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Tropical Storms Heads Towards Gulf Coast; Senate Prepares for Supreme Court Confirmation Hearing for Brett Kavanaugh. Aired 8-8:30a ET

Aired September 4, 2018 - 8:00   ET


[08:00:00] UNIDENTIFIED MALE: This process is a sham before it even gets started?

UNIDENTIFIED FEMALE: John Roberts had a similar job. He had to answer for what he wrote.

UNIDENTIFIED MALE: Twelve years on the D.C. circuit court, Democrats have more than enough information to understand that this is a highly qualified jurist.


UNIDENTIFIED MALE: This is NEW DAY with Alisyn Camerota on John Berman.

JOHN BERMAN, CNN ANCHOR: All right, good morning, welcome to your NEW DAY. It is Tuesday, September 4th, 8:00 in the east. A whole lot about to happen here today. The Senate will begin confirmation hearings for President Trump's Supreme Court nominee Brett Kavanaugh in about 90 minutes. Democrats are upset that some 42,000 pages of Kavanaugh's records inside the Bush White House were handed over to the committee overnight, 42,000 pages. Republicans said they've already had a chance to review them all in just that time. They apparently are very, very quick readers.

We'll hear from Democrats coming up in just minutes when they hold a live news conference. Meantime, the president launched a fresh attack against the attorney general, more importantly, a fresh attack against the idea of impartial and apolitical justice. He criticized the attorney general for investigations and charges that have been filed against two Republican members of Congress. The president upset because these investigations could cost Republicans those seats come November.

ALISYN CAMEROTA, CNN ANCHOR: And of course we're keeping our eyes on tropical storm Gordon that is gaining strength at this hour. It is take aim at the Gulf coast. It is expected to make landfall tonight as a category one hurricane somewhere between Louisiana and Alabama. Two million people along that coast are now under a hurricane watch or warning. We want to get to CNN meteorologist Chad Myers. He has the latest forecast. What's the model saying now, Chad?

CHAD MYERS, CNN METEOROLOGIST: Still moving at right toward the Louisiana-Mississippi border. That would be like Pearl River. So the worst part of the storm, which is the right side of the storm, because that's where most of it is, but that's always the case, the right side is always worse than the left side, is going to be close to St. Louis, to Biloxi, Gulf Port, maybe even toward Dolphin Island, and that's where the 75 mile per hour winds will likely be.

We talked about landfall being somewhere around 10:00. That's not really the real story. The story is your weather is going to start to go downhill around 6:00. That's when the biggest winds may be because that's when you're going to be on the north side of the eye wall. We're already seeing some rain into Apalachicola right now and also points north. You'll get it to Panama City Beach and all the way up towards Destin in the next now hours.

The good news is that the airplane has been flying through this, Hurricane Hunter, only finding 55. It's just not that organized. There's clouds down here, but it's not a central dense overcast that we always look for for a strengthening storm. So maybe it doesn't have time to get to that cat one. We'll see. Still, hurricane warnings are in effect absolutely, and the biggest threat is going to be storm surge, three to five feet into those bays from Bay St. Louis all the way over to Biloxi. That's what will kill you. You need to get away from the water. You can hide from the wind. Get away from the water.

CAMEROTA: Chad, that's an excellent warning for our viewers. Thank you very much. We'll check back as needed. As Chad just mentioned, Gordon is expected to make landfall tonight as a category one hurricane. So how is the Gulf coast preparing at this hour? CNN's Jennifer Gray is live in Gulfport, Mississippi, with more. What's the latest there, Jennifer?

JENNIFER GRAY, CNN METEOROLOGIST: Some people here are getting their boats out of the water and a lot of people are moving inland. The biggest concern is going to be the storm surge. We could get three to five feet of storm surge here. It's a very low-lying area, and so any water that comes up is going to go straight inland. And so here at this marina behind me, everyone has been asked to get their boats out of the water. They have until 2:00 this afternoon. Still several boats here, but we've seen people show up and try to get all of that secure, so not much time left.

The rain is still about 75 miles offshore. The storm still about 200 miles offshore. So we have a little ways to go. That's why you're not seeing rain right now, but conditions will definitely get worse as we go into the afternoon hours, and then especially this evening. We could get four to eight inches of rain. This is right where the storm is expected to make landfall somewhere around here. Schools are closed for the day. The hurricane flags are out along the beaches, and so people are really trying to secure their belongings in the last hour theft before the storm hits. John?

BERMAN: Jennifer Gray down on the gulf coast for us where you've been watching the storm all morning. Jennifer, thanks so much.

The president's Supreme Court nominee faces a grueling Senate confirmation hearing, that begins in just about 90 minutes, but the president appears to be preoccupied with a fresh line of attacks against his attorney general and a fresh line of attacks against the idea of impartial justice. He's accusing Jeff Sessions of threatening Republican control of the House because of indictments against two Republican congressmen ahead of the midterms.

I want to bring in John Dean, former Nixon White House counsel during Watergate and CNN contributor. He will testify this week during the confirmation hearings for Brett Kavanaugh, and back with us, Maggie Haberman.

[08:05:05] John, let me just give people the context here. Chris Collins has been charged with insider trading related offenses. Duncan Hunter has been charged with campaign finance related offenses among other things. And the president's response to this on Twitter yesterday was two easy wins now in doubt because there's not enough time. Good job, Jeff. His problem with the charges is that they're against Republican members of Congress.

JOHN DEAN, CNN CONTRIBUTOR: What he doesn't understand is you can't put the fix in at the federal level. I learned that very early at the Nixon White House when the president sent one of his staff to me to go over to the Department of Justice and deal with a labor case. And Henry Peterson, I had worked with the Justice Department, said John, would you go back and educate those people that this -- that a federal case is like a battleship, and you can't turn it once it starts, and these cases have been in progress, the cases you referred to have been in progress. So even if he wanted to he couldn't turn the cases around. They're going to go through the process.

CAMEROTA: Maggie, our legal guru, Jeffrey Toobin, was on with us last hour. He sees this tweet in a different vein than some of other tweets. This one is fact challenged as so many are, but Jeffrey sees this in a whole different category, and he was sounding the alarm on our program. So here's that moment.


JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: This tweet alone may be an impeachable offense. This is such a disgrace. This is so contrary to the traditions of the Department of Justice. We wear ourselves out being outraged at things Donald Trump says, but this one really is different because it is such an affront to the values of the Justice Department.


CAMEROTA: Maggie, behind the scenes in the White House, is the legal team, all the lawyers around the president, do they recognize this, when he tweets something like this, it's in a different category, then what happens?

MAGGIE HABERMAN, CNN POLITICAL ANALYST: So a couple things. There's not all the lawyers around the president. There is like three lawyers around the president, and that's been part of the problem, number one. Number two, within the White House, many of them are in bunker mentality to survive, and you are not going to hear them say this is particularly different. Privately a number of them will acknowledge this is problematic, they wish he wouldn't do this. As my colleague at the "Times" Mike Schmidt and I reported a couple of weeks ago, Mueller, the Special Counsel, is already looking at some of Trump's tweets in the context of whether they could comprise part of an obstruction of justice case.

It is hard not to look at that tweet -- I agree with what Jeffrey Toobin said. I think that we spend a lot of time on faux four-alarm fires. This is a real four-alarm fire. That is a shocking thing for a president to have said. If President Obama said you can imagine how quickly people would be racing to call a hearing. Certainly, this Congress would have. And it is scary. He's literally saying political concerns should have been taken into consideration. It is a further effort to erode the rule of law.

And he doesn't -- to Jeffrey's point, he doesn't even have the facts of the cases suggest. He tries to suggest these were long-running Obama cases to add more of a political dint to them. One of them involves a call that was taken at the White House last year.

CAMEROTA: President Trump's White House.

HABERMAN: President Trump's White House. Both of these congressmen in question were early Trump supporters. Chris Collins, the one where this phone call took place, took place in 2017 during a Trump White House event. Again, I think that this will get brushed under basically in public awareness because everything moves so fast now, but this was alarming.

BERMAN: The interesting thing, John, is you say you can't fix the game, but what might be most important is that he wants to fix the game and may be trying to fix the game.

DEAN: I think that's exactly what he's doing with that tweet. He's telling Jeff fix it if you can. Doing it very publicly, trying to embarrass the attorney general who is not going to be embarrassed in the slightest. Jeff Sessions knows exactly how that department operates, and there's little he can do.

There's no question he was informed of the case before it went forward, but knowing how the department runs, he knew there was nothing he could do. I'm sure he didn't alert the White House. He might have alerted the White House counsel's office, but beyond that not much.

CAMEROTA: So the grand picture here of the president trying to meddle in the Justice Department is of course troubling and fascinating. Then the granular details of these indictments are also interesting to look at. And just to look at Duncan Hunter. He's accused of misusing a quarter million dollars of campaign funds. And just to remind people, $14,000 on an Italian family vacation, $11,300 at Costco, $2,000 on Steelers games, more than $1,500 on video games, these are the things that for whatever reason President Trump doesn't want --

BERMAN: "River Dance" tickets. I think "River Dance" are in there also, which is a separate indictable offense, by the way. [08:10:05] CAMEROTA: Thank you. These are the things that President

Trump doesn't think the Justice Department should be looking into.

HABERMAN: Right. I think that we have seen the president has a bit of an elastic rule in terms of what he is willing to tolerate on ethics abuses. Witness the case of Scott Pruitt and how very long it went on. The president tends to look at things at what is good for him versus what is not good for him. This is another example of that.

Again, I think it is all part of something we spoke about in the last hour, which is he is feeling the cumulative weight of the Cohen case, the Manafort case. I think watching all of Washington come together and try to mentally vote Trump off the island over the weekend at the McCain funeral, plus this and the fact that he is looking at a bad, potentially large blue wave in November, I think that is all conspiring to make him feel very overwhelmed right now.

BERMAN: He has got a Supreme Court nominee up on the Senate starting today for four days of hearings. These will be fascinating. You, John Dean, will be testifying during these hearings, and my understanding is you are going to answer questions on the role of executive power here, which is one of the areas the Democrats really want to push Judge Kavanaugh because he has an expensive view, as far as we know, an expansive view of executive power. What are you going to say? What do you think the big issue is here?

DEAN: I think the big issue is that he is joining a court that is already executive experience heavy. Unlike any court, any modern court, this court will have more executive background than any of its predecessors. This tends to result in favorable rulings for presidents in executive issues. In fact, there have been studies shown that Republicans on the court with executive experience tend to stay conservative. Republican appointees without executive experience often become moderates, even liberals.

CAMEROTA: That's interesting.

DEAN: It is. So I'm going to tell the court about this study and be prepared to answer their questions on my own experience. We pushed several through the court, had some failures, too.


CAMEROTA: Do you want to share your thoughts on Brett Kavanaugh and if anything concerns you or what your burning question would be?

DEAN: I think my biggest issue with him is his executive experience. I'm sure he's a fine man, very articulate, writes good opinions, but he's also I think in, for example, the Minnesota Law Review that's been referred to so frequently, he's waving the flag saying, hey, I'm not as bad as you might have thought from my Ken Starr days.

CAMEROTA: Meaning in that Minnesota Law Review he states that he doesn't think sitting presidents should be investigated or indicted because it gets in the way of their presidential duties. That's relevant right now. DEAN: It's very relevant. And I find a frightening view that a

president is above the law. We don't the same presidency our founders created.

BERMAN: And you know Democrats are going to push him on this. They're going to push him hard on this. They would like to make this as much as they can a hearing not just about Brett Kavanaugh but also the Russia investigation writ large. They may be successful at that, they may not, but there are serious judicial questions there.

We did get some excerpts from Brett Kavanaugh's opening statement which he'll deliver a little bit later today. Can we throw it up on the screen? He doesn't think any of this is an issue. He says I'm just an impartial judge. A good judge must be an umpire, a neutral and impartial arbiter who favors no litigant or policy. I don't decide cases based on personal or public policy preferences. I'm not a pro-plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-defense judge. I am a pro-law judge. Just the law, just the facts, Maggie Haberman. Again, though, I do think Democrats are going to try to make this political, make it about abortion and health care. They're going to make it about the Russia investigation.

HABERMAN: I think they would argue certainly on abortion and the health care that that's not political. This is about policy and what underpinnings of both of those precedents could be under-turned. There has been a lot of ink spilled about what could end up happening in terms of a narrowing of abortion rights if Brett Kavanaugh is confirmed.

All of this said -- and I do think that is what's going to happen -- I think the likelihood of Brett Kavanaugh not getting confirmed, barring some huge unforeseen, and Mr. Dean would certainly know more about this than I do, but I think barring some unanticipated event taking place over the next up with days, the White House feels pretty confident that he is going to get through, and he's going to get through with some Democratic votes. I just think you're going to see Democrats hold out as long as possible to force Republicans to show their hands.

CAMEROTA: And that, like Neil Gorsuch, will be a huge crowning achievement for the president.

HABERMAN: It is going to be a very big deal for the president and it's going to be something he can appropriately talk about as what he accomplished for the people who support him. Whether it's appropriate to be a president who only seems to be interested in the people who supported him is a different question, but in terms of the people who elected him hoping that he would do this, this is something that he can turn to and say he got it done.

DEAN: That clip you read is nothing new, either. Right out of a law review he wrote for Catholic University in 2016. MAGGIE HABERMAN, WHITE HOUSE CORRESPONDENT, NEW YORK TIMES: --

elected him hoping he would do this, this is something he can turn to and say he got done.

[08:15:04] JOHN DEAN, FORMER NIXON WHITE HOUSE COUNSEL: That clip you read is nothing new, either. Right out of a law review he wrote for Catholic University in 2016. So, it looks like he's not going to break any new ground when he testifies, either.

JOHN BERMAN, CNN ANCHOR: All right. Encyclopedia Brown, John Dean, thanks very much for being with us. Maggie Haberman, thank you for being with us as well.

Two full segments because you passed the test.

President Trump upset that his Justice Department prosecuted a fair of Republican congressmen so close to the midterms. We're going to get reaction from a Republican senator about to question the president's Supreme Court pick. That's next.


BERMAN: President Trump is blasting Attorney General Jeff Sessions on Twitter over the indictments of Republican Congressmen Chris Collins and Duncan Hunter. The president accusing Sessions of placing the Republicans in midterm jeopardy with those prosecutions.

Joining me now is Republican Senator John Kennedy of Louisiana. He serves on the Senate Judiciary Committee and will be very busy over the next several days with the Brett Kavanaugh hearing.

Before we get to that, Senator, let me ask you about the president's criticism of this investigation of these charges because as he puts it, two easy wins are now in doubt.

Is that appropriate, Senator?

SEN. JOHN KENNEDY (R-LA), JUDICIARY COMMITTEE: I thought, John that the practice and policy of justice was not to announce indictments of political figures before an election.

[08:20:04] Now, I've seen --

BERMAN: Well --

KENNEDY: Wait, wait, wait, let me finish. I've seen reporting indicating that that's not the case, that the timing is supposed to be irrelevant.

What I think is important here is that Justice -- and I'm going to research it when I have time this morning -- I want to know if Justice followed its policy. If Justice followed its policy, I'm fine. The election is irrelevant to me as long as they followed its policy.

Number two, you know, most Americans think that members of Congress were born tired, raised lazy and are corrupt. Now, that's not been my experience but perception is important. What matters to me is the evidence with respect to these two congressmen.

If they didn't do anything wrong, they shouldn't be punished. But if they did, they've got to be held accountable. And I think that's the important thing.

BERMAN: That is for a court to decide.

KENNEDY: That's absolutely for the court to decide.

BERMAN: And the court should not take into account which party they are in, when they're deciding whether they're guilty or innocent.

KENNEDY: Of course not.

BERMAN: I can tell you what the Justice Department guidelines are and these are not Holy Scripture.

KENNEDY: Please?

BERMAN: They're guidelines. It's 60 days basically. Both of these charges happened well before that 60-day window and even then, there's a discussion about whether those are binding, so this happened before.

KENNEDY: Well, if they followed policy, I'm fine with it.

BERMAN: You're fine with the prosecution. Are you fine with the president saying that the Justice Department should have laid off because they're Republicans?

KENNEDY: Well, the president is entitled to his opinion.

BERMAN: Oh, come on, Senator.

KENNEDY: Well, let me finish, John.

BERMAN: You know, you're plain spoken. You call balls and strikes as much as any member I've seen but in this case you think it's OK the president of the United States seems to suggest that justice should not be apolitical or impartial?

KENNEDY: I don't speak for the president. I mean, I think he's entitled to his own opinion and maybe he thinks the policy ought to change. I don't know. I haven't talked to him about it.

I just know that I think it's important to have a consistent policy. If justice followed that consistent policy then I'm OK with it. Now if they didn't follow the consistent policy, we've got a problem.

BERMAN: I'm asking you about your opinion of the president in this case, and the constitution as we both know gives you the power, the authority, and the responsibility, frankly for oversight of the executive branch and these co-equal branches of government, and your answer to whether or not it's appropriate for the president to perhaps prejudicing an investigation is he can say what he wants to say, I don't know the president's mind. That's it? That's it? KENNEDY: Well, I as a member of the U.S. Senate have oversight when the president nominates somebody to a position that has to be confirmed by the not? Now I don't see it either in statute or Constitution that I have oversight of the president's tweets.

And what I'm suggesting to you is the president obviously has an opinion. I don't know the basis for that opinion. I have an opinion. You know what they say about opinions, but my opinion is that as long as Justice follows policy I'm fine.

I do think there's a larger issue here, though, John. I think we have learned in the past year and a half that there were and perhaps still are a small minority of people in the Justice Department and the FBI who tried or at least their actions tried to influence the 2016 election.

BERMAN: I have no knowledge and neither do you that Peter Strzok in this case is related in any way to the prosecution of Chris Collins or Duncan Hunter.

KENNEDY: Agreed.

BERMAN: So that's a red herring here.

KENNEDY: I don't think so.

BERMAN: And I have to say when you don't have oversight over the president's tweets, we all love the way you speak and the turns of phrase that you use but the White House says the president's tweets are policy. You do have oversight over presidential policy, so in fact you do have oversight over the president's tweets if they are trying to affect policy, if they are trying to affect active investigations here. Full stop.

I want to talk to you about the Supreme Court nomination of Brett Kavanaugh today. How fast can you read 42,000 pages?

KENNEDY: We will get a synopsis of them. I've read -- I haven't read all 300 of his opinions but I've read a bunch. I've read probably 80 percent of his law review articles.

[08:25:04] I'm going to do my job at the hearing today. I'm going to ask him tough questions.

He's whip smart. I concede he's smarter than me. He'll probably be able to handle my questions but I'm not going to ask him.

I'm not looking for a hater. I don't want a hater. I don't want an ideologue. If you're an ideologue, go run for president or run for Congress. I'm looking for somebody who has a consistent judicial philosophy and I think -- I don't want to get too much down in the weeds but I think Judge Kavanaugh is a textualist as supposed to a purposivist and I like that. Some of my colleagues won't.

BERMAN: I have no doubt that you like that. I have no doubt that you probably like a lot of decisions he has made and where he has stood on political issues before he was a judge.

I was specifically asking about the 42,000 pages of documents that were turned over late last night. I'm not questioning whether or not you're prepared or done your home work on this case, I assume that you have and you have a great staff to help you along with that.

But when 4,000 pages of documents are dumped the night before a hearing begins, I submit there's no one, no matter how smart you are, not even as smart as Brett Kavanaugh that could read 42,000 pages of documents in one night.

KENNEDY: Well, number one, that depends on -- you're assuming the documents are relevant. I don't know.

BERMAN: How do you know whether -- unless you can read them? How do you know whether (ph) you read them?

KENNEDY: We have a staff who has been probably all night been looking at the documents and will tell us and will point out the ones that -- in many, that are relevant. That's point number one.

Point number two, I'll tell you what I'm primarily interested in. Well, let me back up. The reasons the documents are important, twofold. Number one, they tell you a little bit about the person being nominated.

Now for some of my colleagues the purpose of the documents is to try to find a gotcha moment. They've made up their mind about Judge Kavanaugh. They made up their mind before the president nominated anybody but we knew he had a nomination he was going to offer.

That's fair but if that's your opinion, if you pre-determine the outcome, then I don't see how the documents are especially relevant.

BERMAN: Well --

KENNEDY: And you mentioned the politics. You know, I think that's what is wrong with this process. The American people -- and I'm not blaming them, I understand why, but -- and we all -- we sort of look at the United States Supreme Court now as a little Congress that the law has become politics pursued in a different way and that's not healthy for our country. That's not the way it's supposed to be.

BERMAN: Senator, I got to let you because we're out of time. But on that point, just yes or no question, when Merrick Garland was not given a hearing when he was nominated for Supreme Court, how could that have been anything but politics?

KENNEDY: The majority leader followed the Biden rule. I think he was consistent.

BERMAN: Oh, come on, it was politics. It was politics. He played politics then, you don't want Democrats to play politics now.

KENNEDY: Well, if Mitch played politics then Joe did, too, when he established the Biden rule. BERMAN: Was there a Supreme Court nominee under the Biden rule that

did not get a hearing?

KENNEDY: No. But then Senator Biden said the rule that I'm announcing is that within a year of a presidential election, we shouldn't confirm a Supreme Court.

BERMAN: You guys always cite that. It never happened. Joe Biden made a reference to that --

KENNEDY: But it would have happened.

BERMAN: I don't know. I don't know whether it would have happened or not, all I know is that Merrick Garland was not given a hearing which was politics and you can judge whether that's right or wrong, but it was politics, which you're decrying now if the Democrats had questions about policy.

KENNEDY: It would have happened had there been a nominee. The Biden rule I have doubt would have been followed.

BERMAN: Is that politics?

KENNEDY: And I think what's -- well, you can call it what you want. You can call it politics, you can call it policy. You can call any policy politics.

Politics is human nature. We're all political. If you define politics as our relation with other people --

BERMAN: I understand, Senator, you were just saying take politics out of the nominating process and now we seem to be agreeing that politics has squarely been in the process for some time.

KENNEDY: That's not what I said, John. I wasn't clear, I guess. You can't take politics out of human nature but you can make the political process and the criteria for picking a Supreme Court justice as unpolitical as you can.

Can you completely succeed? No. But the problem I think with the use Supreme Court is that many Americans -- and I'm not blaming them, I understand why they've drawn this conclusion --