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Day 3 of Kavanaugh Hearings; Fireworks Erupt over Hidden Kavanaugh Documents; Kavanaugh Hearings Resumes. Aired 11-11:30a ET

Aired September 6, 2018 - 11:00   ET



BRETT KAVANAUGH, SUPREME COURT JUSTICE NOMINEE: -- would not regulate, for example, whether baseball helmets had to have ear flaps, or whether to prohibit the punt return or to make the balance beam have nets.

And this seemed to be covered by that precedent, as I saw it. The Labor Department in the oral arguments tried to distinguish, for example, the dangers of football from the dangers of the SeaWorld show, and I did not, as I explained in the opinion, find that distinction persuasive, but I did make clear two things, Senator. One is Congress could of course regulate the intrinsic -- Congress could make the decision to regulate the intrinsic qualities of sports and entertainment shows, or the Labor Department could change its precedent.

And I made clear that of course state tort law -- as the NFL has experienced with the concussion issue -- state tort law always exists as a way to ensure or help ensure safety in things like the SeaWorld show.

FEINSTEIN: Thank you. A question, if I may, about independent agencies. Congress has established several independent agencies. We believe they're essential to enforcing our laws and safeguarding consumers. Congress requires the president to have good cause to remove the heads of these agencies to insulate them from political interference.

You have objected to this limit on the president's power and struck down for -- the -- the for-cause requirement in a case involving the Consumer Financial Protection Bureau. The D.C. Circuit disagreed and overturned your decision. If the president can fire the heads of independent agencies for any reason, what's to prevent political interference in these independent agencies?

KAVANAUGH: Senator, I have followed the Humphrey's Executor precedent. I have referred to it as entrenched. That is the precedent that allows independent agencies and protects them from at-will firing, the for cause restriction. So as a general matter, I have affirmed the -- or, I've followed the precedent of Humphrey's Executor.

The example you're talking about, the Congress established a new independent agency that did not follow the traditional model of independent agencies... FEINSTEIN: Yes.

KAVANAUGH: ... Of having multiple members. That's all I thought was a -- problematic there, and I did not invalidate or did not say the agency should stop operating. I said the agency can continue performing its important functions on behalf of consumers, but either it had to be restructured as a multi-member agency or the president had to be able to remove the single head at-will.

FEINSTEIN: The limited set of documents we've received indicates that you were heavily involved in the Bush White House's response to congressional investigations after the Enron scandal. Is that accurate?

KAVANAUGH: That is accurate. We had a document request from Senator Lieberman's committee, and I was one of the lawyers that had to help gather the documents from people within the White House and then had to negotiate documents. I had to (ph) negotiate documents with Senator Lieberman's staff.

FEINSTEIN: Right. So you know that Enron was one of the greatest corporate scandals in American history, and I can tell you as a senator from California, not only did many of my constituents lose everything financially when Enron collapsed under the weight of its accounting fraud but the fraud and market manipulation contributed to an energy crisis in California.

White House e-mails show that you were asked to review a set of draft talking points for press secretary Ari Fleischer that addressed the role of Enron's market manipulation in the California energy crisis.

Essentially the talking point said if there was any is conduct by Enron it was up to the Federal Energy Regulatory Commission to investigate and punish the company. I'm not going to ask you if you remember the specific document, but was that your view that FERC was the regulatory body that was supposed to stop this sort of misconduct?

KAVANAUGH: I'm not recalling the specifics of that, Senator. My role as a general matter was to help gather documents in response to Senator Lieberman's committee's requests, as I recall. And I know FERC would have a role, necessarily, in something like that, but I don't know if I thought primary-I don't think that was my area of expertise so I'm just not recalling it specifically, Senator.

PROTESTER: (OFF-MIKE) Sir, have you no (inaudible).

[11:05:00] FEINSTEIN: Thank you, Mr. Chairman.

GRASSLEY: Senator Hatch.

HATCH: Well, thank you Mr. Chairman. I appreciate the way you've conducted these hearings in spite of these type of irresponsible outbursts and so forth -- that's hard to believe.

Judge Kavanaugh, I'd first like to commend you for how you conducted yourself these last two days. KATE BOLDUAN, CNN ANCHOR: All right, hello, everyone. I'm Kate


You have been watching another extraordinary moment this morning on Capitol Hill where the already contentious confirmation hearing for Supreme Court nominee, Brett Kavanaugh, once again came to a screeching halt. Democrats and Republicans on the Senate committee squaring off, really battling publicly over documents -- what Republicans are calling them committee confidential, Democrats say the public needs to see.

Let's break this down. CNN's chief national correspondent, anchor of "INSIDE POLITICS," John King, is joining me right now.

John, what's your take on what happened this morning about committee confidential and Cory Booker and Mazie Hirono and Republicans on this committee?

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: A couple of key issues. Number one, is there something else in those documents we have not seen, even though some have been leaked on the issues of abortion, affirmative action? Do the Democrats have something here or do they have reason to believe there's actually something in the documents being withheld that could doom this nomination, or do they think simply that they know their base is frustrated, that the math is not there to stop Brett Kavanaugh and the Democrats are doing everything they can to show they are waging the fight? That's the unanswered question, Kate.

On the abortion issue, Brett Kavanaugh has just said, in the recent moments, I worked for a pro-life president, George W. Bush. I didn't think a memo where I said not all legal scholars think Roe v. Wade is settled law, I was saying I didn't -- he wanted to be accurate he wasn't expressing a personal opinion. Is that enough for the key audience of two here, Republican Susan Collins and Lisa Murkowski? We will learn that as the hours progress.

But on that question, the Democrats believe, in his work in the Bush White House, Brett Kavanaugh was more political, took stances that they believe if the documents are laid out will help them make their case against him. Is it enough? We can't answer that.

But do you see the intensity on the Democratic side? Cory Booker saying, I'm willing to risk getting kicked out of the Senate to have these documents out there. Number one, let's be clear. That's what the Democratic base wants. Stand up, fight, jump in front of the train.

Number two, Cory Booker has ambition as a potential 2020 presidential candidate. That's not lost on him either. We need to keep that as part of the conversation.

But today is a high-drama day. And we came into today saying there's nothing to stop Brett Kavanaugh. At the point right now, we haven't seen anything. But we have more questions.

BOLDUAN: An interesting moment, as you point out, presidential aspirations.

Let me bring in CNN political director, David Chalian.

In the midst of this fight, John Cornyn comes on, David, and he calls Cory Booker out for running for president and says this is conduct unbecoming of a Senator. What's your kind of -- what's your view right now?

DAVID CHALIAN, CNN POLITICS DIRECTOR: Yes, we should be clear --

BOLDUAN: -- is it a side show?

CHALIAN: Cory Booker has released this. The documents that were committee confidential-labeled by the majority are now posted on Cory Booker's Web site.

BOLDUAN: Yes, yes.

CHALIAN: I'm sitting here trying to read through some of these e- mails. But there's no doubt that -- I agree with what John is saying. This is about showing a fight. That's what the Democratic base is demanding. I think you are seeing the two people that are the most talked about likely 2020 presidential contenders on the Democratic side of this panel, are Cory Booker and Kamala Harris. Kamala Harris, in questioning Kavanaugh last night, had a moment that went viral. She got a lot of attention in the overnight hours and this morning about questioning him about any comments he had with a lawyer or a member of a law firm about the Mueller investigation, indicating she knows there's something there.


CHALIAN: Then, her potential 2020 rival, Cory Booker, who sits next to her on the panel, comes out swinging this morning saying, I'm breaking Senate rules, this is my only chance to have a Spartacus moment, and I'm willing to get kicked out of the Senate over this. So you have some one-upmanship going on among the Democrats as well.

BOLDUAN: As we're laying this out, let me bring in Jeffrey Toobin as well, guys.

There are multiple issues playing out at the same time. You have in terms of just this issue of documents release and leaked, each Senator is talking about a different issue and a different e-mail and different documents that they are releasing.

As far as I can tell, Jeffrey -- and I haven't had a moment to go through it yet. I know we're trying to go through the e-mails. Booker is talking about documents, e-mails regarding racial profiling post 9/11. Mazie Hirono is talking about documents related to programs that benefit native Hawaiians. As John King was talking about, there are e-mails released with regard to -- he has been asked about by Feinstein -- his position on abortion and Roe v. Wade.

[11:10:12] JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: It's easy to get swept up with the procedural issues about the Senate rules. I think we are talking about the confirmation of a Supreme Court justice here --


TOOBIN: -- who has who has refused to say anything about his views of Roe v. Wade. Now we see a 2003 e-mail from when he worked in the Bush White House where there was a draft of a document that said legal scholars believe that Roe v. Wade is settled law. Brett Kavanaugh in his role as staff secretary corrected that and said, no, not all legal scholars believe it's settled law. That's pretty good insight into what Brett Kavanaugh believes about Roe v. Wade. Here you have -- and he is correct. It was a pro-life administration. The president was pro-life. But it also suggests that the people who worked for him, like Brett Kavanaugh, were pro-life, too. This e-mail suggests -- it doesn't prove -- that he himself believes that Roe v. Wade is not settled law. When asked, he said, no, no, I wasn't talking about my view. I was talking about whether legal experts, legal scholars believe it's settled law.

BOLDUAN: You think they were overstating what legal scholars thought at the time.


BOLDUAN: Since you brought it up, let me read this. CNN has obtained this 2003 e-mail. Let me read it so we're all on the same page. He wrote with regard to a draft of an opinion piece that was going to be written, he writes back in his capacity, "I'm not sure that all legal scholars refer to Roe as a settled law of the land at the Supreme Court level since court can always overrule its precedent and three current justices on the court would do so."

John, let me bring you back in because you brought this up as well.

This gets to the issue of settled law has been a big conversation and it matters. This is an issue that matters to two key voices not on this committee but when it comes to his eventual confirmation.

KING: Right. Democrats are driving the fireworks and the confrontation and trying to get more information, trying to get more documents, trying, as Jeffrey just noted, to get Brett Kavanaugh to specifically answer their questions as opposed to punting and hiding behind past nominees won't do that. I can't talk about current controversies. I can't talk about current cases. They are trying to push him to be more responsive to the questions. His answer is, I worked in the Bush White House. I was a political staffer for George W. Bush. I had to help implement his policies. That's one of the arguments here.

There are broader questions about can you get -- will Susan Collins think, wait, that's not what he told me in my private meeting, do I need to come back, am I coming off the fence. Mitch McConnell, the Republican leader, has the Republicans thinking --- and Kate, don't dismiss the timing. Their point is, forget that fire down the street. Forget the Woodward book. Forget what you read in the "New York Times" today. Forget the anger, the paranoia of the president. Brett Kavanaugh is one of us. Let's get him confirmed. That's what Mitch McConnell is trying to say. What the Democrats are hoping is that they can find something to puncture the Republican solidarity and get Murkowski, who cares about native Alaskans --




BOLDUAN: That's exactly right.

KING; She also cares about native Alaskans. Get Susan Collins and Murkowski, who are concerned about Roe v. Wade, to say, wait, are we being snookered here? Kavanaugh's candor is going to become an issue in the sense that if you listen for the past couple of days, he can quote the Federalist Papers, he knows where the semicolons are in all his opinions over 12 years on the benches. But when you ask him about his work in the Bush White House, he says, I don't recall. The Democrats will say that's too cute, too clever, selective memory. We'll see if they get anywhere with it.

BOLDUAN: Let me bring in CNN's senior political analyst, David Gergen.

David, in all the confirmation hearings, what do you make of this moment? This is day three of -- they haven't gotten started until about an hour-plus in because of back and forth and back and forth on these issues.

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST; It's hard to believe that five days ago we were talking about John McCain and a very different way about our politics and a hope for our politics and what we are seeing today.

BOLDUAN: A great point.

[11:14:26] GERGEN: This is a jagged edge of polarization we're seeing. I cannot remember a public display that have been as vivid as this about how deeply distrustful, frustrated each side is with the other. Cory Booker to have on the table the idea that he might actually be expelled from the Senate. Other Democrats saying, if you expel him, expel me, too, because I'm joining in. I don't think we have seen things like this on the floor of the Senate since 1850s. This is televised. It tells us it's very distressing and saddening and shocking to see how raw the sentiments are. I think -- the way the Democrats have come at it, make it less likely that three or four Democrats may come over. This may be -- come down to a party line vote at the end of the day. Kavanaugh has successfully duck and dodged. He left himself from the point of view of Collins and others who care about Roe v. Wade, he left himself a big, big loophole to overturn Roe v. Wade. He never really answered the question of whether it was a correctly settled law or correctly decided case. He left that wide open. He said, the precedent upon precedent. But at the end of the day, he can do anything he wants. I can't say how partisan this is. It's driving each side into a block that is irreconcilable. It's a sad day for democracy, a fascinating day for politics.

BOLDUAN: Jeffrey, what do you think about what David said?

TOOBIN: There are lots of sad days these days.

I think we are at a moment where there are such deep divisions between the parties. One of the most important divisions between the parties is over a woman's right to choose abortion. That is an issue that is coming to the Supreme Court. We have a nominee who has said nothing about his views. He has simply summarized the state of the law. We have an e-mail from 2003 that came up in the context of a judicial appointment in 2003 where they were trying to fudge this issue again, a Republican administration was trying not to commit to overturning Roe v. Wade when everyone knows -- Donald Trump gave away the game during the campaign and said, that's why we're doing this. We are appointing justices so that they will overturn Roe v. Wade. It seems preposterous that we have to hunt for an e-mail in 2003 to find this. Let's not kid ourselves. This is what this nomination is about, whether Roe v. Wade is overturned. Elections have consequences. Donald Trump won the election. So did these Senators. They're going to have to decide whether they want to see Roe v. Wade overturned. That's what's going on here.

BOLDUAN: Let's jump back to Capitol Hill and the continued questioning of Brett Kavanaugh.


HATCH: -- that a judge can sentence a defendant to a long prison term for a crime that a jury acquitted the defendant of flies in the face of the right to a jury trial. You've written that you believe, quote, "it likely will take some combination of Congress and the sentencing commission to systematically change federal sentencing to preclude use of an acquitted or uncharged conduct," unquote.

Why do you take issue with the use of acquitted conduct at sentencing and why do you believe this is an issue that will likely require intervention by Congress to resolve?

KAVANAUGH: The opinions I've written on this -- and I've written several -- say, in essence, the following, Senator. When a criminal defendant, for example, let's say, is charged with 10 -- 10 counts, let's suppose, and is acquitted on nine and convicted on one, and then the criminal defendant is sentenced as if he or she had been convicted of all 10 because the judge just says, "well, I think, you know, you did X, or that Y, and under my discretion which you now have under the Supreme Court's case law for sentencing, I'm just going to sentence you the same anyway."

Defendants and the public -- the families of the defendants -- understandably say that seems unfair -- I thought the point of the jury trial was to determine whether I was guilty or not guilty on all those charges, and if I'm getting sentenced exactly -- exactly as if I were guilty on all the charges, that seems a violation of due process.

So I've written about the fairness and perceived fairness of the use of acquitted conduct at sentencing. I've -- Judge Millett on my court and I have both written about it several times and made clear our concern about the use of acquitted conduct and how it affects the sentencing system.

Why I've said Congress might need to look at it, although I've also pointed out, individual district judges can -- can look at it, is because under the current system, sentencing judges have wide discretion in picking sentences.

So, it's hard for a appeals court to say that you've infringed your discretion, given some of the case law of the Supreme Court which grants that discretion. But I don't like the practice, and I've made that clear in my opinion. So, I'm just repeating my opinions here because of the unfairness and perceived unfairness of it.


HATCH: OK. This committee has been chasing an elusive deal on criminal justice reform for quite some time now. One particular focus of mine, in this area, has been mens rea reform. Without adequate mens rea protections, that it without the requirement that a person know his conduct was wrong, or unlawful everyday citizens can be held criminally liable for a conduct that no reasonable person would know was wrong.

Critics of my legislative efforts to bring clarity to mens rea requirements claimed the effort is a ploy to get corporations and white collar defendants off the hook. But stronger mens rea requirements protect the liberty of all defendants in the criminal justice system, the vast majority of whom are not corporations, or white collar defendants.

You've written about the importance of mens rea requirements, including in cases involving unsympathetic defendants like an armed robber, or a convicted murderer. Why, in your view, are mens rea requirements so important?

KAVANAUGH: Mens rea requirements are important, but -- because, Senator, under the Due Process Clause and the precedents of the Supreme Court, it is not right to convict someone based on a fact they did not know. It's just an elemental point of due process.

Justice Jackson described this principle in his famous Morissette decision that he wrote. It's as elementary as the -- he said, as the school child's, I didn't mean to, I didn't know. And if it -- someone, truly, didn't know a fact that they -- that's relevant to their conviction to, nonetheless, convict them, is contrary to due process.

I've seen cases where a mandatory minimum sentence was elevated from 10 years to 30 years. A 30 year mandatory minimum based on a fact that the defendant did not know. I dissented in that case, and in that (ph) case joined by Judge Tatel who is an appointee of President Clinton to our court.

Saying that -- and I wrote a very lengthy dissent about the history of mens rea, and just how much of a violation of due process I thought had occurred in that case. That was not a -- a sympathetic defendant, given what he had been convicted of.

But I thought it was a complete violation of due process, and principles of mens rea, that were longstanding from Morissette, to give him a 30 year mandatory minimum for a fact he did not know.

I have also wrote -- joined an opinion, and wrote a separate opinion, reversing a murder conviction of someone who -- where the jury instructions were unclear about the mental state of the -- of the murderer. It was a question of manslaughter versus second degree murder.

That would've had a huge difference in the defendant's sentence. And I wrote an opinion saying, this was not an especially sympathetic case, given the facts. But the jury instructions were flawed on the issue of the mental state. And my exact line was, "I'm unwilling to sweep that under the rug." And that's how I felt about the -- that case.

There was a dissent in that case, but I was in the majority reversing the murder conviction in that case. No matter who you are in my court, if you -- if you have the right argument on the law, I'm going to rule in your favor. And mens rea is foundational to due process. I've written that repeatedly. And I share your concern about mens rea reform, Senator Hatch.

HATCH: Well, thank you. I'd -- I have one last question. Some people seem to think that religious people should not work in government because they swear allegiance to their church, no their country, necessarily. I have, faithfully, served in this country for over 40 years and I'm a -- I believe I'm a religious person.

Now, religion is also a big part of your life. You went to Catholic school. Your children go to Catholic school. And you regularly attend church, and serve a church supported -- a church supported soup kitchen. I know that religious faith is a personal subject, but I'd like to hear from you how you -- how your private beliefs affect your public decisions. Can you be devout in your faith and still uphold the law?

KAVANAUGH: Senator, my religious beliefs have no relevance to my judging. I judge based on the Constitution and laws of the United States. I take an oath to do that. For 12 years I've lived up to that oath.

At the same time, of course, as you point out, I am -- I've -- I am religious, and I am a Catholic, and I grew up attending Catholic schools. And the Constitution of the United States foresaw that religious people, or people who are not religious, are all equally American.


As I've said in one of my opinions, the Newdow opinion, no matter what religion you are, or no religion at all, we're all equally American. And the Constitution of the United States also says, in Article VI, no religious tests shall ever be required as a qualification to any office or public trust under the United States. That was an important provision to have in the founding Constitution to ensure that there was not discrimination against people who had a religion, or people who didn't have a religion. It's a foundation of our country. We're all equally American.

GRASSLEY: Senator...

HATCH: Well, thank you. Thank you, Mr. Chairman.

GRASSLEY: ... Senator Leahy.

LEAHY: Thank you, Mr. Chairman. And as I mentioned to you earlier, I have a number of letters and ask consent to be placed in the record, as well as the e-mails that were declassified, I think some at 3 o'clock this morning. That they be placed in the record.

GRASSLEY: Without objection and so ordered.

LEAHY: Thank you. And I know -- I know there was claim, this morning, the committee was following my precedent Judge Kavanaugh, not so. For Justice Kagan, we had 99 percent of her documents from her time at the White House. And, of course, we do not have -- we have less than 10 percent of yours.

And there were 860 documents designated as committee confidential by the nonpartisan National Archives that was discussed with, both, the Democrats and the Republicans on the committee. Nobody objected to that. But let's go to -- follow up on our questions yesterday.

We discussed the fact that while you worked on nominations in the Bush White House, you received stolen material from a Republican Senate staffer named Manny Miranda.

I thought it was a digital Watergate. He stole 4670 computer files from six Democratic senators. And he was doing this in effort to confirm some of President George W. Bush's most controversial judicial nominees. They were some of the most contentious fights of the day, and this Republican stole 4,670 computer files.

In 2004 and 2006 you testified, and a number of senators, both Republicans and Democrats asked you, and you said you had never received any stolen materials. That doesn't appear to be accurate. You also testify that you knew nothing about the scandal until it was public, and if you had suspected anything untoward you would have reported it.

You also testified to Senator Hatch that you'd never received any document, even appeared to you to have been drafted or prepared by Democratic staff.

I also asked you yesterday whether Mr. Miranda asked to meet privately offsite to hand you documents related to Senators Biden and Feinstein. I also asked about him sending you, quote, "intel" with extraordinary detail to specifics about what I was going to ask a highly controversial nominee just days later, something I'd never said publicly. I also asked about you receiving a draft, a non-public letter of mine, before any mention it was made public. You testified you didn't recall anything specific, but you thought that sharing information between staff was common.

So let me ask you this -- has anyone told you what any Democratic senators have been advised to do by our staff at this hearing?

KAVANAUGH: I think there's been a lot of...

PROTESTER: Tell the truth! Tell the truth!

KAVANAUGH: There's been a lot of discussion about what individual senators might be interested in, and when I met...


LEAHY: I really want to hear what you have to say, judge, not what protesters have to say. Please go ahead. Have you been advised -- have you been told what any Democratic senators have been advised to do by our staff at this hearing?

KAVANAUGH: Right, so when I met individually with 20 -- the 65 senators, including almost every member of the Committee, a lot of the senators, a lot of you in the meetings told me issues you were interested in. I think your staff was probably talking to...

LEAHY: Has anybody said to you --