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Four Key Undecided Senators Could Decide Kavanaugh's Fate; White House Official: Trump Will Order FBI Probe Into Kavanaugh Allegations; Flake Says FBI Report Could Change His Mind On Kavanaugh; New Kavanaugh Statement Says He Will Continue To Cooperate With The FBI. Aired 4:30-5p ET

Aired September 28, 2018 - 16:30   ET



[16:30:25] JAKE TAPPER, CNN HOST: Welcome back.

As of right now, it is down to four senators, ultimately, to decide whether or not Judge Brett Kavanaugh will be confirmed as the next Supreme Court justice. These are the ones who are undecided about whether or not he should be confirmed. Two Republicans, Susan Collins of Maine, Lisa Murkowski of Alaska, and two Democrats, Joe Manchin of West Virginia, and Heidi Heitkamp of North Dakota. Both the Democrats are up for reelection this November.

Here's why their votes matter. Republicans hold just a 51-49 majority in the U.S. Senate that Republicans can only afford to lose one vote and still get a tie, 50-50, which Vice President Mike Pence then breaks. If two Republicans vote no, the Kavanaugh confirmation is over. But they could get help from these two Democrats if they vote yes.

It is confusing and who knows what's going to happen. Of course, there's also Jeff Flake. But ultimately, I have to say, unless the FBI investigation comes back with something conclusive, he really does sound like somebody who wants to vote for Judge Kavanaugh.

PAUL BEGALA, CNN POLITICAL COMMENTATOR: Well, he's already put out a statement saying he's going to.

TAPPER: Right.

BEGALA: He voted for him in the committee but then has now halted the process for a week. I think that's the safest bet. We don't know what the FBI is going to come back with though. He has clearly showed today he is open to changing if there is new evidence. In this case, new process concerns.

TAPPER: The Judiciary Committee gave Collins a sworn statement from Kavanaugh's friend from high school, mark judge. She questioned why the committee didn't get a subpoena and force him to testify under oath.

She could get anything she wants, really, from the committee, if she wanted to. Do you think Mark Judge's subpoena -- I mean, sworn testimony to Susan Collins saying he doesn't remember anything, he never saw Brett Kavanaugh behave this way, is that going to be enough for her? And how do you think ultimately she's going to go?

RICK SANTORUM, CNN SENIOR POLITICAL COMMENTATOR: Look, I've known Susan for a long time, I've known Lisa for a long time.

TAPPER: Murkowski.

SANTORUM: Murkowski for a long time.

And they are very, very much sticklers for process. They believe that is a very important thing to show the thoroughness of the investigation. For example, health care, for example. Last year, one of the reasons Lisa Murkowski and Susan Collins didn't vote for it, they had concerns about the process. Was it open? Was it -- and this is a constant issue with them. And it's a legitimate issue.

We have to have the appearance, as well as the reality, that we have done our job. That we have given people -- given the American people the opportunity to participate in the debate, to -- and in this case, to get all the information, to go through the regular channels, and that we shouldn't be shortcutting things, because it undermines the -- the institution. And I think they're very concerned about that. And they should be concerned about.

So, look, this was an important thing for the leadership to hold back on, and to be able to offer to Senator Murkowski, to Senator Manchin and Senator Collins and as well as Senator Flake, because it's important to them and it should be important to them.

TAPPER: So, Collins represents a state that is trending Democratic, Maine. Murkowski represents a state that has a Democratic governor, or an -- rather an independent governor, and a Democratic lieutenant governor who opposed Kavanaugh. Their home states might not be as pro-Kavanaugh as the states as Arizona and others.

MARY KATHARINE HAM, CNN POLITICAL COMMENTATOR: Right. I mean, it's an -- it's an out for them if their states are not super in favor and people aren't knocking on their doors. But they're concerned about process. They get through this.

If the facts on the ground haven't changed, it's hard to make an argument, I think, that this meets a standard, that any person, Democrat or Republican, that it should disqualify them. If it remains the fact that there are no contemporaneous reports and no corroboration of this, and if they talk to the rest of the people at the party and they -- the FBI does, and they reaffirm what they have said, particularly the female friend who says she didn't know Brett Kavanaugh.

TAPPER: Leland Keyser.

HAM: Right. I don't see how that meets a standard for anyone. And I swear to you, I would say the same thing who is a Democrat in the situation, even if I didn't like their jurisprudence. It's just -- TAPPER: Senator Turner, take a listen to Lisa Murkowski, the senator

from Alaska, who is in favor of this delay. Just moments ago, talking about her feelings about it.


REPORTER: Senator Murkowski, how do you feel about what has been agreed to?

SEN. LISA MURKOWSKI (R), ALASKA: I think it was a good step today.

REPORTER: Thank you.

MURKOWSKI: Thank you!

REPORTER: Safe travels.


TAPPER: Having to close your door with the pesky reporters around.

But you have Murkowski and Collins. This, actually, assuming that more information, more damning information, doesn't come out from this FBI investigation, this might make it easier for Collins and Murkowski to vote yes.

[16:35:10] Because at the end of the day, if there is a delay and nothing comes back, they can say, you know, we went -- we bent over backwards to make sure that professor ford was heard.

NINA TURNER, CNN POLITICAL COMMENTATOR: I mean, just the pure politics, absolutely. It might make it easier. But then again, it might not. And so, that's why this FBI investigation is vitally important.

And at some point, you know, I would like to think that the American people would like elected officials to do something that is bigger than their calculus of whether they're going to win that election again. Now that might be a bridge too far, asking politicians to do that. But this particular situation -- you know, when I heard Senator Lindsey Graham, for example, talk about how he voted for, you know, Justice Kagan and --

TAPPER: Sotomayor, yes.

TURNER: And Justice Sotomayor. Well, they weren't accused of rape or attempted rape. Let me be clear here.


TURNER: Was not.

So for him to vote for them was easier than what is being brought to bear here. And let the facts go where they are.

SANTORUM: Whoa, whoa, whoa. Only one, two or maybe three Democrats are going to vote for Judge Kavanaugh before any of these things came out.

TURNER: Yes, purely on their belief and how he would be a judge.

SANTORUM: And that's what's Lindsey's point was.

TURNER: Right.

SANTORUM: Lindsey's point was, unlike you, I don't agree with Kagan. I don't agree with Sotomayor.

TURNER: It's not the same though. It's not the same situation.

SANTORUM: Yes, it is the same.

TURNER: No, it's not the same situation.

SANTORUM: Yes, it is the same situation because he was going to -- he voted --

TURNER: It's not the same situation.

TAPPER: I think he's talking -- he's saying that Lindsey Graham was saying this before the allegations, regardless of the allegations.


TURNER: But he brought it up --

HAM: He's also saying he wouldn't have handled it so cynically as Democrats undoubtedly have and did for two months and that is not a fair thing.


TAPPER: I want to ask -- let me ask you, Paul, about Heidi Heitkamp, who's up for re-election in North Dakota and Joe Manchin who's up for re-election in West Virginia. Isn't it an easier thing for them to get to yes after this FBI investigation, because they can bend over backwards and, again, they represent Trump states.

BEGALA: Yes. But I believe they already voted for Justice Gorsuch.

TAPPER: Both of them did, yes.

BEGALA: So, now, Joe Donnelly today, from Indiana said, yes, I voted for Gorsuch. I can't be for this guy. I actually think that gives them more outs.

HAM: I think it's harder for him if they don't turn anything up.

BEGALA: I'm sorry?

HAM: I think it does get harder for Donnelly if they don't turn anything up.

BEGALA: No, here's my point. See, this is where -- it won't for every senator turn on the FBI investigation. Lisa Murkowski represents Alaska. Many native Alaskans have a terrible problem with some of Judge Kavanaugh's rulings, separate and apart from whether he committed sexual assault. That's an important part of Senator Murkowski's base.

Joe Manchin is running for re-election, he's going to win, on preexisting conditions, the health care bill. If you can persuade him that Judge Kavanaugh becomes Justice Kavanaugh and takes away people's right to insurance after preexisting -- nothing to do with the FBI.

So, this gives opposition more time to work these senators on local and state issues, and national issues, separate and apart from whether he lied under oath at the Senate yesterday or whether he committed sexual assault 30 years ago.

TAPPER: All right.

HAM: What Republicans are worried about is a bit cynical --

TAPPER: With the drama unfolding on the Hill, everyone anxiously awaiting President Trump's reaction to this new proposed delay. What he said might surprise you. Stay with us.


[16:42:42] TAPPER: Major developments this hour. The Senate will now wait a week before voting on Judge Brett Kavanaugh. And Republicans have agreed to let the FBI investigate the allegations against President Trump's Supreme Court nominee.

President Trump this afternoon saying he is willing to do whatever Republican senators deem necessary to move the confirmation forward.

CNN's Jeff Zeleny is at the White House.

And, Jeff, I understand you have some breaking news on this.


A White House official told me a few moments ago the president is indeed going to authorize and order the FBI to do a supplemental background investigation. He is indeed following the wishes of the Senate Judiciary Committee here, giving a one-week period of time. So, the president is going to sign off on that, I'm told. But it was 10 days ago exactly when the president said the FBI doesn't do that kind of thing. Tonight, he's asking them to do just that.


ZELENY (voice-over): President Trump showing unusual restraint today, with Judge Brett Kavanaugh facing a new hurdle in his bruising Supreme Court confirmation battle.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Well, I'm going to let the Senate handle that. They'll make their decisions and they've been doing a good job. ZELENY: In the Oval Office, the president taking a rare hands-off

approach to new demands from senators, this time Republicans, that the FBI reopen its background check on Kavanaugh.

TRUMP: They have to do what they think is right. There's no message whatsoever. They have to do what they think is right. They have to be comfortable with themselves. And I'm sure that's what they are.

ZELENY: After accusing Democrats all week of dragging their feet --

TRUMP: They know it's a big, fat con job.

ZELENY: -- the president suddenly being deferential with Arizona Republican Jeff Flake leading the charge and holding the cards on Kavanaugh's fate.

For more than a week, the president has repeatedly dismissed the need for a new FBI probe.

TRUMP: They have investigated about six times.

ZELENY: But today, the president saying he would support an investigation if Senate Republicans asked him to.

TRUMP: I will be totally reliant on what Senator Grassley and the group decides to do.

ZELENY: The president, like millions of Americans, was watching the gripping testimony of Christine Blasey Ford.

CHRISTINE BLASEY FORD, KAVANAUGH ACCUSER: Brett put his hand over my mouth to stop me from yelling.

ZELENY: Calling the hearing very compelling.

TRUMP: She looks like a very fine woman to me. Very fine woman. It was an incredible moment I think in the history of our country. But certainly she was a very credible witness.



ZELENY: So the president also, though, says today he is standing firmly behind Judge Kavanaugh.

And when he was asked if he's making any type of a backup plan at all for any type of second nominee, should this fail, the president said this, Jake. He was very clear. He said: Not even a little bit, not even a little bit.

But we do know of course, he has a list already of people who are ready to go. But the White House is standing by Judge Kavanaugh on this. But Jake, this is not what they expected. They expected a triumphant day here going into that weekend vote. Now, another week of uncertainty. Jake? TAPPER: All right, Jeff Zeleny with the breaking news there. And it is really remarkable how much things have changed. Now there's going to be an FBI investigation. Now there's going to be a one-week delay. And in fact, it was just yesterday that it feels like three years ago, that Senator Chris Coons of Delaware asked Judge Kavanaugh could you -- I mean what's the worst thing that happens if we wait a week and do an FBI investigation? Take a listen.


BRETT KAVANAUGH, NOMINEE, SUPREME COURT JUSTICE: When you say a week delay, do you know how long in the last ten days have been?

SEN. CHRIS COONS (D), DELAWARE: Probably an eternity but in the Judge Thomas confirmation hearing --

KAVANAUGH: I've crossed every day --

COONS: -- is a four-day delay.

KAVANAUGH: It's been a lifetime.


TAPPER: Every day has been a lifetime and he didn't want an FBI background check. Although he said he'd do whatever the committee wanted. Now, a week delay and an FBI investigation.

MARY KATHARINE HAM, CNN POLITICAL COMMENTATOR: Yes, I mean, the that could happen to him is that more unsubstantiated claims of running a say a gang rape ring when you're 14 come out and our uncorroborated and nonetheless trumpeted everywhere. That's what could happen to him and his family in the seven days which I think is why he's he was understandably hesitant about it.

But look, I do think this has the potential if it -- like I said, I think the lion has to be bright. If they're -- if people are concerned about process, the process should end at the date they have designated because an open-ended thing, I don't think gets us anywhere.


HAM: At the end --

SANTORUM: Maybe less than seven days.


HAM: At the end of the seven days, we might have a slightly better --

TAPPER: And I mean to say we just got some breaking news. Senator Jeff Flake just said that the FBI report could change his mind. Obviously, we don't know what the FBI report will say.

SANTORUM: It changes everybody's mind.


NINA TURNER, CNN POLITICAL COMMENTATOR: -- seem so functionary. Again, not to say that people don't lie but just the whole -- the gang rape, we just can't play with that. That has happened to women. It continues to happen to women and especially when you're poor, whether you're white, black, yellow, or brown, that kind of stuff happened so I don't want to play with the gang rape stuff even though to be accused of that and to not have done it --

SANTORUM: Ten times.

TURNER: -- it's serious too. But let's not just play with the gang rape thing.

HAM: I'm not playing with that.

SANTORUM: She didn't even use the gang rape thing, other people do.

TURNER: No, I understand. I'm saying it on both sides, that is it's serious so we can't play with that. But at the same time here, the whole notion of this -- again deep-seated sexism and not believing women and the power structures in this country that have suppressed a woman's ability to be able to tell her story generation after generation so all of this is being triggered. Now, some of it may be unfair to Judge Kavanaugh but the fact that the FBI needs to get in there and investigate is absolutely important.

TAPPER: Are you surprised at the measured tone that President Trump took today praising Professor Ford, saying the week delay is fine?

PAUL BEGALA, CNN POLITICAL COMMENTATOR: No, astonished, not surprised.

TURNER: Invasion of the body snatchers.


TURNER: Fear of the invasion of the body snatchers.


BEGALA: This is how we've gone through the looking-glass. Donald Trump right, who's a wild man was measured, and respectful, and -- especially respectful to Dr. Ford. Brett Kavanaugh who's the polished prep school boy who everybody thought was going to be just -- and it tells you he's a saint, just ask him, he came unhinged. He was the one -- he was more Trumpian than Trump. So we've completely gone to the looking glass.

SANTORUM: There's a point I want to make to Nina's point which he said, the Senate Republicans and the President believed her to be a credible person and actually did give her the opportunity. So when I hear these -- and I heard these women going after Senator Flake, they gave this woman the opportunity to present her case and it's not like he disregard it.

TURNER: The whole give -- the giving. They should be doing their job when the --

SANTORUM: They are doing their job. And the --

TURNER: They should have done that in the middle of the summer.

SANTORUM: When you find -- but they found a credible accusation which they believe this was a credible accusation. They -- the opportunity was afforded for Dr. Ford to give that testimony and to speak whenever they went. They gave her the opportunity -- they gave it an opportunity to go out and this was something that was I think really strained --

TURNER: To go out, you mean to --

SANTORUM: Because she didn't seem to think --


TAPPER: -- Grassley to go and talk on California --

SANTORUM: Yes, she didn't seem to know that the committee had given her the offer to have that privately done in Los Angeles.

BEGALA: So let's put Kavanaugh to the Supreme Court because of that? This is a lifetime appointment --

SANTORUM: That's -- no, wait a minute. This is something -- and I don't know if anybody was talking about this. One of the things that really bothered me from yesterday was that her lawyers were not telling her the truth. Her lawyers did not tell her that the committee had given them the opportunity to go out there because she seemed to be shocked, oh I didn't know.

[16:50:01] TURNER: I mean, that's troubling too --

SANTORUM: It's very troubling --

TURNER: But it doesn't change the situation.

SANTORUM: And it shows that Dianne Feinstein who hired these lawyers --

TURNER: No, no, no, she did not hire those --

TAPPER: She recommended Debora Katz. She recommended Debora Katz.

SANTORUM: She recommends these lawyers, and the lawyers clearly withheld information from their client about the ability to keep this --

TURNER: That's separate -- that's separate -- that's separate from this.

SANTORUM: But that's a serious --

TURNER: It's separate.

HAM: Like, conceded your point about years of women not coming forward with good reason and also a person who looks a certain way and lived a certain life because he looks that part should not be karmic retribution for that without some very, very --

TURNER: That's not -- that's not what happening here.

HAM: For some, it is.

TAPPER: All right, now that the White House has ordered the FBI investigation, just white -- what might that look. Like we're going to talk to a former top FBI official with years of experience. That's next.


[16:55:00] TAPPER: We are following breaking news. A white house official says President Trump will order the FBI investigation of allegations against Supreme Court Nominee Brett Kavanaugh. Key Republican Senator Jeff Flake of Arizona who set this all in motion says that that FBI report could theoretically change his mind from yay to nay on Kavanaugh. Let's bring in former FBI Senior Intelligence Adviser Phil Mudd to talk about this. Phil, what could the FBI investigate that might have any sort of consequence?

PHIL MUDD, CNN COUNTERTERRORISM ANALYST: I think there's one substantial question that we missed. The focus so far obviously, has been on trying to get information about what happened at that house party 30-something years ago. Clearly, that's something that will come up in the investigation and that's what the White House is going to charge the FBI were doing.

But let me give you a different perspective. You walk into the FBI to do interviews of people who were there, you're also going to ask about environment. What were people like? And specifically in high school in college, what was Judge Kavanaugh like? What were his drinking proclivities? You're going to ask about his treatment of women, you're going to ask about drugs.

Here's the bottom line, Jake, I think there's a possibility -- I'm not saying this will happen but in any case I witnessed that you get a story from friends that those 30-something years ago that doesn't correspond with the lifestyle story that the judge told in the Senate. That's what we call lack of candor. That's a potential you could see in this investigation well beyond the assault allegations.

TAPPER: We just got a statement in from Judge Brett Kavanaugh that says, "Throughout this process, I've been interviewed by the FBI, I've done a number of background calls directly with the Senate and yesterday I answered questions under oath about every topic the Senators and their counsel asked me. I've done everything they have requested and will continue to cooperate." So he will answer any questions if the FBI has any questions for him. But you're basically saying that the FBI investigation even if they

are told just investigate this one assault charge find out if the allegation is true, if there's anything more we can find out, the FBI might say, well, we didn't find anything on that but we did find out that he was not forthcoming in his testimony before the Senate on X, Y, and Z, and they could still go down that road even though they're told only investigate the allegation?

MUDD: I don't think the two are separate. If you walk into a room, let's say with people who knew him in college or high school and you say there are allegations about how we treated women and those people start to say well, a lot of us don't remember because the entire environment was a beer-fueled environment, everybody was drinking 15 beers and Judge Kavanaugh was, I don't think the two issues are separate.

I could clearly see the investigation heading down towards how confident are we that we can understand what happened in those rooms because everybody including Judge Kavanaugh according to many witnesses had way too much to drink and this doesn't correspond to what we heard Judge Kavanaugh say. I'm not accusing him. I'm just saying this would be a standard investigative question I would ask.

TAPPER: Is one weak enough to investigate any of this?

MUDD: I don't think it is for some simple reasons. Look, you're not just talking about interviewing a bunch of people, you got to find him first, obviously. In cases like this, if it gets he said she said with a lot of witnesses, you got to re-interview. Four people say one thing, one person says another, I want to go back around to them and say why did you say something so profoundly different? If I were the Senate, what you do is call Chris Wray the FBI Director and say how fast can you do it. He's not going to say a month, I think a week, maybe two weeks, three weeks, but a week sounds really fast to me.

TAPPER: So Kavanaugh's high school friend Mark Judge's lawyer says judge will cooperate with a law enforcement investigation. All we've seen from Judge's a sworn statement about the allegation, is there anything the FBI could learn from him that they didn't get from the statement?

MUDD: Oh heck, yes. You learn a lot about what people say and what they don't say. This is why time and multiple interviews is important. If he chooses not to say things about what happens or what happened or what he remembered happened years ago and people in his circle contradict him, he's in trouble. So it's not just what he says, it's what he doesn't say. Be careful.

TAPPER: And what about changing stories? Is it possible? Does it happen in investigations, somebody submits a sworn statement and then they later investigated in the contradict it?

MUDD: Oh, constantly. We lost CIA applicants constantly for changing stories. You say you didn't smoke marijuana in college, six of your college friends say you did, we didn't care if you smoked, we cared about lack of candor, and if you said you didn't and five friends said you did, you're not getting a security clearance, you're out.

TAPPER: All right, Phil Mudd, thank you so much. That's all the time you have. Be sure tune in to CNN to Sunday morning for "STATE OF THE UNION." My guests will be Democratic Senator Amy Klobuchar from the Senate Judiciary Committee. It starts at 9:00 a.m. and noon. Our coverage on CNN continues right now.

WOLF BLITZER, CNN HOST: Happening now, breaking news, dramatic delay. Undecided senators force an extraordinary delay in a final confirmation vote for Brett Kavanaugh with the Judiciary Committee now asking the White House to instruct the FBI to investigate allegations against the Supreme Court Nominee.