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Police Investigate Active Shooter in Cincinnati; Kavanaugh Faces Tough Questions; Kavanaugh Hearing. Aired 9:30-10a ET

Aired September 06, 2018 - 09:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(COMMERCIAL BREAK)

[09:30:28] ANNOUNCER: This is CNN breaking news.

POPPY HARLOW, CNN ANCHOR: All right, we do have breaking news for you this morning.

Right now in Cincinnati, the police have confirmed they are investigating reports of an active shooter. This is taking place in downtown Cincinnati.

Let me go to my colleague, Miguel Marquez. He's following this and has more.

I know this has just happened, Miguel, but what have you learned?

MIGUEL MARQUEZ, CNN NATIONAL CORRESPONDENT: Yes, police responding to the Fifth Third Bank. This is a tall building, the tallest building in Cincinnati, about 32 stories high. Responding to reports of a -- an active shooter in that building or in that area. Possibly in the lobby, loading dock area. But the area surrounding it, Fountain Square in downtown Cincinnati, this is a very dense, very public area of the city. Police taking all precautions to lock that area down and search through that building.

Obviously, it is a -- it is a bank. It's a very large bank. One of the 15th largest -- one of the 15th largest banks in the country and with 32 floors they may have quite a job to figure out what's going on there.

The pictures that we now have coming in from our affiliate indicate that there is not a huge rush into that bank or officers who are completely in gear to go into that bank. But, clearly, a lot of police officers on the scene there and looking into this incident.

Poppy.

HARLOW: OK. And, Miguel, we don't know about injuries, casualties? Nothing at this time, right? We just don't know?

MARQUEZ: We don't know of any but certainly in, these days, every single incident of this sort authorities take very, very seriously.

HARLOW: Right. Yes. OK, appreciate the reporting. I'll let you get back to it, Miguel.

Please update us. Thank you.

MARQUEZ: You got it.

HARLOW: Also happening right now in Washington, D.C., the nation's capital, the Senate about to begin day three of the confirmation hearings for President Trump's pick for the Supreme Court, Brett Kavanaugh. You see the chair of the Senate Judiciary Committee, Chuck Grassley, sitting down right there. Next to him, Senator Orrin Hatch, who has been at every single one of the confirmation hearings for the current justices. That will get started.

Let me bring in our experts, Jeffrey Toobin, our chief legal analyst, who's back with me. Also back with me is Ron Brownstein.

So, gentlemen, I want to get to what we learned and, frankly, didn't learn yesterday, right, because of the dancing and the dodging that we see from all -- all of these contenders for the court. To this issue, senator -- at the end of -- it was a long day yesterday. At the end of the night last night, Senator Kamala Harris of California grilled Judge Kavanaugh on whether he discussed Bob Mueller's Russia probe, the special counsel's Russia probe, with a lawyer from a law firm that has, for a long time, represented the president, and that is Kasowitz, Benson and Torres.

Let's listen to this exchange.

(BEGIN VIDEO CLIP)

SEN. KAMALA HARRIS (D), CALIFORNIA: With all that you remember, you have an impeccable memory. You've been speaking for almost eight hours, I think more, with this committee about all sorts of things you remember. How can you not remember whether or not you had a conversation about Robert Mueller, or his investigation, with anyone at that law firm?

BRETT KAVANAUGH, SUPREME COURT NOMINEE: I don't --

HARRIS: This investigation has only been going on for so long, sir. So please answer the question.

KAVANAUGH: Right. I'm not sure I -- do I -- I'm just trying to think, do I know anyone who works at that firm I might know had --

HARRIS: Have you had -- that's not my question. My question is have you had a conversation with anyone at that firm about that investigation. It's a really specific question.

KAVANAUGH: I would like to know the person you're thinking of, because what if there's a --

HARRIS: I think you're thinking of someone and you don't want to tell us.

SEN. MIKE LEE (R), UTAH: If there are names, if there is a list of names he can be given of the lawyers to whom she's referring, I think that's fine. But I think it's unfair to suggest that an entire law firm should be imputed into the witness's memory when he doesn't know who works at the law firm.

(END VIDEO CLIP)

HARLOW: At the end there, coming to the defense of Kavanaugh, is Republican Senator Mike Lee.

To both of you, Jeffrey, to you first, what do you make of that?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, it was certainly peculiar and, frankly, I was sympathetic to what Mike Lee was saying at the end there. I mean if Kamala Harris had a specific conversation that she was referring to that she wanted to ask him about, it seemed to me she should have asked, did you speak to John Doe from the Kasowitz law firm, or Jane Doe, or who -- more than one person. But just to ask generally, did you speak to someone -- and it's a fairly large law firm, there are a couple hundred lawyers there -- I just -- I found it puzzling.

Now, in fairness, this hearing is not over and --

HARLOW: Yes.

TOOBIN: That Kamala Harris has the opportunity to follow up here, produce more evidence, ask questions in another round. But the questions in and of themselves I don't think proved anything and I thought were somewhat unfair to Brett Kavanaugh.

[09:35:03] HARLOW: Ron, were they unfair?

RON BROWNSTEIN, CNN SENIOR POLITICAL ANALYST: Well, first of all, I mean, I think it was one of the only moments in this very long hearing that seemed to throw him off balance. And, to me, watching it, it was just a reminder that she is someone who makes an impact and is kind of visible in a crowd. And it's something to kind of keep in mind as we head towards 2020.

Look, I kind of look at it from the other direction, which is that he knows whether he talked to someone about the Mueller investigation or not. And if he -- if he knows someone well enough to talk to them about the investigation, I would assume he has a pretty good idea of where that person works. I mean I -- you know, I don't think he is routinely, as a sitting federal judge, if in fact there is something here, if he talked to someone about the Mueller investigation, I would bet he knows where that person works.

Now, you know, we don't -- she did not produce, as Jeff noted, the specifics. She did, however, say at the end of the questioning that she would follow up with more specifics in the written questioning. So that may be the venue. But certainly this was one of the most intriguing --

HARLOW: Interesting.

BROWNSTEIN: Kind of unanswered moments of the hearing --

HARLOW: It was.

BROWNSTEIN: Which may lead nowhere, but might also prove, you know, considerably significant if it bears out.

HARLOW: And we'll see what we get on it, if anything more, today.

Jeffrey, we -- he answered the way we all thought he would on the Roe v. Wade questions, right? Like saying, this is settled, this is precedent, but that actually means nothing when you were sitting eventually on the Supreme Court.

But then when it came to another decision, a decision a year later, 1974, U.S. v. Nixon, he praised it. He called it, quote, one of the greatest moments in American judicial history.

So this morning you have great legal minds outside of your own saying, well, you know, you kind of can't have it both ways. You're going answer directly about one opinion and then not answer directly how you feel about another opinion? How do you see it?

TOOBIN: Well you can have it both ways if you have 51 votes of your party in the Senate who are ready to confirm you regardless of what the answer is.

HARLOW: Right.

TOOBIN: You know, he didn't want to be in the position of, you know, not talking about any past Supreme Court opinions like Brown v. Board of Education --

HARLOW: Sure.

TOOBIN: Marbury v. Madison. These famous opinions that are now part of the bedrock of American law.

But Roe v. Wade, 1973, is a decision he was appointed to overturn. Donald Trump said it in the campaign. That's why he's appointed. That -- you know, the -- you know, the dance that goes on here is very frustrating to those of us who cover these issues because, you know, this is what matters. These contested issues matter.

Also about U.S. v. Nixon, you know, he had actually been somewhat critical of that case in the past.

HARLOW: It matters now. Yes.

TOOBIN: So I think he was trying to insulate himself a little from the claim that he was too deferential to presidential power --

HARLOW: Right.

TOOBIN: By embracing U.S. v. Nixon. But the nutritional content of the testimony yesterday was on the order of saltines, I would say.

HARLOW: Here's what else, Ron, he did not really answer or take a position on, some really big questions.

BROWNSTEIN: Right.

HARLOW: Can a sitting president be forced to respond to a subpoena, right?

BROWNSTEIN: Yes.

HARLOW: Think of the Mueller probe. Can a president pardon himself, for example? Can a president fire a prosecutor who is currently investigating them? But the thing is -- and this is just what's sort of screwy about the process, I think, ever since Robert Bork, I think most American people would say, but no one expected him to answer those things.

BROWNSTEIN: Right. I mean, look, I mean to the fact that he would not, you know, engage even at that level of the president pardoning himself, you know, I think is going to deepen the concern among those who went into this believing that he was chosen in part because of his deferential view toward executive power and that was a principle reason why he stood out among the others on the Federalist Society list to President Trump.

But, you're right, I mean we -- you know, this has become simply -- I mean the court is at risk at becoming seen as simply another arena in the red/blue divide because you have -- you have the nominees, you know, from one party -- we saw at the end of the last session, the succession of 5-4 votes that were, you know, basically five Republican justices voting against four Democratic justices. A potentially virtually party-line vote here, although if he does have the 50 votes, it's likely that some of the red-state Democrats will vote with him in the end.

And the likelihood that this will kind of roll forward now, you know, potentially -- Clarence Thomas is, what, 70? So it could be 15 more years of a Republican majority court, 5-4, regardless of what happens politically. And I do believe that this is a fuse that is being it that will go off some time in the 2020s, just as the four horsemen fable appointed by Republican justices -- presidents in the early 20th century ultimately blew up in the 1930s. A conflict is coming between a diverse Democratic majority and a Republican majority is the court that is rooted in the parts of the country least affected by the changes that are remaking America.

[09:40:12] HARLOW: And, look, one of those red state Democrats that is so critical right now that you bring up is Senator Joe Manchin of West Virginia. Here's how he put it yesterday. Both sides have been deplorable in how they have handled themselves. That's what makes people sick.

Gentlemen, thank you for being here. Appreciate it.

BROWNSTEIN: Thank you.

HARLOW: We'll see you next hour, Jeff. Fair to say their relationship has been hot and cold. Well, this

morning, the president is thanking Kim Jong-un for his, quote, unwavering faith. Are we closer to a deal to denuclearization, next.

(COMMERCIAL BREAK)

HARLOW: All right, let's take you live now to the confirmation hearing for Judge Brett Kavanaugh to be the next Supreme Court justice. Democratic Senator of New Jersey, Cory Booker.

[09:44:54] SEN. CORY BOOKER (D), NEW JERSEY: Is a bit of a sham that we are now -- this has never been done before, we are holding back not only -- not only holding back documents labeling committee confidential, but not even giving us the time to review those documents.

In addition to that, this is just the tip of the iceberg of all the documents that will continue to be released, I assume, up until the time that we have a vote on the Senate floor and beyond that.

Do you -- I'm sure you can understand, sir, how it puts all of us in a very difficult situation when it's not you, it's not -- it's somebody you have to go -- then go back to a person named Bill Burke to decide if some document -- who is an associate -- who is an associate and colleague of the nominee -- to figure out which documents are going to be released.

And I -- I -- if -- if -- and by the way, if these -- all these documents were things, as you characterized them, they were personal information, if these were things that were delicate information, but as I read these, the documents we got the night before the hearing, including the ones we got before the hearing, I find that -- I'm -- I'm actually flabbergasted that so many of these things are not controversial whatsoever, but bring up pertinent issues that we should have a time to digest and to ask the candidate about.

SEN. CHUCK GRASSLEY, R-IA.: (inaudible)

SEN. JOHN CORNYN, R-TX.: Mr. Chairman.

GRASSLEY: I think -- can I -- I'll call on you, but can -- I think I ought to respond to the senator. I'd like to respond in -- at least on two points.

One, the word "sham."

Senator Leahy, chairman of the committee, accepted documents committee confidential. During Gorsuch nomination, we accepted committee documents -- committee confidential. At that particular time, Senator Feinstein asked for 19 documents, as we're getting documents for you now in the same way.

So you read from my letter and you called it a sham. Was it a sham when we did it for Gorsuch? Was it a sham when we -- when Senator Leahy did it? And the reason we did it is so that we could get documents so you

could review them almost from, I think, August the 5th or sometime -- maybe it was August the 10th -- so you could start on it very early.

And then don't forget that documents come committee confidential, and then don't forget on a regular rolling basis they're not committee confidential and then put on our website, so that 300 million people can view them if they want to.

And then, the second point about the lawyer for President Bush, all of our conversations last night were with the Department of Justice. Now, I hope you understand that these people in the Department of Justice are people that are there for years under both Republican and Democrat administrations.

They're supposed to be non-political, I hope they're non-political, they're civil servants. We ought to respect their judgment as they try to take care of the privacy of people by redacting late into the night Social Security numbers, phone numbers, cell numbers and all those sorts of things.

Senator Cornyn, and then we also have Senator Whitehouse, but I want to go and let him comment.

SEN. RICHARD BLUMENTHAL, D-CT.: Senator Grassley, may I be recognized after Senator Whitehouse?

GRASSLEY: Yes.

CORNYN: Mr. Chairman, thank you.

I was disappointed to see last night that some of our colleagues are unwilling or unable to conduct themselves in this hearing with regular order in accordance with the rules of the committee and the rules of the Senate.

I know last night some of our colleagues even tried to cross-examine the -- the nominee about documents, but refused to let him even read them. Members of the Senate and members of Congress generally are privy to sensitive information, including classified information on occasion. And we're expected to protect that information for all of the obvious reasons.

And it's inappropriate to raise these in an open session before the committee. And I think our colleagues understand that; but, nevertheless, decided to go ahead anyway. So I just think it's important that we remind one another that there are clear rules about the discussion of confidential material and that there can be consequences to the violations of those rules.

And this idea that somehow President Bush, when his lawyer and the president decide that information represents legal advice or other protected information that was given to the president during the time he was President of the United States, and that somehow he is unable to make a claim of privilege or that once the claim is made in consultation with his private lawyer that it -- that would be not respected by the Senate is outrageous.

[09:50:00]

And so, I just -- I thought we were doing pretty well yesterday, but things went off the rails it looks like last night. And I hope we will return to a hearing process that respects the rules of the Senate and that treats each other and particularly the nominee with the civility that he and this process is entitled to.

And I'd encourage our colleagues to avoid the temptation...

GRASSLEY: Yes.

CORNYN: ... to either violate the Senate rules or to treat the witness unfairly by cross-examining him about a document, and refusing to show it to him, and violating the confidentiality of some of these documents as requested by President Bush in consultation with his private lawyer.

SEN. CORY BOOKER, D-NJ: Sir, may I respond? Because it was a direct -- it was directly...

GRASSLEY: Yes.

BOOKER: ... invoking -- may -- may I respond, sir? No Senate rule accounts for Bill Burke's partisan review of the documents. No Senate rule and no history of the Senate accounts for what is going on right now.

The -- the -- there was a -- that -- that was following this archives' partisan -- this partisan operative, following his involvement in this process, that, I think, in my opinion, undermined the process. And the idea that we could somehow go through your lengthy process in these documents -- or, many of these documents were dumped on us in the last minute.

But to -- Senator Cornyn actually made a very good point. I knowingly violated the rules that were put forth. And I'm told that the committee confidential rules have no consequences.

And so, sir, I come from a long line, as all of us do as Americans, who understand what that kind of civil disobedience is, and I understand the consequences.

So I am right now -- before your process is finished, I'm going to release the e-mail about racial profiling, and I understand that the penalty comes with potential ousting from the Senate. And if Senator Cornyn believes that I violated Senate rules, I -- I openly invite and accept the consequences of my team releasing that e-mail right now.

And I'm releasing it to expose that, number one, the e-mails that are being withheld from the public have nothing to do with national security, nothing to jeopardize the sanctity of those ideals that I hold dear.

Instead, what I'm releasing this document right now to show, sir, is that we have a process here for a person -- the highest office in the land, for a lifetime appointment. We're rushing through this before me and my colleagues can even read and digest the information.

GRASSLEY: Can I ask you...

BOOKER: This -- and I want...

GRASSLEY: Can I ask you how long you're going to say the same thing three or four times?

BOOKER: No, sir. I'm saying...

GRASSLEY: How long do you want to take?

BOOKER: I'm saying I'm knowingly violating the rules.

GRASSLEY: OK.

BOOKER: Senator Cornyn has called me out for it...

GRASSLEY: How many time do you want to tell us?

BOOKER: I say -- sir, I'm saying right now that I'm releasing committee confidential documents.

CORNYN: Mr. Chairman...

BLUMENTHAL: Mr. Chairman...

CORNYN: ... since the senator invoked my name...

GRASSLEY: Can I -- can I...

CORNYN: ... I do insist on an opportunity to respond.

GRASSLEY: Yes...

CORNYN: I did not mention his name...

GRASSLEY: OK.

CORNYN: ... but he had mentioned my name.

And he's right: Running for president is no excuse for violating the rules of the Senate or of the confidentiality of the documents that we are privy to.

This is no different from the senator deciding to release classified information that is deemed classified by the executive branch because you happen to disagree with the classification decision.

That is irresponsible and outrageous. And I hope that the senator will reconsider his decision, because no senator deserves to sit on this committee or serve in the Senate, in my view, if they decide to be a law into themselves and willingly flout the rules of the Senate and the determination of confidentiality and classification. That is irresponsible and conduct unbecoming a senator.

(UNKNOWN): Mr. Chairman...

GRASSLEY: Well, just a minute.

(UNKNOWN): Mr. Chairman...

GRASSLEY: I've got something I want to say.

I think we ought to be thinking about this is the last -- I've got three senators are asking for -- Senator Kennedy, Senator Whitehouse and senator from Connecticut...

SEN. MAZIE HIRONO, D-HI.: Mr. Chairman, I would like...

GRASSLEY: So...

HIRONO: ... to also be recognized.

GRASSLEY: So here's -- this is the last day. So here's something you got to think. We'll be here till midnight if you want to be here.

But I've been told that the Senate minority leader or somebody in the Democrat Party invoked the two-hour rule. So if the two-hour rule is invoked, you've -- nobody on this committee, (inaudible), is going to have an opportunity to do what they want to do today because this is the last day he's going to be here. And -- and so, I hope you don't invoke the two-hour rule.

So if you want to talk now before I start to ask my questions, I'll do it.

[09:55:00] Senator Whitehouse was the next one and then Senator Kennedy.

SEN. SHELDON WHITEHOUSE, D-RI: Thank you, Mr. Chairman. And...

HIRONO: Mr. Chairman, I'd also like to be recognized because I am in a similar situation as my colleague...

GRASSLEY: I'd like to recognize Senator Whitehouse.

I think -- I think he asked before you did.

SEN. JOHN KENNEDY, R-LA.: He did.

WHITEHOUSE: Mr. Chairman, you recognized me for 30 seconds and I will take 30 seconds.

Lest silence implied consent, speaking for myself, I want to make it absolutely clear that I do not accept the process of this committee confidential routine that we went through. I do not accept its legitimacy. I do not accept its validity.

Because I don't accept its legitimacy or validity, I don't accept that I'm under any obligation. I've not made a big fight about this. I've just gone ahead with my questioning.

But again, lest silence implied consent, I think that that rule is as ineffectual as if the chair had unilaterally appealed the law of gravity. It simply isn't so.

I haven't agreed to this rule. I haven't voted on this rule. This rule does not exist in our committee or Senate rules, and I'll leave it at that.

GRASSLEY: Did you...

WHITEHOUSE: Just me speaking, I am not willing to concede that there is any legitimacy to this entire committee confidential process in this hearing if...

GRASSLEY: Was it...

WHITEHOUSE: ... nothing sensitive, nothing personal, nothing classified, and nothing confidential has been released.

GRASSLEY: Was -- did you object to it when it was previously used under other Supreme Court nominees?

WHITEHOUSE: It was developed then through a bipartisan process...

SEN. DIANNE FEINSTEIN, D-CA.: That's correct.

WHITEHOUSE: ... in which only (inaudible) reached...

GRASSLEY: OK.

FEINSTEIN: That is correct.

GRASSLEY: OK.

WHITEHOUSE: ... an agreement by unanimous consent effectively, not by decree.

FEINSTEIN: No, there was agreement between...

GRASSLEY: OK.

FEINSTEIN: ... the chairman and the...

WHITEHOUSE: Precisely.

GRASSLEY: And you...

WHITEHOUSE: And that did not exist this time. And now you have documents that are not personal, not classified, not confidential, not sensitive that are nevertheless covered under this.

GRASSLEY: Senator Kennedy?

KENNEDY: Mr. Chairman, I was in the chair last night when this issue came up. I made the call, and I wanted to explain why I made it. Senator Tillis, my colleague, raised the point. I allowed Senator Booker to continue. Sometimes patience ceases to be a virtue, but I didn't think in these hearings following the chairman's example that that was -- that was appropriate.

Senator Booker examined Judge Kavanaugh about the racial disparities in this country. I gave Judge Kavanaugh, I think it was 6 minutes and 39 seconds to respond uninterrupted. So I was trying to be -- and will continue to that -- was trying to be fair to both sides, following the example of our chairman.

GRASSLEY: Senator Blumenthal (inaudible)?

BLUMENTHAL: Thank you, Mr. Chairman.

There's been a lot of commentary over the last couple of days about how we are in uncharted and unprecedented territory here, that the process has broken down, reflecting what is happening in our nation generally. And particularly in the last couple of days with the publication of a new book and an op-ed that indicate very serious chaos and break down in other parts of government.

And I'm hoping that we can come together as a committee, and if there are any rules, do what we've done in the past, which is adopt them on a bipartisan basis. That's been the way that committee confidential designation.

It's not classification. There's no classified documents here. It's a designation. It's an arbitrary and seemingly capricious designation, designed to spare people embarrassment possibly. But all these documents belong to the people of the United States. They're covered by the Presidential Records Act and eventually they will come out.

So shame on my colleagues if they conceal them now and deny us the benefit of questioning this nominee who comes before us for the last time today. He comes before us for the last time today. This is our last opportunity, up or down, whether he's confirmed or not, to question him.

And like any trial lawyer (ph), documents have to be assessed as the trial goes on, as this witness responds to our questions. We can't give the chairman a list of what documents are relevant before we hear his answers and our colleagues' questions.

So not only from the standpoint of there being no basis for the rules, but also to deny the fairness and effectiveness of the process , That's the reason that we're making this protest and we are here under protest. That's the reason why I asked to adjourn so that we could consider fairly all of these documents. I appreciate that Senator Grassley has decided to release the --

[09:59:59]