the only real liberty is a constitutional amendment. do you agree with that? >> i am not trying to come down my comment on potential constitutional amendments. >> if we passed it tomorrow saying that congress can regulate abortions for medical liability, wouldn't that fly in the face of roe v. wade? >> so the supreme court has said that a woman has a constitutional right -- >> so all of us could vote, as we have said, liberty means that the state has no interest year. the compelling interest for medical viability. that we could pass all the laws that we want, it doesn't matter. the only way that we could change that is if it's requires two-thirds of the senate, three fourths of the state. is that pretty correct legal analysis?

>> when they have issued a constitutional ruling -- >> not by changing it. here is the point. would you agree -- the reason some legal scholars object to this concept is a breathtakingly unlimited. whatever five people believe that any given time in history, in terms of the word "liberty," they can rewrite history and come up with a new history. i think that the best way for democracy to make history is to be a check and balance on us, not to take one word and create a concept that is breathtaking in terms of its application to restrict the legislative process. now, whether you agree with me or not, i think there is a genuine debate. and you would agree with me if it was something you liked or you were supporting that got shut out. are you opposed -- you couldn't do. so i hope that one day the court

will think long and hard about the path of they have charted. and not just about abortion. whether or not it is right, or on any given day, based on any given case of controversy, to say that the word "liberty," looking at the history of the country, that it means x, that all of us have gone to the battle 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 christ? >> that is correct, senator . >> did you believe that america was under attack? >> yes. it was under attack. >> right. do you believe that if the terrorists could strike any city in the world, they said i can get one shot at the world, based

on your time in the white house, do you believe that they would take an american city over any other city? >> well, it certainly seems that new york and washington, d.c., were the two targets. >> the only reason that i mention that, my good friends, who believe that america is not part of the battlefield, it sure was on 9/11. the law, if an american citizen goes to afghanistan and it takes up sides, and they are captured, the current law is that you can be held in spite of your citizenship. is that correct? >> that is what the supreme court said with appropriate due process findings. >> absolutely. this is 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? over the internet? trying to get americans to take of? >> yes. because the likelihood of an

american citizen joining their cause is real. because it has happened in the past. the likelihood of it happening in the future, i think, is highly likely. if an american citizen is attacking the embassy in kabul, can be held as an american citizen, here's a question. can an american citizen collaborating with other terrorists who are not american citizens be held as an enemy combatant? and if they can't, you are incentivizing the enemy to find an american citizen because they have a privilege that no other terrorists 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 will understand that this war is not over, that

this war is coming back to our shores. it is just a matter of time before they hit us again. we have to be ready all the time. they have to be right 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 will decide the way that 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 are going to 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 sit there patiently for a 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 will give you a chance to tell us what could we do better, if anything? >> senator, i am just going to think all the senators on the committee and all that i met with who are not on the committee for their time into their care, and as i said, each senator is committed to public service and the public good in my opinion. i appreciate all of the time with the senators. i am on the sunrise side of the mountain and i am optimistic about the future. >> before we break, i want to bring up some information. i was wondering how long it would take the national archives to get the material that we needed because you have heard several times that the archives,

that it is their responsibility. at the national archives has 13 archivists who handled it 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 to the review process for the benefits of members of the committee. we received all of the document such we would have received from the archivists just as at a far time. we will now take 15 minutes and resume at 12: 22. >> and to the fox news alert now, as we come back from the supreme court hearing of judge brett kavanaugh. as you heard, they are going to

come back in. exactly 15 minutes. this has been amazing. you are now watching the coverage via "outnumbered." this is harris faulkner. let me bring you up to speed just a little bit. shannon bream is standing by too. senator cory booker of new jersey it because this works when he said that he was revealing congressional confidential information or documents for this hearing. at documents that had come from an email with judge kavanaugh that seem to show that the documents that he released contained several emails regarding judge kavanaugh's views on racial profiling and affirmative action. concerning the additive they are added booker. of the email that he referenced it during his questioning of cavanagh last night. he said "i am releasing them, and with that, a moment where other democrats seem to join along.

of hawaii, minnesota. all willing to suffer the consequences of releasing confidential documents. those consequences appearing to be part of the rules of the senate, which would mean that you would give up your senate seat if you did that. that is how serious it is. was it grandstanding? who knows? but here it is. watch it. >> releasing it to expose that number one, that the emails are being withheld from the public. they have nothing to do with national security. what i am releasing this document right now to show, sir, is that we have a process here, for a person, the highest office in the land -- >> i did not mention his name. he had mentioned by name. and he's right. running for president is no excuse for violating the rules. the one and back and forth they

went. it got very contentious. with senator booker at the seat in the conversation about confidentiality and whether he would in fact succumb or capitulate to the rules of the senate, which say since he released these confidential documents, you may have to give up your senate seat. amazing to see you. and then mike lee on the republican side, sing to you, it all down and make sense of it. let's go down to fox news at night anchor, shannon bream, who has more now from capitol hill. this was an interesting moment. >> a lot of people say that there are a lot of questions, it is kind of dull. this week has been anything but. this morning, that was also the case. if there is a lot to unpack there. we heard from senator booker this morning about the fact that he felt he should release these documents that had been marked committee confidential.

that includes the senator, who will share what he said. >> there is a right in my view on the part of every member in this committee to release documents that she or he believes are appropriate. >> senator mike lee said listen, going over to senator booker, he said i'm going to help you work with staff to get these documents released. they shook hands, it was a very bipartisan moment. he said less of the grandstanding. here's what he said. >> an accommodation with the senate, allowing us to gain access to other documents for which we would never be able to have access. they have agreed to hands those over with the understanding that we have this process. there are means by which we can clear documents like this one that we would otherwise not be able to clear. it has worked here, it has been clear, and i think we should move forward.

>> shannon: so he said this processes in place. let's continue with that. we got a release on twitter, and from senator booker's office that he is releasing these four documents that were emailed in question. have they been cleared of that committee confidential label? they have not responded to me. i have been told by other sources these are the documents that have been cleared with the help of committee staff, and so while senator booker is out there saying that he is willing to get kicked out of the senator or these other things, that is not in question at all. now, a few moments ago, one of our producers spoke with senator booker, and here's what he told him. he was talking about pursuing action against him. he says bring it on, come after me. and all of the others who said that they are going to release documents. he said i think he was just like a lot of bullies are, a lot of talk it, and no action. so it appears that senator

senator booker may be having it both ways. i'm going to release these documents and risk the potential consequences. but at the same time, other sources telling us these were the documents that they worked together to clear, so if i hear back from senator booker's office early, i will let you know. >> harris: we were just talking about that "spartacus" moment. because he had blumenthal, and he had at mazie hirono. and he had klobuchar with him. here's my question for you. senate roll 29.5. any center to discloses confidential business shall be liable to suffer expulsion from the body. booker says bring the charges. where are we now? are we going to start back with this moment? >> shannon: well, here is the thing. if it turns out that these are documents that they all work together to get released, there is kind of a lot of heat and

smoke it, but no actual fire because if they were cleared of that confidential classification, then he is not in any danger for releasing them. so we will have to see if it is little bit more p.r. it is clear that he is very unhappy. senior member of the senate, he is not happy with the way that he has had this interaction with senator booker this morning, so it remains to be seen. i think just about everybody knows that this is a step to try to expel a senator, you are never going to get that far. so again, it will probably be smoothed over at some point. but it is clear that there is a lot of vegetation in this committee room. it we have been here long before they started. i don't think it is going away. >> harris: well, it would not just be booker. if everybody else is saying that they are in that moment going to stand with him, it is very unlikely that you would see that many senators expelled. >> let me ask you a question. i have been pouring through

these documents. i can't tell what the smoking gun is here. have you had a chance to read through all of it? i am struggling to see what was so fiery. >> shannon: and i think a lot of people looking at them for themselves or having kind of the same reaction. i can point you to one of the emails that booker was referencing last night. it is about a policy looking at security actions, in the wake of 9/11, they were debating how to put together a policy, whether it would be race neutral or not. the email, so not long after the attacks, and he talks about people such as you and i, someone he is working on the policy with, who generally favor race neutral procedures. he was advocating for something race neutral. it seems like senator booker was getting onto those words. and senator booker wanted to joust with him about that, saying when are you not going to be race neutral. this is something that they were having to talk about for security measures. a post 9/11.

>> harris: shannon bream, we will come back. thank you very much. judge andrew napolitano, fox news contributor, and also a friend of cory booker for quite some time. >> we have probably been friends for 20-25 years. we agree on very little politically, but i have great respect for his courage and political honesty. these documents that show the thinking of the nominee, when he was a young lawyer in the white house. just because some senate staffer stamped it as confidential doesn't make it confidential. what do the documents show? shannon bream talked about one set of documents which show a little bit of the ambivalence about how race neutral the government should be when it is concerned about security at airports. but the more incendiary document, this is what senator booker is going to

interrogate him about later today. his statement in which he says roe vs. wade might not be settled law. that is 180 degrees from what he said under oath. here is kavanaugh's defense. what i was saying was the state of the law in 2003 when i said it. but today, in 2018, after all the litigation that has reinforced roe vs. wade, it is clear that today, it is well-settled law. so this does cut both ways. he is he going to be disciplined? absolutely not. secret documents four years ago. >> harris: interesting how they didn't bring that up. i would say, her point is slightly different. she is with cory booker, but hers has to do with the questioning that kavanaugh did about the constitutionality of some things, per native americans. so she answers herself in a different way. we are going to sit tight. they are on a break.

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this wi-fi is fast. i know! i know! i know! i know! when did brian move back in? brian's back? he doesn't get my room. he's only going to be here for like a week. like a month, tops. oh boy. wi-fi fast enough for the whole family is simple, easy, awesome. in many cultures, young men would stay with their families until their 40's. >> harris: and on capitol hill, the supreme court nominee hearing for brett kavanaugh, the judges there, senators are filing in, and in the next couple of seconds, we

will go back to appear judge andrew napolitano is with me me. the last few things that were touched on, roe vs. wade. 35 he made a comment about the way that roe vs. wade was perceived in 2003. which is not the same way that it is perceived today. should he have to explain that comment? that is basically what this is all about. the comment in 2003 is "roe vs. wade is not settled law." a comment in 2018 is "roe vs. wade is settled law." both came from the mouth of the same person. >> melissa: katie just made this point. it was a different group of supreme court judges at the time. >> it does not say i believe it may be unsettled law. it says many legal scholars believe that it may not be settled law. that is very, very different than him saying it is my opinion as someone in the legal field is

that it is not settled law. big distinction there. >> very few scholars today would say that it is not. in fact, almost no one would say it. >> harris: adrian, as you look at democrats taking the stand today, it is a strong move. he has even said that he can understand why cory booker did it the way that he did. i thought that representative mike lee came right back and took the ir out of it. move forward. going back and forth. if it is true that cory booker knew that he was going to be able to release these documents because he had already been releasing them, what does this do for the conversation? >> well, the bottom line is that he took a very courageous stand. democrats have essentially no power, right? we have talked about this many times. >> harris: they are not the majority. >> andrienne: they are not the majority. they have to make noise.

they have to be courageous. that is exactly what you heard from others. challenging the committee's decision. >> katie: you said in july that you were against it, they have all claims that they want to be thrown out of the senate, bring it on, grandstanding, knowing that the vote has to take place. they said in july that they were opposed to this nomination. it has nothing to do with the documents, transparency, it has everything to do with them doing everything possible, while they have been protesting, to delay this hearing as much as possible. it is not about substance. it is about cory booker's 2021. >> andrew: just because they have marked a document as confidential doesn't make it confidential. if they are under the speech and

debate clause to reveal whatever they want on the floor. having said that, i don't think that senator booker is going to change anybody's mind on the republican side. if he does, the nomination will -- >> harris: if this is all they've got, my goodness. got so excited when there were these documents being put up online. i want to know, what could they be. i go and look, and i am like ug ugh. they know that they are going to be a supreme court justice, they never make the smallest mistake. they don't speed, they don't ever have a drink and get in the car. they don't do a walk. if they don't talk to the wrong person. i mean, it's impossible to find anything on these people. >> harris: you know what is fascinating about what you are saying? one of the senators early on, i would guess that there are a lot of people in this room who would want this job. and remember when you are asking for every single email and document, that could be you.

i thought that was fascinating when they said it and when you set it. >> andrew: there was a member of the committee, likely, he turns out to be the peacemaker here. so he sat down in private and he said let's just agree to take this word "confidential" off. >> katie: it did not require cory booker making a scene -- >> harris: perhaps with this document. shannon bream said that this could be part of it, it would have come out anyway, and it could not be. we don't know. he thought he was making an earnest point. >> andrew: there are still 102,000 documents that george w. bush has signed off on that president trump has now signed off on. >> harris: democrats are saying that we have seen it. >> katie: and what do you how many kagan turned over? zero. >> andrew: at the time the document was prepared, it has a "yes" or "no" vote.

at the time, they demanded. >> harris: why i support percent? >> katie: from her time. they were zero documents turned over. >> harris: a little bit apples and oranges there, but we have more than 300 opinions from this judge too. >> katie: but they demanded documents from kavanaugh's time in the white house, saying that they are not being transparent. fine. but the argument did not apply when elena kagan, who hired him to work at harvard law, there was not the outrage from the other side. >> melissa: they brought up the point that this is about his position on torture. he talks about being race neutral. and they even brought up the point that when he was on the bench, he ruled against president bush on the idea. torture and a lot of these interrogation tactics.

and the very things that they are talking about. >> andrew: he ruled against president bush on whether military conviction could have them as something that is not a crime. a usama bin laden's driver had been convicted of conspiracy. conspiracy is not a crime, and he was upheld by the supreme court. >> harris: you know what? >> melissa: the democrats would have liked to have done -- >> andrew: he did not do what the president to nominated him would have wanted him to. >> harris: around and around we go with this because there is so much to talk about. so much action. hold on one second, judge. one of the action points, saying that they are going to be right on time. he made a big point of this. and now we are in a delay. there has been a lot of drama that we have talked about. and a lot of factual drama that we have talked about. some of it is based on the facts. we are going to take a click it,

quick break and talk about where they are and all of this. they are in that hearing room, but they have not yet come back. what is going on? take a look. every veteran,

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♪ oh! oh! oh! ozempic®! ♪ (vo) ask your healthcare provider if ozempic® is right for you. >> harris: all right, everyone has filtered back in. let's go back in. >> i would like to also ask for two things to be entered on the record. first is the statement and opposition to the cabin on nomination from several groups. secondly, the senator closed with the last session with some comment, i will have to read it in its entirety to understand, but he said it would take 37 weeks for the national archives to go through judge kavanaugh's record. i would like to enter into the record a letter from august 2nd of 2018 to the national

archives, which concludes with the following statement. "by the end of october 2018, we would have completed the remaining 600,000 pages that we should be considering and unfortunately cannot. "so i would consent to enter that letter in. judge kavanaugh, i remember when i got my results from the bar exam, i thought to myself, that will be the last time i ever have to sit down and to take an exam, so at the end of this day, this may be your last formal exam in terms of your legal career. i am sure there is a sense of expectation, hopefully some relief in that. i want to thank your way for being here, and for bringing your beautiful daughters. i hope that someday people will understand what happened to their father in a few days here. but thank you so much for being a part of this hearing.

this is not just about filling of the key vacancy on the supreme court, but no vote which made to side life and death issues on important cases. it is more than a 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. we are at a moment where the president has shown contempt for the federal judiciary, unlike any president we can recall. he has shown disrespect for the rule of law over and over again. he has repeatedly ridiculed the attorney general of the united states. he has called for blatant

partisanship in the prosecution of our laws. 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 coconspirator. 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 is why your nomination is different. i can't recall any that have ever been brought in this context. i can't recall so many people across the united states following this. perhaps clarence thomas, at that time, everybody in america was tuned in. but it is in the context of the

trump presidency that we are asking these questions in anticipation that you may face issues involving this present, which at the 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 is an important contemporary question. which of course has application beyond his presidency. you have quoted me several times, thank you, regarding the statute, as our republican colleagues are fond of reminding us, they are not judges. so to state the obvious, my opposition over anything in the reauthorizing a statute, 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 this decision, is because of its

significance in light of the trump presidency. the reason we are so interested in your view, that case was wrongly decided, it has little to do with the statute that was in question. it has everything to do with your views on the power of the executive. and what that would mean for this president and future president if you join the supreme court. justice scalia, is sold to send embraces the so-called unitary theory, which granted sweeping power for the president of the united states. scalia said and i quote "we should say here that the president constitutionally, his duties include complete control over an investigation and prosecution of violation of law and that the command of article two is clear and definite period of the 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 added significance. earlier this year, the senate judiciary committee and ruled it to protect bob mueller. several republican senators do here today and decided it was scalia's dissent to justify their opposition to a bill protected of the special counsel. "many of us think that we are bound by scalia's dissent." at the time, i joked and said we are dealing with scalia decisis. we are worried that you will feel bound by this dissent. if president trump decides to try to fire bob miller. it doesn't stop there. scalia's dissent in the case involving the consumer financial

protection group, where you gutted that agency. and in the 2011 sky case, you dissented from a decision upholding the affordable care act, which has been 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 constitution. your words. of course, the theory was the basis for president bush's december 30th 2005 signing statement, claiming the authority to override of the mccain amendment. yesterday, i asked you what comments he made on the signing statement, as his secretary. senator feinstein asked a similar question this morning. told me, i can't recall what i said. i do recall that it was a good

deal of debate about the signing statement, as you can imagine. i do remember it would be controversial. it is hard to imagine you can't remember that controversial issue. given our concern about your views on executive power, it is important for us 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 will return this afternoon. they will experience democracy once again in action, and i appreciate that. anna morrison versus olson, a couple of things at the outset. first, that case did not involve a 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 that. that dealt with the old independent counsel. it expired in 1999 under overwhelming consensus of that statute being inappropriate, unrestrained, unaccountable, as he said. secondly, morrison, that has not affected the precedent of the executor. humphrey's executor allows independent agencies, those regulatory agencies continue to exist, of course. so on the independent agency side, those are unaffected. on the special counsel side, that's unaffected. you mentioned the see if pp case. my decision in that case would have allowed that agency to continue operating and performing its important

functions for american consumers. the only correction would have been in the structure because it was a novel structure that was unlike any other independent agency that had been created previously. as for the concept of prosecutorial discretion that is referred to in the 2011 case, that is the traditional concept of discretion that is free and recognized. the limits of it are uncertain. that is in the immigration contacts with obama. there were debates on what the limits were. not finally determined, but that is what i was referring to ther there. i have 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 the laws of the united states, that is the final word in our system. that is cooper versus aaron.

that is united states versus richard nixon. that is the 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 agencies which exist, it is distinct from what is distinct vis-a-vis congress. the scope of executive power vis-a-vis congress, i have made clear in the context of national security, the context of administrative law, my cases questioning unilateral rewriting of the law and of the criminal law, i have reverse convictions. and i am one not afraid at all, if you're my record 12 years, to invalidate executive power. >> let me ask you this. you have referred it to this case, in the context of a war,

it was immensely unpopular. and it's made , may have been p. what i am trying to ask you, do you understand where we are as a nation now? when that books are being written about how democracy dies, fear of authoritarian rule and the expansion rampant in this country, when they have founded around the world, why we are asking you over and over again, give us some reassurance about your commitment to the democratic institutions of this country in the face of a president who seems prepared to cast them aside, whether it is voter suppression, the role of the media, case after case, we hear this resident willing to walk away from the rule of law in this country. that's the historic contact

which this is in. a particular moment in history. >> my 12 year record shows, and my statements to the committee show, and all my teaching and articles, show my commitment to the independence of the judiciary, as the crown jewel of our republic, my sitting 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 is above the law in the united states. coming from the structure of the constitution, we are all equal before the law in the united states of america. and i have made clear my deep faith in the judiciary. the judiciary has been the final guarantor of the rule of law.

and as i said in my opening, the last line of defense for the separation and the rates of liberties guaranteed by the constitution of the united states. >> you see, that is why of the theory of the executive is so worrisome. what you have said, that is what i want to hear. very important branch of our government. what you have said in relation to morrison suggests the present has the last word. >> i have not said that, senator. and i will reiterate something that i have said, that i said a minute ago, coming from cooper versus aaron, when a court order requires a president to do something, or prohibits a president from doing something under the constitution or laws of the united states, under the constitutional system, that is the final word. >> let me ask you one last time, the question that you knew i

would ask about your testimony in 2006. i am 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 you said i was not involved and am not involved in the questions about the detention of combatants. we have found at least three specific examples where you were. three. your discussions about access to counsel for detainees, your involvement in cases, and your involvement with president president bush's statement on torture. a judge, and i, you say that words matter, you claim to be interpreting other people's words, but you don't want to be held accountable for your own words. why is it so difficult for you to acknowledge your response to the question?

acknowledge that at least your answer was misleading, if not wrong. >> senator , you had a concernt the time of the 2006 hearing, which was understandable. whether i had been involved in crafting the detention policies, the interrogation policies, that were so controversial, that the legal memos have been written in the department of justice that were very controversial. as you know, and as the committee knew then too, the judicial nominees had been involved in working on some of the memos related to that program. senator feinstein led the intelligence committee investigation of that matter. he produced a massive report, large unclassified report, and apparently, even larger classified report. the justice department, office of professional responsibility

produced along reports about all of the lawyers who were involved. i was not involved in crafting those policies. >> do you deny being involved in the three specific areas involving detention, interrogation, which i have just read to you? do you say that you have nothing to do with them? with those cases? that you weren't involved in the conversation about access to counsel for detainees, that you weren't involved in president bush's decision on the mccain torture memo. are you saying that none of those things occurred? >> senator, what i have made clear is i understood your question, and i still understand it now.

>> my answer was then and is now as senator feinstein's report shows, and has the responsibility to report, i was not in that program. >> did i ask you about that program? >> the current question -- >> you keep answering oh, i wasn't -- feinstein is my defense. she came to my rescue. she was talking about something different. i have asked you about three specific instances where we have written proof that you were involved in these three things, and all of them relate to detention and interrogation, which you gave me your assurance you are not involved in. >> senator, i am trying to distinguish two things. one of which you are asking me into thousand six, and my testimony then was accurate and was the truth. what you are asking me now, 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, it would have crossed my desk on the way from the counsel's office, the policy advisor, wherever it was going, and would have made its way to the president's desk. that includes that signing statement. >> so let me just close. i don't think that you are 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 and drafts that were headed for the christmas stuff. one of them involved at john mccain's issue. at that to is involving directly. and i think unfortunately, your answer does not reflect that. >> if you want to speak to that, then we will go to senator lee. >> i just want to close by thinking senator durbin and his

questions about the role that he gave me a book, a biography of frank johnson. and that friday night, after a lot of senate meetings and a lot of practice sessions, i went home, read the whole thing. and i appreciate it. it's a good model. 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 i thank senator durbin for giving me the book. >> and q, judge kavanaugh. i am glad that the nationals are not playing. the [laughs] because thank you, mr. chairman. thank you for your willingness to answer our questions. >> i want to follow up a little bit on this question from senator durbin. we actually, notwithstanding the fact that we come from different parts of the country, we come

from different political parties. we share many different views uncommon. this is one area, where he and i, we are concerned about the government not overreaching. as i look at this, i think this cuts in your favor, not against you. tell me if i am missing something. in the first place, what you were asked about was whether or not you were involved in crafting the policies that would govern detention of enemy combatants, is that right? >> that is correct. >> and that was a classified program, classified at a very high level, presumably compartmentalized that you would have had to have been bred into that program in order to participate in the process, isn't that right? >> i believe that's correct. i wasn't necessarily using the formal sense of that, but what i meant is i was not part of that program. >> okay.

but that is a binary issue. you were either involved in the development of that policy, or you were not. and you were not. >> that is correct. >> tim flanagan, he was the deputy counsel, he has confirmed that you were not involved in that. >> that is correct. >> we have your word and your word of the then deputy counsel. then there is a separate issue -- i guess one could argue a related issue. [yelling] >> i don't know if it is worth it. [yelling]

>> i assume that won't be counted against me there. oh. okay. all right, i will have to speak more quickly, then. when we talk about this, this is a colloquial term that we sometimes refer to in government speak, talking about being cleared to discuss certain classified matters. in any event, you are not brought into this policy. >> that is correct. >> there is a separate, arguably, related, but a distinct issue involving a meeting where you were asked for your opinion about how justice kennedy might react to certain legal arguments that people in the administration were pushing, is that right? >> that is correct. >> and you answered that question. >> eyes so that indefinite detention of an american citizen without access to a lawyer, which at the time, was what was

happening in the particular case, would never fly with justice kennedy. >> and i happen to agree with you on that. it seems like a fairly unremarkable proposition to me. i don't think anyone disputes that the argument had problem stomach problems with it. it would not fly with justice kennedy. i therefore have difficulty seeing how this counts against you. as a someone who believes in civil liberties. i think the advice you offer here, i think it was accurate, i think it was good advice. it certainly is not inconsistent with the statement you provided, which was that you were not involved in the development of the problem stomach policy. sometimes of lawyers, we are

called upon to handle litigation policy. we may be called upon to develop policy. here you were involved in either handling the litigation directly or in developing the policy. he went to a meeting, you gave them your answer. >> that is correct. it was something entirely separate. >> separate and distinct. dull sort of in the same universe, but not without polic policy. i therefore have great difficulty in saying that you did anything but the right thing. anything other than the whole truth and nothing but the truth. colleagues with whom i often agree, and with thy often work with across the aisle. senator booker is a good friend. he and i have worked together on a lot of issues. he raised an issue last night that i wanted to go over with

you. he raised an issue with some emails. i was concerned of the time that you did not have the emails in front of you. and i think that is very important for any witness in any proceeding to be given documents. they were prepared some 18 years ago. he was a lawyer have no doubt been involved in the creation of many hundreds of thousands, possibly millions of documents. we have asked you to recall from memory something that you wrote 18 years ago, that is going to be difficult. in any event, these emails deal with an issue involving some questions surrounding supreme court case. so let's refer to a document. as i understand it, you were being asked to provide some

advice on what may happen if a particular arguments were presented it to the supreme court on the merits. he looked regulations. as i understand it, correct me if i'm wrong, if i understood it correctly, the government was considering making a series of arguments before the supreme court and you did what a good lawyer should do when advancing an argument to the court. you counted to five. you identified five supreme court justices who you believed would not accept the government's argument in defense of those d.o.t. regulations. is that right? >> that's correct, under the precedent that existed at the time. >> and yet at the time, the supreme court of the united states had already granted review of the