WASHINGTON - Today, Senator Jeff Merkley (OR), filed an action in DC District Court to bring needed transparency to the nomination process of Judge Brett Kavanaugh who, at present, is the nominee for a vacancy on the U.S. Supreme Court. The complaint, filed against President Donald Trump, Senate Majority leader Mitch McConnell, and Chair of the Senate Judiciary Committee Charles Grassley, among others, raises grave concerns with the executive branch’s interference with the Senate’s process of vetting and reviewing nominee Brett Kavanaugh. The complaint notes that the level of interference and obstruction with the Senate’s efforts to review Kavanaugh’s record amounts to a violation of the Advice and Consent Clause of the United States Constitution. Senator Merkley seeks injunctive relief to halt the Senate confirmation process and requests that the process not proceed until the National Archive releases tens of thousands of documents related to Judge Kavanaugh’s record.

“The events of the past ten days have only underscored how critical it is that the Senate conduct a careful and comprehensive review of a nominee before giving its consent,” Merkley said. “But this President has gone to lengths never seen before to make sure we can’t do that job. The unprecedented obstruction of the Senate’s advice and consent obligation is an assault on the separation of powers and a violation of the Constitution. The President and Mitch McConnell want to ram through this nomination come hell or high water, without real advice or informed consent by the Senate, but that’s just not how our Constitution works.”

Co-Counsel, the Lawyers’ Committee for Civil Rights Under Law and civil rights firm Mehri & Skalet, representing Senator Merkley in the lawsuit, released the following statements:

“We are witnessing a U.S. Supreme Court nomination process that, from its onset, is an executive branch power grab giving the President unchecked authority over choosing this important lifetime appointment without a vigorous review of the nominee’s records,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “At every turn, this process has been one shrouded in secrecy and is discordant with the process as laid out in the Constitution. Americans deserve a Justice whose lifetime appointment is not tainted by political gamesmanship and whose appointment comes after full release and examination of his records. The Chairman’s torturous logic in continuing the nomination process without the full record of the nominee is an affront to our constitution. We must protect and defend the ‘Advice and Consent’ role of the Senate, an essential and necessary check on Presidential power. Through obstruction, and concealment of tens of thousands of relevant of records, the President and Senate leadership are preventing Senator Merkley and his Senate colleagues from exercising their constitutional obligation to provide advice and consent on the fitness of the nominee.”

“The advice and consent process has gone off the rails. This is a case of first impression – and last resort – to stop the unnecessary intrusion of the Executive branch in violation of separation of powers and to restore the deliberative process envisioned by the Framers of the Constitution for advice and consent,” said Cyrus Mehri, founding partner of Washington, D.C.-based firm Mehri & Skalet, PLLC.

The complaint emphasizes “Four Stages of Concealment” by which The President, Senate leaders, and William Burck concealed from the U.S. Senate documents necessary for its members to fulfill their constitutional duty, in violation of the separation of powers and the advice and consent clause:

The Defendant’s decision to move forward with the confirmation hearing without giving the Senate full access to the documents necessary to evaluate the nominee’s record; withholding said documents in violation of separation of powers; and thwarting the process of Advice and Consent by delegating the scope of documents to be produced from the National Archives to a former colleague of the nominee and partisan counsel and various individuals in the executive branch, rather than to the neutral career professionals at the National Archives; Defendants’ decision to designate 141,000 pages of documents related to Judge Kavanaugh’s record “Committee Confidential,” barring, in unprecedented fashion, Senators from publically releasing or describing the documents; Defendant William Burck’s interference with the Senate’s advice and consent process after his concealment of over 100,000 pages of documents related to Judge Kavanaugh’s tenure as a lawyer for the George W. Bush administration in the early 2000s on the basis of “presidential privilege” and on behalf of President Trump; and Defendant Chairman Grassley’s refusal to request a single record from Judge Kavanaugh’s three years as White House Staff Secretary.

The suit seeks injunctive relief by ordering that President Trump withdraw his excessive invocation of executive privilege and produce a privilege log for documents truly subject to executive privilege; that Senator McConnell, Chairman Grassley, Secretary Julie Adams, and Senate Sergeant at Arms Michael Stenger not hold or permit a vote on the Judge Kavanaugh’s confirmation until the National Archives releases his records and there is sufficient time for the US. Senate to review the documents and conduct a careful review of the newly released documents. Further, order the National Archives to expedite the production of the documents to the earliest date practical. Finally, order defendant Burck to cease and desist from usurping the traditional role of the National Archives.

The Lawyers’ Committee has previously expressed strong opposition to the Nomination of Judge Kavanaugh issuing a letter to the Senate Judiciary Committee signed by over 100 attorneys from around the country, and a report evaluating the troubling available civil rights record of Judge Kavanaugh.

The full complaint can be found here

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