Sen. Jeff Merkley (D-Ore.) is asking a federal court for an immediate order requiring disclosure of more details about withheld records of Supreme Court nominee Brett Kavanaugh's service as a White House attorney under President George W. Bush.

With critical Senate votes looming on Kavanaugh's nomination, lawyers for Merkley filed a motion early Wednesday asking U.S. District Court Judge Amy Berman Jackson to issue a temporary restraining order requiring President Donald Trump to produce a log of more than 100,000 pages of documents kept from the Senate on grounds of executive privilege.


"Senator Merkley believes that the actions of the Defendants have deprived him and the Senate of the requisite record on which to engage in the advice and consent function, effectively rendering the process irrevocably deficient and stripping the Senate of a constitutionally meaningful process," Merkley's lawyers wrote in the new motion, submitted in connection with a lawsuit Merkley filed last week.

"The executive branch’s interference in the Senate’s ability to deliberate is unprecedented, effectively denying Senator Merkley and other colleagues the constitutionally meaningful vote to which they are entitled. While a nominal vote on Judge Kavanaugh will undoubtedly occur on the Senate floor, its value will have been cancelled by the constitutionally impoverished deliberations preceding it," the motion argues.

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Merkley's motion does not ask Jackson to halt the imminent votes on Kavanaugh's nomination, including a cloture vote that could come as soon as Friday and a final vote possible over the weekend. But the Oregon Democrat did argue that those votes underscore the urgency of the situation and the need for the court to act to address the Senate's lack of access to Kavanaugh's White House records.

"At present, the Senate is on the precipice of holding a vote on the nomination. Once the Senate votes, reparation of the constitutional violation will lie beyond the power of the courts or political process," Merkley's attorneys added.


In addition demanding the log of records deemed privileged by Bush's lawyers, Merkley's motion also seeks to expand access to more than 140,000 pages attorneys for Bush designated as "committee confidential." The senator is demanding that at least one of his staffers have access to those records and that attorneys working on the suit have similar access.

Merkley's lawsuit is considered a longshot by many legal experts because judges rarely involve themselves in tussles between the Congress and the White House. Judges have sometime gotten involved in Congressional demands for documents, but typically only in the case of a formal request by a House or Senate committee.

Merkley's motion urges Jackson to act even though he is acting alone in the suit and lacks the backing of any committee in the Republican-controlled Senate.

"The infrequency and import of Supreme Court nominations generally, distinguish Senator Merkley’s claim from that of individual legislators seeking documents on more transient and less pressing occasions," Merkley's legal team wrote. "No known remedy, political or otherwise, can undo an unconstitutional process that results in the lifetime confirmation of a Supreme Court Justice. Such an appointment has

never in history been reversed by the legislature, executive, or judiciary."


Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and other Senate Republicans have defended the process for handling documents related to Kavanaugh's White House work. They've said that the volume of records provided to Senators is unprecedented, with access in some form to more than 430,000 pages of records.

GOP leaders have said that processing all of Kavanaugh's emails and other memos from his time as staff secretary would be impractical, could take months and would shed little light on his work since most of the material simply passed through his email box. Democrats have noted that Kavanaugh has said his work in that job was among the "most formative" of his career.

Merkley's lawsuit complains about the handling of the staff-secretary records but does not directly challenge the Senate's failure to demand those documents.

The Oregon senator is represented in the case by attorneys from the Lawyers Committee for Civil Rights Under Law and the Washington law firm Mehri & Skalet.

Last month, six Senate Judiciary Committee Democrats filed a separate Freedom of Information Act lawsuit demanding processing and release of the hundreds of thousands of pages of Kavanaugh-related files Senate Republicans declined to request.