Explaining Cory Booker's dramatic violation of Senate rules
By PHILIP BUMP | The Washington Post | Published: September 6, 2018
In a dramatic interaction Thursday morning during Senate Judiciary Committee hearings on the Supreme Court nomination of Brett Kavanaugh, Sen. Cory Booker, D-N.J., deliberately violated rules against releasing protected information – risking, in his own estimation, the loss of his position.
Here's why he did so – and what's likely to happen as a result.
At issue are documents provided to the committee before the hearing process began. (Kavanaugh must be approved by the committee before his nomination can be sent to the full Senate for final confirmation.) Booker took issue with how and when some of those documents were released, including a set released after having been vetted by William Burck, an attorney for former president George W. Bush. (Kavanaugh served in the Bush administration.)
One of the documents included in the Burck-reviewed set was an email revealing the nominee's views on racial profiling. But because it had been deemed "committee confidential" after a review, Booker was not allowed to refer to it or ask Kavanaugh questions about it. Committee chairman Sen. Chuck Grassley, R-Iowa, had established a process for review of that confidentiality. But Booker argued that the process was too cumbersome – perhaps deliberately – to allow him to refer to the document in time.
He explicitly criticized the withholding of the profiling document.
"The fact that there is nothing in that document that's personal information, there's nothing national security-related, the fact that it was labeled as committee confidential, exposes that this process, sir, is a bit of a sham," Booker said.
"We are holding back not only – not only holding back documents, labeling committee confidential, but not even giving us the time to review those documents," he continued. "I'm sure you can understand, sir, how it puts all of us in a very difficult situation when it's not you . . . it's somebody you have to go – then go back to a person named Bill Burck to decide if some document – who is an associate, who is an associate and colleague of the nominee – to figure out which documents are going to be released."
"It's inappropriate to raise these in an open session before the committee," replied Sen. John Cornyn, R-Texas. "And I think our colleagues understand that, but nevertheless decided to go ahead anyway. So I just think it's important that we remind one another that there are clear rules about the discussion of confidential material and that there can be consequences to the violations of those rules."
Cornyn said it was "outrageous" that an invocation of attorney-client privilege by a lawyer working for the former president would not be respected by the Senate.
"I thought we were doing pretty well yesterday," he said, "but things went off the rails, it looks like, last night."
Booker embraced the idea that he could face punishment for releasing the document anyway.
"No Senate rule accounts for Bill Burck's partisan review of the documents," Booker said in response to Cornyn. "No Senate rule and no history of the Senate accounts for what is going on right now." Referring to Burck as a "partisan operative," Booker argued that Burck's involvement undermined the process.
He went further.
"Senator Cornyn made a very good point. I knowingly violated the rules that were put forth," Booker said. "I come from a long line, as all of us do as Americans, of understanding what that kind of civil disobedience is, and I understand the consequences.
"So I am, right now, before your process is finished, I am going to release the email about racial profiling," he said. "And I understand that that – the penalty comes with potential ousting from the Senate. And if Senator Cornyn believes that I have violated Senate rules, I openly invite and accept the consequences of my team releasing that email right now."
He was releasing it, Booker said, to show that what was being withheld had nothing to do with national security.
"Instead, what I'm releasing this document right now to show is we have a process here for a person – the highest office in the land, for a lifetime appointment – we're rushing through this before me and my colleagues can even read or digest the information," Booker added.
The documents were released.
"Running for president is no excuse for violating the rules of the Senate or of the confidentiality of the documents that we are privy to," Cornyn said in response, highlighting Booker's broadly acknowledged future ambitions. Booker releasing the information was no different than releasing classified information, Cornyn said.
"No senator deserves to sit on this committee – or serve in the Senate, in my view – if they decide to be a law unto themselves and willingly flout the rules of the Senate and the determination of confidentiality and classification," Cornyn added. "That is irresponsible and conduct unbecoming a senator."
After this exchange, White House principal deputy press secretary Raj Shah tweeted a reference to the rules of the Senate – rules that Cornyn read during the hearing itself: "Any Senator . . . who shall disclose the secret or confidential business or proceedings of the Senate, including the business and proceedings of the committees, subcommittees and offices of the Senate, shall be liable, if a Senator, to suffer expulsion from the body..."
In short order, Booker's colleagues, including Sen. Dick Durbin, D-Ill., joined Booker, saying they would take similar actions and accept the same punishments. Senate Minority Leader Chuck Schumer, D-N.Y., tweeted his support.
"Let's jump into this pit together," Durbin said.
"If he is not a tempest in a teapot, but sincerely believes that, then bring the charges," Booker said later, referring to Cornyn. "I hope that they will bring charges against us," he added, "and I am ready to accept the full responsibility for what I have done, the consequences for what I have done, and I stand by the public's right to have access to this document and know this nominee's views on issues that are so profoundly important, like race and the law, torture and other issues."
Much of this is political melodrama, certainly. No senator has been expelled from that body since 1862, and most of the 15 who have been expelled were ousted for expressing support for the Confederacy.
Most of the more recent inquiries into expelling members have resulted in either no action or resignations. Those were for more traditional offenses: fraud, corruption, abuse of power.
Put another way, Booker – and the four or five colleagues who joined his act of "civil disobedience" – will almost certainly not face expulsion. They may very well face some form of punishment, like censure, but the likelihood of removal is very low.
Which is why Booker's stand made political sense: Expulsion is the most serious consequence a senator can face, and few do. The net result is that Booker got what he wanted – release of information he saw as incriminating – with the most likely result being the equivalent of a write-up from your boss. And, as Cornyn pointedly noted, Booker's stock with a Democratic base champing at the bit for partisan confrontation gained a few points.
It may run contrary to how the Senate has traditionally operated, but it's very much in line with how politics operates in 2018.