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Kavanaugh Faces Seconnd Day of Contentious Questioning; Top Administration Officials Deny Writing NYT Op-Ed. Aired 12:30-1p ET

Aired September 6, 2018 - 12:30   ET


[12:30:00] JOHN KING, CNN ANCHOR: We'll come back to this in a moment but I want to bring you new statement just released by the first lady of the United States on a separate issue. All of you are aware of the New York Times anonymous essay from a senior Trump administration official calling the president amoral, saying he's temperamental. Saying that there is a network of people within the administration who essentially are resistance movement to the president. They don't implement the policies. They try to keep things away from him.

Melania Trump now joining several cabinet members and the vice president of the United States in responding to this article. Melania Trump says this, freedom of speech is an important pillar of our nation's founding principles and a free press is important to our democracy. The press should be fair, unbiased and responsible. Unidentified sources have become the majority of the voices people hear about in today's news. The first lady says.

She goes on to say, people with no names are writing our nation's history. Words are important and accusations can lead to severe consequences. If a person is bold enough to accuse people of negative actions, they have a responsibility to publicly stand by their words and people have the right to be able to defend themselves. To the writer of the op-ed, you are not protecting this country, Melania Trump says. You are sabotaging it with your cowardly actions.

A dramatic statement by the first lady. In which unlike her husband, the president she defends the press. She does not call it the enemy of the state. She said it is critical and important but then she goes on to directly chastise this unnamed senior administration official who essentially says in that essay the president is unfit for the job and there are several of us, many of us every who every day work to make sure that we don't go off the rails.

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: Well, I joked during the break that she doesn't deny that she wrote it but it's because we're in the middle of this storm where all of these officials are having to deny that they wrote this op-ed and calling into question essentially the president's leadership ability. Not just the first lady issuing a statement but the defense secretary, the secretary of state, the vice president, the budget director, the treasury secretary. We have so many people right now have to come out and issue these statements.

And the reason they're issuing is not all that they're all, you know, the subject of speculation. I don't think a lot of people think Ben Carson, the secretary for Housing and Development wrote this op-ed. But it goes to show that the president himself is watching these denials roll in. You saw that after the Woodward book came out the president was siding James Mattis the defense secretary denials and John Kelly's denials. He really likes when his people deny this.

But now these people are denying it because they don't want the president suspecting that they were the ones who wrote it.

KING: He wants names. He wants to know who it was at the New York Times. He want's to know who talked to Bob Woodward.

We'll continue to follow this drama. At the moment though, back up to the Senate Judiciary Committee up on Capitol Hill. Senator Dick Durbin, Democrat of Illinois is in charge of the questioning. Let's listen.

SEN. DICK DURBIN (D), ILLINOIS: -- should value even when it's inconvenient. I could go into a long rift here but I won't in the interest of time but I don't know who organized these protests or why they did it. But thank goodness. And the United States of America where we venerate free speech these things can happen.

I want to thank the men and women of the capitol police and those who have been in charge of our security during this period of time, as well. I would like to also ask for two things to be entered into the record. First is record statements in opposition of the Kavanaugh nomination from several groups.


DURBIN: Thank you very much.

And secondly, Senator Grassley closed the earlier, last session, by -- with some comment, I'll have to read in its entirety to understand but I think he said or someone said it would take 37 weeks for the National Archives to go through Judge Kavanaugh's record. I'd like to enter into the record a letter from August 2, 2018 from Gary Stern, general counsel of the National Archives which concludes the following statement. By the end of October 2018, we would have completed the remaining 600,000 pages that we are -- should be considering and unfortunately cannot. So I'd ask consent to enter that letter into the official record.

GRASSLEY: Without objection.

DURBIN: Thank you very much.

Judge Kavanaugh, I remember when I got my results from my bar exam I thought to myself, well, that will be the last time I ever have to sit down and take an exam. So at the end of this day, this may be your last formal exam in terms of your legal career. And I'm sure there's a sense of expectation, hopefulness and relief in that.

I want to thank your wife for being here and for bringing those beautiful daughters. I hope some day they will understand what happened to their father in a few days here. But thank you so much for being part of this hearing.

Judge, when I started this, I said this is not just about filling a key vacancy on the Supreme Court. A deciding vote on the court.

[12:35:00] A vote which may decide life and death issues on important cases. It's more than the question of release of documents.

It is really goes to the heart of where we are in America at this moment. You have been nominated to be a justice on the United States Supreme Court by President Donald Trump. We have to take your nomination in the context of this moment in history.

We are in a moment, at a moment where the president has shown contempt for the federal judiciary unlike any president we can recall. He's shown disrespect for the rule of law over and over again. He has repeatedly ridiculed the attorney general of the United States whom he chose. He has called for blatant partisanship in the prosecution of our laws.

He's a president who's the subject of an active criminal investigation. An investigation which he's apparently sought to obstruct repeatedly. He's a president who has been characterized in this hearing publicly on the record as an un-indicted co-conspirator.

And in the last two days in the course of the hearing there have been two incredible events, the release of a book and an article in the New York Times which remind us again what a serious moment we face in the history of the United States. And that's why your nomination is different than any.

I can't recall any that have been brought before us in this context. I can't recall so many people across the United States following this as carefully, perhaps Clarence Thomas. At that time everybody in America was tuned in. But it's in the context of the Trump presidency that we ask you these questions in anticipation that you may face issues involving this president which no other Supreme Court has been asked to face.

And that is why I want to address your view of the power of this president, the authority of this president. Because it's an important contemporary question which of course, has application far beyond his presidency. You've quoted me several times. Thank you. Yesterday regarding the independent counsel statute.

As our Republican colleagues are fond of reminding us, judges are not legislators. So to state the obvious, my opposition or any legislator's opposition to re-authorizing a statute is very different from a judge's opinion on whether a statute is unconstitutional.

To get to the heart of the matter, the reason why we continue to return to the Morrison versus Olson decision is because of its significance in light of the Trump presidency. The reason we're so interested in your view that that case was wrongly decided has little to do with the statute that was in question. It has everything to do with your views on the power of the executive. And what that would mean for this president and future presidents if you join the Supreme Court.

Justice Scalia's Morrison versus Olson sole dissent embraces the so- called unitary executive theory which grants sweeping powers to the president of the United States. Scalia said, and I quote, we should say here that the president's constitutionally assigned duties include complete control over investigation and prosecution of violation of law and that the inexorable command of Article II is clear and definite. The executive power must be vested in the president of the United States.

In this age of President Donald Trump, this expansive view of presidential power takes on an added significance. Earlier this year, the Senate Judiciary Committee reported a bipartisan bill to protect the independence of the Special Counsel Bob Mueller. Several Republican senators who are here today cited Scalia's dissent to justify their opposition to a bill protecting the special counsel with one saying and I quote, many of us think we are bound by Scalia's dissent.

At the time I joked and said instead of dealing with stare decisis we're stealing with Scalia decisis. Given your views on Morrison versus Olson, we are obviously worried that you will feel bound by this dissent by Antonin Scalia if President Trump decides to attempt to fire the Special Counsel Bob Mueller.

It doesn't stop there. You cited Scalia's dissent in the case involving the consumer financial protection bureau where you gutted that agency. And in the 2011 Seven-Sky case, you dissented from a decision upholding the Affordable Care Act and made a breathtaking claim of presidential power which has been repeated over and over again.

[12:40:06] And you said, under the constitution the president may decline to enforce a statute that regulates private individuals when the president deems the statute unconstitutional. Even if a court has held or would hold the statute constitutional. Your words.

Of course, the unitary executive theory was the basis for President Bush's December 30 2005 signing statement claiming the authority to override the McCain torture amendment. Yesterday, I asked you what comments you made on the signing statement as President Bush's staff secretary. Senator Feinstein asked a similar question this morning.

What you told me was I can't recall what I said. I do recall there was a good deal of internal debate about that signing statement as you can imagine. I do remember it would be controversial internally. It's hard to imagine you can't remember that controversial issue.

Given our concerns about your views on executive power, it's important for you at this moment, please, to clarify for us the power of the presidency in this age of Donald Trump.

BRETT KAVANAUGH, SUPREME COURT NOMINEE: Senator, thank you, first, thank you for your comments about my wife and daughters. My daughters are -- will return this afternoon for return engagement (INAUDIBLE) experience democracy once again in action and I appreciate that.

On Morrison versus Olson, a couple things at the outset. First, that case did not involve the special counsel system. I have written repeatedly that the traditional special counsel system which we have now and have had historically is a distinct system appointed by the attorney general. Morrison has nothing to do with that. That dealt with the old independent counsel statute as you said which is expired in 1999 under overwhelming consensus that statute was inappropriate, unrestrained, unaccountable as you said.

Secondly, Morrison, Justice Scalia's dissent, does not affect the precedent of Humphrey's executor. Humphrey's executor is the Supreme Court precedent that allows independent agencies to exist. Those independent regulatory agencies continue to exist of course. So both on the independent agency side, those are unaffected. On the special counsel's side, that's unaffected.

You mentioned the CFPB case. That -- my decision in that case would have allowed that agency to continue operating and performing its important functions for American consumers. The only correction would have been in the structure because it was a noble structure that was unlike every other independent agency that had been created previously.

As to the concept of prosecutorial discretion that's referred to in the 2011 case, that is a traditional concept, prosecutorial discretion. That's recognized in the executive branch. The limits of it are uncertain. That's arisen in the immigration context with President Obama. There was a debate about the limits. They're not finely determined but the basic concept of prosecutorial discretion is all I was referring to there.

I've made clear in my writings that a court order that requires a president to do something or prohibits a president from doing something under the constitution or laws of the United States is the final word. In our system, our separation of powers system. That's Cooper versus Aaron. That's Marbury versus Madison. That's United States versus Richard Nixon. That is an important principle.

And finally, I would say that the question of who controls the executive power within the executive branch, the vertical question, you have the president at the top. You have independent agencies which exist consistent with precedent is distinct from the question of what's the scope of the executive power vis-a-vis Congress.

On that latter question, the scope of executive power vis-a-vis Congress, I've made clear in the context of national security, the Youngstown framework, context of administrative law, my cases questioning unilateral executive rewriting of the law in the criminal law, where I've reversed convictions. Then I'm one not afraid at all through my record of 12 years to invalidate executive power when it violates the law.

DURBIN: Judge, let me ask you this because you've referred to judge -- Youngstown case in the context of a war and a decision by a president that was immensely unpopular. KAVANAUGH: Yes.

DURBIN: And the decision -- or might have been popular I should say and the decision of the Supreme Court which could have been very unpopular at that moment in history.

[12:45:04] Do you -- what I'm trying to ask you is historic context. Do you understand where we are as a nation now? When books are written about how democracy dies, when fear of authoritarian rule and the expansion of the executive branch is rampant in this country, when illustrations are found around the world? Why we are asking you over and over again, give us some reassurance about your commitment to the democratic institutions of this country in the face of a president who seems prepared to cast them aside whether it's voter suppression, the role of the media. Case after case we hear this president willing to walk away from the rule of law in this country.

That's the historic context which this is in. Not a particular case but a particular moment in history.

KAVANAUGH: Senator, my 12-year record shows and my statements to the committee show and all my teaching and articles show my commitment to the independence of the judiciary as the crown jewel of our constitutional republic. My citing of Justice Kennedy for whom I worked, who left us a legacy of liberty but also a legacy of adherence to the rule of law in the United States of America, no one's above the law in the United States. That's a foundational principle that I have talked about coming from federalist 69. Coming from right the structure of the constitution. We're all equal before the law in the United States of America.

And I've made clear my deep faith in the judiciary. The judiciary has been the final guarantor of the rule of law. As I said in my opening, the Supreme Court is the last line of defense for the separation of powers and for the rights and liberties guaranteed by the constitution laws of the United States.

DURBIN: You see, that's why the unitary theory of the executive is so worrisome. What you have said is what I want to hear from a coequal and very important branch of our government. But what you have said in relation to Morrison suggests the president has the last word.

KAVANAUGH: I have not said that, Senator. And I'll reiterate something I said a minute ago coming from Cooper versus Aaron, coming from Marbury. When a court order requires a president to do something or prohibits a president from doing something under the constitution and the laws of the United States, under our constitutional system, that is the final word.

DURBIN: Let me ask you one last time. The question you knew I'd ask about your testimony in 2006. I'm just struggling with the fact that when I asked you about this issue of detention, interrogation and torture, you gave such a simple, declarative answer to me and said that I was not involved and I'm not involved in the questions of the rules governing detention of combatants. We have found at least three specific examples where you were. Three. Your discussions about the access to counsel for detainees, your involvement in the Hamdi and Padilla cases, and your involvement with President Bush's signing statement on the McCain torture amendment.

Judge Kavanaugh, you say that words matter. You claim to be a texturalist when you interpret other people's words but you don't want to be held accountable for the plain meaning of your own words. Why is it so difficult for you to acknowledge your response to the question and acknowledge that at least your answer was misleading if not wrong?

KAVANAUGH: Senator, you had a concern at the time of the 2006 hearing which was understandable. Whether I had been involved in crafting the detention policies, the interrogation policies that were so controversial that the legal memos had been written in the Department of Justice that were very controversial. As you know, and as the committee knew then, two judicial nominees to the Courts of Appeals had been involved in working on some of the memos related to that program.

Senator Feinstein led the intelligence committee investigation of that matter. Produced a massive report. Large unclassified report and apparently even larger classified report. The Justice Department Office of Professional Responsibility produced a long report about all the lawyers who were involved. I was not involved in crafting those policies --

DURBIN: Do you deny being involved in the three specific areas involving detention, interrogation, which I just read to you?

[12:50:05] Do you say that you had nothing to do with the Hamdi and Padilla cases? That you weren't involved in the conversation about access to counsel for detainees? That you weren't involved in President Bush's decision on the signing statement on the McCain torture amendment? Are you saying that none of those things occurred?

KAVANAUGH: Senator, what I've made clear is I understood your question then, and I still understand it now. And I understood my answer then and I still understand it now to be about those legal memos. I was not read into that program. I was not involved. My name does not appear in Senator Feinstein's report which is --

DURBIN: That's not the question I asked. Do you deny the three specific instances where you were involved in questions involving detention and interrogation?

KAVANAUGH: That was the question that I saw that you asked at the time of that hearing, and my answer was then and is now, as Senator Feinstein's report shows and as the professional responsibility report shows, I was not read into that program.

DURBIN: That is not -- I didn't ask you about that program. I'm asking about the three specific instances.

KAVANAUGH: The current -- DURBIN: You keep answering, oh, I wasn't -- Feinstein is my defense.

She came to my rescue. She was talking about something else. I've asked you about three specific instances where we have written proof and sworn testimony from you now that you were involved in these three things. And all of them relate to detention and interrogation, which you gave me your assurance you weren't involved in.

KAVANAUGH: Senator, I'm going to distinguish two things. One, what you're asking me in 2006, and my testimony then was accurate and was the truth. What you're asking me now is -- for example, on the signing statement as we discussed in your office, I made clear that of course as staff secretary, everything that went to the president for a three-year period with a few covert exceptions would have crossed my desk on the way from the counsel's office or the policy adviser or wherever it was going, and would have made its way to the president's desk, and that includes that signing statement.

DURBIN: Well, let me just close. I don't think the staff secretary to the United States president is a file clerk.


DURBIN: What you have explained to us over and over again, this was a formative moment in your public career. You were given constitutional issue advice as well as making substantive changes in drafts that were headed for the president's desk. And one of them involved John McCain's torture amendment. And that, to me, is involved directly on detention and interrogation. I think, unfortunately, your answer does not reflect that.

GRASSLEY: If you want to speak to that, then we'll go to Senator Lee.

KAVANAUGH: I just want to close, Mr. Chairman, by thanking Senator Durbin. And in response to his questions about the judiciary, the role of the judiciary, he gave me a book when we met, a biography of Frank Johnson. And that Friday night after a lot of Senate meetings and a lot of practice sessions, I went home, read the whole thing, and I appreciate it.

It's a good model of judicial independence. It's a great story about someone who was a judge in the south in the civil rights era who stood firm for the rule of law. And so a good model, and I thank Senator Durbin for giving me the book.

DURBIN: Well, thank you -- and I'd like to just say one word. Thank you, Judge Kavanaugh. That night obviously the nationals weren't playing.


GRASSLEY: Senator Lee.

KING: All right, you've been watching there Senator Dick Durbin, Democrat of Illinois, questioning the Supreme Court nominee Brett Kavanaugh. We're going to keep an eye on that hearing. We'll bring you back there if there is big news. But now to the other big breaking news here in Washington today. And it's at the White House where the president is demanding names. First and foremost, the president wants the name of the anonymous senior official behind a dramatic, stunning editorial op-ed piece in the New York Times today.

Speaking just moments ago in Florida, Vice President Pence who has denied writing that op-ed, which says some pretty damning things about the president of the United States, the vice president says whoever did write it should resign.


MIKE PENCE, VICE PRESIDENT OF THE United States: Well, 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's provided extraordinary leadership to this country, should not be working for this administration. They ought to do the honorable thing and they ought to resign.


KING: I'll get to the vice president's point about the media in a moment, but top aides beyond the vice president, including, look right here, the secretary of state, other members of the cabinet, also feeling obliged to deny speculation that they wrote this op-ed. The deniers list growing steadily all morning.

Let's bring the conversation in the room and first to the vice president's point. Sorry, Mr. Vice President, you should be outraged at the person who wrote it, not at the news media.

[12:55:03] We have this thing called the First Amendment, and a free and fair press, and it is part of debate especially in the wake of the Bob Woodward book. And how there are people in -- the op-ed is -- the issue is not the New York Times, the issue is a senior official in the Trump administration says there's a network of people working in the administration who think the president is amoral, temperamental, reflexive, uninformed, uninterested, and that they have to work every day of their lives to keep the government from going off the rails.

COLLINS: What's interesting is Pence is one of the few people who have issued a denial, among many, saying they weren't the people who wrote it who in his denial there said that the president has great leadership and said this was a smear of the president. The others have been more just denials that they wrote it, calling out the New York Times for publishing it, calling for the person who published this anonymously to step down or resign. But Pence is one of the few people who has rejected the content of that op-ed, that the president is a bad leader.

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: You know the game when your kids are running around and they don't want to do something or they're trying to deny that they did something wrong. They go, not it, not it, not it. That's what's happening with the most senior people in this government.

KING: Because they know the president of the United States is white hot.

BASH: Exactly.

KING: He wants to know who did this.

BASH: Exactly. He is white, white hot. And they have to, you know, cover their own hides, they believe. But that doesn't change the fact, as you said, that it is not the New York Times. it is not the media. You don't -- to challenge the platform as opposed to the substance that was on the platform is the weakest sauce I've ever seen and it just is.

KING: It is stunning, and you can say it's disloyal if you want because this is somebody, a senior official in the Trump administration. There are many people saying it, including the speaker of the House today. If you feel this way, you should quit. That if you work in an organization especially an organization important as the United States government, you should be loyal to your boss.

BASH: Except -- right. Except the whole thrust of the argument made in the op-ed was, if I quit, because this person thinks very highly of him or herself and we'll see who it is, if I quit, if the other people are telling how much they're afraid of this president if they quit, then what's going to happen? So, you know, you can definitely look at it both ways. We're not inside the administration. We're not inside these meetings. We certainly all have sources who are and have been reporting for some time about how chaotic it is, about how worried people are at various times. But --

KING: That's what makes it so interesting. And that we have heard parts of this since week one of the administration. There are people that are worried about the president's temper. They're worried the president irrational, he wants to do things without thinking them through. They're worried the president doesn't understand the North/South Korea, the demilitarized zone, the importance of the Japanese, the -- you know, the complexities of their relationship, so on and so forth since day one.

But you have them brought together in a compelling way with new anecdotes and new detail, new words. People calling the president of the United States an idiot or a moron or saying allegedly he has a fifth or sixth grade intellect level. Now you have this. What is the impact on the president and on the town?

MARY KATHARINE HAM, SENIOR WRITER, THE FEDERALIST: Well, one, of course he's white hot. And frankly, he should be. Even if I think a lot of this management style and the problem that he's having is of his own making, he should be mad about this because it is disloyal. I also wonder how much the drama even when it looks bad for him actually hurts him. Because over and over again we see that it doesn't so much. And it crystallized two themes of this presidency to me. One, that Trump is violating norms and therefore in order to keep him in check or defeat him as the liberal base would say or Democrats would say, we must violate norms as well.

Again, I am not sure that actually works, but this is a -- this is an extraordinary step by the New York Times to take an anonymous op-ed and print it. And it's an extraordinary step for everyone to treat it on its face as very serious and credible.

And the second question is, second theme is that the president has this idea that the deep state, the entrenched interests here are against him and have been against him from day one because they view him as an extraordinary threat and that has sort of sabotaged his presidency and his ability to get things done. I am someone who argues against the extreme versions of that idea, and yet, there are members of the administration, former members of the administration who seem intent on proving him correct about this. And I do think --

BASH: The deep state is who he refers to as career people. This is a political appointment.

HAM: Yes, I understand that.


KING: This is the work of the so-called deep state. It is the work of the steady state. Again, this person has a very high opinion of himself or herself and thinks they're -- thinks -- we'll have to assume thinks they're doing the right thing, but the president is not going to like it. The president, we know, doesn't like it. What's the impact?

COLLINS: Well, it creates a huge sense of paranoia in the West Wing which already existed and now it's going be even worst. The president already thinking people are working against him, and now he has credibility to put that theory out there.


KING: Only 60 days from midterm elections. The Republicans don't like it either. Thanks for joining us on INSIDE POLITICS today through all the breaking news. See you back here this time tomorrow.

Don't go anywhere. The hearing continues. Wolf starts right now.

WOLF BLITZER, CNN ANCHOR: Hello, I'm Wolf Blitzer. It's 1 p.m. here in Washington.