he was the Staff Secretary for George W. Bush, Ted Cruz is not being misleading.

Video link to Ted Cruz's statements, where the explanation of the Staff Secretary's Job starts at 3:18.

There are a large amount of documents that Kavanaugh only handled, but didn't generate, that would be answerable to the requests from the Democrats. He goes on to characterize the actions of the Democrats as merely trying to delay the confirmation hearings.

Ted Cruz closes his comments (13:11) by stating that it is known every Democratic member of the committee is going to vote against Kavanaugh's confirmation, referencing that each has publicly announced that intention. These decisions are independent of any documents they have read, might read, or haven't been disclosed. That is the primary reason he gives to explain the demand for documents as being pointless.