liberty means "x." the only real check and balance is a constitutional amendment to change the ruling. do you agree with that? >> senator, i'm not going to comment on potential constitutional amendments or what -- >> okay. how -- if we pass add statute tomorrow in congress saying that the congress can regulate abortions before medical liability, wouldn't that fly in the face of roe v. wade? >> so the supreme court has said a woman has -- >> doesn't that trump a statute? >> the supreme court precedent -- >> all of us could vote, these five people have said liberty means right -- the state has no interest here, compelling interest before medical viability, that we could pass all the laws we want. doesn't matter because they fall. only way to change that is a constitutional amendment process that requires two thirds of the

house, two thirds of the senate, three fourths of the state s. that a pretty correct legal able sis? >> when the supreme court issued a constitutional ruling -- >> then you can only change it by constitutional amendment. here's the point. whether you agree or not, the reason some legal scholars object is breathtakingly unlimited. whatever five people believe at any given time in history in terms of the word liberty they can rewrite our history and come up with a new history. now, i think the best way for democracies to make history is to have the courts interpret the constitution, be a check and balance on us, but not take one word and create a concept that is breath taking in terms of its application to restrict the legislative process. now, whether you agree with me or not, i think there's a genuine debate. and you would agree with me if it was something you liked or you were supporting that got shut out. or you opposed you couldn't do.

so i hope that one day the court will sit down and think long and hard about the path they have charted and not just about abortion. whether or not it's right for people in your business on any given day based on any given case of controversy to say that the word liberty looking at the history of the country and the penumber of rights means "x" and shuts out all of us who have gone to the ballot box and gone through the test of being elected. all i ask is that you think about it. also, i want to ask you about something else to think about. you said you were in the white house on 9/11. is that correct? >> that is correct, senator. >> did you believe america was under attack? >> yes. it was under attack. >> right. do you believe that if the terrorists could strike any city in the world and they had --

like you get a one shot at the world, based on your time in the white house, do you believe they'd pick an american city probably over any other city? >> well, it certainly seemed that new york and washington, d.c. were the two targets. >> the only reason i mention that, to my good friends, and they are, who believe america's not part of the battlefield, it sure was on 9/11. the law. if an american citizen goes to afghanistan and takes up the fight against our forces and they're captured in afghanistan, the current law is you can be held as an enemy combatant in spite of your citizenship. is that correct? >> that's what the supreme court said with appropriate due process findings. >> absolutely. appropriate due process findings. here's what i want people in your business to think about. are you aware of the fact that the radical islamic groups are trying to recruit americans to their cause? that they're over the internet trying to get americans to take up jihad?

>> yes. >> the likelihood of an american citizen joining their cause is real. because it's happened in the past. the likelihood of it happening in the future i think is highly likely. if an american citizen attacking the embassy in kabul can be held as an american citizen, here's the question. can an american citizen collaborating with other terrorists or not american citizens be held for attacking the capitol? and if they can't, you're incentivizing the enemy to find an american citizen because they have a privilege that no other terrorist would have. so you said something was very compelling to me. that you apply the law and you have to understand how it affects people. right? >> yes, sir. >> i hope you'll understand that

this war is not over. that the war is coming back to our shores. it's just a matter of time before they hit us again because we have to be right all the time and they have to be right one of the time. one time. i hope we don't create a process where if you can come to america, you get a special deal. makes it harder for us to deal with you and find out what you know. we treat you as a common criminal versus the warrior you've become. that's just my parting thought to you. and you'll decide the way you think is best for the country. is there anything you want to say about this process that would help us make it better? because you're going do get confirmed. i worry about the people coming after you.

every time we have one of these hearings, it gets worse and worse and worse. you have sat there patiently far couple of days. my colleagues have asked you tough questions. sometimes unfair questions. your time is about over. you're going to make it. and you would probably be smart not to answer at all but i'm going do give you a chance to tell us what could we do better if anything. >> senator, i'm just going to thank the senators on the committee and those i met not on the committee for their time and care and as i said each senator is committed to public service and the public good. in my opinion. and i appreciate all the time of the senators. and i'm on the sun rise side of the mountain and optimist about the future, senator. >> thank you very much. >> we're -- before we break, i want to bring up some information because i was wondering how long it could take the national archives to get the

material we needed because you heard several times that the archives, that it's their responsibility. the national archives has 13 archivists who handle george w. bush's presidential records. they can only review about 1,000 pages per week. and we could not have gotten these documents for 37 weeks. if we didn't get president bush's team to expedite the review process for the benefit of all members of the committee. we received all the documents we would have received from the archivists just as a faster time. we'll take 15 minutes and resume at 12:22. >> welcome inside politics. i'm john king. you see the chairman chuck grassley taking a 15-minute break after a contentious,

dramatic morning hearing in the confirmation of brett kavanaugh to be the next supreme court justice. major questions raised by democrats today including a threat by one of them. he actually did break the senate rules and says if i get expelled, so be it. corey booker. that senator making the case that the republicans are helping to hide e-mails he insists show insights on brett kavanaugh's real issues on abortion rights in the e-mails. dramatic confrontations this morning. a break in the proceedings now. let's discuss what we have learned today, whether or not it imperils the nomination chances. with me in studio to share the reporting and insights, kaitlan collins, cnn legal analyst and mary katherine hamm with the federalist. it is every day is unusual in this administration. but in this hearing, to have a democratic senator openly break the rules and say expel me, go for it, because i believe this process is warped.

you're a yvetveteran of the hil. does corey booker -- is brett kavanaugh in anymore peril today? when he woke up this morning, no indication any republican was moving. that's all it takes. has the wall been cracked? >> i think that booker said bring it, by the way. wasn't that his quote? >> yeah. >> i honestly in judging this right now, i would say, no. but the democrats have done a few things. they have -- i think they have dinged him up a bit. from where they thought the republicans thought they would be at this hearing. i think they have needed to show to fight. the last hearing, judge gorsuch, when he was nominated, the confirmation hearing, not much happened. the democrats were quiet. i wouldn't say they rolled over but they didn't put up much of a fight. this time they're going for it and doing everything they can to show that they're fighting. this has been an unusual

documents process. basically, the national archives was cut out of it and some of the screening was put in the hands of a very close adviser to brett kavanaugh. that is odd. >> the bush -- essentially president george w. bush's team for those not following, brett kavanaugh had several key jobs in the president bush white house including staff secretary and worked on judicial nominations, involved in picking judges, several controversies there in the bush administration. he's at the center of this and one of the arguments is he's giving the advice to the president and privileged. >> i just wanted to say one thing of corey booker. obviously running for president. that doesn't disqualify him from raising points here but i also think that booker would like nothing more than the republicans in the senate to be trying to throw him out. elizabeth warren's biggest moment might have been when mitch mcconnell trying to shut her down. i think nevertheless she persisted and may be the

campaign slogan at the end of the day and no real risk for booker. >> affirmation action. he posted committee confidential records on the websites there. another e-mail that's released from brett calf inaugurate's days in the bush white house that he said that roe v. wade then the planned parenthood pennsylvania case make it settled law. the democrats are now saying, wait a minute. are we being snookered? in a march 24, 2003, e-mail, kavanaugh wrote i'm not sure all refer to it as the settled law of the land. and three current justices on the court would do so. that's from 2003. we now know four on the justices who might likely to do so. does that change the vote count? >> i don't think so, john. i think what that memo reveals

is how so many memos held back and really all they are are embarrassing documents that he could probably explain away which he did then to senator feinstein. he is acknowledging in the memo and wouldn't acknowledge to the committee. of course the supreme court can overturn roe. they overturn precedent a lot and not enough to say it's settled precedent and what happened is once that memo leaked a senator asked him about it. he explained it. the key thing here is the documents could have been out here earlier to explain himself and just that carl's point of why it's different from justice gorsuch's hearing. this is a key seat, the kennedy seat. >> anthony kennedy seat and kavanaugh's experience, correct me if you think i'm wrong, gorsuch worked at the justice department. had political experience. kavanaugh in a much more highly political role in the bush white house. he is being less forthcoming

than neil gorsuch who was not exactly mr. forthcoming. fair? >> i think the memo this morning forced him to say more about roe and saying i worked -- >> pro-life president. >> precedent upon precedent. he's a super political figure here in this town as dick durbin called him the zelag of republican politics or forrest gump. >> let's go up to capitol hill. phil mattingly is tracking this. we used the word remarkable, unprecedented. this hearing this morning where you had a democratic senator and then several colleagues say, go ahead. kick us out. go for it. quite remarkable. >> reporter: i believe senator booker called it a spartacus moment. this is the reality that democrats have long been frustrated with this process. kind of a very different process just because of the scope of paper trail for brett kavanaugh.

but they haven't necessarily been able to latch on to things that make it real. make it something that can actually gain momentum and what they got this morning. i think jones read on the abortion-related e-mail or at least how legal scholars look at it is right one. but what that e-mail does is it created a document had been confidential relating to the central issue that democrats want answers on from kavanaugh. now, as you noted he responded more or less the same way to the roe v. wade question or casey verse planned parenthood. but they believe they have things to present to the public and say, this is an example of why this process is wrong. they have used the word charade, the word rigged. i think the reality here on the top line remains the same. at this moment, brett

kavanaugh's nomination on solid ground but when you pair the democratic base which wants a fight and felt a lot of democrats fallen flat on that with the reality that the stakes here are enormous, the result was what you saw this morning and what's going to continue frankly throughout the day, john. >> phil, keep in touch if more comes up. they're in a break. let's go back into the hearing room to show the drama. corey booker early in the hearing announces publicly i'm about to post e-mails i'm not supposed to post. against senate rules to make it public. i'm going to do so. >> i'm going to release the e-mail about racial profiling and i understand that that -- the penalty comes with potential ousting from the senate. sir, i'm saying right now that i'm releasing committee confidential documents. >> and to that, to that, you saw the chairman chuck grassley smiling a little bit. republicans don't like this. republicans don't like being questioned about how they have run this and taking so long and

why not release the documents and some never made public if the republicans get their way. john cornyn, number two in the leadership, also a key member of the committee making the case this is not about brett kavanaugh. >> running for president is no excuse for violating the rules of the senate or of confidentiality of a documents that we are privy to. >> talking about the public right to know. you want to give up your e-mails right now? make them public. i don't think you do. >> we try a lot to separate issue "a" from issue "b." it's anger at president trump. it's desire for its members to stop anything the president wants to do regardless. and with the fact that every day we get closer to the 2018 midterms and the 2020 presidential election. corey booker might run. >> yeah. look. obviously part of it. and over acting if i may say so is part of that. >> over acting?

the senate? >> it'll work for a certain segment of the people in the way that he wants it to. look. democrats frustrated with the process for a listening time. pre-2003 when harry reid in the great wisdom decided to blow up the judicial filibustering thus neutering the folks and making this into a more ridiculous process than it already was. i think some of this is out of frustration. i think it's interesting how breaking norms and leaked e-mails are good on one day and bad on another depending on the team you're on at the moment. i don't think there's a lot in the e-mails kavanaugh can't answer pretty convincingly and the last time that democrats in the senate cavalierly tossed aside senate rules it got them here. just something to think about. >> the last time they fought about senate rules they changed the rules and 51 to confirm supreme court justice. corey booker today, harris last night. in his testimony today, today he gave more of evasive answers last night.

the testimony today, judge kavanaugh said he has not had any inappropriate conversations with anyone about the mueller investigation. remember, he sits on the d.c. court of appeals. any challenges to bob mueller in present or future cases could go through that court. it does matter. involved in any conversations? bumping into somebody in a social reception, get out of the room. last night more cagey when kamala harris was pushing this. >> have you discussed mueller or his investigation with anyone at the law firm founded by mark kasawitz? president trump's personal lawyer. be sure about your answer, sir. >> i need to know the -- i'm not sure i know everyone who works at that law firm. >> i don't think you need to. i think you need to know who you talked with. who did you talk to? >> i would like to know the person you're thinking of because -- >> i think you're thinking of someone and you don't want to tell us. >> to that one, is that fair?

does she have something or is that innuendo from the democrats to bait him? again today, today what you learned these things, something happens yesterday or before the break and take a break and you see the strategy, the reconsidering once you come back boo the room. last night he was evasive to her. today he said on the record clearly i have had zero inappropriate conversations about the mueller investigation. >> he was as caught off guard last night and she didn't provide basis for what she was saying and threatening a little bit saying be sure about your answer. making it sound like she knew something and discussed that at a firm of reptding president trump. today he was much more forthcoming. i guess he thought about it. no, i have not discussed this with anyone. she was asked about it and didn't disclose the reasoning for asking that and didn't say to bring it up again. if she does know something, that's a legitimate line of questioning and everyone wants the know about it but if she's

putting it out there for an air of suspicion which is ma what i think the document of documents done to create a cloud over the hearing then that's something that people would scoff at. >> he should be extremely careful about answering a question of a giant law firm and spoken to anyone because he probably speaks to a lot of lawyers. >> kaitlan has a point there. unintended consequence of keeping the documents secret and allowed the democrats to raise some of these issues and like there is something there. i think as what you said, he probably can answer most of these even though it puts him in a tough spot or makes the bush administration look bad or -- but i do think that the democrats have used that confidentiality while complaining and used it to their advantage. >> credibility was the point going into it and why they're doing it. >> hoping again the drama's driven by the democrats and hoping to sway one or two of the key democrats. if they can't sway them, the math doesn't change. we'll monitor the confirmation hearing.

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talk to your rheumatologist. right here. right now. humira. live pictures here. senate judiciary committee about to resume the hearing. brett kavanaugh, the president's choice to fill the vacant supreme court seat. this hearing would be contentious and all the more because this is for the seat of the retired now justice anthony kennedy, a key swing vote on the court. also more contentious than perhaps normal because we're 61 days from a midterm election and the democrats are angry at the president of the united states, brett kavanaugh being his pick. democrats are next asking the questions. we believe that could be senator dick durbin of illinois there in the chair next in order if they go in order. we'll wait for chairman grassley to resume the committee hearing and get you there once they start. back into the room now. i'm going to try to keep doing this from the procedure of what more do we know now and does it change the calculation that began the morning that brett

kavanaugh is getting bruised, the credibility called into question. the way the republicans are running this is called into question. but if the vote is were right now by all indications he would squeak by on a party line vote. >> i don't think the white house was prepared for this to go this way. i think they knew that there was going to be a lot of noise about the documents and people trying to raise this cloud of suspicion but i don't think that they were ready for it to be and go in the manner that it's gone with the interruptions and all these claims of the documents. i don't think they were prepared for this. >> i think they were plowing ahead. they have the majority. setting the rules because they could set the rules. democratses were getting a lot of pressure from the base saying you're letting it unfold. from the first moment as we saw senator harris complained the minute the hearing started about the process and now we have seen this incrementally along and been effective. will it change significant?

probably not. >> the democrats are in some cases breaking the rules to make public e-mails that the republicans want to keep confidential. the big question unless there's a surprise, can you get murkowski or collins, two moderate senators of alaska and maine respectively to break? if you can't you don't have the votes. then there's a separate question of red state democrats to support him. that's later. the big controversy today is does this e-mail in which kavanaugh says i'm not sure that all legal scholars refer to roe as settled law of the land, that's an e-mail he wrote back in 2003 working in the bush white house because it was made public. it was again roe v. wade and a source of questioning today. here's the nominee. >> in that draft letter, it was referring to the views of legal

scholars and i think my comment in the e-mail is that might be overstating the position of legal scholars and so it wasn't a technically accurate description in the letter of what legal scholars thought. i'm always concerned with accuracy. i thought that was not quite accurate description of all legal scholars. >> so his answer there essentially being it's not a personal opinion. i'm just making sure -- editing a potential op-ed piece about a bush nominee. trying to be accurate. another point he said i worked for president george w. bush who was pro-life. i was on the staff. >> i think the answers are good because he's probably prepared to answer any number of things. i will say and speaks to why you can't just release this stuff from the beginning because he can defend himself perfectly well. i will say the documents and the substantive stuff here is a better strategy than random people yelling at the committee

which was what we were going with for the first part of it. we have the same sort of tribal situation all the time of not sure anyone's convincing anyone of anything at this point. >> tribal, an interesting perspective that right now outside of this committee three or four or five trump state democratic senators up for re-election waiting for murkowski and collins. they are hiding. they want to see if they'll crack. maybe they'll stay on the democratic side. if it's a done deal and run for re-election in states trump carried that's a separate issue. but for now inside the room let's listen to the democrats. corey booker says this morning i'm breaking the rules. i'm publishing e-mails i'm not supposed to. some democrats are institutionalists and paying attention to the primaries. stand with booker. >> let's jump into this pit together. i hope my other colleagues join me. if there's some retribution against the senator from new jersey, count me in.

>> punishment or contempt. >> bring it. bring it. >> all of us are ready to face that rule. >> we'll come back to this in a moment but a new statement just released by the first lady of the united states on a separate issue. you are aware a "the new york times" anonymous essay of a senior trump administration official calling the president amoral, temperamental. a network of people within the administration who essentially are resistance movement to the president. they don't implement the policies. melania trump joining several cabinet members and the vice president of the united states responding to this article. saying this, freedom of speech is an important pillar of our nation's founding principles and a free press is important to the democracy. the press should be fair, unbiassed 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's critical and important but then she goes on to directly chastise this unnamed senior administration official saying in the essay the president is unfit for the job essentially and some of us, many of us every day work to make sure we don't go off the rails. >> i joked in the break she doesn't deny she broke it and in the middle of the storm of officials denying writing this

op-ed and calling into question the president's leadership ability, not just the first lady issuing a statement but the defense secretary, secretary of state, the vice president, the budget director, the treasury secretary. we have so many people right now have to issue the statements and the reason they're issuing is not that they're all the subject of speculation. i don't think people think ben carson, the secretary for housing and development wrote the op-ed and shows that the president himself is watching these denials roll in. you saw that after the woodward book came out the president siding james mattis the defense secretary denials and john kelly's denials. he really like when they deny this. now they're denying it because they don't want the president suspecting they're the ones. >> he wants names. following this drama. at the moment, back up to capitol hill. senator dick durbin senate of illinois is in charge of the questioning. let's listen.

>> 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. record statement in opposition of the kavanaugh nomination of several groups. >> without objection. >> 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 takes 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 2nd,

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. >> without objection. >> 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. 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 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. 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 con section 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's been characterized in this hearing publicly on the record as an unindicted co-conspirator. and 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 president sir 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 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 morris son 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 lit toll 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 power 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 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 bipart san 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're bound by scalia's dissent. at the time i joked and said instead of dealing with starry decisis we're stealing with scalia decisis. we are obviously worried that you will feel bound by this dissent of scalia if president trump attempts the fire the special counsel bob mueller. it doesn't stop there.

you cited the scalia dissent in the case of the consumer financial protection bureau where you gutted that agency. and in the 2011-7 sky case you dissented from a decision of the affordable care act and repeated over and over again 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 of president bush's december 30th, 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 is 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. >> senator, thank you, first, thank you for your comments about my wife and daughters. my daughters are -- will return this afternoon for return engagement and 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 statute as you said which is expired in 1999 under overwhelming consensus that statute was inappropriate. secondly, morrison, justice scalia's precedent, does not prevent 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 function for american consumers. the only correction would have been in the structure. it was unlike every other independent agency created previously. as to the concept of prosecutorial discretion 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 with president bush in the immigration context. there's debates of the limits. they're not finely determined but the concept 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 ve sa vie congress. on that latter question, the scope of executive power vis-a-vis congress, the context of administrative law, my cases questioning unilateral rewriting of the law in the criminal law, where i have reversed convictions, i'm one not afraid at all through my record of 12 years to invalidate executive power when -- >> judge, let me ask you this.

you've referred to youngstown case in the context of a war and a decision by a president that was immensely unpopular. >> yes. >> 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. what i'm trying to ask you is historical 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 and 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 this is in. not a particular case but a particular moment in history. >> senator, my 12-year record shows and my statements to the committee show and all my teaching and articles show -- [ shouting ] -- show my commitment to the independence of the judiciary. 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 the rights and liberties guaranteed by the constitution laws of the united states. >> 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. >> i have not said that, senator. i'll reiterate something i said a minute ago coming from cooper versus aaron, coming from m 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's the final word. >> 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 am not involved in the questions of the rules of detention of combatants. we have found at least three specific examples where you were. three. your discussions about the access to counsel for detainees, involvement in the hamdi case and the involvement of the president bush's signing statement on the mccain torture amendment. judge kavanaugh, you say that words matter. you claim to be a texturalist interpreting 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? >> senator, you had a concern at the time of the 2006 hearing which was understandable. whether i had been involved in crafting the te tension policies, 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.

justice department office of professional responsibility produced a long report about all the lawyers who were involved. i was not involved in crafting -- >> do you deny being involved in the three specific areas do you say you had nothing to do with the padilla cases, that you weren't involved in the conversation about access to counsel for detainee, that you worn the involved in president bush's decision on assigning statement on the mccain torture amendment? are you saying none of those things occurred? >> i understood your question then, and i still understand it now. i understood my answer then. i still understand it now. i was not read into that program. i was not involved. my name does not appear in senator feinstein's report. >> that's not the question i asked. do you deny the three specific instances where you were

involved in questions involving detention and interrogation? >> that was the question 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 profession gnal responsibil report shows, i was not read into that program. >> i'm not asking about that program. i'm asking about three specific instances. 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 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. >> senator, i'm going to distinguish two things. one are what you're asking me in 2006, and my testimony then was accurate and was the truth. what you're asking me now -- 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. >> let me just close. i don't think the staff secretary to the united states president is a file clerk. 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. 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. >> if you want to speak to that, then we'll go to senator lee.

>> i just want to close, mr. chairman, by thanking senator durbin. 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. 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. so a good model, and i thank senator durbin for giving me the book. >> thank you, judge kavanaugh. that night obviously the nationals weren't playing. >> yes. >> senator lee. >> you've been watching 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. now other big breaking news here

in washington today. 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 damning things about the president of the united states, the vice president says whoever did write it should resign. >> i think it's a disgrace. the anonymous editorial published in "the new york times" represents a new low in american journalism. 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 resign. >> i'll get to the vice president's point about the media in a moment, but top aides beyond the vice president, including the secretary of state, other members of the

cabinet, also feeling a blioblio deny speculation they wrote this op-ed. the deniers list growing steadily all morning. 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. we have this thing called the first amendment, a free and fair press. 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. >> 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. >> you know the game when your kids are running around and they don't want to do something or are trying to deny 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. >> because they know the president of the united states is white hot. he wants to know who did this. >> exactly. he's 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. it just is. >> 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. if you work in an organization as important as the united states government, you should be loyal to your boss. >> except the whole thrust of the argument made in the op-ed is if i quit, because this person thinks very highly of him or herself, if i quit, if the other people are telling how afraid they are of this president if they quit, then what's going to happen? 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. >> that's what makes it so interesting. 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 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, 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? >> well, one, of course he's white hot. frankly, he should be. even if i think a lot of this management style and the problem 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. over and over again we see 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 an extraordinary step by "the new york times" to take an anonymous

op-ed and print it. it's an extraordinary step for everyone to treat it on its face as very serious and credible. 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. >> the deep state is who he refers to as career people. this is a political appointment. >> i understand that. >> 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 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?

>> wellwell, it creates a huge e of paranoia in the west wing, which already existed. the president already thinking people are working against him, and now he has credibility to put that theory out there. >> it ain't paranoia. >> only 60 days from midterm elections. thanks for joining us on "inside politics today." see you back here this time tomorrow. don't go anywhere. the hearing continues. wolf starts right now. hello. i'm wolf blitzer. it's 1:00 p.m. here in washington. wherever you're watching from around the world, thanks for joining us. up first, white house whodunnit. the president goes on the warpath, searching for the source behind that scathing anonymous op-ed in "the new york times." an unnamed senior trump administration official describes working behind the scenes to protect the country from the president's recklessness. one by one, administration officials are lining up today to deny they were behind the anonymous op-ed and to condemn it. among the denial