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Report: Kavanaugh Asked About Executive Privilege in Confirmation Hearing; Trump Supreme Court Pick Faces A Grilling; Trump Says Explosive Bob Woodward Book Is Fiction. Aired 2-2:30p ET

Aired September 5, 2018 - 14:00   ET


[14:00:00] SEN. SHELDON WHITEHOUSE, (D), RHODE ISLAND: That's one caveat I want to put on that.


WHITEHOUSE: Is the assertion of executive privilege by the president subject to judicial review?

KAVANAUGH: Well, of course, because under the precedent, United States versus Richard Nixon, said two things. One, the executive privilege is constitutionally rooted. The special prosecutor in that case argued that actually there was no such thing as executive privilege and the Supreme Court rejected that argument and held that executive privilege is rooted in the separation of powers in article II.

WHITEHOUSE: The reason I'm asking doesn't have much to do with you. It goes back to a point that we were talking about earlier in the hearing, which is that we have received hundreds and hundreds of pages of documents of your record that look like this. They both say, committee confidential across them at an angle and then across the front they say constitutional privilege. And as a member of the Senate this is not a question. I am speaking to my colleagues, I find myself in in a quandary about being denied those particular documents. I cannot find any assertion of the privilege.

These documents suddenly appeared and somebody had put constitutional privilege on the page and wiped out all the text that was on the page. My understanding is that there's ordinarily a process to get to that determination that allows for, ultimately, judicial review. And we have failed to get subpoenas out of the committee for documents so we can't trigger it that way. And there's no apparent assertion of executive privilege I can find in the record of how this particular paper got here. So, I just wanted to establish some of the basic ground rules of executive privilege with you. S that is something that we commonly agreed. And in particular to Congressman Leahy's questioning, some of the documents he's looking for that have been protected by this nonassertion of assertion of executive privilege. It's a problem in the committee. We've had other witnesses come and do non-assertion assertions of executive privilege. I'm sorry to drag committee business before you but it's important we get this right.

KAVANAUGH: Can I make one addendum? I don't think formal assertions usually occur until after there has been a subpoena at least from my time working --

WHITEHOUSE: Which is why not being able to get a subpoena kind of bollix ups the process yes indeed. The role of the Federalist Society in bringing you here today has been of interest to me. As you know, we spoke about it quite a lot when you and I met in my office. Mr. McGahn, sitting patiently behind you. I can see him over your shoulder.


WHITEHOUSE: Has said that the Federalist Society was insourced into the White House to make these recommendations, specifically to make the recommendation that you should be the nominee. You have said this regarding President Bush, that he thought it was -- and I'm quoting here -- improper to give one group, especially a group with interests in many issues, a preferred or favored position in the nomination process. Those were your words, speaking, I guess, to the Federalist Society at a National Lawyers convention. On another occasion, you wrote a draft speech for Attorney General Gonzalez or White House Council Gonzalez, probably White House Council Gonzalez, to deliver to the Federalist Society.

And you said in that speech as a matter of constitutional principle, it is simply inappropriate, we believe, to afford any outside group a quasi official role in the president's nomination process. How do you square those two comments about the role of the American Bar Association in the nomination process with the role of the Federalist Society in your nomination process? Assuming that Mr. McGahn was speaking accurately when he said that they had been insourced to the White House for this process.

[14:05:00] KAVANAUGH: I can speak to the ABA part of that. President bush in 2001 had to make a decision of how they should play its usual rating role with respect to nominees and they take files, amicus briefs, policies, positions on issues and after some deliberation it was decided there was nothing wrong with the ABA nominating but a preferred role in the constitutional nomination process was unfair in some ways.

WHITEHOUSE: Fair description of the Federalist Society's role in your selection as the nominee to say that it was preferred over other groups?

KAVANAUGH: Well, my experience was when Justice Kennedy retired on a Wednesday, Mr. McGahn called me later that afternoon, said we need to talk on Friday. He came over to my office on Friday evening or late afternoon. We talked for three or four hours. Interview in going through the usual kind of questions you would go through when you're embarking on a process like this. I met with -- interviewed with the president on Monday morning.

WHITEHOUSE: So, is it your testimony that you don't know what the role of the Federalist Society was in your selection?

KAVANAUGH: My experience, my personal experience and what I know is that Mr. -- President Trump made the decision, for starters. President Trump made the nomination. And I know, as I explained yesterday, he spent a lot of time on those 12 days on this issue and I was aware of that. I also know that Mr. McGahn was directly involved with me, spent a lot of time on it. And I also know that the vice president --

WHITEHOUSE: You have no knowledge to share with us today about the role of the Federalist Society and how they were insourced into the White House? That is a mystery to you as well as to us?

KAVANAUGH: I'm not sure what Mr. McGahn meant by that comment. I think the Federalist Society members are -- lawyers in the administration are Federalist Society members. And so, it should not be a surprise that -- because it's an organization.

WHITEHOUSE: Leonard Leo's role specifically from the Federalist Society?

KAVANAUGH: I don't know.


KAVANAUGH: I don't know the specifics.

WHITEHOUSE: Let's go from specifics to generals and let me put up a graphic that shows some of the folks who fund the Federalist Society. It's a pretty significant group of people who tend to share conservative and pro corporate points of view. It reflects at least 14 of the donors are actually anonymous, which is a very unfortunate part of our current political world. Actually, probably more than that. A recipient of funds can report that they got the money from donor's trust rather than the true party in interest. So, we don't know how much anonymous money flowed through them. But I would contend that this is a pretty strong group of right-wing conservative pro-corporate funders. And presuming that to be true, should that give you or anyone in this process pause that groups like this may have had such a significant role in selecting you to be in this seat today?

KAVANAUGH: Senator, Mr. McGahn was the one who contacted me. I interviewed with the president. I know the president was -- I'm the president's nominee. He was directly involved in making that decision. I know he consulted widely, very widely, to get input on the people who were finalists so that part of it in my experience was with White House counsel's office and the president and vice president, too. I also don't -- I'm not familiar with --

WHITEHOUSE: Whatever the rule is of the Federalist Society was in all of this, it was and there's plenty of reporting. We don't need to litigate that between us. You don't know is what you've testified, and that's fine.

KAVANAUGH: My process and, yes.

WHITEHOUSE: You're familiar with the process generally because you used to run it in the bush White House or had a significant role in it, process of judicial nomination selection, judicial nominee selection. Correct?

[14:10:00] KAVANAUGH: I did not run it. Judge Gonzalez, when I was in the counsel's office, was the counsel.

WHITEHOUSE: You have been inside the process?

KAVANAUGH: I have been inside the process, yes.

WHITEHOUSE: So, the next thing that happens going forward is that we see the judicial crisis network showing up and they spend millions and millions and millions and millions of dollars happens going forward is that we see the judicial crisis network showing up and they spend millions and millions and millions and millions of dollars to run ads urging senators to support you. Now I don't know whether we can show that those were the same funders, because they are engaged in what is called, as you know, dark money funding. They don't report their donors. But I would be prepared to make a pretty substantial bet that there's enormous overlap between the judicial crisis network campaign for your confirmation and the Federalist Society donor group to the extent that we're aware of since so many of them are anonymous. Hypothetically, should the American people have concern about the role of very, very big spenders and influencers doing things like being involved in the selection of a Supreme Court nominee and running dark money campaigns to support the confirmation of a nominee? Is there any cause for concern there as a general proposition?

KAVANAUGH: Senator, there are a lot of premises in your question.

WHITEHOUSE: I'm not asking you to accept them as true. I'm asking you to accept it as a hypothetical. If there were very, very significant, big special interest funding behind the organization that was responsible for selecting you and recommending to the president that he nominate you and, again, from a very similar group in supporting the dark money campaigns that are running on your behalf for your confirmation, would that be a matter of concern or is that all just fine and we shouldn't even care about getting the answers?

KAVANAUGH: Two things, senator. One is, I described the process I went through with Mr. McGahn, the president and vice president and the selection. That's what I know about my process. Two, on the ads, there are a lot of ads against me as well and I've seen those. Our family has seen those. And then there are ads for me and we've seen those, too. As Chief Justice Roberts said in his hearing, it's a free country and there are ads for and against and, obviously, we --

WHITEHOUSE: Should we, as citizens, know who they are, who is funding the ads as a matter of citizenship?

KAVANAUGH: I think that's first and foremost a policy question for the Congress to decide, on what disclosure requirements it wants to put in. And then if those disclosure requirements were put in or state government could try to make disclosure requirements. I think some have tried. And then undoubtedly there would be challenges of that and what's the first amendment implications of that? And that would come to a court. I would keep an open mind on that case under the precedent and first amendment and law and we would think about that. The policy question, I think, is really for Congress in the first place, to determine, assess, study exactly what kind of disclosure requirement should be put in place.


KAVANAUGH: I understand --

WHITEHOUSE: The potential hazard there is the unleashed power of unlimited political, dark money then becomes like a ratchet. I hope you can understand that as a matter of political principle.

KAVANAUGH: I do understand the concerns about money in the political system. When I worked for -- and the time it takes all of you. And when I worked for President Bush in the '04, '03-'04 timeframe, for example, how many fund-raisers he had to do, and time and burdens on the presidency. Running for president while being president --

WHITEHOUSE: It's gotten easier so that now you can get a huge special interest to set up a 501 C4 and drop tens of millions like that and the public doesn't know who is behind it. Only a very few people are in on with what the deal is. It's gotten easier since President Bush but not better.

KAVANAUGH: I think for some members, particularly in the house, if you are running for re-election, third party group comes in against you and you don't have -- you have to go out and spend even more time, at least as I understand, that's part of the concern I've heard over the years is generally the time that each of you has to spend and the members of the house have to spend.

[14:15:00] WHITEHOUSE: Let me continue on forward through this problem of funders. On the court, the dc circuit and potentially the Supreme Court, you will often see cases brought by groups, for instance, like the Pacific Legal Foundation. Are you familiar with that group?

KAVANAUGH: I've seen briefs by them.

WHITEHOUSE: Do you know what they do?

KAVANAUGH: I'll take your description.

WHITEHOUSE: My description is that they get money from right wing conservative and corporate interests and they look for cases around the country that they believe they can use to bring arguments before the court. I argued against them in the Supreme Court at one point. They came all the way across the country to the shores of Winnapaug Pond, Rhode Island, to hire a client whose case they could take to the Supreme Court with a purpose to make a point. And they're not alone in doing this. There are a number of similar groups who perform this service. And it causes me to think that sometimes the true party and interest is actually not the named party before the court but rather the legal group that has hired the client and brought them to the court more or less as a prop in order to make arguments trying to direct the court in a particular direction. Is that an unreasonable concern for us to have about the process? KAVANAUGH: Senator, I think public interest litigation groups span

the ideological spectrum that look for cases to weigh in on. Amicus briefs and, also, of course, historically there have been -- you look for, as I understand it people try to identify suitable plaintiffs to challenge -- again, this is across the entire ideological spectrum.

WHITEHOUSE: What are the signals that that's gotten out of hand, that there's something rotten in Denmark?

KAVANAUGH: It's an interesting question, senator, and an important one but not one I have a great answer to.

WHITEHOUSE: Let me propose one thought to you. The Supreme Court, at least, should fix its rules on how the amici are who turn up and require some disclosure of who is behind them. The only thing the Supreme Court requires is to disclose who paid for the briefs. The brief itself is not a very big expense. And so very powerful interests can come in behind an amicus group that has a lovely name like Citizens for Peace and Prosperity and Puppies.


WHITEHOUSE: And nobody knows who an interest is really. So, that would be one thing that I would think would be a concern.


WHITEHOUSE: Another thing that would be a concern, I think, is when you see these special interest groups rushing out, trying to lose cases in order to get before a friendly court, it really seems improbable to somebody who has actually tried cases and been around courtrooms a lot and has seen a lot of litigation, great litigators. I've never seen anybody once try to lose a legitimate case. So, in the wake of Justice Alito's signaling about what then became Fredericks and Janice, to see these groups rush out and ask the court to rule against them so they can get hot foot up to the Supreme Court where they expect a good outcome, to me, that -- there's just something that doesn't seem right about that. That seems to me a little bit like faux litigation, that there's something else going on other than real parties having real arguments and the Supreme Court ultimately settling properly prepared real disputes. Do you have any concern about the optics of people rushing to lose cases below to come before what they think is a friendly Supreme Court? Does that seem just a little bit odd?

KAVANAUGH: I will --


[14:20:00] KAVANAUGH: I will acknowledge, senator, I'm not entirely familiar with that phenomenon.

WHITEHOUSE: I might follow up with you to get your deliberate thoughts about it.

KAVANAUGH: On your amicus thought I'm interested in your proposal and certainly if confirmed I would --

WHITEHOUSE: Here is the concern. You know perfectly well that the court depends on, as much as anything, on its reputation. You don't have a purse. You don't have an army. You stand on your reputation in the judiciary. You must not only act justly but be seen to act justly. What I've laid out is a scenario in which very big special interests have a significant role in funding the group that I believe and much reporting says is responsible for getting you to the top of the greasy pole of nominee selection and that the same funders are behind the judicial crisis network operation that is politically pushing for you.


CHUCK GRASSLEY, SENATE JUDICIARY CHAIRMAN: Senator Whitehouse, we'll add one minute to your time. You have been interrupted twice.

WHITEHOUSE: Thank you. That some portion of the Supreme Court's dockets made up of strategic cases rather than real litigation.

WOLF BLITZER, CNN HOST: I'm Wolf Blitzer, alongside Jake Tapper. You've been watching CNN's special coverage of the confirmation hearings for the president's Supreme Court nominee, Brett Kavanaugh. We'll take you back to the testimony shortly but first, President Trump just weighed in on the Kavanaugh nomination, the confirmation hearings, also on the explosive new book by Bob Woodward, as he hosts the emir of Kuwait. Let's listen to the Q & A.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I am. I'm happy with the Kavanaugh hearings. I watched today for a little while. I saw some incredible answers to very complex questions. He is an outstanding intellect. He's an outstanding judge. He was born for the position. I heard as long as ten years ago people were saying he should be a Supreme Court judge. I didn't know him at the time. But I was hearing from a lot of people, friends of mine from Washington and other places saying that Brett Kavanaugh should be a Supreme Court judge some day. And I'm honored that I gave him the chance. I've watched his remarks. I've watched his performance. I've watched his statements and, honestly, they've been totally brilliant. I think that the other side is grasping at straws. And, really, the other side should embrace him because you're never going to find better in terms of talent or intellect than what you have in Brett Kavanaugh.

The book means nothing it is a book of fiction. General Mattis has come out very strongly. I think you know General Mattis. He does what he wants to do, a very independent guy. He was insulted with the remarks and came out with a very strong statement. I assume you read it. I hope you read it last night. General John Kelly, the same exact thing. He was insulted by what they said. He's right here. He's insulted by -- he couldn't believe what they said. And he put out a very, very strong statement. And many others. And other statements are coming out. The book says work of fiction. If you look back at Woodward's past he had the same problem with other presidents. He likes to get publicity, sell some books. We have done more as an administration than any other administration in already less than two years. It's incredible.

We will soon be approaching two years. But there's no administration probably, and even you folks have generally acknowledged this and has done more work, when you look at tax cuts, regulation cuts, Supreme Court justices, the court system generally and so much more, even if you look at the health care programs that we're passing. And all of the things that were done, we're saving social security. The Democrats will destroy social security. We're saving Medicare. The Democrats, you look at what they're doing. They want to destroy Medicare. We will save it. We're keeping it going. We're making social security stronger and making our whole country stronger. Just look at the achievements.

[14:25:00] I was very honored when, without my even knowing about it, statements were put out by General Kelly, General Mattis, highly respected people by everybody, including yourselves. And the book is a work of fiction. Really, if you look at it, it was put out to interfere, in my opinion at this time, with the Kavanaugh hearings, which I don't think it has done because so many people have come out against it. So many people who have been written about said I never said that. Rudy Giuliani is another one. He is very insulted by the book and what was stated in the book. We do run a strong White House. There's no question about it. And we are doing things that nobody else has ever been able to do. And our country is stronger now than it's ever been. And in a very short period of time, $700 million being spent on the military, the next year 716, $716 billion. We will actually be far stronger than we've ever been. And that's what we need to be. Thank you all very much.

We have a great relationship. I have a personal great relationship with the Emir.


JAKE TAPPER, CNN HOST: President Trump is talking about the confirmation hearings for his Supreme Court Brett Kavanaugh and also taking yet another shot at the new Bob Woodward book, which has yet to even come out, which is called "Fear" and quotes a number of individuals in the Trump administration, saying disparaging things about President Trump. CNN senior White House correspondent Jeff Zeleny joins us. This is how President Trump deals with these books that are critical. He tweets about them. He talks about them. He makes them number one best sellers while he attacks them.

JEFF ZELENY, CNN SENIOR WHITE HOUSE CORRESPONDENT: No question, Jake. And the president there for the first time, we're hearing him calling it a work of fiction and trying to erase questions about the objectivity of this author. We should point out the same author, Bob Woodward, of course, well known to us

in Washington and indeed all over the country and the world. President Trump has praised Bob Woodward on many occasions. Most recently in 2013 when he was writing a book that upset the Obama administration. The president there going specifically after this, saying it's a work of fiction, but not repeating many of the things he said on line when he was talking about libel laws and other things. Interestingly, I'm told behind the scenes here the president is operating some -- something of his own witch hunt. He's trying to find out who talked to Woodward, who did not talk to Woodward and paying very careful attention to these denials. We heard him there talking about the very strong denial, he said, from John Kelly. That is something we've seen that the president is fine with. You can blow off some steam as long as you properly and publicly apologize. But I'm told the president is also keeping a close eye on who is not apologizing or who is not issuing a statement of denial on this. Behind the scenes, as the president is doing his business today, a big part of that, I'm told by one official, quote, he wants to know who talked to Woodward. Despite his rather calm demeanor there, Jake, I'm told behind the scenes he's anything but that. Jake?

TAPPER: Jeff Zeleny, thank you so much. John king, there is a way of looking at the denials in which you can see what is actually being denied. One example, for example, John Dowd, the president's former personal attorney denies that he ever said that President Trump was an f-ing (ph) liar. In the book it says John Dowd was thinking you're an f-ing (ph) liar and the same goes with John Kelly. There's a litany of things that John Kelly has said. He has denied calling President Trump, I think, an idiot, but has not said anything else about the other things he is quoted as saying.

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: These statements come out denying a specific quote or anecdote attributed to him in the book but you don't have a flat denial, A, I didn't talk to Woodward or, B, I said nothing critical of the president. If they were so adamant about this, why wouldn't general Kelly give some interviews, pop into the briefing room, as he has before at key moments? You see there, that is textbook Trump there in his anger. And he starts his sentence and then remembers I didn't mention this person at all. Rudy Giuliani is also upset. To listen to the president there as he goes through this, it's part of the -- we're saving Medicare and Social Security. There's a great economy that this president has every right to brag about. His Supreme Court nominee, one confirmed, one up on Capitol Hill that he has every right and every reason to brag about. But he is the Republican president, who was the Republican nominee for president who has stymied Paul Ryan's biggest goal in life, to reform the entitlement programs he believes are busting the budget. When you hear things like that from the president it's just -- that's not of this planet.

[14:30:00] TAPPER: And Abby Philip, one other thing that's interesting with the book, you heard President Trump just say he thinks the reason that this book is out is to discredit or undermine the Kavanaugh hearings. First of all, the book is not out yet. It's not out until next Tuesday. CNN and the Washington post got early copies through sleuthing and the like. This book was scheduled to come out long before we even knew Anthony Kennedy was retiring, much less that we knew Brett Kavanaugh hearings would be held this week. That's just nonsense.

ABBY PHILIP, CNN WHITE HOUSE CORRESPONDENT: It makes no sense at all. It is emblematic of something else, that this White House is acting as if they just learned yesterday that this book was coming out. We all knew that it was happening and it was going to happen on September 11th, a week from yesterday. The White House yesterday waited hours and hours and hours before responding in any way, shape or form, to the allegations in the book. They didn't yesterday even have a copy of the book and then once they did finally get a handle on accusations, they put out blanket statements that read almost like hostage statements from these people that have lengthy anecdotes retold in this book. So, they are trying to deal with it the best way they can but it is very telling that President Trump cannot --