Miranda Warning: Hacking Could Spell Trouble for Kavanaugh

By Kimberly Strawbridge Robinson and Patrick L. Gregory

Sen. Patrick Leahy (D-Vt.) today once again accused U.S. Supreme Court nominee Brett Kavanaugh of misleading the Senate Judiciary Committee during his 2006 confirmation hearings to the D.C. Circuit.

Leahy suggested during the nominee’s second day of hearings that Kavanaugh misled the committee in 2006 about what he knew about a series of hacked emails in the early 2000s that were linked to then-Republican senate aide Manny Miranda.

“Depending what emails Leahy has, this could be very damning for Kavanaugh,” Brian Fallon, a former spokesperson for 2016 presidential candidate Hillary Clinton, told Bloomberg Law. Fallon is the executive director of Demand Justice, an advocacy organization that opposes Kavanaugh’s confirmation.

Leahy’s questions appeared to catch Kavanaugh off-guard, but it’s not clear the line of questioning will change any votes on Kavanaugh’s confirmation.

It is “clear from Leahy’s exchange with” Kavanaugh “that Leahy is just wildly speculating that [he] had knowledge of the stolen emails or files,” Ed Whelan, of the Ethics and Public Policy Center, Washington, who supports Kavanaugh’s confirmation, told Bloomberg Law.

Kavanaugh, though, “is emphatic that he didn’t have knowledge” and there’s “no reason to disbelieve him.”

Leahy’s “suggestion is a serious one, and the stolen emails were a grave breach at the time,” recalled Carl Tobias, a professor at the University of Richmond law school in Virginia, whose research focuses on judicial nominations.

“Leahy asked Grassley to review the emails and Grassley should do that,” Tobias said. But until “we know more about Kavanaugh’s interactions with Miranda, it is difficult to say what effect the assertion might have.”

Leahy and Sen. Dick Durbin (D-Ill.) have previously claimed that Kavanaugh misled the Judiciary Committee over his knowledge of the George W. Bush administration’s use of controversial enhanced interrogation techniques, such as waterboarding.

Emails Hacked

Miranda was the “ringleader” of the effort in the early 2000s to hack into Democratic senators’ emails to determine possible confirmation hurdles for judicial nominees.

The hacking was “horrible and criminal,” Neal Katyal, who served as acting solicitor general under President Barack Obama, tweeted.

But Katyal said he “didn’t see anything whatsoever” to indicate that Kavanaugh knew the emails were stolen.

Kavanaugh worked in the Bush White House at the same time, shepherding the administration’s nominees through the confirmation process.

During his 2006 confirmation testimony, Kavanaugh acknowledged that he worked with Miranda, but said he never suspected that any of the information that Miranda passed along to him had been stolen.

“Had I known or suspected that, I would have immediately” told senate leadership, Kavanaugh said at the time.

Leahy pointed to documents emailed to Kavanaugh that included some of the stolen material.

He also suggested that he had access to an email that discussed a “mole” in the Democratic offices.

Leahy, though, suggested that the document had been marked as committee confidential, and thus not available for use during the public portion of the hearings.

Democrats have decried the process by which documents are being released in connection with Kavanaugh’s time in the White House, and sought to adjourn the hearings before they could even get off the ground.

Chairman Chuck Grassley (R-Iowa) has no intention of holding up the confirmation hearings.

But he said he’d look at the documents Leahy wanted to use in advance of the second round of questioning, scheduled for Sept. 6.

“Democrats should just rip the bandaid off and release the committee confidential materials on their own, so the public can see if Kavanaugh received stolen emails and lied about it,” Fallon said.