Rosenstein Asks Prosecutors to Help With Kavanaugh Papers in Unusual Request
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Former law enforcement officials described Rod J. Rosenstein’s directive as a troubling precedent.CreditT.J. Kirkpatrick for The New York Times
By Katie Benner
July 11, 2018
WASHINGTON — Rod J. Rosenstein, the deputy attorney general, has asked federal prosecutors to help review the government documents of Judge Brett M. Kavanaugh, President Trump’s Supreme Court nominee, according to a letter obtained by The New York Times on Wednesday.
Mr. Rosenstein’s request was an unusual insertion of politics into federal law enforcement. While the Justice Department has helped work on previous Supreme Court nominations, department lawyers in Washington typically carry out that task, not prosecutors who pursue criminal investigations nationwide.
But in an email sent this week to the nation’s 93 United States attorneys, Mr. Rosenstein asked each office to provide up to three federal prosecutors “who can make this important project a priority for the next several weeks.” Names were to be submitted to Mr. Rosenstein’s office by the end of Wednesday.
Mr. Trump nominated Judge Kavanaugh on Monday to replace Justice Anthony M. Kennedy, who is retiring. In years of public service — including work for the independent counsel investigation of President Bill Clinton, on the 2000 Florida recount and as a White House aide to George W. Bush — Judge Kavanaugh generated a lengthy paper trail. That had Senator Mitch McConnell of Kentucky, the majority leader, privately expressing concern that it might be used against him in his Senate confirmation hearings.
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Mr. Rosenstein’s email, which had the subject line “Personal Message to U.S. Attorneys From the Deputy A.G.,” included the sentence, “We need your help in connection with President Trump’s nomination of Judge Brett Kavanaugh to serve on the Supreme Court.”
Former law enforcement officials described Mr. Rosenstein’s directive as a troubling precedent.
“It’s flat-out wrong to have career federal prosecutors engaged in a political process like the vetting of a Supreme Court nominee,” said Christopher Hunter, a former F.B.I. agent and federal prosecutor who is running for Congress. “It takes them away from the mission they’re supposed to be fulfilling, which is effective criminal justice enforcement.”
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Mr. Hunter, who served as an F.B.I. agent and federal prosecutor for nearly 11 years, said he could not recall receiving a similar solicitation to work on a Supreme Court nomination.
While federal prosecutors have not been tapped to help with recent nominations, including Justices Elena Kagan and Sonia Sotomayor, “the scope of the production of executive branch documents we’ve been asked for is many, many times as large,” said Sarah Isgur Flores, a Justice Department spokeswoman.
Ms. Flores added that federal prosecutors had been used to vet Supreme Court nominees in the past.
But this is the first time that the deputy attorney general has sent out such a broad request to United States attorneys offices.
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The request increases the workload for some United States attorneys’ offices, which have been handed increased responsibility by Attorney General Jeff Sessions as he seeks to give local prosecutors more decision-making power.
Mr. Rosenstein wrote that he expected to need the equivalent of 100 full-time lawyers to work on Judge Kavanaugh’s confirmation hearing, and that the work would be supervised by the Justice Department’s Office of Legal Policy in Washington.
The office typically helps with judicial nominations; most of its staff is made up of career Justice Department lawyers.
During the confirmation process for Judge Merrick B. Garland, the Obama Supreme Court nominee whom Senate Republicans refused to consider, the office helped pull together the more than 2,000 documents needed for Mr. Garland’s Senate questionnaire.
“When we gathered documents required to be turned over to the Judiciary Committee, we did not ask anyone from outside of the Office of Legal Policy to help out,” said Michael Zubrensky, a former Justice Department lawyer who oversaw the judicial nominations at the time.
“But the number of documents for Judge Kavanaugh will be different by an order of magnitude,” Mr. Zubrensky said.
The production of documents could slow down a confirmation hearing that has already shaped up as a sharp partisan battle. Democratic lawmakers say they want to inspect all of Judge Kavanaugh’s documents, including his staff work and over 300 opinions he has issued as a judge on the United States Court of Appeals for the District of Columbia Circuit.
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