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Confirmation Fight for Kavanaugh; Michael Flynn in Court; Page on Capitol Hill Tomorrow; Judge Rejects Bid to Alter Rules. Aired 9:30-10a ET

Aired July 10, 2018 - 09:30   ET



[09:33:15] POPPY HARLOW, CNN ANCHOR: Let the battle begin. One hour from now, Senate Democrats are expected to be on Capitol Hill rallying against President Trump's Supreme Court Nominee Brett Kavanaugh. So let's learn more about who he is.

Joining me now, Steve Vladeck, CNN contributor, professor of law at the University Texas Law School, and Luke McCloud, a former clerk for Judge Brett Kavanaugh, recently, in 2013 and '14.

It's nice to have you both here.

And, Steve, let me begin with you because you note that if confirmed he would move the court, in your words, meaningfully to the right. But you also talk about what you say are exceptionally rare cases where he could be a vote, a Kennedy vote, right, and could be the savior of the liberals. He clerked for Kennedy. How much, though, is he like Kennedy?

STEVE VLADECK, CNN CONTRIBUTOR: Yes, I mean, I think, Poppy, that's a great question. And I think dispositionally, I mean they're both, you know, fine scholars. They're both, you know, thoughtful people, great people to work for.

I think the differences are in how they approach these kinds of cases. You know, Justice Kennedy was the median vote on the Supreme Court for so long because he really didn't hew to sort of clear, bright-line rules for how to interpret the Constitution --


VLADECK: For how to resolve separation of powers cases. He was what we call a functionalist. He really thought pragmatic consideration should matter. There were prudential concerns he would take into account.

You know, Judge Kavanaugh is much more of what we might call a formalist. He really does think the Constitution draws bright lines, especially between the three branches of government, between the federal government and the states, and that formalism tends to lead to results that may seem less pragmatic, results that may seem sort of sharper, makes him look, I think, a lot more like a Justice Scalia than a Justice Kennedy.

HARLOW: Luke, interestingly, you clerked for Kavanaugh, but you say that you personally lean left politically but do not have any concerns about him that he legislates from the bench, that he leans politically in his rulings.

[09:35:07] LUKE MCCLOUD, FORMER CLERK FOR JUDGE BRETT KAVANAUGH 2013- 2014: That's right. I think regardless of your political views, you can be comfortable with Judge Kavanaugh being confirmed to the Supreme Court. I think Steve is right that Judge Kavanaugh has certain core commitment that he carries with him across all cases. But I also know from my personal experience working with him that he approaches each case individually and fairly. He is extraordinarily fair minded, always interested in learning the best arguments for both sides regardless of what the issues or who the parties are.

HARLOW: Yes. So on that point, there are some concerned that, you know, part of his life is as a judge and part of his life has been and worked as a political operative, right? In the Bush White House he was the lead author on the Ken Starr report that -- you know, on Monica Lewinsky and President Clinton, laying out the grounds for impeachment.

Chuck Schumer described him back in 2003, when he was first up for confirmation to the D.C. circuit, as, quote, not just a drop of salt in the partisan wounds, but the whole shaker.

So you think he's wrong, Luke?

MCCLOUD: I do think that he's wrong. I think you can look back at Judge Kavanaugh's record over the past 12 years and see that this is not somebody who approaches the job of judging as a partisan. He is someone, like I said, who really tries to get the law right based on his understanding of what the law requires. And he's going to give a fair hearing to everyone who's involved in the case.

HARLOW: Steve, we have heard from him in his confirmation hearings about Roe v. Wade. And recently, in the last few months, in the decent he wrote in a Texas abortion case. We don't know much about -- or anything about where he stands in -- on gay rights, on same-sex marriage, but what do we know on abortion and Roe specifically?

VLADECK: Yes, and that's -- I mean, I think, Poppy, it's worth keeping in mind, you know, the D.C. circuit, even though it is, in many ways, the most powerful federal appeals court in the country, it also has a bit of a strange docket. It doesn't get a lot of the hot button divisive social cases. It has virtually no immigration docket. It has a very limited criminal docket. So there actually are a lot of issues where Judge Kavanaugh just hasn't written nearly as much as some of his other colleagues on the circuit bench.

HARLOW: Right.

VLADECK: With regard to abortion in particular, I mean the Texas case you mentioned, you know, the issue was such a specific question about procedure and about whether the government should be allowed time to try to make arrangements for minor pregnant women in immigration detention. So I don't know that we can read too much one way or the other.

I don't think Judge Kavanaugh is a blank slate. I mean I think he has, as Luke mentions, a series of pretty hard core commitments that's going to govern, you know, how he approaches the cases that come before him.

HARLOW: Right.

VLADECK: But, you know, I think part of why the White House might have been attracted to him is because on those big social button cases, you can't point to that many of his decisions and say, look, it's clear he's going to rule this way versus that way.

HARLOW: Right.

And let's talk, Luke, about what he said last night about women. I noted specifically when he said, and by the way, the majority of my clerks have been women." And I was thinking, who's he trying to send a message to? I mean is he messaging here to some of those key votes that could swing against him on the Republican side to Lisa Murkowski, to Susan Collins? What did you read in him saying that?

MCCLOUD: I don't think it's a message at all, Poppy. I think that it is just one of his commitments as a judge and it's been shown through his clerk hiring he's very committed to diversity in the legal profession, both in terms of gender diversity and racial diversity as well.

The year after I clerked, he hired four women for the four clerk spot that he had, which is virtually unheard of in terms of a federal judge hiring. So I think he's somebody who has shown a demonstrated commitment to making sure that underrepresented individuals in the legal community get opportunities and get the sort of mentorship and career advancement opportunities the clerkships provides.

HARLOW: As you know, there was just that big report on the lack of diversity among clerks in the Supreme Court. So it's a very important issue.

Thank you both.

Luke, nice to have you.

And, Steve, thanks for being here.

VLADECK: Thank you.

HARLOW: So we do have breaking news.

Former National Security Adviser Michael Flynn just arrived at a U.S. district court in Washington, D.C. This is the first appearance since he admitted to lying to investigators in the Russia probe back in December. This is essentially a status hearing, but we'll bring you more as we have it. A quick break. We'll be right back.


[09:43:26] HARLOW: Moments ago, President Trump's former national security adviser, Michael Flynn, arrived at court. This is the first time we've seen him publicly since he admitted to lying to investigators in the Russia probe back in December.

Let's go to our chief national security correspondent Jim Sciutto, who joins us with more.

So this is essentially, Jim, a status hearing, but it's important because it comes in the context of the Mueller team asking for, I think, a two-month delay, right, to sentence him, indicating what?

JIM SCIUTTO, CNN CHIEF NATIONAL SECURITY CORRESPONDENT: That's right. Well, interesting, the Mueller team and Flynn's lawyers asking for a delay here.


SCIUTTO: And that little walk we saw him do, we haven't seen Flynn in that context since December when he pleaded guilty to making false statements to the FBI. So now he's back.

The judge, in effect, saying, guys, why haven't you sentenced this guy yet? It's been seven months since he plead guilty. What's happening here?

And reading between the lines, it appears that what's been happening is that Michael Flynn has been talking to Robert Mueller as part of his larger Russia investigation. In fact, he agreed to cooperate with that investigation. And it sounds like the special counsel wants to keep that line of communication, as it were, open, as he continues his investigation.

Now, the judge here, interestingly enough, is a Democratic appointee, he's a Bill Clinton appointee. He traditionally has had some schism about prosecutors and how far they go. So he's saying, listen, you know, basically put up or shut up here. You know, he's pled guilty to a crime. When are you going to sentence him? The special counsel, understandably, wants to keep his options open.

[09:45:01] HARLOW: Right. And we also know, Jim, this week, Lisa Page, who no one has heard from, but we've heard her name over and over again because she's the former FBI lawyer who texted with Peter Strzok those anti-Trump messages, is expected on Capitol Hill this week, right? I mean what's going to happen?

SCIUTTO: That's right. Well, listen, Republicans on Capitol Hill, they want to continue to focus on this -- these text massages back and forth between Strzok and Page. Remember that they were having an extra marital affair and texting each other on their government cell phones. And in additional to personal messages, they were expressing criticism of President Trump during the campaigns. And Republicans have said that this is evidence that the entire Russia investigation is politically motivated.

Now, of course, there are many dozens of people working on that Russia investigation. Strzok had a senior role in it. So these messages certainly embarrassing for the prosecution of this. But we should also note that when these text messages came out, Robert Mueller immediately moved to have Strzok removed from that investigation.

But, listen, this is a line of arguments that has worked for Republicans, it's worked for the president to latch on to these text messages and therefore declare the entire Russia investigation as somehow biased against the president.

HARLOW: So she's -- I know Strzok is testifying publicly. She is as well?

SCIUTTO: Oh, will her testimony be public? That's interesting.


SCIUTTO: We'll check whether, is it private or public session. I -- you know, the key -- it's a key question because will that -- you know, if it's not public, will the contents of her testimony later be leaked?

HARLOW: Right.

SCIUTTO: But it's a key question. I'll find out for you, Poppy.

HARLOW: All right. Thank you, Jim.

SCIUTTO: Thank you.

HARLOW: All right, today's the deadline for the federal government to reunite migrant children under the age of five with their parents. Only about half of those reunions, though, are actually going to happen today. Why is that? Next.


[09:51:24] HARLOW: I should note, the ever-diligent Jim Sciutto just got back to me in the break and said the Lisa Page testimony tomorrow before the House Oversight and Judiciary Committees will be behind closed doors. So we'll see if they push for a public hearing with her as well as we'll get from Peter Strzok on Thursday.

Meantime, more than 50 migrant children under the age of five are expected to be reunited with their family today. The federal government faces a deadline to reunite all children under five. Today is that deadline. But only about half those are going to happen.

This as a federal judge soundly rejects a request by the Trump Department of Justice to change a rule that would allow them to detain the children with their families even longer.

Miguel Marquez joins me in Harlingen, Texas, with the latest.

So a few things to get through here. First, Miguel, what do you know about how these reunions are going to happen today?

MIGUEL MARQUEZ, CNN NATIONAL CORRESPONDENT: Well, we know that parents and children have been moved in close proximity to each other across the United States, in different states, different locations across the United States. And at some point today, they will be brought together by DHS or ICE, and then they will be released, it sounds like, in large part, to groups that deal with refugees in those localities. Some may be detained for some time as families by ICE, but it sounds like most of them will go free. This is essentially what happens in the immigration process when families come across to begin with. So we've gone through all of this only to end up sort of where we began with this.

But we expect those reunifications to start happening fairly soon across the country. The Department of Homeland Security has said that it would brief the reporters later in the afternoon about how it all went. So presumably in the next several hours, all of this will be done.


HARLOW: And this, Miguel, comes on the heels of, you know, a pretty scathing statement from this federal judge slapping down the administration's request to basically modify the Flores settlement, which says you can only keep kids detained for 20 days. The White House wanted that changed. It's not going to happen now.

MARQUEZ: Precisely. So this was a 1997 agreement that sort of controlled how families are treated in detention. The Trump administration said it needed to hold families for the pendency of their asylum clearing, for the entire time that they were claiming asylum. The judge called it several things. It's a little -- it's amazing to see what the judge said. Called it a tortured interpretation of Flores, called it cynical, and said that they were only in this position because of an ill-considered executive action, referring to zero-tolerance policy. So the judge slapping that down in no uncertain terms, saying that Flores stands, it is the rule of law, and you can't just come to the judiciary and try to change everything with numbers on border crossings, with concerns about immigrants not showing up to court. The judge saying all of your assumptions are absolutely wrong.


HARLOW: And pointing to Congress and the White House to fix this mess.

Miguel, thanks for the reporting.

At least 155 people have now died in this week's flooding and landslides in southwestern Japan. Dozens are still listed as missing or unaccounted for. Japan's prime minister, Shinzo Abe, has ordered thousands of police, firefighters, and military personnel to conduct huge search and rescue efforts.

[09:54:53] And a miracle this morning in Thailand as all 12 boys and their soccer coach are rescued from that flooded cave. We'll bring you the live developments, next.


HARLOW: Good morning, everyone. Top of the hour. I'm Poppy Harlow in New York.

And right now 50 U.S. senators stand between Brett Kavanaugh and the lifetime seat on the highest court in the land. And any second now one of them, arguably the most important one, is due to take the floor. Majority Leader Mitch McConnell is already on record praising Kavanaugh as a superb choice and extremely well-qualified, as well as widely admired.

[09:59:57] He is a veteran of the Bush 43 White House, as is his wife, by the way, and currently sits on the D.C. Court of Appeals. Between now and October, this man will be winning confirmation -- will try to win confirmation for Anthony Kennedy's soon to be vacant Supreme Court seat with a strategy that he previewed at the White House.