Case 1:18-cv-02226-ABJ Document 9 Filed 10/04/18 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JEFF MERKLEY,

Plaintiff,
No. 18-cv-2226 (ABJ)
v.
Electronically Filed
DONALD J. TRUMP et al.,
Hon. Amy Berman Jackson
Defendants.

MOTION FOR EXPEDITED HEARING1

Plaintiff Senator Jeff Merkley, by and through his counsel, respectfully moves this Court

for an expedited hearing on his motion for a temporary restraining order pursuant to Federal Rule

of Civil Procedure 65. Under current scheduling, Defendants’ Consolidated Memorandum in

Support of Its Opposition to Plaintiff’s Motion for Temporary Restraining Order and Motion to

Dismiss is due by 5:00 PM on Friday, October 5, 2018 and Plaintiff’s Consolidated Reply

Memorandum in Support of Its Motion for Temporary Restraining Order and Opposition to

Defendants’ Motion to Dismiss is due by noon on Monday, October 8, 2018.2 A hearing on

Plaintiff’s Motion for Temporary Restraining Order is then set for Tuesday, October 9, 2018.

1
Under Local Rule 7(m), Plaintiff has contacted counsel for Defendants regarding this motion.
On behalf of his clients, Mr. Pezzi has stated that he opposes this motion and intends to file a
short opposition promptly. Mr. Landau responded that he also opposes this motion.
2
Any submission from Defendant William Burck is due by 9:00 AM on Monday, October 8,
2018, however Defendant Burck is not implicated in Plaintiff’s motion for a temporary
restraining order.
1
 Case 1:18-cv-02226-ABJ Document 9 Filed 10/04/18 Page 2 of 5

Since Plaintiff’s October 3, 2018 conference with the Court, Defendant McConnell has

petitioned for cloture on Judge Brett Kavanaugh’s nomination.3 This new factual development

makes it extremely likely that a vote will be held on his nomination on Saturday, October 5,

2018. Once the vote is held, Plaintiff’s opportunity to satisfy his constitutional obligation to

provide “advice and consent” will be permanently extinguished, and many aspects of this case

will be moot. Cf. League of Women Voters of the United States v Newby, 838 F 3d 1, 9 (D.C. Cir.

2016) (in some situations, “there can be no do over and no redress”).

1. This is a suit brought under the Advice and Consent Clause of the United States

Constitution that challenges executive branch interference in the Senate’s deliberation

on the Supreme Court nomination of Judge Brett Kavanaugh. (Supplemental

Declaration of Senator Merkley ¶¶ 2-6).

2. The conduct at issue is unprecedented, including the vast invocation of executive

privilege and “committee confidential” designations as well as the involvement and

meddling of private actors, with conflicts of interest, in the advice and consent

process. (Merkley Supp. Dec. ¶¶ 1, 8-12)

3. “It is well established that district courts enjoy broad discretion when deciding case

management and scheduling matters, a discretion that extends to determining how

and in what order cases should be heard and determined.” Florida v. United States,

820 F. Supp. 2d 85, 89 (D.D.C. 2011) (citation omitted) (citing In re Vitamins

Antitrust Class Actions, 327 F.3d 1207, 1210 (D.C. Cir. 2003); McSheffrey v. Exec.

Office for the United States Attys., No. 00-5268, 2001 U.S. App. LEXIS 13898 at *1

3
During the October 3, 2018 hearing, the Court requested that the parties file a notice if the
Senate schedule regarding the confirmation process were formalized. See (Oct. 3, 2018 Hr’g. Tr.
at 27).
2
 Case 1:18-cv-02226-ABJ Document 9 Filed 10/04/18 Page 3 of 5

(D.C. Cir. May 4, 2001) (per curiam)). Under this general principle, courts have

granted motions for expedited hearings on temporary restraining orders when there is

an imminent threat of irreparable harm absent such a hearing. See, e.g., Curtis v.

Fischer, No. 08-CV-900S, 2008 WL 5218295, at *1 (W.D.N.Y. Dec. 11, 2008);

Mauvais v. Herisse, No. CIV.A. 13-13032-GAO, 2013 WL 6383930, at *2 (D. Mass.

Dec. 4, 2013).

4. New facts have arisen since the October 3, 2018 scheduling conference. That which

Plaintiff anticipated has now become fact: on the evening of October 3, 2018,

Defendant McConnell filed a petition for a “cloture vote,” which would allow such a

vote to take place on Friday, October 5 and a final vote to take place 30 hours later on

Saturday, October 6. See https://www.congress.gov/nomination/115th-congress/2259;

U.S. Senate Republicans Set Kavanaugh Procedural Vote For as Early as Friday,

N.Y. Times (Oct. 3, 2018), available at

https://www.nytimes.com/reuters/2018/10/03/us/politics/03reuters-usa-court-

kavanaugh-cloture.html. While Defendant McConnell had informally vowed to hold a

vote on the nomination this week, yesterday’s action now makes the vote real and

imminent, and not merely speculative or hypothetical. Clare Foran, McConnell takes

key step toward vote on Kavanaugh nomination, CNN (Oct. 3, 2018), available at

https://www.cnn.com/2018/10/03/politics/mcconnell-kavanaugh-nomination-

vote/index.html?utm_term=image&utm_source=twCNN&utm_content=2018-10-

04T02%3A12%3A38&utm_medium=social.

5. Plaintiff comes to this Court as a last resort, and refrained from doing so until the

nominee was voted out of Committee and turned over for deliberation by the full

3
Case 1:18-cv-02226-ABJ Document 9 Filed 10/04/18 Page 4 of 5
Case 1:18-cv-02226-ABJ Document 9 Filed 10/04/18 Page 5 of 5

while application for D.C. Bar membership

is pending. Pro hac vice motion to be
submitted.

Cyrus Mehri (D.C. Bar # 420970)

U.W. Clemon (D.C. Bar # AL0013)
Michael D. Lieder (D.C. Bar # 444273)
Joanna K. Wasik (D.C. Bar # 1027916)
MEHRI & SKALET, PLLC
1250 Conn. Ave., NW
Suite 300
Washington, DC 20036
(202) 822-5100
[email protected]

5
Case 1:18-cv-02226-ABJ Document 9-1 Filed 10/04/18 Page 1 of 7

EXHIBIT #1
 Case 1:18-cv-02226-ABJ Document 9-1 Filed 10/04/18 Page 2 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JEFF MERKLEY,

Plaintiff,
No. 17-cv-255 (TSC)
v.
Electronically Filed
DONALD J. TRUMP et al.,
Hon. Amy Berman Jackson
Defendants.

SUPPLEMENTAL DECLARATION OF SENATOR JEFF MERKLEY IN SUPPORT OF

PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

Pursuant to Title 28 U.S.C. Section 1746, I, Jeff Merkley, hereby declare and state as

follows:

1. I am deeply disturbed with the decline in the integrity of our institutions.

2. I could not believe that the President could proceed, after nominating Judge

Kavanaugh, to prevent the Senate from having full access to his record. Because of my earlier

investigations during the nominations of Judge Merrick Garland by President Obama and of now-

Justice Neil Gorsuch by President Trump, I had read and studied a great deal about the Founders’

construction of the nomination and consent process.

3. I learned that the Founders deliberately designed the process to maximize the

chance that individuals selected to serve in executive and judicial posts would be of “fit

character.” They decided that the responsibility for nominating an individual should rest with one

person, the President, because if assigned to an Assembly there would be too much horse trading

between members of the Assembly. But they also felt that there needed to be a check in case the

1
 Case 1:18-cv-02226-ABJ Document 9-1 Filed 10/04/18 Page 3 of 7

President should go off track and show inappropriate favoritism or select individuals unfit to

serve.

4. The division of responsibilities created by the Founders requires that the Senate

not be able to interfere with the nomination process, and that the President not be able to interfere

with the confirmation process. But the latter is exactly what we see right now.

5. I took an oath of office to uphold the Constitution, which includes my

responsibility to participate effectively in the process of reviewing Presidential nominees to

determine if they are of fit character.

6. In no case do I consider this duty more important than for a nomination to the

Supreme Court. This group of justices has final say over the interpretation of the Constitution.

These positions are lifetime appointments. The views of each Justice will determine whether we

truly have a government “of, by, and for the people” or whether it is one that makes

interpretations of our Constitution bend in the direction of government by and for the powerful.

The character of each Justice will determine whether the Supreme Court is viewed as a thoughtful

unbiased institution capable of fair application of the Constitution.

7. There is a lot at stake.

8. And yet here I am, unable to review Judge Kavanaugh’s full record because

President Trump has exercised “presidential privilege” (interpreted to mean the same as

“executive privilege”) to keep me and my fellow Senators from seeing more than 100,000 pages

of documents related to his service in the White House Counsel. We know that this was a

critical time in which the nominee was involved in many issues. He was involved in the issues of

torture. There are allegations that he was in receipt of stolen documents related to Senators’

strategy related to nominations. He was involved in discussions of why individuals were suited or

2
 Case 1:18-cv-02226-ABJ Document 9-1 Filed 10/04/18 Page 4 of 7

unsuited to serve as judges. He wrote at least one email about whether Roe v. Wade was viewed

as settled law. And he was undoubtedly involved in dozens of other important issues. Thus, there

is much to be learned about his judicial temperament and judicial philosophy from those

documents, as well as his truthfulness in discussing topics illuminated by those documents.

9. These documents were requested by the Chair of the Judiciary Committee. So the

Senate, in a bipartisan manner, felt that these documents were relevant and important.

10. And yet the President has blocked them. What is in these documents that the

President does not want the Senators to know? And on what grounds were these documents

blocked? Surely the President does not have a unilateral right to decide how the Senate reviews

the record of nominees. This would be a plain violation of the separation of powers and the

checks on power that the Founders so carefully constructed in the Constitution.

11. To my knowledge, and to the knowledge of experts I have consulted, there is no

precedent for the direct and extensive use of presidential privilege to block the Senate’s ability to

review a nominee’s record.

12. And surely the reason it hasn’t been done before is that other Presidents

recognized that this would be a violation of the separation of powers.

13. My understanding is that there has been no explanation of why each of these

100,000 pages has been blocked. These documents pertain to when President Bush was in office,

but the privilege is being asserted by President Trump on behalf of President Trump. In other

words, we should be dubious that the assertion of this power has legitimacy given that the

documents are not about confidential deliberations of the President asserting the privilege.

14. In addition, over 140,000 pages of documents have been designated as

“committee confidential.” I and other Senators who are not on the Judiciary Committee have

3
 Case 1:18-cv-02226-ABJ Document 9-1 Filed 10/04/18 Page 5 of 7

severely limited access to them. To my knowledge, and to the knowledge of experts I have

consulted, there is no precedent for such extensive use of confidentiality designations to block

most Senators’ ability to review a nominee’s record.

15. To my mind, such obstruction deeply damages the constitutional vision of

separate processes of nomination and confirmation, and the latter serving as a check on the abuse

or misguided utilization of the former.

16. The constitutional duty to provide advice and consent does not belong to one

Senator or a small group of Senators. That duty is given to each of the 100 Senators. Like each

of my colleagues, I have a responsibility to my constituents and my oath of office to carefully

review the nominee’s record and render an informed decision.

17. If the Senate is not given a chance to provide meaningful, informed advice and

consent, the integrity of the confirmation process and the Supreme Court itself are severely

compromised. If this president is permitted to blatantly interfere with the Senate’s constitutional

responsibilities to avoid scrutiny of his nominee’s record, future presidents will have every

incentive to do the same.

18. I know that asking the Court to intervene to protect the separation of powers and

the integrity of the confirmation process is an unusual request. I have made this request because

we have never seen such an extraordinary use of executive privilege to block the Senate’s ability

to review the relevant record of a nominee.

19. Prior to filing this lawsuit and motion, I frequently asked myself: when is it the

right time to ask the Court to intervene?

4
 Case 1:18-cv-02226-ABJ Document 9-1 Filed 10/04/18 Page 6 of 7

20. In the Senate, the confirmation process has two phases. The first phase is

consideration by the Senate Judiciary Committee. Eventually, the Committee votes on whether to

forward a nominee to the entire Senate for consideration.

21. Because I am not on the Judiciary Committee, my role in this process began the

moment that the Judiciary Committee voted to send the nomination to the full Senate for

consideration. It is at that moment that my role was initiated and at that moment that my ability

to review Judge Kavanaugh’s full record was compromised by President Trump’s use of

“presidential privilege.”

22. While I had initially filed the Complaint in the lawsuit on September 26, I chose

not to ask for the Court’s intervention at that time because I had reason to believe that judicial

intervention might turn out to be unnecessary. The Judiciary Committee voted Judge

Kavanaugh’s nomination out of committee on Friday, September 28th. I filed the motion asking

the court to intervene shortly thereafter after asking my counsel to carefully review the caselaw

and the appropriate scope of relief.

23. I come to the Court as a last resort. I thought that it was such an unusual request

that I should hold back until my role was directly obstructed. That became true the moment the

Judiciary Committee voted the nominee out of Committee and thus turned over the issue to

deliberation by the full Senate. This reflects the respect I have for the judicial process.

24. I seek the ability to faithfully carry out my obligation to provide advice and

consent as the Constitution requires and as my constituents expect.

25. I believe, based on my experience in the Senate to date, that a limited order from

this Court of the type that I have requested has the potential to positively impact the confirmation

process. For example, such an order, even if issued shortly before a final vote on Judge

5
 Case 1:18-cv-02226-ABJ Document 9-1 Filed 10/04/18 Page 7 of 7

Kavanaugh takes place, when combined with other considerations suggesting the propriety of a

brief delay, may prompt the Senate to postpone the final vote on his confirmation pending

President Trump's production of the previously withheld privilege log or documents, or pending a

more realistic opportunity for Senators to review documents marked as confidential. This will

allow for the type of informed deliberative process that the Founders of our great Republic

envisioned.

I, Jeff Merkley, declare under penalty of perjury that the foregoing is true and correct to

the best of my knowledge

Executed this 4th444444444_ 4 _ day of October, 20 18, in Washington, D~! A• ~h

effM~ey