National Archives News

National Archives Works to Release Records Related to Judge Kavanaugh

By National Archives News Staff

WASHINGTON, August 15, 2018 — Each time a candidate is nominated to the Supreme Court by the President, the staff at the National Archives and Records Administration immediately begin the task of reviewing and releasing records related to that nominee. 
The process is governed by several laws, including the Presidential Records Act, the Federal Records Act, and the Freedom of Information Act. All of the records, electronic and paper, must be reviewed by archival staff before being released. 
This is a challenging task that National Archives staff are currently working to meet. Some records might be withheld or released in redacted form for various reasons: to preserve the secrecy of grand jury proceedings; to protect the personal privacy of living individuals; to protect the identities of confidential sources; and to protect confidential communications within the White House.
In addition to the challenges of reviewing the records, the archival staff face an enormous number of documents—in Judge Brett Kavanaugh’s case, far more than previous nominees.  While National Archives processed and released roughly 70,000 pages on Chief Justice John Roberts and 170,000 pages on Justice Elena Kagan, there are the equivalent of several million pages of paper and email records related to Judge Kavanaugh in the holdings of the George W. Bush Presidential Library and Museum and in the National Archives.
“Because Judge Kavanaugh served both in the White House Counsel’s Office and as Staff Secretary under President George W. Bush, was then nominated to the U.S. Court of Appeals by President Bush, and also served with the Office of Independent Counsel Kenneth W. Starr, the Archives has literally millions of pages of records related to him,” said Gary M. Stern, National Archives General Counsel.
Approximately 900,000 pages of email and paper records were requested by Senate Judiciary Committee Chairman Senator Charles Grassley. These records are related to Judge Kavanaugh’s service in President Bush's White House Counsel’s Office and his nomination to the U.S. Court of Appeals. This was a “special access” request that meets the requirements of the Presidential Records Act (PRA).
On July 31, 2018, the National Archives received a request from the Senate Judiciary Committee’s Ranking Minority Member Senator Dianne Feinstein and the other minority members of the committee for Judge Kavanaugh’s Staff Secretary records, which number the equivalent of several million pages. However, this request does not meet the requirements of section 2205(2)(C) of the Presidential Records Act, as the Archivist of the United States David S. Ferriero explained in an August 2, 2018, letter to Senate Minority Leader Charles Schumer. On August 6, 2018, Senator Feinstein asked the Archivist to reconsider this position, and the Archivist responded on August 10, 2018.

As noted in both letters, since the Presidential Records Act was enacted in 1978, the National Archives longstanding and consistent practice has been to respond only to requests from the Chair of Congressional Committees, regardless of which political party is in power.  For the same reason that the National Archives was not able to respond to Senator Feinstein’s request, the agency also declined to respond to the requests by Republican Ranking Members for Presidential records during President Obama’s Administration. 
Other requests for records include an August 3, 2018, joint request from Senator Grassley and Senator Feinstein for records from Judge Kavanaugh’s service in the Office of Independent Counsel. In addition to Congressional requests, the agency has also received several FOIA requests for these records.
A team of more than 30 archivists and archives technicians from the George W. Bush Presidential Library and Museum, the William J. Clinton Presidential Library, and the Barack Obama Presidential Library, along with the Presidential Materials Division is currently processing the more than 900,000 pages of White House Counsel’s Office and nomination records in response to Senator Grassley’s special access request and FOIA requests. They expect to complete their review of the first roughly 300,000 pages by August 20, and the remaining 600,000 pages by the end of October. They then have to provide notification to the current and former Presidents.  The records will be released on a rolling basis following the completion of the review by the current and former Presidents. This effort is also described in the August 2, 2018, letter from National Archives General Counsel Gary M. Stern to Senator Grassley.
In another effort, the National Archives Special Access and FOIA staff is processing the Office of Independent Counsel records. Archives staff have already posted more than 9,700 pages on the agency website, and expects to complete this review by the end of August. 
Meanwhile, a separate review – completely apart from the National Archives and the George W. Bush Presidential Library’s efforts – is also underway. The Presidential Records Act provides former Presidents with an independent right of access to the records of his administration. Accordingly, the PRA representative of President George W. Bush requested and received from the National Archives a copy of the White House Counsel’s Office and nomination records and has begun to provide copies of those records directly to the Senate Judiciary Committee, which is something that has never happened before. This effort by former President Bush does not represent the National Archives or the George W. Bush Presidential Library. The Senate Judiciary Committee is publicly releasing some of these documents on its website, which also do not represent the National Archives.  

The public can access the released records through a Special Topics page on This web page also describes the volume of relevant archival records that National Archives has on Judge Kavanaugh and provides links to the correspondence that the agency has had with Congress.