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Report: Trumps Court Pick Face the Second Day of Contentious Questioning; Many Top Officials Deny Writing "New York Times" Op-Ed About Trump; Anonymous Op Ed Writer: Unsung Hero or Gutless Coward? Aired 2-2:30p ET

Aired September 6, 2018 - 14:00   ET


[14:00:00] BRETT KAVANAUGH, SUPREME COURT JUSTICE NOMINEE: I was not acting on my own.

SEN. SHELDON WHITEHOUSE, (D), RHODE ISLAND: No. No. Nope, that is not the way that reporters look at it. They look at it as you are the source, you are the one to whom they owe the obligation of confidentiality. Starr's name has not come up.

KAVANAUGH: I was in turn acting as part of that office, and therefore I guess --

WHITEHOUSE: But it's yours to divulge.

KAVANAUGH: To answer your question. It's because I can't do that or don't think I should do that isn't a matter of appropriateness given I was working for someone else who was running the office. I talked, of course on the record.

WHITEHOUSE: The answer is you're unwilling to do it. I'll move on. You have said today, you have never taken a position on the constitutionality of indicting the president. Let me ask you, has there ever been any statutory law on presidential immunity from an indictment or from due process of law?

KAVANAUGH: There's been justice department --

WHITEHOUSE: Statutory law. Is there a statute that limited the protected the president against due process of law?

KAVANAUGH: There's been justice department law, but --

WHITEHOUSE: Justice department is not a law-making body, is it?

KAVANAUGH: Oh, I think it does -- I guess the term law encompasses regulations.

WHITEHOUSE: Directive to the department's own employees, correct? That's what you're talking about.

KAVANAUGH: Well, that's encompassed, as I think about it, within the concept of law.

WHITEHOUSE: Well, if you're going to go to the general concept of law, perhaps, but there is no law that Congress has ever passed that protects a president from either indictment or due process of law, correct?

KAVANAUGH: Congress has never passed something. The justice department --

WHITEHOUSE: Has an opinion about it, I understand that.

KAVANAUGH: Which is binding.

WHITEHOUSE: On the justice department. So, if, as a matter of law, a sitting president cannot be indicted, that must be constitutional law, since there is no statutory law, as a proposition of logic, is that not correct?

KAVANAUGH: That is not correct, as I see it, because if the justice department has law that binds the justice department, that's another source of law as well.

WHITEHOUSE: OK. So, let's go back to Georgetown Law Journal, 1998. And a conference you attended. And you spoke at it. And the panel that you were on was asked the question, who on the panel believes as a matter of law that a sitting president cannot be indicted during the term of his office. That's you and your hand shot up. And I think you probably have seen the film clip of that because it's been posted already. Did you mean as a matter of law that OLC guidance when you said that?

KAVANAUGH: I know that right before the passage you're reading, I said there's a lurking constitutional question.


KAVANAUGH: The fact that I said that judges that I did not have a position on the constitution --

WHITEHOUSE: Although you shot your hand up when the question as a matter of law, a sitting president cannot be indicted came up, and it seems to me there are really only two kinds of law unless you're really stretching the envelope here. One is laws that Congress passes and the other is laws that are founded in the constitution. And internal policy directive within the department of justice, I think it's a real stretch to call that law.

KAVANAUGH: Well, I appreciate that, senator, but it has been the long-standing justice department position --

WHITEHOUSE: Policy, yes.

KAVANAUGH: And right before --

WHITEHOUSE: Is that what you meant when you put your hand up, do you know?

KAVANAUGH: That was 20 years ago, I don't know. But I know right -- WHITEHOUSE: Here's why it's important. You have been telling us I

have never taken a position to say this was a constitutional principle. I have never taken a position on the constitution on that question. I did not take a position on constitutionality, period. I have never taken a position on constitutionality of indictment. Those are all things you have said during the course of this hearing. It looks to me like that's a bit of a conversion.

KAVANAUGH: Right before that, though, senator, to be fair to me, I did say there's a lurking constitutional question which implies --

WHITEHOUSE: Then you were asked to answer that question by putting your hand up, and you put your hand up saying aye, so it seems to me you answered your question by putting your hand up the way you did.

[14:05:00] KAVANAUGH: The question wasn't the constitution. If question was law.

WHITEHOUSE: That's what I'm saying you're saying. You're saying what you meant was the OLC policy position when you answered a question about law.

KAVANAUGH: What I said is I don't know what I was thinking in a panel 20 years ago, but I do know having looked at it that the question was about law, that the justice department position has [00:10:00] en consistent for 45 years.

WHITEHOUSE: As a matter of constitutional law. Right? The justice department position reflects a view of constitutional law.

KAVANAUGH: But it's an interpretation binding on everyone in the justice department, as I understand it.

WHITEHOUSE: Because they're employees of the department of justice. In the same way that you can't steal the computer or you can't, you know, bring a pet into your office, whatever rules there might be.

KAVANAUGH: Well, I think internal regulations are still law.

WHITEHOUSE: OK. As long as it's your position that's what you meant by matter of law.

KAVANAUGH: Just to make it clear, I said I don't know what I meant. When I look at it now, that's what I think.

WHITEHOUSE: So, let's go on to recusal. And let me -- there's a case that is somewhat on point on all of this. It's the Caperton case out of West Virginia. As you'll recall, it was a civil case, right?


WHITEHOUSE: And it came to the Supreme Court because there was an objection that a judge should not sit basically the problem should not sit in his own cause, so to speak. And the problem was that one of the litigants had received three -- the judge had received $3 million in political support from one of the litigants. Is that the fact pattern, correct?

KAVANAUGH: I believe that's correct, senator.

WHITEHOUSE: And the standard that the court came up with was whether that judge had -- whether that donor, that party, had a significant and disproportionate influence -- ooh, we didn't spell influence right, in placing the judge on the case. Correct?

KAVANAUGH: I believe so.

WHITEHOUSE: And so, Justice Kennedy --

KAVANAUGH: The Justice Kennedy opinion.

WHITEHOUSE: Decided the constitution requires recusal.


WHITEHOUSE: If the constitution requires recusal of a judge who was the beneficiary of a $3 million piece of political support to help him get into office, wasn't it follow per force that the person who actually appointed the judge would be in a similar or stronger position of significant and disproportionate influence?

KAVANAUGH: Senator, the question in the Caperton case, as I said, was because of the amount of money, the financial interest, which is a whole separate branch.

WHITEHOUSE: Correct, which would have a significant and disproportionate influence on the judge becoming a judge, right? That's what the connection was. The spending of money by the party helped make the judge the judge. In this case, if a criminal matter involving President Trump came before you, he wouldn't have just spent $3 million to make you a judge. He would have flat out made you the judge, 100 percent finito, right?

KAVANAUGH: Senator, the question of recusal is something that is governed by precedent, governed by rules. One of the underappreciated aspects of recusal is whenever I have had a significant question of recusal as a judge on the DC circuit, I have consulted with colleagues and so too they have consulted with me when they had their own questions. That's part of the process.

WHITEHOUSE: Isn't actually the 100 percent responsibility for direct appointment more significant in terms of influence than simply making a big political contribution to a judge? That's like 100 percent responsibility. Appointed, period, done.

KAVANAUGH: Well, just on the -- I don't mean to quibble, but on the premise of your question, the senate obviously, it's a shared responsibility, the president and senate participate in the Supreme Court confirmation process. Appointment process.

WHITEHOUSE: You were very clear yesterday in our discussion it was the president of the United States who appointed you. And this is about that. This is about how you get to the seat, and you got appointed by the president. Would that not pertain as a significant influence? I mean, what possible greater influence could there be on who is in the seat that you're nominated to than the nomination of the president to that seat?

[14:10:00] KAVANAUGH: So, two points if I could, senator. First, I have said already. I don't believe it appropriate in this context to make decisions and recusal is a decision on a case, so I don't think it's appropriate.

WHITEHOUSE: If it's not appropriate let me move on with something else because let me ask you about the decision on a case because let me ask you about the question of presidential shall we say conflicts with prosecutors. When you were in the Starr prosecution effort, you were exposed to this contest with the Clinton White House. And you described the Clinton White House as running a, and I'm quoting you here, prejudicially approved smear campaign was one phrase you used. A disgraceful effort to undermine the rule of law was another phrase you used. An episode that will forever stand as a dark chapter in American history.

KAVANAUGH: That was about something different.

WHITEHOUSE: And you prejudicially approved a smear campaign against Starr was what the topic was. You then said in a later memo that the president has tried to disgrace Starr and his office with a sustained propaganda campaign that would make Nixon blush, and he should be forced to account for that. Have your views of presidential interference or smearing of independent or special counsel changed since you made those statements?

KAVANAUGH: Those comments were in a memo written, as I recall --

WHITEHOUSE: Two memos. But close enough, Yes.

KAVANAUGH: Well, the one that I'm remembering, written late at night after an emotional meeting in the office dashed off and some of the language in that, as I think I told you, or told some of the senators in individual meetings, was heated. And I understand that. But that was my memo at the time. I think I have been clear, I don't want to talk about current events because I don't think -- I'm a sitting judge as well as a nominee. I don't think I should talk about current events.

WHITEHOUSE: How about the guy, the guy who was outraged at being on the receiving end of a smear campaign. Does that guy still exist or is he long gone?

KAVANAUGH: Well, that's what I wrote at the time, how I felt one night after a meeting we had in august of 1998, I believe, at least the memo I'm remembering.

WHITEHOUSE: Last topic because my time is getting short here. The hypothetical problem that I have has to do with an appellate court which makes a finding of fact. Asserts a proposition of fact to be true. And upon that proposition, hangs the decision that it reaches. And the question is, what happens when that proposition of fact actually in reality, you have referenced the real world so often, actually in reality turns out not to be true? What is the obligation of an appellate court if it has hung a decision on a proposition of fact and then the proposition of fact turns out not to be true? Does it have any obligation to go back and try to clean up that discrepancy, to clean up that mess?

KAVANAUGH: I think, senator, it's probably hard to answer that question in the abstract because --

WHITEHOUSE: But if I give you specifics, then you'll say you can't answer that because that would be talking about a case. So, I'm kind of in a quandary here with you.

KAVANAUGH: I was going to give you a couple thoughts, which I think that would be wrapped up in the question of precedent and stare decisis, and one of the things you could look at, one of the factors you could look at, how wrong was the decision, and if it's based on an erroneous factual premise, that is clearly one of the factors you would --

WHITEHOUSE: You would look at --

KAVANAUGH: Mistake of history. Sometimes there have been cases where there have been mistakes of history in decisions, mistakes of fact.

[14:15:00] WHITEHOUSE: Quickly, the two examples that come ready to mind, one is Shelby County. In which the court said in looking at whether there was still any kind of institutional racism in the preclearance states they needed to worry about, nope, the quote, country has changed and current conditions, to use their phrase, are different. First, where do you suppose the five justices who made that decision got expertise in vestigial state racism to make that determination at all?

KAVANAUGH: I can't comment on the decision other than to say it's a precedent. I understand the point you're making about --

WHITEHOUSE: Because you do know that since then, both North Carolina was found to have targeted minority votes with, quote, surgical precision, which is pretty rough phrase. And Texas got after it so frequently that a federal court finally said, look, we think there's a penchant for discrimination here. So, if you have got the five judges saying that it's over in these states and then it turns out it really isn't over, that there's actually still surgical precision targeted of minority voters and there's a penchant for discrimination in the Texas state government, that ought to be something that might cause some reconsideration of the Shelby holding, shouldn't it?

KAVANAUGH: So, three things on that. I think, senator, one, I think the case did not strike down preferences opposed to saying the formula needed --

WHITEHOUSE: De facto it did. Preclearance ended in all those states with that decision.

KAVANAUGH: I understand that.

WHITEHOUSE: So, I have one minute left. Let me jump to the other example. Because I think it's an important one and my time is running out. That is Citizens United. Citizens United took on the proposition that the unlimited spending that it authorized by people capable of unlimited spending would be both transparent and independent. Correct?

KAVANAUGH: The court upheld the disclosure requirements in that case, if that's the question.

WHITEHOUSE: It said more than that. It said it's the transparency and the independence of the spending that it authorized that were the guardians against the corruption.

KAVANAUGH: Right. So, it wasn't contributions to parties or candidates, correct.

WHITEHOUSE: So, the first amendment ends where efforts to corrupt begin, correct? You don't have a first amendment right to corrupt your government.

KAVANAUGH: The Supreme Court has relied on corruption in the appearance of corruption as part of the test, and it's -- you know this very well.

WHITEHOUSE: In order to fend off the argument that big money corrupts and absolute money corrupts absolutely, they said no because there's going to be independents and transparency. In fact, if I remember correctly, they said -- I don't have it in front of me, oh, here we go. The separation between candidates and independent expenditures negates the possibility of corruption. So, if they're wrong factually about this spending being transparent, and we know that they are from what we have seen since then, and if they're wrong factually about the independence of this spending and we know they are from actual events that have happened since then, then that strikes a pretty hard blow against the logic of citizens united, does it not?

KAVANAUGH: So, Citizens United, as you know, is a precedent of the Supreme Court, so entitled the respect as a matter of stare decisis. As you know and I would just reiterate, if someone wants to challenge that decision, they -- one of the things that anyone can raise about any case is that it's based on a mistaken premise or mistaken factual premises, and that's the kind of things courts are open to hearing.

WHITEHOUSE: My time has expired. I thank the chairman for the indulgence of the extra minute.

A couple things. First, I would note --

BROOKE BALDWIN, CNN HOST: I'm Brooke Baldwin. You have been watching another day of this contentious confirmation hearing for Supreme Court nominee Brett Kavanaugh there. We will discuss everything, but first, the president is taking names, making a list, and checking it twice. It was the refrain being repeated over and over as each minute goes by today. From top officials inside the president's own administration denying he or she wrote that blistering op-ed in "The New York Times."

[14:20:00] Just look at this graphic and all of the faces they keep getting added while everyone is playing the game of Colonel mustard or Professor Plum, what is getting lost in this hunt for a messenger is the message. Compiled with the numerous other officials mentioned in Bob Woodward's book. They are sounding an alarm. That this president is a risk. The official writes quote, "Americans should know that there are adults in the room. We fully recognize what is happening. And we are trying to do what is right even when Donald Trump won't."

One thing that has definitely been done, amplified the sense of paranoia within the West Wing. Since the president now knows at least one of his advisors is working against him.


DONALD TRUMP, U.S. PRESIDENT: An anonymous editorial, can you believe it? Anonymous. Meaning gutless, a gutless editorial --


The list of denials more than a dozen so far includes nearly all in the president's cabinet, among the first was his vice president Mike Pence.


MIKE PENCE, U.S. VICE PRESIDENT: I think it's a disgrace, the anonymous editorial published in "The New York Times" represents a new low in American journalism. And I think "The New York Times" should be ashamed. And I think whoever wrote this anonymous editorial should also be ashamed as well.

Anyone who would write an anonymous editorial smearing this president who has provided extraordinary leadership for this country should not be working for this administration. They ought to do the honorable thing and resign.


BALDWIN: This op-ed caps off what one of our analysts calls a month of, quote, sustained mental assault on President Trump. That includes the guilty plea of Michael Cohen, the guilty verdict of Paul Manafort, the rejection at Senator John McCain's funeral, and the bombshell tell-all Bob Woodward book. Let's start at the White House with our reporter there Kaitlan Collins. We have shown all these men and women who are saying it wasn't me, and we now have color from within the White House that they are hand-delivering these denials to the president.

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: Yes. That's right, Brooke. This is a president who likes these denials. We saw that back when the book, Bob Woodward book was published. The president citing those strong denials from John Kelly and the defense secretary, and now the aides have realized the president likes the denials and every time these high-ranking officials are putting out these statements which they're scrambling to put out over the last few hours denying it was then who trashed the president in that unsigned op-ed in "The New York Times," the aides inside the White House are printing out these statements and hand delivering them to the president. Brooke, that's because the president is seething inside the White House today, angry and wanting to find out who it is that wrote this op-ed, calling him petty, ineffective, and ill-informed and saying essentially that he is not someone fit to be the leader of this country.

Brooke, this is already a president who was paranoid and thought there were people working inside this administration and they were working against him, and they were out to get him. Now, with this op-ed published in "The New York Times," the president feels that his worst fears have been confirmed here. And now he's lashing out. He is angry, and he is trying to get to the bottom of who it is that wrote this op-ed, as well as lashing out at "The New York Times" for publishing it because, of course, the president has had a very testy relationship with "The New York Times." now, his aides seem to be falling in line with that kind of thinking because you saw that really surreal statement from Sarah Sanders, the press secretary, earlier today urging people who are asking her about the identity of the author to call "The New York Times" and ask them. She said it was a gutless coward who wrote this but said in a statement that was stunning to a lot of Washington that "The New York Times" were the only ones who she said were complicit in this act, and that people should call them and ask them and not the press secretary and ask her, who she believes it is.

So, Brooke, this is all going on. It's really heightening this sense of paranoia here in the west wing that already existed in the last year and a half that Trump has been in office, with all the infighting and people who think other people are out to get them. Brooke, now it is even worse with this statement that people don't know who wrote it. They're just guessing as much as we are about who the author of this op-ed is.

BALDWIN: Thank you.

President Trump's personal attorney, Rudy Giuliani, calls this person, quote, dangerous. Pointing out the official has been, quote, elected to nothing. And others are condemning anonymous from both sides of the aisle.


MIKE POMPEO, SECRETARY OF STATE: It's sad that you have someone who would make that choice. I come from a place where if you're not in a position to execute the commander's intent, you have a singular option. That's to leave. I'll answer your other question directly because I know someone will say you didn't answer the question. It's not mine.

[14:25:00] SEN. CHRIS MURPHY, (D), CONNECTICUT: This seems more like someone who is trying to protect the job interests of those inside the administration who want to work in Washington after this disaster is over. So, no, I'm not celebrating the authorship of this piece. Also, because it's not terribly surprising. We have plenty of other reporting that tells us that this president is paranoid.

JOHN KERRY, FORMER SECRETARY OF STATE: This is unbelievable. This is a presidency, this is a genuine constitutional crisis. We have a president who is not capable of doing the job.

SEN. JEFF FLAKE, (R), ARIZONA: I hope that more will come out publicly and I hope that the Congress will more publicly condemn statements like the president made on Twitter on Monday. It could be any one of hundreds of people.

SEN. DIANNE FEINSTEIN, (D), CALIFORNIA: It's probably won't take long for us to find out who wrote it, who has denied it already. The vice president, that was my first thought. Then Coats, Pompeo, they denied they have written it. I guess by process of elimination, it will come down to the butler.


BALDWIN: Joining me now, CNN chief political correspondent Dana Bash and CNN political analyst Ryan Lizza who is a political correspondent for Esquire. Dana, you know what this is like. It's like someone in school pulled the fire alarm, right? They pull the fire alarm, and everyone is whispering about who did it, who's going to get in trouble. And instead of focusing on the fact that the fire alarm got pulled, that there was a fire.

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Absolutely. And look, I think it is human nature to focus on the intrigue as to who did this. It's understandable because as soon as the person wrote anonymous and got "the New York times" to agree to publish it anonymously, he or she knew there would be this kind of who done it situation. But you're absolutely right. As you mentioned at the top of your show, Brooke, it's the substance that is the most extraordinary. The most unprecedented in American history, to have somebody who we believe, according to "the New York times," is a senior official. And you know, senior official and those of us who are old school in our book, it's an actual senior official, to say the kinds of things that he or she said, not just about the president and his temperament, which we have seen reported and we have reported for what, two years now, but about the feeling inside the administration among many people who work there, who work for him, who clearly have a very high regard for their own abilities, believe that they are basically keeping the country safe and sane as the president goes about his business.

Can you imagine in that going about his business, Ryan Lizza, what must it be like in the White House, in the west wing, if the president of the United States cannot trust anyone he works with?

RYAN LIZZA, CNN POLITICAL ANALYST AND POLITICAL CORRESPONDENT FOR ESQUIRE: Well, look, we already know that Donald Trump had a slightly conspiratorial mind. He was someone who routinely spread conspiracies on Twitter and in covering him the last two years there are repeated examples of him becoming quite paranoid about leaks, about he's obsessed with loyalty. So, the sort of volcanic rage with which he has greeted this anonymous op-ed is not surprising. And Kaitlan's reporting about people having to hand-deliver denials about being the author all sounds a lot like Trump.

And it's, you know, I think -- I think one of the things that's interesting is that a group of people you showed all sort of criticizing this author, right? It's very interesting that this, we sort of united Never Trumpers, some Democrats, and some White House officials in criticizing what this -- what this person did. I think a lot of people who don't like the president and are worried about his whether frankly he's a threat to the country believe that if you work internally and believe that, you should come out and publicly say it, right? And I think my view is that the reason this person can't do that is because Congress, which is controlled by Republicans, should be the check on a dysfunctional president, right? That's how our system is set up, but so far, Congress has abdicated that responsibility.

[14:30:00] BALDWIN: I haven't seen any real responses. I saw a tweet from Paul Ryan, nothing, nothing happening. And to your point, it was "The Washington Post" who had this colorful language of the president spewing volcanic anger and absolutely livid. I think where you were going, too, was he was already paranoid. Doesn't this just exacerbate his paranoia?

BASH: Yes. Of course. And given where the president has been, it's hard to imagine it getting worse. I think that all you have to know and understand beyond what our reporting -- what's going on behind the scenes is what happened right in front of our face. The fact that the president zoomed out to the camera, had this litany of all the things that he said that have gone right with this administration, all the wonderful things that the administration have done, all the accomplishments, and you know, he was -- he had the desperation about him in how he spoke, in the words he used, to get all of that out because he was so angry and clearly felt so betrayed. And it's understandable that he feels betrayed. Because this is somebody who, according to the op-ed that he or she wrote, is a political appointee. Somebody who he brought in to his administration. Not somebody who is a career government worker. Somebody who goes and works in a specific office, whether it's the White House or more likely if it's a career politician, a career government official rather, in one of the agencies who stays there no matter who the president is.

BALDWIN: So, is this person, just going off of Dana's point, is this person a weasel? Or is this person a patriot?