M&S Files Separation of Powers Lawsuit on Behalf of Sen. Jeff Merkley; Claims President Trump & Others Crossed the Line on the Senate’s Advice and Consent Duties

October 15, 2018

by M&S Staff

Mehri & Skalet filed a lawsuit yesterday on behalf of Oregon Senator Jeff Merkley arguing that the Trump Administration’s actions to withhold substantial parts of Judge Brett Kavanaugh’s record have violated the constitutional separation of powers and hindered Senators from fulfilling their constitutional duty of adv ice and consent on the President’s nominee to the Supreme Court of the United States. M&S is serving as co-counsel with the Lawyers Committee for Civil Rights Under Law on the suit, which asks the courts to intervene to prevent the process from continuing until Kavanaugh’s full record is available for public scrutiny.

“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 adv ice and consent,” said Cyrus Mehri.

Specifically, the lawsuit names as defendants President Donald J. Trump; Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley, who worked with the Trump White House to conceal documents; and William Burck, a lawyer and personal friend of Kavanaugh’s who has been screening Kavanaugh’s documents on behalf of the Bush and Trump White Houses. It also names Julie Adams, Secretary of the Senate; and Michael Stenger, Senate Sergeant at Arms, as agents of McConnell and Grassley; and the National Archives, as an indispensable party in producing the documents.

The lawsuit relies on the Federalist Papers and Supreme Court decisions written by Justices Kennedy, Scalia and Souter outlining the carefully calibrated process envisioned by the Framers of the U.S. Constitution for the Senate’s role to provide advice and consent. The suit emphasizes “Three Acts of Direct Interference” by which President Donald Trump, the Senate leaders who conspired with the White House, and lawyer William Burck concealed from the U.S. Senate vast troves of documents necessary for Senators to fulfill their constitutional duty, violating the separation of powers and the adv ice and consent clause.

Judge U.W. Clemon and Joanna Wasik worked with Cyrus Mehri on the team that brought the suit.

Media coverage included:

Associated Press, “Oregon senator sues to obtain Kavanaugh papers, vote delay”

CNN: Sen. Jeff Merkely appears on “Out Front”

POLITICO, “Merkley seeks injunction to stop Kavanaugh vote”

The Hill, “Dem senator filing lawsuit to block Kavanaugh vote”

CSPAN, “Senator Jeff Merkley Seeks Injunction to Halt Vote on Judge Kavanaugh Nomination”