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Kavanaugh Hearings to Begin Soon; Kavanaugh Hearing. Aired 9:30-10:00a ET

Aired September 4, 2018 - 09:30   ET




POPPY HARLOW, CNN ANCHOR: All right, welcome back.

You're watching the start of four days of Senate confirmation hearings for U.S. Appeals Court Judge and Supreme Court Nominee Brett Kavanaugh, tapped to succeed Justice Anthony Kennedy. Today will be filled with opening statements, not only from the nominee, but also from each -- every single one of the judiciary committee's 11 Republicans and 10 Democrats. Each gets ten minutes. Quite a day ahead set to begin in just moments.

Let's talk more about this before we hear the opening statements. Back with me my team of experts here.

And, Abby, let me go to you on the sort of pickle for the Democrats here, all right. The math does not work in their favor, period. And then you have those three key red state Democrats, you've got Heitkamp, Manchin, Donnelly, who all voted for Neil Gorsuch, who are a question mark, right? Which way are they going to go here? How do you see this playing out?

ABBY PHILLIP, CNN WHITE HOUSE CORRESPONDENT: That's exactly right. I think this is a situation where Democrats know that they don't have a lot of power in this case and also that a lot of things are working against them, including that there are already members of their caucus who have voted in favor of others of the president's nominees -- another of the president's nominee for the high court. So it seems, going into this, that they would have to make some really serious, substantive arguments against Kavanaugh that would persuade someone like Joe Manchin to vote against him, to incite the ire of the president.

President Trump is already on the campaign trail campaigning after some of these red state Democrats. And you'd better believe that this is going to be one of those things that he holds above them. He's going to two of those states just this week. So I can imagine it's not going to be something that a lot of these red state Democrats want to invite unless they feel like they have to, unless they feel like the political stakes require it.

HARLOW: Jeffrey Toobin, to you. There is a very significant way in which this could all tie to the Mueller probe. And that is the issue of whether, you know, a sitting president can be indicted, can be, you know, prosecuted on a criminal level. Could come up to the court and the high court could have to resolve that.

We're looking at live pictures of Judge Kavanaugh walking in with his family, his wife and two daughters there, shaking hands as he comes in. And, again, we'll take the statements in just a moment.

But, Jeffrey, back to you on how this could all tie into the Mueller probe.

This is going to get a lot of questioning from Democrats today, no doubt, namely because of what Kavanaugh has written about this issue before. In 2009 he wrote in the "Minnesota Law Review," the indictment and trial of a sitting president would cripple the federal government rendering it unable to function with credibility in either internal or domestic arenas. He said quite a lot on this issue. How does this play out today?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: You know, I think the issue of whether a president can be indicted is kind of a fake issue. I mean there's no real chance that Mueller is going to indict the president. He has said to Rudolf Giuliani and many others, you know, in private conversations that he will honor the Justice Department policy on not indicting a sitting president.

The real issue is a subpoena.

HARLOW: Right.

TOOBIN: Which is very likely to wind up before the Supreme Court. Can the court force Donald Trump to comply with the grand jury subpoena if Mueller issues one? That's very likely to be before the court. And I think if you look at Kavanaugh's history, I think the likely answer is, no, he can --

HARLOW: Right.


TOOBIN: The court will not force the president to testify before Judge Kavanaugh is a very big believer in presidential power.

HARLOW: What about, Jeffrey Toobin, just on that point also about special prosecutors. For example, you remember his comments a while back on Morrison v. Olson, right, the 1988 Supreme Court decision. He said at one point that he wanted to, quote, put the final nail in that decision.

TOOBIN: Yes, Morrison v. Olson dealt with the issue of independent counsels, which were, and are, somewhat different from special prosecutors. I mean I don't mean to get too arcane here, but there was a law called the Ethics and Government Act where a panel of judges appointed the prosecutors and Ken Starr was one of them and for whom Judge Kavanaugh worked. That's what was upheld in Morrison v. Olson.

Robert Mueller is appointed under a very different legal scenario. He is simply an employee of the Department of Justice. He is a special prosecutor under the supervision of the Department of Justice, unlike an independent counsel. So I don't think there is much legal controversy over whether Robert Mueller has the legal authority to do what he's doing. We can debate about whether he's doing a good job or not. But I don't think there's the same kind of controversy.

And I see we're starting, so I'll shut up.

HARLOW: It does look like we are about to gavel in. There you go. Senator Chuck Grassley. Let's listen in.

[09:36:40] SEN. CHUCK GRASSLEY (R), CHAIRMAN, JUDICIARY COMMITTEE: On the nomination of Judge --


GRASSLEY: Brett Kavanaugh.

HARRIS: Mr. Chairman?

GRASSLEY: To serve as associate justice --

HARRIS: Mr. Chairman, I'd like to be recognized --

GRASSLEY: For the Supreme Court of the United States.

HARRIS: For a question before we proceed?

UNIDENTIFIED MALE: Regular order, Mr. Chairman.

HARRIS: Mr. Chairman, I'd like to be recognized to ask a question before we proceed.

The committee received just last night, less than 15 hours ago -- 42,000 pages of documents that we have not had an opportunity to review or read or analyze.

GRASSLEY: You are out -- you're out of order. I'll proceed.

HARRIS: We cannot possibly move forward, Mr. Chairman, with this hearing.


GRASSLEY: I extend a very warm welcome to Judge Kavanaugh...

HARRIS: We have not been given an opportunity to have a meaningful hearing ...

GRASSLEY: ... to his wife, Ashley...

HARRIS: ... on this nominee.

GRASSLEY: ... their two daughters...


(UNKNOWN): Mr. Chairman, I agree with my colleague, Senator Harris.

GRASSLEY: ... their extended family and friends...

(UNKNOWN): Mr. Chairman, we received...

GRASSLEY: Judge Kavanaugh's many law clerks, and everyone else joining us...

(UNKNOWN): 42,000 documents that we haven't been able...

GRASSLEY: ... today.

(UNKNOWN): ... to review last night, and we believe this hearing should be postponed.

GRASSLEY: I know that is an exciting day for all of you here...

BLUMENTHAL: Mr. Chairman...

GRASSLEY: ... and you're rightly proud of the judge.

BLUMENTHAL: Mr. Chairman, if -- if we cannot be recognized, I move to adjourn.

GRASSLEY: The American people...

BLUMENTHAL: Mr. Chairman, I move to adjourn.

GRASSLEY: ... (inaudible) directly from Judge Kavanaugh, and later this afternoon...


BLUMENTHAL: I move -- Mr. Chairman, I move to adjourn.


BLUMENTHAL: And, Mr. Chairman, we have been denied -- we have been denied real access to the documents we need to advise (inaudible)...

(UNKNOWN): Mr. Chairman, regular order is called for.

BLUMENTHAL: ... which turns this hearing into a charade and a mockery of our norms.


BLUMENTHAL: And, Mr. Chairman, I therefore move to adjourn this hearing.

GRASSLEY: OK. PROTESTER: This is a mockery and a travesty of justice. This is a travesty of justice. We will not go back (ph). Cancel Brett Kavanaugh, adjourn the hearing.


BLUMENTHAL: Mr. Chairman, I -- I ask for a roll call vote on my motion to adjourn.



BLUMENTHAL: Mr. Chairman, I move to adjourn. I ask for a roll call vote.

GRASSLEY: We're not in executive session. We will continue as planned.

BOOKER: Mr. Chairman, may I be recognized, sir? Mr. Chairman, I appeal to the chair to recognize myself or one of my colleagues.

GRASSLEY: You're out of order.

BOOKER: Mr. Chairman, I appeal to be recognized.

On your sense of decency and integrity -- even the documents you have requested, Mr. Chairman, even the ones that you said, the limited documents you have requested, this committee has not received. And the documents we have, you, sir, have (inaudible)...


(UNKNOWN): Chairman, I'd ask for order.

BOOKER: ... should be transparent.

This committee, sir, is a violation of even the values I've heard you talk about time and time again, the ideals that we should have.

What is the rush? What -- what are we trying to hide by not having the documents out front? What is the rush? What are we hiding by not letting those documents come out?

Sir, this committee is a violation of the values that we as a committee has striven for. Transparency.


We are rushing through this process in a way that is unnecessary, and I -- I appeal for the motion to at least be voted on.

(UNKNOWN): Mr. Chairman...

BOOKER: At least let's have a vote, because when we wrote you a letter on August 24th...

GRASSLEY: Senator...

BOOKER: ... asking to -- to have a meeting on this issue, you denied us even the right to meet.

So here we are having a meeting. Let's at least debate this issue, let's at least call this for a vote. I...

GRASSLEY: Senator...

BOOKER: I appeal to your sense of fairness and decency, your commitments that you've made to transparency. This violates what you have even said and called for, sir. You've called for documents, you yourself -- limited documents. We thought there should be more. We have not received the documents that you have even called for.

So, sir, based upon your own principles, your own values, I call for at least to have a debate or a vote on these issues and not for us to rush through this process.


(UNKNOWN): Mr. -- Mr. Chairman...

HIRONO: Mr. Chairman...

GRASSLEY: Senator...

HIRONO: Mr. Chairman...

GRASSLEY: Senator...

HIRONO: I've heard calls for regular order...

GRASSLEY: I'd like to respond. I'd -- I'd like to respond to Senator Booker.

Senator Booker, I think that -- I respect very much a lot of things you -- you -- you do. But you spoke about my decency and my -- and...


GRASSLEY: You spoke about my decency and integrity, and I think you're take -- you are taking advantage of my decency and integrity. So...



HIRONO: Mr. Chairman, I've heard calls for regular order. It is regular order for us to receive all the documents...


HIRONO: ... to receive all the documents that this committee is entitled to.

Mr. Chairman, it is also...

GRASSLEY: I think that I...

HIRONO: Mr. Chairman, it is also not regular order for the majority...

GRASSLEY: (inaudible) Senator -- Senator Hirono...

HIRONO: ... to require the minority to pre-clear our questions, our documents and the videos we would like to use at this hearing. That is unprecedented. That is not regular order. Since when do we have to submit the questions and though -- the process that we wish to follow to question this nominee?

GRASSLEY: Senator...

HIRONO: I'd like your clarification. I'd like your response on why...

GRASSLEY: Senator Hirono...

HIRONO: ... you are requesting the minority submit...

GRASSLEY: I would ask that you...

HIRONO: ... our questions to you.

GRASSLEY: I ask that you stop so we can conduct this hearing the way we have planned it. Maybe it isn't going exactly the way that the minority would like to have it go, but we...


GRASSLEY: ... we have said for a long period of time that we were going to proceed on this very day. And I think we ought to give the American people the opportunity to hear whether Judge Kavanaugh should be on the Supreme Court or not.

GRASSLEY: And you have heard my side of the aisle call for regular order, and I think we ought to proceed in regular order. There will be plenty of opportunities to respond to the questions that the minority is...


GRASSLEY: ... legitimately raising.

(UNKNOWN): Let's throw them out of here.


GRASSLEY: And we will...


... we will proceed accordingly.

WHITEHOUSE: Mr. -- Mr. Chairman, under regular order may I ask a point of order? Which is that we are now presented with a situation in which somebody has decided that there 100,000 documents protected by executive privilege, yet there has not been an assertion of executive privilege before the committee.

How are we to determine whether executive privilege has been properly asserted...


WHITEHOUSE: ... if this hearing goes by without the committee ever considering that question? Why is it not in regular order for us to determine, before the hearing at which the documents would be necessary, whether or not the assertion of privilege that prevents us from getting those documents is legitimate, or indeed is even an actual assertion of executive privilege?

I do not understand why that is not a legitimate point of order at this point, because at the end of this hearing it is too late to consider it.

LEAHY: Mr. Chairman, if I might add to this, on the integrity of the documents we've received, there really is no integrity. They have alterations. They have (inaudible). Attachments are missing. E-mails are cut off half way through a chain. Recipients' names are missing. The -- they are of -- of interest to this committee, but it's cut off.


We -- the National Archives hasn't had a chance to get us all that we want, even though you said on your website, the National Archives would act as a check against any political interference, but...


LEAHY: ... a check after the hearings over is no check. I think we ought to...


LEAHY: ... at least have the National Archives finish it.


LEAHY: And to have, for the first time, certainly, in my 44 years here, to have somebody say there's a claim of executive privilege when the president hasn't made such a claim just puts everything under doubt. What are we trying to hide? Why are we rushing?

GRASSLEY: I can answer all of the questions that have been raised, but I think if I answer those questions it's going to fit into the effort of the minority to continue to obstruct. And I don't think that that's fair to our judge. It's not fair to our constitutional process.


GRASSLEY: But let me -- let me respond to those... PROTESTER: (OFF-MIKE)

GRASSLEY: ... now. And then maybe we can proceed.


GRASSLEY: My colleagues on the other side are accusing the administration of using executive privilege to hide documents from the committee. I want to say why they're wrong.

Unlike President Obama's assertion of executive privilege during Fast and Furious, as one example, this assertion is not legitimate (sic).

Judge Kavanaugh was a senior lawyer in the White House. He advised the president on judicial nominations, provided legal advice on separation of powers issues, and handled litigation matters. As the...


GRASSLEY: As the Supreme Court has put it...


GRASSLEY: ... quote, "Unless the president can give his advisers some..."


GRASSLEY: "... assurance of confidentiality..."


GRASSLEY: "... a president could not expect to receive the full and frank submissions..."


GRASSLEY: "... of facts and opinions upon which the effective discharge..."


GRASSLEY: "... of his duties depends," end of quote.

The issues Judge Kavanaugh worked on are exactly the sort of issues that require, according to the Supreme Court, some assurance of confidentiality. We in the Senate and everyone else in America expect exactly the same sort of confidentiality.

Most senators would not agree to turn over their staff's communication to anyone. For example, we didn't ask that Judge Kagan's record for her service with then-Senator Biden be turned over during her nomination.

And because of attorney-client privilege, everybody has a right to keep communication from their lawyers out of governor's (ph) hands. We, therefore, didn't ask for Justice Ginsburg's documents from her time with the ACLU. We didn't ask for Judge Sotomayor's confidential documents from her time in private practice.

It can't be that the Senate and the ACLU are entitled to more protection than the president of the United States.

And then I will speak to the fact about 42,000 pages.

Last night we received additional documents for the committee's review. These were documents we requested before the hearing and we received them before the hearing, just as we requested. The majority staff began reviewing the documents as soon as they arrived and has already completed its review. There is thus absolutely no reason -- that's no reason to delay the hearing,

We have received and read every page of Judge Kavanaugh's extensive public record. This includes 12 years of his judicial service on the most important federal circuit court in the country, where he authored 307 opinions and joined hundreds more, amounting to more than 10,000 pages of judicial writing.

We already -- we also received and read more than 17,000 pages of his speeches, articles, teaching materials, other documents that Judge Kavanaugh submitted with his questionnaire; the most robust questionnaire this committee has ever issued.

And, of course, we received and read more than 483,000 pages of documents from Judge Kavanaugh's extensive executive branch service. This is more pages than the last five Supreme Court nominees combined.

In short, this committee has more materials for Judge Kavanaugh's nomination than we have had on any Supreme Court nominee in history.


Senators have had more than enough time and materials to adequately assess Judge Kavanaugh's qualifications, and so that's why I proceed.

I know that this is an exciting day for all of you in the family and all the people that are close to Judge Kavanaugh, and you're rightly proud of the judge. The American people get to hear directly from Judge Kavanaugh later this afternoon.

After this confirmation hearing and process is finished, I expect Judge Kavanaugh will become the next associate justice of the Supreme Court.

(inaudible) again, Judge.

Before I began, I would want to give you, Judge, an opportunity to introduce your family.

KAVANAUGH: Thank you, Mr. Chairman and Senator Feinstein and...

GRASSLEY: Push the red button if it's not on.


GRASSLEY: Yes, we're going ahead.

KAVANAUGH: Thank you, Mr. Chairman and Senator Feinstein and members of the committee. I'm honored to be here today with my family: my wife, Ashley, proud West Texan, graduate of Abilene Cooper High School, now the town manager of our local community where we live; our daughters Margaret and Liza thank the committee for arranging a day off from school today...


... My mom and dad, Martha and Ed Kavanaugh; my aunt and uncle, Nancy and Mark (ph) Murphy, and my first cousins, Rosie (ph) and Elizabeth (ph) Murphy.

I'm very honored to be here, honored to have my family here, I'm here because of them.

Thank you, Mr. Chairman.

GRASSLEY: We're delighted to have your family here.

Before I make my opening remarks, I want to set out the ground rules for the hearing.

I want everyone to be able to watch the hearing without obstruction. If people stand up and block the view of those behind them or speak out of turn, it's not fair or considerate to others, so officers will immediately remove those individuals. And I thank the officers for doing the work that they have to do.

We'll have 10-minute rounds of opening statements with each member. The ranking member and I may go a little over 10 minutes, but I'm going to ask everyone else to limit your remarks to those 10 minutes. I hope everyone will respect that.

We plan on taking a 15-minutes break after Senator Cruz's opening statement. After all the opening statements by senators are complete, we'll take another 15-minute round break to turn to our introducers, who will formally present the judge.

After that, I'll administer the oath to the judge. And we'll close that portion of today's hearing with his testimony.

(UNKNOWN): Mr. Chairman...

GRASSLEY: Tomorrow morning...

(UNKNOWN): Mr. Chairman, when will we review Senator Blumenthal's motion to adjourn?

GRASSLEY: What's your question?

BLUMENTHAL: I -- I renew my motion to adjourn, Mr. Chairman. I think we're entitled to a vote on it. The -- the responses that, Mr. Chairman, you've given, with all due respect, really fly in the face of the norms of this committee, our traditions and our rules.

COONS: Mr. Chairman, if I might add an additional point, I agree with my colleague, it is striking, given your long history of encouraging the executive branch to treat minority requests equal with majority requests, that you discourage the National Archives from responding to Ranking Member Feinstein's request, which she tried to craft with you to be identical to the request for records from Justice Kagan.

We should not be proceeding until we have the full documents that allow us to review the judge's records.

KLOBUCHAR: And, Mr. Chairman, last Friday we learned that nearly 102,000 pages of documents from Judge Kavanaugh's work in the White House Counsel's Office are being withheld from the committee and the public based on a claim of constitutional privilege.

Executive privilege has never been invoked to block the release of presidential records to the Senate during a Supreme Court nomination. This includes when Justice Kagan was nominated to the Supreme Court as well as Justice Roberts.

Yesterday my colleagues and I sent a letter to the White House counsel asking that the president withdraw his claim of privilege over these documents so that they can be made available to this committee and to the American people.

We have not yet received a response to that letter, so we should not be proceeding until we have a response and these documents have been available. It is 102,000 documents.

BOOKER: And, Mr. Chairman...

BLUMENTHAL: My motion to adjourn, Mr. Chairman, would raise this issue of executive privilege and whether it has been properly asserted for reasons that have been outlined well by my colleague Senator Whitehouse. There is no valid claim here of executive privilege, even if there were one, it has not been properly asserted.

The question is what is the administration afraid of showing the American people? What is it trying to hide?


BOOKER: And, Mr. Chairman, using your own words in the statement you just read, you said, I quote, "we've had more than enough time to review the documents". Sir, we just got a document dump last night, over 40,000 pages. I would venture to say not one senator here has had time to read through those 40,000 pages.

And so we are continuing to rush through this process, a process that deserves to be scrutinized. I support Senator Blumenthal's motion for -- to adjourn and I hope that we could at least have a vote on that motion. WHITEHOUSE: Mr. Chairman, I think you'd be hard pressed to find a court in the country that would not give a party litigant a continuance when the party on the other side did a 42,000-page document dump after close of business the night before trial.

DURBIN: Mr. Chairman, we waited for more than a year with a vacancy on the Supreme Court under the direction of your leader in the United States Senate and the republic survived. I think the treatment was shabby of Merrick Garland, President Obama's nominee.

The fact that we cannot take a few days or weeks to have a complete review of Judge Kavanaugh's record is unfair to the American people, it's inconsistent with our responsibility under Section -- Article II, Section 2 of the Constitution to advise and consent on Supreme Court nominees.

GRASSLEY: Senator Cornyn, you want to speak?

CORNYN: I've -- Mr. Chairman, thank you. I'll be very brief.

I would just say that Senator Whitehouse has suggested that we handle this hearing like a court of law, but I would suggest that if this were a court of law, that virtually every side -- every member of the -- on the dais on that side would be held in contempt of court.

(UNKNOWN): Oh come on.

CORNYN: Because this whole process is supposed to be a civil one where people get to ask questions and we get to get answers. And that's the basis upon which we are to exercise our constitutional responsibilities of advice and consent.

So I would just suggest we get on with the hearing.

GRASSLEY: If my colleagues...

BOOKER: Mr. Chairman, if I could just respond...


BOOKER: Mr. Chairman, if I can just respond...


BOOKER: If we could just respond to that...


GRASSLEY: You can -- you can respond, but just a minute.

If people wonder why the chair is so patient during this whole process, I have found that it takes longer to argue why you shouldn't do anything than let people argue why they want it.

These things are going to be said throughout this hearing. We're going to be in session Tuesday, Wednesday, Thursday, Friday, Saturday, Sunday until we get done this week. So however long people want to take, we're going to not necessarily accommodate all obstruction, but if people got something to say, this chairman's going to let them say it.

But it gets pretty boring to hear the same thing all the time.

Senator Booker, make it quick please.

BOOKER: I really appreciate the -- the deference, Mr. Chairman.

The question was why would we want to delay this?

And this is not an attempt to delay, this is an attempt to be fully equipped to do our constitutional duty, which everybody, Republicans and Democrats, on this committee take seriously.

It is very hard to perform our role of advise and consent when we do not have a thorough vetting of the background of the candidate. In areas which he -- the candidate himself has referred to as the most formative part of his legal career, where he himself has talked about how important this period of his life is, we're denied the full vetting.

And, sir, this is not something the Democrats are asking for. I remind you that you, yourself, asked for a limited set of documents for when he was in the White House Counsel's Office. You, yourself, set that standard. And even on that limited standard, sir, we have not received the documents.

BOOKER: And then even the documents -- we've received 7 percent of them -- almost half of those have been labeled "committee confidential." They cannot put -- be put before the American people. Which further undermine and inhibit our ability to ask questions to thoroughly vet this candidate and advise and consent (sic) the president of the United States.

So, sir, just on -- on the basic ideals of fairness, the traditions of this body, we should have a thorough understanding of the nominee that's put before us so that we can vet them. To go into this hearing without those documents is an undermining of the constitutional role to which we have all sworn an oath to upheld -- uphold.

BLUMENTHAL: Mr. Chairman, I have great respect for my colleague from Texas, and...


GRASSLEY: I would like to respond to Senator Booker and then Senator Feinstein has asked for the floor.

I'd like to -- I'd like to respond to -- I'd like to respond to Senator Booker.

UNIDENTIFIED MALE: Mr. Chairman, I ask to respond to my colleague from Texas.

Mr. Chairman.

GRASSLEY: Senator Booker, using a standard set by two members of your