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Supreme Court Fight; President Trump Rants Against Own Justice Department Over Republican Indictments. Aired 4-4:30p ET

Aired September 3, 2018 - 16:00   ET



DANA BASH, CNN ANCHOR: It's a decision that could seal President Trump's legacy for decades.

THE LEAD starts right now.

A fight for the future begins. President Trump's pick for Supreme Court about to face a buzz saw in Senate hearings. But are Democrats outnumbered and out of luck?

President Trump taking a brand-new swing at Jeff Sessions, suggesting the A.G. should have held off charging Republicans until after the midterms.

Plus, maverick or MAGA? Now that John McCain is laid to rest, the focus moved to which kind of Republican will fill his seat in the Senate.

Welcome to THE LEAD. I'm Dana Bash, in for Jake today.

We begin with the politics lead.

His confirmation could change the Supreme Court for a generation and tomorrow Brett Kavanaugh will begin what will be no doubt intense hearings on his nomination. Now, that's always the case when it comes to the highest court, but even more so for this seat, replacing Anthony Kennedy, the swing vote for decades on many key cases that affect Americans' everyday lives.

It'll be an abrupt return for senators from the holiday weekend. Democrats are already outraged after the Trump administration said it was withholding more than 100,000 pages of documents related to Kavanaugh's time in the George W. Bush administration.

Republicans, meanwhile, they're insisting they are confident Kavanaugh will be on the bench when the Supreme Court begins its new term less than one month from today.

Let me get straight to CNN's Laura Jarrett.

Laura, what is the strategy among Democrats for these hearings?

LAURA JARRETT, CNN JUSTICE CORRESPONDENT: Well, Dana, sources tell us the ultimate goal for Democrats is to try to paint a portrait of a man who's been held up as the heir apparent to Justice Kennedy's seat on the court as both misleading and evasive.

And if Kavanaugh says he can't discuss hot-button issues because they're likely to come before the court, they plan to refer to all the times he's done it before.


BRETT KAVANAUGH, SUPREME COURT JUSTICE NOMINEE: My judicial philosophy is straightforward.

JARRETT (voice-over): The confirmation battle over a coveted seat on the nation's highest court kicks off tomorrow with Brett Kavanaugh, President Trump's pick for the Supreme Court, expected to face a grilling from senators about his views on everything from abortion rights.

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: You just don't wake up one day and say, hey, I would like to overturn Roe v. Wade.

JARRETT: To whether a sitting president can be indicted.

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: He believes that a president cannot even be investigated, if you will, let alone convicted, while he's in office.

JARRETT: Democratic accuse Republicans of ramming the nomination through, expressing outrage over the weekend about the Trump administration withholding more than 100,000 pages of records from Kavanaugh's time as a White House lawyer under President George W. Bush, calling it a document massacre.

SEN. AMY KLOBUCHAR (D), MINNESOTA: This isn't normal. It's not normal because we are not able to see 100,000 documents that the archivist has just -- because the administration has said we can't see them. They have exerted their executive power.

JARRETT: Republicans say a record number of more than 400,000 pages have been turned over to the Judiciary Committee. But Democrats say key documents from his time as staff secretary to President Bush and other records are being withheld.

SEN. RICHARD DURBIN (D-IL), MINORITY WHIP: There has been more concealment of documents concerning his public service and his position issues than ever in the history of the United States.

JARRETT: Democrats plan to cast the conservative judge as untrustworthy, pointing to e-mails they say show he played a larger role in controversial issues during President Bush's war on terrorism than he let on in his testimony over a decade ago.

Still, Republicans are confident Kavanaugh will be confirmed, cementing a solid conservative majority that would swing the Supreme Court to the right on key areas like a woman's right to choose.

SEN. SUSAN COLLINS (R), MAINE: We talked about whether he considered Roe to be settled law. He said that he agreed with what Justice Roberts said at his nomination hearing, in which he said that it was settled law.

JARRETT: But that's providing little comfort to Democrats, who plan to emphasize how we could still chip away at the landmark ruling.


JARRETT: Kavanaugh will be joined tomorrow by a who's-who in high- profile political and legal luminaries, including an introduction by former Secretary of State Condoleezza Rice.

And the Democrats have their own plans to call up with firepower former White House counsel John Dean, who brought down President Nixon during Watergate -- Dana.

BASH: Really subtle.

Thank you so much for, Laura Jarrett. I appreciate that.

Now, with all of you experts here, I want to start with some great reporting from our Manu Raju about specifics, what the Democrats are planning tomorrow. Here's what he said the focus is in terms of themes.

Untruthfulness, the things that they believe that Brett Kavanaugh said that are not true, his views on upholding the Affordable Care Act, Roe vs. Wade and executive power/investigations of a sitting president.


I want to start with a Republican on the other side of the aisle. What do you think of the strategy?

AMANDA CARPENTER, CNN POLITICAL COMMENTATOR: I mean, I think it's pretty transparent that they're trying to make this an election issue, because they know they don't have the votes to stop him.

Listen, in my opinion, the Democrats voted for Brett Kavanaugh the day that they voted to undo the nuclear option and allow the Senate to confirm judges with 50 votes. This thing is over.

So the best thing that they can just kind of do is put some shots in him that that'll help their own races in November.

BASH: So let's unwind that, because you make an important point. It may sound to people like kind of Senate-speak or in the weeds, but this is critical, critical, critical.

A few years ago, the then Democratic -- the then majority leader, who was a Democrat, Harry Reid, was frustrated about how things were going, that they couldn't get President Obama's judicial nominees passed, and so he changed the rules, which was a very aggressive move.

And now that there is a Republican in the White House, that there are Republicans in charge of the Senate, the Democrats are paying for it, essentially.

I want to play for you something that a Democratic senator on the Judiciary Committee, Amy Klobuchar, said about this.


KLOBUCHAR: I would have liked to see 60 votes no matter what the judge is. I don't think we should have made that change when we look back at it. But it happened because we were so frustrated because President Obama wasn't able to get his nominees.

I would prefer to bring it back. We are where we are. And now I don't think anyone's going to want to hamstring themselves.


BASH: It's a controversial question and it has very real life consequences because had those rules not been changed, the Supreme Court is a little bit different. It's hard to argue about a 60-vote threshold. But it did technically exist, meaning the Democrats could have blocked Brett Kavanaugh.


And I think it just shows you that elections have consequences. And no party is in control forever. And so you have to think very hard about when you change these rules, to state the obvious.

Now the Supreme Court and having fewer than 60 votes on the Supreme Court feels quite extreme, because these are lifetime appointments. They are very powerful, stating the obvious, appointments. And you're right. While he's not -- it doesn't look like Democrats even, I will say, have a path to really stopping this, if it was 60, they certainly would.

And now that we see Trump has two more years, we don't know how many more Supreme Court opportunities he will have. It is quite scary and it will change the entire balance of the court.

CARPENTER: I think it's just worth spending a quick moment on why the 60-vote threshold was good.

I mean, Republicans warned Democrats, don't do this because you will be sorry one day. And we talk about how things are so polarized. And there's even talk of Trump trying to get rid of what's called the legislative filibuster, to pass votes with -- or to past bills with 60 votes.

Sixty votes is good because it leads to consensus in the Senate, not everything done by 50-plus-one. And so I'm for bringing it back on all levels.


PSAKI: I think it's also important to touch a moment on why they changed it then, because there was -- it was a record number of judicial nominees were who were being blocked.

(CROSSTALK) PSAKI: It was not just consensus. It was being blocked for blocking, for the purpose of blocking.

BASH: But let's look forward, because I want to talk about why -- one of the reasons why Brett Kavanaugh, his nomination, anybody who would be put in this open seat on the Supreme Court, is so consequential.

And that is Roe vs. Wade, because Anthony Kennedy was the guy who on various cases that came before him made sure that Roe v. Wade, at least parts of it, some of it, its entirety, were not overturned.

One of the key senators that we're all watching on the Republican side, Susan Collins, said she thought Kavanaugh respected the decision because he told her in private it was -- quote -- "settled law."

Yesterday, I asked Lindsey Graham, a Republican who is very openly anti-abortion, about his take on Kavanaugh's position on Roe v. Wade.

Here's what he said.


QUESTION: Do you hope Kavanaugh does overturn Roe v. Wade?

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: Well, here's what I hope he will do.

If there's a case before him that challenges Roe v. Wade, that he would listen to both sides of the story, apply a test to overturn precedent.

Precedent is important, but it's not inviolate. I'm dying to see if he believes that Citizens vs. United can be overturned.

The bottom line here is, there's a process to overturn a precedent.



The stare decisis precedent can be changed. If you look at the Obergefell decision on same-sex marriage, they actually revoked previous case law. So it could happen.

If that's a concern for Democrats, then it's a valid concern. But I think the point is that, as a textualist, Kavanaugh would not impose his view on abortion or prohibit abortion. It would remand it back to the states.


That's different from a liberal justice imposing abortion. So I think that's what could happen.

Another thing that is there are cases where states have limited abortions, prohibited after 20 weeks. The court could validate those state laws. So there is a valid concern on the Democratic side.

But obviously he's not going to very specific. That's a case that would come before him. So he's not going to go into details about what he's going to do.

PSAKI: And what Democrats are very scared of, I think, is when you hear Susan Collins stay settled law.

That is language that John Roberts used during his hearing. He has not been a...

AGUILAR: Alito as well.

PSAKI: And Alito. They have not been defenders of Roe v. Wade. In fact, they have voted the other way as would be expected, in the Wendy Davis case, the case that she filibustered.

So Democrats are scared, as you said, for reason, and you could very much see a case up.

BASH: Karine?

KARINE JEAN-PIERRE, DEMOCRATIC STRATEGIST: I just want to add -- let's step back for a second as to where Kavanaugh came from, and what Donald Trump said during the election of who he wanted.

He said he wanted somebody to help repeal and gut Roe vs. Wade. He wanted to criminalize abortion. This is what he said. And where he got this list was from The Federalist organization. And they made it really clear on who was on the list and what those folks on the list was going to do.

And their number one thing was to get rid of abortion.

AGUILAR: But actually at the end the message is this should be resolved by the political branches of government, not by the court.

BASH: That's an important question, which is something that is a whole 'nother discussion to be debated. It might have to be debated, depending on what happens with the court.

Everybody, stand by.

Is President Trump highlighting Republican corruption accusations simply as a way to attack his own attorney general? That just happened.

Stay with us.


[16:15:55] BASH: Today, the president seems to have the midterms on his mind worried about possibly losing a Republican majority.

First, let me set the scene. With his red polo shirt and baseball cap, the president came outside. He was apparently ready to go play golf and after just two minutes with the motorcade, a change of plans. No golf today. Instead, president got out of the SUV, went back inside and then a few hours later you get guessed it. He was tweeting.

Here's one from this afternoon. He said, quote: Two long running Obama investigations of two very popular Republican congressmen brought to a well-publicized charge just ahead of the midterms by the Jeff Sessions Justice Department. Two easy wins now in doubt because there's not enough time. Good job, Jeff.

I want to bring in our Evan Perez to explain that. Break that down. Can you do some sentence -- you know, take each sentence and each word and explain it to me because you could go a lot of ways with the interpretation of that. Have at it.

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: We say it a lot but this is not normal. We're talking about two Republican congressmen, two of the earliest backers of President Trump, Chris Collins of New York and Duncan Hunter of California.

Collins has been indicted on insider trading charges. Duncan Hunter is charged with using essentially his campaign funds for vacations and other personal expenses and what the president is saying, what he's essentially wishing Jeff Sessions to have done is to intervene politically in an ongoing case which is exactly the opposite of what the Justice Department rules say.

I read you a part of what the policy of the Justice Department says. It says: Law enforcement officers and prosecutors may never select a timing of investigative steps or criminal charges for the purpose of affecting any election or for the purpose of giving an advantage or disadvantage to any candidate or political party. What the president was effectively saying is that Jeff Sessions should not have brought the charges, or delayed them or not brought them at all because it's more difficult for the Republican Party in the upcoming midterms.

By the way, the last time Jeff Sessions responded to an attack from the president, he said the following: While I'm attorney general, the actions of the Justice Department will not be improperly influenced by political considerations.

Today, the Justice Department declined to comment, Dana.

BASH: Before I let you go, Evan. You're so well sourced in the Justice Department. What are you hearing about Jeff Sessions mood, about how he's feeling about being attacked almost on a daily basis by his boss the president of the United States?

PEREZ: Yes, I think, you know, there's great frustration inside the department. I think Jeff Sessions is definitely just about had enough. I think he knows now the president has telegraphed that after the midterms, he is probably going to be gone and I think he's come to accept that. The question, Dana, is, does he quit before the president fires him?

BASH: That is an interesting question. Wow. That was a good teaser, Evan. Thank you so much.


BASH: Back around the table.

Amanda, we were talking in the break. You work for Senator Ted Cruz. I covered the Hill and specifically the Republican Caucus. When Jeff Sessions was a senator, could you imagine this kind of fate for him? He was usually the guy who was acting not unlike Donald Trump is now, kind of raging against the establishment on all issues and now here he is finding himself kind of the poster child for Democrats who don't want things to change, who are mad at the president.

CARPENTER: But other things haven't changed about Jeff Sessions, that he is -- he can be stubborn and he can be determined. I think he is pretty well dug in here that whatever happens is going to happen. If Donald Trump has to fire him, he can fire him. This tweet today is really -- it's confusing but it's not subtle.

The president is essentially setting the stage to blame Jeff Sessions for two Republican losses and also sending a very clear signal that he doesn't expect Republicans to be investigated in election years.

[16:20:05] And so, but this is all the same stuff that Sessions should have taken for so long.

ALFONSO AGUILAR, EXECUTIVE DIRECTOR, LATINO PARTNERSHIP FOR CONSERVATIVE PRINCIPLES: Which is incredible. I mean, if you consider this tweet, I'm Republican, I'm a conservative, but this is outlandish. It's shameful.

I wonder if he understands truly what he's tweeting --

BASH: Can we put it up?

CARPENTER: He's a law and order candidate.

BASH: Because it's a little bit confusing. You have to kind of choose your entry here.

AGUILAR: But it sounds like he's saying that the Department of Justice should follow political considerations.


AGUILAR: Don't go after the Republicans. We're in power now. Go after the Democrats. I mean, what is this?

JEAN-PIERRE: I just think -- I think it's pretty to me looking at that, the walls are closing in. He's incredibly worried.

I said this before. He has no poker face, you know? Whatever he is feeling, he starts tweeting it out. The problem that he really has is that we're learning from polls that his tweets do not work. If anything, they backfire. So, this is not helping him at all but the walls are closing in on him. CARPENTER: I think they rev up the base quite a bit. I mean, people

in Trump's base say, yes, fight back. I mean, for people that are just going to follow Trump --


JEAN-PIERRE: That's that small and shrinking base.

AGUILAR: Rule of law conservatives have to speak up and express concern --


JEAN-PIERRE: And that is key.

BASH: OK. But you're doing that. OK, you are. So, to what end?

AGUILAR: Well, that we have to go back to the principles. I mean, it's OK to support Trump on certain policies but when he makes statements like this, I think it's extremely important to speak up and say, no, the president's wrong. It's not all -- everything's not about politics. At some point, we have to stand on principle.

JEN PSAKI, CNN POLITICAL COMMENTATOR: But the tweets are also interesting because he is many things, but he is also politically astute and the corruption angle and the culture of corruption which Democrats are trying to run on but this is the type of thing that settles into districts around the country when people start to think it's a party to be voted out because they are corrupt. And he's worried about that, too.

BASH: And let's do a little reality check on that. These two Republican congressmen who he seems to be if I'm reading this right and that part is -- throwing under the bus, those two faces you probably seen a lot on television because they were the earliest and most ardent supporters of Donald Trump. Never mind Jeff Sessions, who is the first supporter in the U.S. Senate. He gave the now president a lot of street cred with the conservatives.

One other tweet that the president sent out on this Labor Day, again, about Sessions sort of: The Democrats none of whom voted for sessions must love him now. Same thing with lying James Comey. The Dems all hate him, wanted him out, thought he was disgusting, until I fired him. Immediately, he became a wonderful man, a saint-like figure in fact. Really sick.

OK, putting the Comey stuff aside for a second, still focusing on Sessions, he kind of has a point. There's no question Democrats and even some Republicans are appalled with Jeff Sessions policies on immigration, separating families, criminal justice, lack of reform.

But just on this whole issue of the Russia investigation, yes. Does he have a point? I'm looking at you, Democrat.

JEAN-PIERRE: I'm going to be very honest. I'm very conflicted by it. For all of the reasons you just listed. I think Jeff Sessions is terrible. I think he's one of the worst A.G.s that we have ever had, especially when you're talking about underserved communities who need to be protected are no longer protected under Jeff Sessions.

But the thing is we have to protect the Russia investigation and that is clearly important. And so, he can't be fired to get rid of Mueller. And that is where -- I think that's where we're drawing the line.

BASH: Jen?

PSAKI: Yes, I'm -- it is amazing --

CARPENTER: How much you love him?



PSAKI: It's hard. It is hard to -- I mean, as you alluded to, take us back to 1950 as it relates to civil rights. So there's -- you know, that is the most concerning piece. But ultimately, it's about the lesser of evils and I think many Democrats have decided that Jeff Sessions is less evil than Donald Trump, so we sort of side with him or have a -- you know, an emotion toward him when he's being attacked, which is a little -- it is hard. It's really tough.

CARPENTER: I don't think you guys should feel conflicted that he's doing the honorable thing and not letting himself be intimidated by Trump. That's just an easy thing I think everybody can agree on.

KARINE-PIERRE: I hear that, but the conflict is he is actually doing things that's harming --

BASH: Here's the thing that went under the radar is that Senator Lindsey Graham and others who are now talking more aggressively about replacing Jeff Sessions are also saying the person who's nominated in his place must vow I guess probably under oath at hearings to let the Mueller investigation continue.

All right. Everybody stay with us, because President Trump tweeting about a potential 2020 challenger, one that Jen Psaki worked for and his name is not Obama. Stay with us.


[16:29:22] BASH: In our politics lead, CNN is now predicting 11 out of 14 key House seats are leaning left, moving towards Democrats ability to potentially take over the House. Now, Labor Day is, of course, the unofficial kickoff to the midterms with elections less than 70 days away. The biggest influence on November's election is the man who was not on the ballot, the president.

CNN's Kaitlan Collins joins me now.

And, Kaitlan, the president seems to be getting nervous about this election nine weeks from now. KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: Dana, he does. And

that's evident from his Twitter feed today because though the president stayed behind closed doors for most of today, he is once again criticizing his Attorney General Jeff Sessions but this time not for the usual Russia investigation complaints that we typically see from the president but instead about the indictment of those two Republican congressmen, Chris Collins and --