and happened to be highly qualified. sotomayor -- president obama nominated so sotomayor because he wanted someone who general judges was as his which applies two constitutional principles was to be ready to adopt them to a modern context. so president obama nominated sotomayor because he wanted someone whose philosophy of judging was his. all right. i expect that to happen. if donald trump is president in 2020 he'll be our next president. if it's somebody else, i expect that to happen. to my colleagues on the other side, what do you really expect you should celebrate even though you don't vote for him and i don't know why you wouldn't, the quality of the man chosen by president obama.

elena kagan and sotomayor came from the progressive wing of the judging world and of legal thought. they're absolutely highly qualified, good, decent people, and they got -- see if i can find the vote totals. ms. kagan get to 63 votes and sonia sotomayer got 68. it's going to bother me that you don't get those numbers, but what bothers me is they should have gotten 90. should have gotten 95. anthony kennedy got 97. anthony's -- anthony scalia got 98. ruth bader ginsburg got 96. so what's happened? between then and now, advise and consent has taken on a different meaning. it used to be the understanding of this body that elections have consequences and you would

expect the president who won the election to pick somebody of their philosophy. i promise you that when strom thurmond voted for ruth bader beginningberg he did know agree with her philosophy. senator leahy has voted for a lot of republicans. i have voted for everyone presented since i have been here, because i find them to be highly qualified coming from backgrounds i would expect the president in question to choose from. so as to your qualifications, how long have you been a judge? >> i've been a judge for 12 years. >> how many opinions have you written? >> i have written over 300 opinions. >> okay. do you think there's a lot we can learn from those opinions if we spend time looking at them? >> yes. i am very proud of my opinions, and as i mentioned, i tell

people don't just read about the opinions. read the opinions. i'm very proud of them. >> you were nominated by president trump on july 9th. my birthday, which i thought was a pretty good birthday present for somebody who thinks like i do, and i think that may have something to do with that, at 9:00, by 9:23 chuck schumer says i will oppose judge kavanaugh. by 9:25, senator harris, trump supreme court justice nominee judge kavanaugh represents a fundamental threat to the rise in health care of hundreds of millions of americans. i'll oppose his nomination. 9:55, senator warren, clear hostile to health care for millions. opposed to the cfpb, corporate accountability, thanks, president trump, is above the law, on and on and on. nancy pelosi at 10:11. bernie sanders, 10:18.

if brett kavanaugh's confirmed to the supreme court it will have profoundly negative effects on workers rights, women's rights and voting rights for decades to come. all i can say within an hour and 18 minutes of your nomination, you became the biggest threat to democracy. in the eyes of some of the most partisan people in the country who would hold kagan and sotomayor up as highly qualified and would challenge any republican, vote against them. you live in unusual times as i do. you should get more than 90 votes but you won't, and i am sorry it has gotten to where it has. it's got nothing to do about you. if you don't mind, and you don't have to, what did you tell your children yesterday about the hearing?

>> they did as they -- i'll tell them what they told me. they gave me a big hug and said, good job, daddy, and margaret, before she went to bed made a special trip down and gave me a special hug. >> i just wish if we -- could have a hearing where the nominees kids could show up. is that asking too much? so what kind of country have we become? none of this happened just a couple years ago. it's getting worse and worse and worse and all of us have an obligation to try to correct it where we can. row v. wade. are you familiar with the case? >> i am, senator. >> can you in 30 seconds give me the general holding of roe v.

wade? >> as elaborated upon in planned parenthood versus casey a woman have a constitutional right as interpreted to obtain an abortion up to the point of viability, subject to reasonable regulations by the state so long as those reasonable regulations do not constitute an undue burden on the woman's right. >> okay. as to how the system works, can you sit down with five, you and four other judges, and overrule roe v. wade just because you want to? >> senator, roe v. wade is an important precedent of the supreme court. >> don't you have to have a case? you just can't -- >> yes. not just, what are you doing for lunch, let's override roe v. wade. >> i see what you're asking, senator. the way cases come up to us in that context or another context would be a laws -- >> can i give an example to do this quicker?

>> yes. >> so some state somewhere or some town somewhere pass as law that runs into the face of roe. somebody will object. they'll go to lower courts and eventually it might come up to the supreme court challenging the foundations of roe v. wade. it would take a legislative enactment for that to happen. is that correct? >> that's correct f. there was such action by a local state or government challenging roe and it came before the supreme court, would you listen to both sides? >> i listen to both sides in every case, senator. i have for 12 years, yes. >> when it comes to overruling a long-standing precedent of the court is there a formula that you use? >> no. >> analysis. >> so first of all, you start with the notion of precedent and as i've said, to senator finestone, a precedent reaffirmed many times over 45 years including planned parenthood versus casey

considered when toe ovther to o. that became a precedent in this context. but you look at -- there are factors you look at when considering any precedent. >> so there's a process in place that the court has followed for a very long time. is that correct? >> that is correct, senator. >> citizens united. if somebody said citizens united has been harmful to the country, and made a record that the citizens united empowered 20 people in the country to run all the elections some some state or locality somewhere passed a ban on soft money and it got to the court, would you at least listen to the argument of citizens united needs to be revisited? >> of course, i listen to all arguments. you have an open mind. you get the briefs and arguments and some arguments are better than others.

precedents critically important. it's a foundation of our system, but you listen to all arguments. >> okay. where were you on september 11, 2001? >> i was in, initially in my then office in the eob and then after the first, as i wall, the first building was hit i was in the counsel's office in the second floor of the west wing for the next few minutes. then we were all told to go down to the bottom of the west wing and then we were all evacuated, and i think the thought was flight 93 might have been heading for the white house. it might have been heading here, and secret service, we were being hustled out, and then kind of panic. started screaming at us. sprint, run -- and we sprinted out. my wife was a few steps ahead of

me. she was president bush's personal aide at the time, and we sprinted out. she was wearing a black and white checked shirt i remember, and we sprinted out the front gate kind of in the lafayette park and no iphones or anything like that. black berries at that point in time. cell phones didn't work. we were all kind of out there, and then -- i remember somehow ending up seeing on tv down more on connecticut avenue, tvs were out. mayflower hotel. i was with sarah taylor who worked at the white house and we watched, we were watching as the, standing with her when the two buildings, when the buildings fell. >> so when somebody says post-9/11, that we've been at war and it's called the war on terrorism, you generally agree with that concept? >> i do, senator, because congress passed the

authorization for use of military force which is still in effect. passed, of course, september 14th, 2001, three days later. >> talk about the law and war. is there a body of law called the law of armed conflict? >> there is such a body, senator, is there a body of law that's called basic criminal law? >> yes, senator. >> are there differences between the two bodies of law? >> yes, senator. >> from an american citizen's point of view do your constitutional rights follow you? if you're in paris, does the fourth amendment protect you as an american from your own government? >> from your own government, yes. >> okay. so if you're in afghanistan, do your constitutional rights protect you against your own government? >> if you're an american in afghanistan, you have constitutional rights as against the u.s. government. >> is there a longstanding -- >> that's long settled law. >> isn't there also long settled law that goes back to the case.

>> johnson versusize. trader. >> right. american citizens that -- are considered combatants if work with the terrorists? >> they can be. >> talk about can be. >> under supreme court precedent. >> right. there's a supreme court decision that said american citizen who clapp collaborated with nazi were prosecuted? >> yes, i think executed. >> yes. >> if anybody doubts there's a longstanding history in the country that your constitutional rights follow you wherever you go but you don't have a constitutional right to turn on your own government and collaborate with the enemy against your country. you'll be treated differently. what's the name of the case if

you recall reared from the concept you could hold one of our own as an enemy combatant in engaged in activities in afghanistan. >> yes. holmby. >> bottom line, i want every american stoin know you have constitutional rights but you do not have a constitutional right to collaborate with the enemy. there's a body of law well developed long before 9/11 that understood the difference between basic criminal law and the law of armed conflict. do you understand those differences? >> i do understand that they're different bodies of law, of course, senator. >> okay. if you're confirmed and i believe you will be, what is your hope when all of this is said and done and your time is up, how would you like to be remembered? >> a good dad.

a good judge. >> a good husband. >> i think he's getting there. >> a good husband -- >> thanks, diane. you helped him a lot. going to be better for you tonight. >> i owe you. i owe you. a good son i'll quickly add. you know, a good friend. i think about the pillars of my life are being a judge, of course. being a teacher. i've done that and either way this ends up i'm going to continue teaching. coaching. as i mentioned, a huge part of my life. try to continue that. senator kennedy advised me when we met, make sure you keep coaching even if you get -- i'm going to follow that. volunteering, and being a dad and a son and a husband and

being a friend. i talked about my friends yesterday. i didn't really expect -- i got a little choked up talking about my friends. >> that was well said. got to tighten it up. i just ran out of time. >> okay. thank you, senator. i can go on as you know but i'll stop there. >> we're about ready to break for lunch and it will be 30 minutes. before i do that, i have letters that -- to your nomination, and then we also have a -- letters in support of judge kavanaugh. and those will also be entered in the record. then i wanted to explain the exchange that i had with senator leahy, that just so people don't

think that that's something that i did on my own. we had previously sent out a letter, and only senator klobuchar at that point had taken advantage of the letter to be able to ask for documents that were committee confidential so that they could use them at the hearing, and the only thing i've done for senator leahy that wasn't already in that letter was to remind people that we did the same thing for the gorsuch nomination to the supreme court and it's policy that senator leahy, when he was chairman of the committee followed and so the only courtesy was extended to senator leahy, the fact he didn't make the request by the timeline that was in the letter, which i think was august 25th. we're going to adjourn 30 minutes for a lunch break, and i think that we'll be back here

exactly in 30 minutes. if not, judge kavanaugh, we will let your staff know if the going to be a little later, because you never know what happens in the united states senate when you have a vote. coming up on 12:17 eastern time. the hidden good news there is that the u.s. senate is about to vote on something. apparently at the same time while this committee is going to have lunch. the chairman likes to adhere to a specific and certain clock. so we'll see at 30 minutes from now if they're back in the room. an interesting morning session. the first question and answer session. it allowed the nominee to say he is mindful of real world effects of the law and his decision. he is mindful of precedent, obviously. guiding his thoughts and his work, and his decisions.

dianne feinstein tried to score points early when she said to him, you're learning to filibuster. he took a pass on whether the president should be, should have to respond to a subpoena. he took a pass on whether the president can self-pardon. i don't think anyone would blame him for that. and we're joined here by two distinguished and longtime attorneys. we saw senator leahy go down a bit of a rabbit hole. for folks watches at home, no more benefit than we did knowing what senator leahy was talking about. you learn in law school never ask a question you don't already know the answer to. if that's true, leahy has something, trying to get documents released to prove the point he's coming after the nominee. this does prove a certain point

on the documents issue? >> yes, i think that's right. in general i felt the judiciary committee on the democrats' side their questioning at sometimes too harsh and some points not harsh enough. leahy seemed too harsh. insinuating that judge kavanaugh knew that there was, that senator leahy's e-mails were broken into and he was getting improper information back in 2002. then also suggested that judge kavanaugh knew about the wireless wiretapping program earlier than he testified. as best as i could tell i heard zero evidence for either such claim. maybe that's setting up senator leahy's claim, hey, i need to see all the documents and so on but not totally clear the missing documents are necessarily going to illuminate either of these. we'll see. maybe strategy here. so far not much i think should give judge kavanaugh much concern. >> and as i said, does it shed light on the fact that the record is incomplete? >> yes.

i think senator leahy had two goals there. one, perhaps to create smoke around these issues of the stolen e-mails and when did judge kavanaugh know of the list program. watching here, i said, wow. does he have it? does he really have him nailed and a document? he didn't quite have it. the suggestion, a little smoke. perhaps he didn't know, maybe a reason he should have known or maybe turn add blind eye. those are the question, was it unusual to be asked to someone's home as you were apparently and shedding light on the contested issue over documents makings case to the american people and the senate this why the documents matter why we need them all. unclear if he said there was a smoking gun in there or we can't know unless we see all the documents. >> and i'd have to ask you. this is not an incident germane to the hearing in chief but something that happened yesterday when the parent of one

of the students killed at parkland high school extended his hand. there's the still photo, and said in what apparently was an audible voice, introduced himself. kavanaugh turned and left the exchange. kavanaugh was given a chance today to talk about him, and in the portion where he was talking about working at a homeless shelter in d.c., he never came back to it. he took a pass on talking about it. >> yes. i find that very odd. i always try not to judge someone without saying can i put myself in their shoes. when the incident happened yesterday, at least having been in the hearing rooms before and watched these supreme court confirmation hearings. they're so tense. so i assumed this was, the tension of the moment. him not, judge kavanaugh not quite hearing the question correctly or the statement correctly and so on. then today you had senator lindsey graham giving judge kavanaugh the opportunity saying what would you like to say to

that father? and we still heard no answer. i assume the tension of the moment. judge kavanaugh, regardless when you come out on his nomination is a very, very decent man and so i don't -- i think a little too much is made of this. instead i think people should be talking about his guns opinions and so on and actually what he would do as a justice, but that's the theater confirmation hearings. >> and it's true that this now just hangs 0 ut there. i won't be surprised to see another republican give him another chance to clean it up after the lunch break. >> yeah. part of the beauty of having the alternating system here. he'll have many other chances. an aide perhaps would be wise to whisper, hey that question was cued up. i know you started to go down the road but didn't complete the job. it's a pretty easy fix. just acknowledge the man. acknowledge his pain. acknowledge that perhaps it was a misunderstanding yesterday and get it over with. >> on the brighter side for judge carkavanaugh, his answers senator graham humanized him.

he talked about working at a, for the homeless and so on. i think it really came across nicely. he also talked about something which i've seen firsthand. his approach to sitting as a judge, trying to listen to the arguments carefully, understand everything about the facts and the law and having flight front of him is absolutely right. he is unbelievably prepared and really does try and put himself in to the shoes of a litigant to try to understand what's their best argument? not the argument i want them to make but the best argument? >> it's always hours ago, but when mya wiley was here with us, you were listening carefully to feinstein's opening, and i think you both agreed that she took a pass on going down a certain route. what was that? >> yes. so i mean, senator feinstein started by talking about abortion, and saying effectively, are you going to overrule roe versus wade, the 1992 decision? easy questions for any nominee

to answer. particularly somebody as polished as judge kavanaugh. he said, precedent, precedent, i'm not going to. and what court litigation is about, not a clear, easy case. it's when the law doesn't tell you actually wa to do. what do you do in that jecase? and the garza case decide add few months ago he disagreed with majority colleagues on his circuit and said a 17-year-old effectively couldn't have an abortion. you know, at least without facing a large number of delays. undocumented immigrant who came over and so on. that's a much better template to understanding how he's going to vote. and you know, look, i mean, i don't really quite understand why the republicans are running from this. i mean, the president campaigned on, we're going to have justices who are pro-life and so on. pro-life, pro-life, make the

nomination and oh, no, no, no. can't tell you anything about how these going to vote. >> neil is right. so easy to say i won't answer a hypothetical and i won't talk about settled law? >> i'd like to see a little more grilling down as well. too easy evasions. what's not hypothetical? anything could be hypothetical. there's a body of scholarly writing. minnesota law article espouses and extremely broad view of the president's executive power's rather than ask questions to easily brush asiask about this article. you said this when you wrote this in 2009. do you still believe that? has that changed? >> having been pretty involved in now justice kagan's hearings and watching her do it. that's what republicans tried to do there. the problem, she is the answer, which was, i was an academic.

writy for a different audience. no constraints. i suspect judge kavanaugh would do a similar thing. maybe one tactic, judge, you said judge me by the 300 opinions i've written. okay. go through them. talk about the guardsa abortion opinion. talk about the heller opinion. there's a lot, this is a judge within a very long established body of work. today he tried to say, look, i will be independent. look at the hamdan case. my case, didn't argue in front of him but it was a pretty easy case that doesn't tell us much about his independence. nice he rebuked the bush administration on that and it takes a certain amount of guts to do so, but let's be real. judge kavanaugh is on this list because he has largely done what the federal society and the republicans want. contrast him to someone like jeff sutton, about ten years would have been, a judge on the sixth circuit in ohio was

leading candidate to be on the supreme court but because he cast one negative vote to uphold obamacare he's not on any lists, the times we're living in right now regarding vetting of potential supreme court justices. arie melber among those watching from his post just over the hearing room. arie, you've been living to our conversation. how would you concur or differ? >> reporter: well, the conversation is fascinating and agree there were critical moments there that judge kavanaugh largely evaded by using the try and true method talking about precedent. the headlines coming out of round one, calling roe v. wade a superpress d superprecedent. it is somehow higher level than other presidents, he's sayingthat is supposed to deal with the fact one thing we do know from his opinions, the way he writes, references to fetal life, quote/unquote and

compelling government interests he stressed in protecting quote/unquote fetal life there is a widespread view on the court and off he's personally pro-life. the question, with those views, would they impact potential overturning the roe v. wade. he worked very hard in the way he talked about that without prejudging a future case saying he's not going to do that . whether you believe him or not. diane weinstein said we've heard that before, go on the court and do what they want. other, unv nixon. a key ruling, unanimous, a high water mark of the supreme court saying no president above the law. we know that's a big deal in the trump era and he brought it up first trying to say that's on his top four list and thinks it's a great decision. i don't think he's been pressed on enough he's publicly stated that might have been wrongly decided. how can it be your top four and also potentially wrong?

in points on style, he was bland and boring in a very effective way. he ran out the clock even at times when things might have been difficult for him including the leahy line of questioning that my colleague neil mentioned and that on days bike today is the go like today is the goal. only interested in holding 50-plus votes, if that's correct and be as dry as possible. brian? >> ari melburn from his perch. get lunch. the rest of the committee can take on nutrition. you should, too. you work too hard. andrea mitchell, whose hour this normally is for those just tuning in, we're in a lunch and vote break for the committee. they'll be back at it within the next 30 minutes. let's put it that way. andrea, so much talk lately about the loss of the lions in the u.s. senate. and it strikes me sitting here watching this, imagining you

watching this, knowing the players as you've come to know them over decades in washington. men like grassley and leahy. women like feinstein, and pat leahy's case, senior most u.s. senator. he goes back to the mid-70s. >> well, indeed, and he goes back all the way to the board case and 44 years sitting on this committee and has seen everything from borque to clarence thomas. we have to wait to see what kamla harris and amy klobuchar and some other democratic younger lions are going to do. kamla harris is not scheduled to get her chance to question until 9:30 to 10:00 tonight if they keep on schedule. one of those days not exactly in daytime prime. it will be in more, in your hour, between the 10:00 and 11:00 hour. we'll see sharper questioning as we go forward, i think. i think it's been very difficult for the democrats.

they came out yesterday with sound and fury, but the question is, is it signifying nothing because they don't have the votes? and because this is a very smart, very well-prepared witness. no question that he's been through this. he's helped prepare nominees in the past. i think lindsey graham helping him on the humanizing of his, not only his coaching but the family life, his religious life, what he's done in the church, does with the homeless, i did note as you and neil and everyone has discussed, that he missed the opportunity to respond to fred guttenberg. it's understandable that perhaps in that context. fred guttenberg was not someone in the hallway. not one of the protesters. he was there as an invited guest of dianne feinstein. she announced that at the opening of hearings, very well known. introduced him himself as the father of a parkland victim a 14-year-old girl. for a moon wan who talks about

coaching his kids and the value of his young daughters to not have said something today when given a second opportunity, to say, you know, my heart goes out and talk about the heller case and talk about guns, he had that opportunity. i do think that senator leahy has raised a lot of questions. he's created the smoke. we don't know if there's more is there but he is raising questions as to whether he has, senator leahy said on twitter, in his opening statements yesterday, whether he has misrepresented or actually lied in testimony when he said that he did not know anything about the enhanced interrogation and was not involved with that in the bush white house framing he had no involvement into, he read about the torture techniques. that's obviously very important to senator feinstein as well. but this is a very, a very difficult case for the democrats to pursue. because you've got three median

democratic senators we think have been given a pass by chuck schumer more interested in holding the senate and not voting against this nominee. indiana, north dakota and -- >> give us the view of chairman grassley. getting so much television time and new pairs of eyeballs who don't normally watch proceedings like this, and not only that, is this a level of intensity you've never seen before on a hearing like this? >> absolutely. yesterday was so rough. senator grassley has had a pretty much good working relationship with dianne feinstein and the democrats on the very tough questions they've faced with jim comey, all of that, far more collegial than what we've seen certainly on the house side. so he gets some good marks. there were a few moments along the way in the recent months where he has really come up against the democrats in, you

know, playing ball, they said. they believed, with the trump white house. against the independents of the judiciary, independence of rod rosenstein and the like creating tensions, but has a reputation for fairness and collegiality and following the rules. where he went off the reservation as far as they're concerned is in not letting the national archives make the decision but letting a white house lawyer, william burke, who was given a pass by the bush white house saying that executive privilege did not necessarily apply, that he should use his, they should use their own judgment and not be restricted but took a very restrictive approach to the document returns, and in that there has been residual anger and where you see the tension between pat leahy and grassley. >> we wanted to make sure to have andrea mitchell report during the hour that is normally known at "andrea mitchell reports." >> thanks. >> thank you for being a part of the family watching and covering

this with us. we're going to get to a break and when we come back we're going to talk about the president, what he has said and done today, and the charge that in doing so he has somewhat overstaging his nominee on the hill nap and more when we come right back. carla is living with metastatic breast cancer, which is breast cancer that has spread to other parts of her body. she's also taking prescription ibrance with an aromatase inhibitor, which is for postmenopausal women with hormone receptor-positive her2- metastatic breast cancer as the first hormonal based therapy. ibrance plus letrozole was significantly more effective at delaying disease progression versus letrozole. patients taking ibrance can develop low white blood cell counts, which may cause serious infections that can lead to death. before taking ibrance, tell your doctor if you have fever, chills, or other signs of infection,

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caution. the whole theme of the book is that president trump can run hot and be volatile. i agree. the process is one thing. the outcome's another. and there's a support system around this president that i think works for him. >> the headline versions of it i saw at 5:00 or 6:00 p.m. yesterday sounded real similar to lots of stuff i hear from senior people at the white house all the time, which is it's a very, very chaotic environment. so chaos is the headline i saw coming occupy the clips yesterday and what i experienced from top five and top ten white house people three times a week. so those are republicans on the bob woodward book. washington is a very small town, and it is also a company town, and in that town bob woodward is on the town council. look at it that way. this book is making waves, and making headlines. it is still days from publication, but there are just

enough galleys or advance review copies out and just enough journalism about this act of journalism, too, isism to, as everyone talking. kristen welker is covering the white house today and kristen, the white house found it impossible to keep quiet while his nominee is on the hill. at least on twitter. it's clear the president sees this book as a clear and present danger. >> reporter: very clear, brian. the president and his top allies really trying to dismiss this book. digging in. i can tell you one white house official saying we're laughing off these headlines. i said your boss certainly isn't. he's been on twitter throughout the day, let me give awe small sampling of what we saw on twitter from the president earlier today tweeting the woodwood book already refuted and discredited by secretary of defense james mattis, john kelly. quotes were made up frauds a

con. wodwa waroodward is a dem opera. so many lies and phony sources. calling jeff sessions mentally retarded, an a dumb southerner. i said neither. then this. this final one, brian, a little threat almost. isn't it a shame someone can write an article or book, totally make up stories and form a picture of the person that is literally the exact opposite of the fact and then ends saying, don't know why washington politicians don't change libel laws. well, we asked his press secretary, sarah sanders if the president is actually looking at trying to change the libel laws. she dodged that question and got a lot of questions about this, brian. the fact that is so tough for the white house to get around. the fact that this book from bob woodward echoes so many of the reports, some of our own reports, and the books already written about this white house. take a listen to what sarah sanders had to say. >> these are the same rehashed,

retold stories. certainly just because they keep getting told doesn't make them more true. i think that's a ridiculous accusation and just because the same people keep writing the same type of books. a bunch of elites and left-leerning individualeft-leen ileft-leern -- left-leaning narratives to drive. are they anonymous sources? i don't know. >> reporter: sarah sanders trying to dismiss the sources as we reported. bob woodward telling nbc news he certainly stands by his reporting and has hundreds of hours of interviews with former and current administration officials as well as others within the trump orbit. of course, he didn't talk to the president himself, although he says he asked six different people, brian, for an interview with president trump and we heard that stunning phone call that he had with the president after his book was finished, in which he sort of fak chct checke president in realtime. i put in requests with lindsey

graham and the president saying actually he did ask me if i wanted to do an interview for your book. the white house paying close attention what's happening on capitol hill and one more point. a little development in the russia pat o'brien according to bob woodward at times paralyzed this white house. some movement in terms of a potential interview with president trump and special counsel robert mueller pi mueller's team submitting their latest proposal for that interview which would include the possibility for some written responses to some answers. that's a big ask by the trump team. there's still no broader agreement. i'm told those talks are moving in a positive direction, brian. >> all right. we should hasten to point out, never quite sure what to believe of anything coming out of the mueller investigation. mueller does not leak or comment. >> reporter: that's right. >> the trump team's often comments, something that will help the home team, and secondly, sarah sanders, the

driveway briefing today, talking about folks on the left and elites. two of the widely quoted people in the book, rear tired from the military with four stars on their shoulder. that's been a bone of kwon tension with that white house. >> reporter: no doubt about that. brian, you have secretary of sta state -- secretary mattis talked about in the book. chief of staff john kelly and, of course, are quoted, john kelly calling the president an idiot. by the way, confirmation of a report we first aired on nbc news. secretary mat irs accotis accor the book the president has capacity to understand things on the level of a fifth or sixth grader. both officials disputed those claims in woodward's books. kelly calling them b.s., mattis saying pure fiction. the question what does this mean for their futures within this

administration? could they potentially be on the chopping block or sidelined? we'll have to see. >> a beautiful day in washington, kristen welker, thanks. we want to show, folks, heading to a break, chairman grassley is back from what combination of senate votes and lunch he has enjoyed. that's him, just him so far. he likes to keep to the clock. they have not gavelled back into order. he needs at least one or two members of the committee to do that. the entire gallery is out. the nominee is not there. we're going to take a break. we will not miss a moment of the hearing, or the sound of the gavel when we come right back. and i'm still going for my best even though i live with a higher risk of stroke due to afib not caused by a heart valve problem. so if there's a better treatment than warfarin, i'm up for that. eliquis. eliquis is proven to reduce stroke risk better than warfarin. plus has significantly less major bleeding than warfarin. eliquis is fda-approved and has both.

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we are back. the nominee is seated and we believe senator richard durbin of illinois takes up the questioning for the democrats. >> -- set down and cleared with you their decision on the release of documents? >> no. i was not involved in the documents process or substance. >> no one told you you would be the first supreme court nominee to assert executive privilege to limit the access to 100,000 documents relating to your service in the white house? >> senator, a couple things packed in your question. so i did study the nominee precedent, read all the hearings. this kamg came up in justice scs hearing, i read that, head of the office of legal counsel and asked about that, and i know chief justice roberts there were

four years of information when he was principal deputy solicitor general that those were not disclosed either. >> and as for white house documents, you're breaking new ground here. or i should i say covering up o ground here. >> i guess -- again, i was not involved in the documents discussions in terms of the decisions that are made but in terms of thinking o f the issues and questions that could come to me like justice scalia. i don't distinguish, it is all executive branch documents and white house documents are not different. >> when it comes to the role of national archive, we are being asked to give you special treatment? >> i can't comment because i don't know. judge kavanaugh, this is your field. this is your nomination. >> sorry. >> you are now embarking on this

journey in this committee denying access to documents that were routinely provided for other nominees. you must have known it is in place. >> i think what senator scalia said when he was asked for his office of counsel's memos, it is the right thing. that's the decision of the senate and the executive branch to work out. as a nominee, i will in the long-term privileges and protections as he mentioned that were in effect for that discussion and it is not for the nominee to make that decision. >> well, that's an interesting comment because the way you are being presented to the american people with only 10% of the public documentation that could be provided to this committee is going to reflect on you and your nomination. of course, you know that.

>> that was true and all of justice scalia's time, at least as i understand it, those may have not been is closed. chief justice roberts of four years of general memos which would have been -- >> you are perfectly fine with this notion. >> no, i said i am -- it is up to the chairman and you and the committee, the senate and the executive branch. >> in fairness, justify kavanaugh, i think it is up to you. if you said to this chairman and committee, hit the pause button, i don't want any cloud or shadow over this nomination, i trust the american people. i want them to trust me. i am prepared to disclose those public documents, take senator's line of questioning.

he was not the only victim of mirandum. i was as well. >> so your knowledge of this and your role in this were limited to even discuss because of the fact that we are classifying and withholding information about your nomination. first is mr. bill burke who had some magic power to decide what the american people will see of your role at the white house and the decision by those who put your nomination that took 35 months of your service to the president of the united states and excluded the documents and the unilateral classification of documents coming to this committee as committee classified in a manner that no body has ever seen in the history of this committee. judge kavanaugh, that reflects on your credibility. if you said this moment that i

don't want to have a cloud over the nomination, i am prepared to ask the committee, humbly, withhold further hearings until you disclose everything. why don't you do that. >> senator, i do not believe that's consistent of what prior nominees have done that's been in this circumstance. it is a decision for the senate and the executive branch. justice scalia explained it clearly in his hearing. >> are you happy of that decision? >> i do not. >> this is the long-term interests of the senate and the executive branch are at play. justice scalia, explained that well i thought. >> i was not here for justice scalia but i will tell you -- >> let me interrupt without taking time away from you so don't charge him for this time. here is something that the nominee does not need any help for me to answer this.

we don't care what the nominee thinks. that's what we are following is the law. mr. chairman, with all due respect following the executive's act involving the national archives is not involved in the process, it is a mr. bill burke who was the former assistant to the nominee who has decided what will be withheld. it is not the presidential's record act, please. >> let me make clear here. we anticipated some of these so let me read. criticizing the committee process for obtaining judge kavanaugh's record. they have cut the archives out of the process. this is where i want to set the record straight. we have work with t-- we have

worked with the archives and the documents received are the same as if the archives have done the initial review. the archives is not permitted by law to produce records to the committee without giving both president bush and the current president and opportunity review. the national archives was not cut out of the process. as the president informed the committee quote, from these letters. we have received and followed, views on any documents withheld as personal documents, the resulting production of documents to the committee is essentially the same as if narrow has convictducted his re first and sought our views required by laws. the documents the committee receives are the same as if the

archives have done the initial review. >> mr. chairman, the national archive stated publicly the way we are handling the records for this nomination are unprecedented and it had nothing to do with it. they have asked until the end of october to produce records. they have been told that we don't need you. we'll finish this hearing long before then. i would like to ask to be placed in the record of the statement from the national archive related to the records related to judge kavanaugh. >> yes, without objection. >> now, i am going to throw you a pitch which you have seen coming for twelve years. i want to talk to you about the 2006 testimony which you gave before this committee. it was at a different time. we were concerned of the issue of torture and detention and

interrogation. yesterday i asked you to show the american people that you have nothing to hide by coming clean with this on this issue and i would like to refer specifically to some of the questions that raised because of that 2006 testimony. i believe we have statements as well as your response. i know that you have been waiting for this question for a long time. when i was back in a day, preparing a witness for interrogation, testimony, deposition and giving testimony a trial, two things, i said two things. tell the truth and don't answer more than you are asked. don't volunteer information. judge kavanaugh, you failed on the second count. the question i ask you, what was

your role in the original haynes' nomination, at the time, what did you know of mr. haynes' role and crafting the administration and the administration's detention and interrogation policies. i did not have the involvement to that and i have known jim haynes and that's not one of the nominations i handled. >> can you raise the bottom? >> i still don't understand your answer in terms how you can state and clearly and unequivocally, i was involved and not involved of the questions of the rules and

government. uco yo you confirmed this during the meeting that we had in my office. you were involved in discussions of retain tees combatants. these are the ones that i want to be specific about. you were involved with president bush's 2005 signing statement on senator john mccain's amendment banning detainees and confirming that in the meeting. there were no exceptions in your answer given to me in 2006. not for litigation or detainees or the torture amendment. if those three based on the limited documents which we are given are obvious. what are you trying to tell me here? did you disclose accurately? >> yes, i understood the question then and my answer then