Clarence and Roberts and Brett, Oh My!

A discussion with Lisa Graves, the founder & executive director of True North Research, whose work has helped shape the national debate about the culture of corruption on the U.S. Supreme Court.

Lisa Graves, my guest on today’s PREVAIL podcast, is the founder and executive director of True North Research, a national investigative watchdog group that, among other things, exposes the shadowy machinations of dark money funders like Leonard Leo, Barre Seid, Harlan Crow, Charles Koch, Dick Uihlein, and Rob Arkley, and their front groups. She also launched the award-winning ALECexposed.org investigation, KochDocs, and other projects. Prior to that work, she served as Deputy Assistant Attorney General in the Office of Policy Development at the DOJ, Chief Counsel for Nominations for Senator Patrick Leahy on the U.S. Senate Judiciary Committee, Deputy Chief of the Article III Judges Division of the Administrative Office of the U.S. Courts with oversight of the Financial Disclosure Office, and more. Her op-eds have run in the most prominent newspapers and magazines in the country, and she is a frequent guest on MSNBC.

Here are three takeaways from our discussion, which centers on the lies of Brett Kavanaugh, the failures of John Roberts, and the corruption of Clarence Thomas and the current Court:

---

Brett Kavanaugh lied under oath in his confirmation hearing.

I have written extensively at PREVAIL about Brett Kavanaugh’s shady financial dealings. We still don’t know the provenance of the $245,000 down payment on his Chevy Chase home, or how his ample credit card debt magically disappeared, or the deal with the Washington Nationals season ticket packages he purchased for a group of friends. Turns out, that’s not the only thing he lied about.

When Lisa Graves was a staffer for Senator Leahy, her computer files, and those of other Democratic Senate staffers on the Judiciary Committee, were stolen by a GOP operative named Manuel Miranda, who at the time was a staffer for Senator Hatch. He figured out a way to copy the files electronically without being detected, and would then distribute them to Republican allies he thought should be in the know.

“What happened was my files were stolen,” Graves tells me. Miranda “gave those files to Brett Kavanaugh, or at least some subset of those files to Brett Kavanaugh.” A the time, Kavanaugh was working at the Bush White House, where his job was to manage incoming documents. “We didn’t know that at the time, didn’t know that the files were stolen…We learned that they were stolen in November of 2003.”

The files contained privileged information—oppo research, stuff they wouldn’t want the Republicans to know about. “They were clearly our internal documents,” she says. “They were whistleblower materials. They were our scheduling materials. They were my memos, basically, of every terrible thing some Bush nominee had done. They were my memos on the procedure for the Senate.”

Graves continues:

And so when [Kavanaugh] was nominated for the DC Circuit [in 2024, the first time], we asked those questions. Those questions were posed through senators. Did you receive any of these files? In fact, even Hatch asked the question because it was just so outrageous what had happened to the Senate Judiciary Committee. To this day, it’s why that committee has their email addresses, judiciary-dem and judiciary-rep, because the server had to be segregated because of how this went down. And so Kavanaugh, said he had no—he never received anything, never receiving these files. He lied, in my view, under oath. He was asked in writing, declined, said no, and then we held him. At the staff recommendation, senators held him. He didn’t get confirmed in 2004. After I left the Senate Judiciary Committee, he was re-nominated and ultimately he was confirmed to the DC Circuit, but again, he was asked if he received these files.

Kavanaugh was asked the same question at all of his confirmation hearings: Did you receive the stolen files. He denied it every time—although the cover story evolved over time. As Graves wrote in Slate in 2018:

Newly released emails show that while he was working to move through President George W. Bush’s judicial nominees in the early 2000s, Kavanaugh received confidential memos, letters, and talking points of Democratic staffers stolen by GOP Senate aide Manuel Miranda. That includes research and talking points Miranda stole from the Senate server after I had written them for the Senate Judiciary Committee as the chief counsel for nominations for the minority.

So in addition to the inexplicable financials and the multiple allegations of sexual assault, Kavanaugh straight up committed perjury at his confirmation hearing.

Not that the Chief Justice gives a crap.

---

John Roberts is awful—and she knew it from the jump.

Looking at his resume before he made it to the court, Graves could tell that John Roberts was a reactionary in a moderate’s clothing (or robe, as it were). Throughout the Clinton years, he would take on a pro bono case here, offer an opinion there, that sided with the progressives, to create the impression of balance and objectivity. This was a disguise, and she could see right through it. Roberts is no less committed to the ultra-conservative agenda than Scalia or Thomas. He’s just better at hiding it. As such, his tenure has been an unmitigated disaster to anyone who values voting rights, who abhors gun violence, who doesn’t want to place restrictions on women’s health, and who doesn’t think corporations are people, my friend.

Graves minces no words:

So this Roberts Court that began almost 20 years ago—[he was] nominated now 20 years ago next year—this Roberts Court, this chapter in American law, in American policy, is a deeply destructive one, of destroying court precedents, Roe being one of them, but also the Citizens United case; the attack on the Voting Rights Act, which Roberts himself wrote; the attack on the ability of lower federal court judges to do anything about this grotesque, partisan minoritarianism through mapmaking, so that a minority can retain power even when a majority of the people in the state vote Democratic. The gun policy changes that they’ve made have been just atrocious and horrifying. And that’s the Roberts court.

The Roberts court has also in its sights our environmental laws—our ability to mitigate climate change. You can see that in the EPA case from a year and a half ago. And now these cases that are pending on Chevron to try to basically allow these judges to supplant the expertise of agencies with their own non-expert views—especially a bench that now has been packed by so many partisans, and people who are barely qualified or have barely been a lawyer for a decade, but whose main qualification is that they’re aligned with Leonard Leo.

Roberts, the Chief Justice, has sat idly by as his fellow reactionaries made a mockery of the code of ethics. Which tracks, because…

---

SCOTUS is MAGA.

Trump installed three justices on the Supreme Court, each of them uniquely bad. Those three, along with Roberts, Clarence Thomas, and Sam Alito, form a coalition that appears inordinately sympathetic to a wannabe-strongman president who tried to overthrow the government.

Graves explains:

In essence, the court has agreed with everything Trump has done. Like, there have been a couple areas where they’ve drawn the line. But for the most part, I don’t have any confidence that this court would stand up to a second Trump administration. Or if they managed to, out of some miracle, there were five votes against him on something, that Trump would even follow it, that he would follow any rule against him.

And I think there’s two things that just happened recently that were just stunning. One was to rewrite the 14th Amendment, the third clause of it, to say that it requires, to assert that there’s a unanimous view on the court that the 14th Amendment requires an implementation, [an] implementing statute in order to bar someone from office for engaging in insurrection. When in fact…that clause says that people who engage in insurrection are barred from office. And it has one escape clause: Congress, by a two-thirds vote, can remove that impediment.

So it’s the opposite of requiring implementation. In fact, the only thing that requires implementation is if you want to remove that bar, then two-thirds of Congress have to remove it. And so [the decision] was totally counterfactual, counter-textual.

And then it turns out that it wasn’t really a unanimous decision on that point. The only unanimity was that they didn’t want to let Colorado be the only state, basically, to take Trump from the ballot….But the reality is that it was really five votes for that claim. And in fact, it was four, because Thomas had no business sitting on that case since Ginni Thomas had actively engaged in trying to support the blocking of the certification [of the] election….

The second pro-Trump move was not to deny cert on the preposterous immunity case, which a child could tell you is total poppycock. “The easiest thing for the Supreme Court to have done would have been to not take that case, to deny cert,” Graves tells me. “But they chose to take it. So I fear the mischief…either from the delay or from some effort by the Alito and Thomas wing of the Court to concoct a completely outlandish assertion, a historical inconsistence with law, [an] assertion of immunity for Trump, who they seem very much aligned with.”

---

LISTEN TO THE PODCAST

Follow Lisa:
https://twitter.com/thelisagraves

True North Research:
https://truenorthresearch.org/

Her 2018 Slate piece about Brett Kavanaugh:
https://slate.com/news-and-politics/2018/09/judge-brett-kavanaugh-should-be-impeached-for-lying-during-his-confirmation-hearings.html

And the one in TIME:
https://time.com/5398191/brett-kavanaugh-supreme-court-senators/

Prevail is sponsored by BetterHelp. Get 10% off your first month at betterhelp.com/greg

---

Photo credit: White House. Judge Brett Kavanaugh watches with his family as President Donald J. Trump signs the document Monday evening, July 9, 2018, in the Treaty Room of the WhiteHouse, naming Kavanaugh as his nominee to become the next Associate Justice of the Supreme Court of the United States. In the background: Signing of the Peace Protocol Between Spain and the United States, August 12, 1898 (1899), by Théobald Chartran (1849–1907).