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The Ghosts of ‘Memogate’ Are Haunting Brett Kavanaugh

One Democratic senator says Kavanaugh may have lied under oath in a prior confirmation hearing

Judge Brett Kavanaugh arrives prior to a hearing before the United States Senate Judiciary Committee on his nomination as Associate Justice of the US Supreme Court to replace the retiring Justice Anthony Kennedy on Capitol HillSupreme Court nominee Brett Kavanaugh confirmation hearing, Washington DC, USA - 06 Sep 2018

Brett Kavanaugh

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WASHINGTON — On the third day of Brett Kavanaugh’s Supreme Court confirmation hearings, perhaps the most intriguing plot line that emerged had nothing to do with Kavanaugh’s views on abortion, gun rights or presidential power. His answers on those subjects have been frustratingly vague, keeping with the tradition of past nominees to the high court.

Instead, Senator Pat Leahy (D-VT), one of the most seasoned Democrats on the judiciary committee, focused on Kavanaugh’s time in the Bush White House and his connection to a long-forgotten scandal inside the U.S. Senate known as Memogate.

On Thursday, Leahy released a trove of previously confidential documents that show Kavanaugh worked directly with the people involved in Memogate. The emails, Leahy argued, potentially undercut Kavanaugh’s claim that he had no idea these memos and other intelligence documents were pilfered from Democrats, including Leahy’s own office.

The back story goes like this:

In the early 2000s, a senior Republican aide named Manuel Miranda and a colleague exploited a glitch in a server used by the judiciary committee to gain access to 4,670 confidential files on President Bush’s judicial nominees that belonged to Democrats on the committee. (On most congressional committees, staff members are divided between the majority and minority sides. The two sides don’t always share information, especially on consequential issues like judicial nominations.) Miranda used the Democrats’ documents to help pave the way for President Bush’s picks for various federal courts, and he shared the intel he’d acquired with staffers in the Bush White House, including Kavanaugh. After the breach was discovered, the Senate Sergeant-at-Arms opened an investigation, and Miranda ultimately resigned but was never charged with a crime. “This scandal amounted to a digital Watergate, not unlike Russia’s hacking of the DNC,” Leahy tweeted this week.

Kavanaugh was asked about his role in Memogate more than a decade ago during his confirmation hearings to be a judge on the U.S. Court of Appeals for the District of Columbia Circuit. He answered more than 100 questions in all about the episode, denied that he’d known the documents were stolen or improperly obtained and said he “never suspected anything untoward” about the information Miranda supplied him.

Fast forward to this week, and it’s obvious Leahy has problems with Kavanaugh’s denials, going so far as to say that Kavanaugh misled the Senate during his past confirmation hearings.

On Wednesday, Leahy asked Kavanaugh if anyone had ever told him during his stint in the Bush White House that they had a mole who provided secret information related to judicial nominations. Kavanaugh said he couldn’t recall a reference to a mole.

“So you never received an email from a Republican staff member with information claiming to come from spying, a Democratic mole?” Leahy asked.

“I’m not gonna rule anything out, Senator,” Kavanaugh replied. “But if I did, I wouldn’t have thought that [was] the literal meaning of that.”

“Wouldn’t it have surprised you if you got an email saying you got that from somebody spying?”

“Well, is there such an email, senator? I don’t know.”

Indeed, there is.

On Thursday afternoon, Leahy released more than a dozen pages of emails between Kavanaugh, Miranda and other Republican aides at the time. Among those documents is an email with the subject line “spying” sent to Kavanaugh and several others by a Senate Republican staffer. The staffer writes that she has a friend who is a “mole” on “the left” who was feeding information back to her about Planned Parenthood, NARAL and other reproductive rights groups raising millions of dollars to oppose a future Bush Supreme Court nominee.

The email itself is pretty stunning. But it also matches what Leahy had asked Kavanaugh, who professed to not remember the document.

The other emails released by Leahy show multiple instances when Kavanaugh received what appears to be confidential information — intel that Leahy says was stolen — about Democrats’ strategy for questioning and voting on Bush’s judicial picks. In one instance, Kavanaugh himself passes on information he received from Miranda, the staffer behind Memogate, under the subject line “From Manny on Frist’s staff.” (Miranda worked for then-Senate Majority Leader Bill Frist of Tennessee.)

In response to Leahy’s questions, Kavanaugh has insisted that he didn’t know the documents were improperly obtained by Miranda and that he believed it was common practice for the staffs of Democratic and Republican senators to share information. The White House has also said that Kavanaugh’s responses in 2006 and this week were “entirely accurate.”

Leahy doesn’t appear satisfied with Kavanaugh’s defense.

“Judge Kavanaugh answered under oath more than 100 questions on this hacking in 2004 and 2006. His repeated denials that he didn’t receive any stolen info and didn’t suspect anything ‘untoward’ is SIMPLY NOT CREDIBLE,” he tweeted Thursday afternoon. “It is simply not ‘normal’ to get real-time insider intelligence from a Democratic ‘mole’ and marked ‘spying.’ Red flags abound. And with 102,000 documents withheld by the Trump WH, mostly about judicial noms, we can bet there’s more.”

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