The Daily - The Kavanaugh Documents

Episode Date: September 7, 2018

All week, Senate Democrats have furiously protested the decision by Republicans to protect thousands of documents related to Judge Brett M. Kavanaugh, President Trump’s nominee to the Supreme Court. On the third day of his confirmation hearings, that fury came to a head. Guest: Adam Liptak, who covers the Supreme Court for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. All week, Senate Democrats have furiously protested the decision by Republicans to protect thousands of documents related to Supreme Court nominee Brett Kavanaugh. On the third day of his hearing, that fury came to a head. It's Friday, September 7th.

Adam Lipdak, documents have dominated this week of Senate confirmation hearings for Brett Kavanaugh. Documents that haven't been made available, documents that have been made available, but at the last minute. Documents that the senators have looked at, but aren't actually allowed to talk about. How is it that documents became so central to this confirmation hearing. Well, happening tomorrow, President Trump will be announcing his next nominee for the Supreme Court. Even as President Trump was choosing among the four finalists for the job. On the president's shortlist of potential Supreme Court nominees, Judge Brett Kavanaugh. Critics of Kavanaugh suggest he's been part of the establishment for too long.

People were warning him that a negative, a downside of choosing Judge Brett Kavanaugh was that there were literally millions of documents. Brett Kavanaugh's confirmation, it could get slowed down if senators want to review his lengthy record as a judge, as well as all the presidential documents that would have crossed his desk when he worked for President George W. Bush. Judge Kavanaugh served in the Bush White House for five years, two years in the White House Counsel's Office, about three years as Staff Secretary. The Senate must now be able to have access to adequately review all documents,

emails, other paperwork associated with Judge Kavanaugh before the process moves forward. We're talking about lots and lots of documents. He's one of 15 people on an email chain, and every person on that email chain produces the documents, and there's a lot of duplication and nonsense. At the paper trail, just the sheer volume of it could be used against him, not even what's in it. Literally millions of documents. And why are the documents seen as a problem, given that this is a Republican-controlled Senate that's expected to confirm Kavanaugh?

Well, they want to move quickly, and there may be three reasons for that. One is that they may want to get him on the court when the court comes back on the first Monday in October. But the early sittings of the court don't have any interesting cases on them, so I don't know that that really matters. A second possibility is they fear, however remote the chance is, that the Senate will flip after the midterms, and they want to make sure they get their guy on. And there are people who say they want to make sure that Kavanaugh is on the court should a dispute between Bob Mueller, the special counsel, and President Trump reach the Supreme Court. So that speed comes into conflict with the volume of documents that follow behind Kavanaugh. That's right. And just to be sure I understand, why exactly? What is it about this many documents that seems that difficult for everyone involved to process? Because in my mind, a truck backs up to the National Archives, the documents go in, and it drives across the street to the Senate. So the National Archives has to process these documents and make sure that they shouldn't be withheld for many legitimate reasons.

Executive privilege, various kinds of confidentiality, personal information. Nobody disputes that they need to go through a process. And the National Archives, even though they've only been asked for a portion of these documents, said it can't get it done in time. President George W. Bush's personal lawyer has taken up this task and with the help of many others has produced a lot of documents. But Democrats complain that that's a weird process, that you have someone who seems like a partisan in charge of getting stuff done quickly rather than waiting for the National Archives, which is to say the federal government, to do the job itself. And so it's

this partisan lawyer who's now involved in this process who has been deciding what the Senate gets or doesn't get and at what moment in this process who has been deciding what the Senate gets or doesn't get and at what moment in this process they get it. That's right. Give us a sense, Adam, of how Democrats are talking about these documents before the hearings begin. I am considering all the tools that are available to delay this nomination. So the first kinds of complaints are global complaints. There's a wide range of relevant issues that we don't yet have full insight into. So I don't think we should be going ahead on September 4th with the confirmation hearings.

We're not getting enough documents. We're not getting documents fast enough. We're entitled to more documents. I believe Chairman Grassley has scheduled a hearing for Judge Kavanaugh too soon, and I am calling on him to delay the hearing. But as the hearings approach, there's a second kind of problem, which is some of the documents have been produced, but only to the committee and its staff, so-called committee confidential documents. 148,000 documents that I've seen that you cannot see because they won't allow us to make them public. And some of those documents are live quite late, including on the Monday before the hearings,

which is the Labor Day holiday. Do you think any of these documents could make him unqualified for the job? I think that you could ask some very interesting questions about these documents that I'm unable to even say because I'm not able to make them public. And some of those documents, Democrats say, look pretty interesting. They'd like to talk about them, but the rules suggest that they can't. So committee confidential means members of the Judiciary Committee can lay eyes on the documents, but they cannot talk about them in a way that would reveal their contents. but they cannot talk about them in a way that would reveal their contents. Right. Or at a minimum, they can't disclose the underlying documents,

so that then you run into these semantic questions of, can you question the witness about an email from 15 years ago, but not show the witness the email? It gets pretty confusing and almost Kafkaesque pretty fast. So how does this actually start to play out on day one of these hearings? And you're rightly proud. Mr. Chairman, if we cannot be recognized, I move to adjourn. On day one, when we just have opening statements, you have complaints about some of these issues. We have been denied real access to the documents we need to advise. Mr. Chairman, regular orders called for.

Which turns this hearing into a charade and a mockery of our norms. On day one of the questioning, which is to say day two of the hearings, Democratic senators start pushing their toe across the line and start referring to these documents. Have you got an email saying you got that from somebody spying? Well, is there such an email, sir? I don't know. Well, we'd have to ask the chairman what he has in his confidential material. And then getting in a back and forth with their Republican counterparts about whether that's proper or not. That material's available to everybody.

Is that what you're saying? If that's what the chairman's saying, we've got a whole new series of questions. No, not if it's committee confidential. I want Judge Kavanaugh to have access so that we can ask him these questions under oath. And then overnight, my colleague, Charlie Savage, obtains a lot of the documents, obtains some of these confidential documents. And what are some examples of these emails? Well, the one that really jumps out is a discussion of Roe v. Wade, where in the White House Counsel's Office, he's looking at a draft op-ed piece that women opposed to abortion want to run.

And that draft piece says, it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land. And Kavanaugh doesn't like that. And he responds, I'm not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level, since the court can always overrule its precedent and three current justices on the court would do so. Now, two things to say about that. One, it's very interesting because this question of whether he views Roe as settled law has been central to the hearings, central to the interviews he's done as he visited with senators.

He says it's settled law. Not an especially meaningful phrase, but he's adopted it. And here he seems to be saying something different. But the second thing to say is everything he says is exactly accurate. It is the case that not all legal scholars view Roe as settled law. And it was the case at the time that at least three Supreme Court justices were prepared to overrule Roe. So although this sounds pretty hot, and although I have no idea why it should have been kept secret, it's not something that actually is going to move the needle at all on people's votes on his

confirmation. A live picture from Capitol Hill. This is inside the Hart Senate office building where day three of the Brett Kavanaugh Supreme Court confirmation hearing is about to get underway. On Tuesday, Judge Kavanaugh answered questions for about 12 hours. Chairman Grassley has stated that lawmakers will get 20 minutes each to question the nominee today. So Adam, day three, Thursday, begins with Democrats having already started to allude to these documents, but very indirectly. And The Times having published a story about leaked versions of some of these documents. So how does that play out once the hearing is underway? The hearing starts out very hot. We're rushing through this before me and my colleagues can even read and digest the information.

There's high drama. Can I ask you how long you're going to say the same thing three or four times? No, sir, I'm saying I'm Nolan Lee violating the rules. Senator Cornyn has called me out for it. Cory Booker in particular makes a statement. I'm saying right now that I'm releasing committee confidential documents. Saying he's going to release the documents he thinks the American people have to see. And I understand that the penalty comes with potential ousting from the Senate.

He understands that they're committee confidential and that this may run afoul of some Senate rule. If a senator to suffer expulsion from the body. And that doing so may actually subject him to expulsion from the Senate. And that doing so may actually subject him to expulsion from the Senate. Wow. And apply the rule and bring the charges. And that if someone wants to bring charges, so be it, because this is important enough.

Count me in, too. And it's not just Booker. I am releasing that document to the press. Senator Mazie Hirono of Hawaii chimes in and says she's going to disclose documents as well. I completely agree with you. I concur with what you are doing. And let's jump into this pit together. And it goes on and on.

If you're frustrated with the process, then let's review the Presidential Records Act. But we're just doing what the law allows us here to do. And there's back and forth with Republican senators who say this is a gross violation of the way things ought to happen. These documents are not ours. They belong to someone else. That it's important that secret stuff be kept secret. To Senator Booker's point, the document you're talking about has now been approved through the committee processes. It's been made public. The process worked. And then gradually it emerges that most, if not all of the documents overnight, had been cleared by the committee and President Bush's lawyer to be released. Hmm. Are you saying, Adam, that Cory Booker had already received permission to publicize

these documents by the time he very dramatically went out and said, I'm risking my career here to disseminate these. No, I don't want to say that. I think the situation was deeply confusing. I'm not accusing Senator Booker or anyone else of acting in bad faith or dishonestly. I mean, staffers were working overnight and who knows who was communicating what with whom. But as the day progressed, it seemed like most, if not all of the documents did become public. So some of this high drama seems to dissipate, but nonetheless, it conveys this real moment of bitterness and fury on the part of Democrats. And then as you start to see the

documents, you do have to scratch your head and wonder why in the world they were kept secret to begin with. And I asked yesterday if your views on Roe have changed since you were in the White House. You said something to the effect that you didn't know what I meant.

And we have an email that was previously marked confidential but is now public and shows that you asked about making edits to it. But Adam, I wonder, is the reason Democrats are so fixated on these documents, especially a document like that, that Kavanaugh has basically deferred on every question relating to hot-button issues like abortion by citing that as a judge it's inappropriate to speculate,

I can't say, no other previous judge has talked about it. So they're looking for any opening, any evidence from his private life or his professional life that he actually has a view on this stuff. Yeah, very good point. They're trying to leverage some information out of the guy. If you're just going to say, where do you stand on executive power? Where do you stand on the Second Amendment? Where do you stand on abortion rights? The nominee will give canned answers and

tell you nothing. So the documents are a way into it. So please, once again, tell us why you believe Roe is settled law. And if you could, do you believe it is correctly settled? So thank you, Senator Feinstein. In that draft letter, it was referring to the views of legal scholars. The Democrats don't have a lot of cards to play. The documents is the best one in their hand and they're playing it. But it's a long shot. The votes seem pretty baked in and Judge Kavanaugh's chances of confirmation continue to be very good. So what sort of larger point are Democratic senators trying to make here about these documents? about these documents?

The documents, Michael, really are a symbol. They're a way for Democrats to say, this process is messed up, it's illegitimate, it's a rushed job, important information is being withheld from the American public. It's of a piece with the protests that keep breaking out. President Roosevelt's decision. Justice Jackson.

Every hour of every day of the hearings. This is a robbery and a tragedy of justice. This is a tragedy of justice. This is coming out of my time, but that's okay. Let these people have their free speech. Whether Democrats succeed in blocking this nomination or not, and the answer is probably not, they will try to demonstrate to the Democratic base

that at this odd moment in history, partisan politics have devolved to a point, they would say, where a Supreme Court nominee is going to be voted on without careful consideration of his entire record. And I wonder if the message to the Democratic base is not just that this process has gotten so partisan, but that if Democrats are essentially powerless in this moment to stop Kavanaugh from getting on the court, they are at least willing to stage dramatic protests in a pretty solemn environment of the Senate Judiciary Committee to make a point about this. That's right. And it may not pay

dividends on this particular nomination, but it may energize people in the midterms and beyond. Judge, when I started this, I said, this is not just about filling a key vacancy on the Supreme Court. It's more than the question of release of documents. It 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. Judge Kavanaugh kept saying, well, I don't want to talk about current events, but current events were in the room. We're in a moment where the president has shown contempt for the federal judiciary, unlike any president we can recall. He is a president who is the subject of an active criminal investigation, an investigation which he has apparently sought

to obstruct repeatedly. He is a president who has been characterized in this hearing publicly on the record as an unindicted co-conspirator. And in the last two days during the course of this 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. Adam, thank you very much.

Thank you, Michael. We'll be right back. Here's what else you need to know today. Mr. Secretary, I'm sure you've heard the story that's gripping Washington right now is this anonymous op-ed in The New York Times. Were you the author of that op-ed? Could you comment on it? Thank you. So, it shouldn't surprise anyone that the New York Times, a liberal newspaper that has attacked this administration relentlessly, chose to print such a piece. including Vice President Mike Pence, Housing Secretary Ben Carson, and Secretary of State Mike Pompeo, denied that they had written the anonymous op-ed in the Times describing efforts to undermine the president from inside the administration. It is 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, and it's to leave. Almost all the officials denounced the publication of the article, saying it was a betrayal of the president. And I'll answer your other question directly, because I know someone will say, gosh, you didn't answer the question. It's not mine. because I know someone will say, gosh, she didn't answer the question.

It's not mine. And the Times reports that six states are now opening investigations into the conduct of the Catholic Church in the wake of an explosive report about its decades-long cover-up of child sex abuse in Pennsylvania. Attorneys General in Illinois, Missouri, Nebraska, New Jersey, New Mexico, and New York say they are demanding records from diocese in their states in response to growing demands from Catholics

for greater accountability from church leaders. The Daily is produced by Theo Malcolm, Lindsay Garrison, Rachel Quester, Annie Brown, Andy Mills, Ike Streets-Conracha, Claire Tennesketter, Paige Cowan, Michael Simon-Johnson, and Jessica Chung, with editing help from Larissa Anderson. Lisa Tobin is our executive producer. Samantha Hennig is our editorial director. Our technical manager is

Brad Fisher. Our engineer is Chris Wood. And our theme music is by Jim Brunberg and Ben Lansford of Wonderly. Special thanks to Sam Dolnick, Michaela Bouchard, and Stella Tan. That's it for The Daily. I'm Michael Barbaro. See you on Monday.