Booker releases 'confidential' Kavanaugh emails in combative Supreme Court hearing

Friday, September 7, 2018

Debate over access to documents from Brett Kavanaugh's work at the George W. Bush White House dominated the nominee's Supreme Court confirmation hearing Thursday, as Democrats continued to seek additional information about the judge's views on controversial issues in a potential effort to block his elevation to the court.

Kavanaugh answered questions for more than 12 hours for a second straight day before the public hearing ended late Thursday night and Kavanaugh and senators headed into a closed session to review his FBI background check. With his public grilling now over, senators on Friday will hear from experts and other outside witnesses, including former Nixon White House Counsel John Dean, called by Democrats.

Earlier Thursday, Sen. Cory Booker, a New Jersey Democrat, quickly made waves on the third day of the hearing when he threatened to -- and eventually did -- release one of the so-called "committee confidential" documents relating to racial profiling, prompting Sen. John Cornyn, a Texas Republican, to accuse Booker of "conduct unbecoming of a senator."

"Running for president is no excuse for violating the rules of the Senate or of confidentiality of the documents that we are privy to," Cornyn said, referencing the popular assumption that Booker is eyeing a 2020 White House bid.

But Republican Senate Judiciary Committee aides, and a lawyer who has been vetting the documents, contended that Booker's action was a stunt and that the requested materials were released over the course of the night prior.

"We cleared the documents last night shortly after Senator Booker's staff asked us to," said attorney Bill Burck, who also happens to be a former colleague of Kavanaugh's. "We were surprised to learn about Senator Booker's histrionics this morning because we had already told him he could use the documents publicly. In fact, we have said yes to every request made by the Senate Democrats to make documents public."

A spokesman for Booker later argued that the actions taken by the senator throughout the multi-day hearings "shame[d] the committee into agreeing to make last night's documents publicly available."

The specific document in dispute was a 2002 Kavanaugh email with the subject line "racial profiling" that includes internal White House discussions about whether airport security and other law enforcement should strive for a "race-neutral" system in the wake of the September 11 terrorist attacks.

In one of the emails, Kavanaugh referenced a possible interim policy and wrote "the people (such as you and I) who generally favor effective security measures that are race-neutral DO need to grapple - and grapple now -- with the interim question of what to do before a truly effective and comprehensive race-neutral system is implemented."

As a whole, the documents at the center of the dispute, which started before the hearing even began, are not classified but are marked with the "committee confidential" designation, meaning committee members have access to them but that they aren't available to the public.

Booker pushed back on whether the documents should be considered confidential, arguing it was improper for Burck, a private lawyer and former colleague of Kavanaugh, to be vetting the documents and designating some as private.

He said releasing them would be worth it -- even if it meant getting expelled from the Senate for violating the rules.

"I come from a long line, as all of us do, of Americans that understand what that kind of civil disobedience is and I understand the consequences," Booker said. "So I am, right now, before your process is finished, I am going to release the email about racial profiling and I understand that the penalty comes with potential ousting from the Senate."

"If Senator Cornyn believes I violate Senate rules, I openly invite and accept the consequences of my team releasing that email right now," he added, later saying "bring the charges."

Booker's fellow Democrats on the committee quickly expressed support.

"I completely agree with you. I concur with what you are doing... I hope my other colleagues will join me," Sen. Dick Durbin, D-Ill., said. "If there is going to be some retribution against the senator from New Jersey, count me in."

Cornyn warned Booker that he and other Democrats risked being expelled from the Senate, but later Thursday, outside the hearing room, Booker told reporters he doesn't expect the Texas Republican to pursue charges.

"I think he was just like most bullies are -- a lot of talk and no action," Booker said.

Democratic Sen. Dianne Feinstein then read aloud another of the unreleased documents -- a Kavanaugh email discussing the Supreme Court's 1973 Roe v. Wade decision legalizing abortion nationwide.

In that email, first disclosed by The New York Times earlier in the day, Kavanaugh proposed an edit to an op-ed about Roe v. Wade where he commented that he was "not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent."

Since being nominated, Kavanaugh has referred to Roe as "settled law" and has said that other abortion cases had followed the Roe precedent, but he has declined to comment on how he might vote in any future cases.

When asked about the email Thursday, Kavanaugh said he recommended the edit to the op-ed because he didn't think the draft accurately reflect the view of all legal scholars. He repeated his previous comments that cases since Roe v. Wade have upheld the decision and established "precedent upon precedent."

Kavanaugh denies "inappropriate conversations" about Mueller investigation

On a topic of particular interest to Democrats concerned about how Kavanaugh might handle any matters related to President Trump, Kavanaugh said Thursday that he has not discussed or given any hints about his views of special counsel Robert Mueller's probe into Russian interference in the 2016 election.

"I haven't had any inappropriate conversations about that investigation with anyone," Kavanaugh said. "I've never given anyone any hints, forecasts, previews, winks, nothing about my view as a judge or how I would rule as a judge or anything related to that."

Sen. Orrin Hatch, R-Utah, provided Kavanaugh the opportunity to follow-up on an exchange with Sen. Kamala Harris, D-Calif., Wednesday night. Harris had asked the judge if he discussed the Mueller investigation with anyone at the law firm founded by the president's personal lawyer, Marc Kasowitz.

Though he conceded that he may have talked to fellow judges about the Mueller probe because it was in the news, he said he wasn't sure he knew anyone at the firm, asking Harris to tell him who she had in mind.

Harris shot back, saying, "I think you're thinking of someone and you don't want to tell us."

Kavanaugh was more definitive Thursday, saying he doesn't recall conversations of any kind with anyone at the law firm, Kasowitz Benson Torres, but that he doesn't know everyone who might work there.

ABC News' Mariam Khan contributed to this report.

This is a developing story. Please check back for updates.

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