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Senate Judiciary Committee Hearing on the Nomination of Brett Kavanaugh to Be an Associate Justice on the Supreme Court, Day 3, Part 3

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Senate Judiciary Committee Hearing on the Nomination of Brett Kavanaugh to Be an Associate Justice on the Supreme Court, Day 3, Part 3 SENATE JUDICIARY COMMITTEE HEARING ON THE NOMINATION OF BRETT KAVANAUGH TO BE AN ASSOCIATE JUSTICE ON THE SUPREME COURT, DAY 3, PART 3 CQ Transcriptions September 6, 2018 Thursday Copyright 2018 2019 CQ-Roll Call, Inc. All Rights Reserved All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ Transcriptions. You may not alter or remove any trademark, copyright or other notice from copies of the content. Body EVENT DATE: September 6, 2018 TYPE: COMMITTEE HEARING SPEAKER: SEN. CHARLES E. GRASSLEY GRASSLEY: Are you ready, judge? KAVANAUGH: (OFF-MIKE) GRASSLEY: Senator Booker. BOOKER: Thank you, Mr. Chairman. Judge, we -- at 1:20 p.m. today -- received another 1,000 documents. And I'm just wanting to know (ph), are you familiar with the 1,000 documents we just received at 1:20 p.m. today? Are you familiar with those documents or what's in those documents? KAVANAUGH: I haven't been involved in the documents. So I don't know what you have and what -- I don't know. BOOKER: So even if I were to ask you questions from one of those 1,000 documents, you wouldn't -- you would need to see them? KAVANAUGH: Even if I've seen them before, I would like to see them. BOOKER: I -- I understand. So, 1,000 documents, the idea that any senator up here could go through 1,000 documents since 1:20 p.m. and ask you questions, have you have a chance to see what we'd like to ask in (ph) questions seems a little absurd. If Bill Burke was the one to give those documents, I can't help but wonder what else -- again, he might be holding back -- what else that he (ph) might be trying to hide. And so, I understand you stand by your record. But it's our job to try to examine that record, the fullness of that record. And so, I just want to ask you some questions, perhaps, that can illuminate Bill Burke's role. And so, judge, have you communicated in any way with Bill Burke or his team since Justice Kennedy's retirement announcement on June 27, 2018? KAVANAUGH: I -- I -- I saw him on the Saturday after my -- the Saturday after my nomination, I saw him at an event, a -- a social event with a number of people. Page 2 of 60 SENATE JUDICIARY COMMITTEE HEARING ON THE NOMINATION OF BRETT KAVANAUGH TO BE AN ASSOCIATE JUSTICE ON THE SUPREME COURT, DAY 3, PART 3 BOOKER: Was that the... KAVANAUGH: But... BOOKER: ... was -- did you communicate with him beyond that? KAVANAUGH: No, I have not communicated with him beyond that, nor do I -- have I had -- I -- I've said before, on the documents I haven't been involved in the substance, the process. I've stayed away from that. That's an issue for the Senate and the Bush Library. BOOKER: OK. So if you haven't communicated directly with him about this process, have any of your intermediaries that have been working with you or prepared you for this been in discussions with Bill Burke or his team since Justice Kennedy's retirement announcement on June 27, 2018? KAVANAUGH: All I can say is what -- what I've -- what I know. BOOKER: So to your knowledge, you don't know if your people who've been preparing you for this have been in consultation or coordination with Bill Burke? KAVANAUGH: When you say people? BOOKER: Who are (ph) the -- you -- you've been helped to prepare for these hearings, I imagine. KAVANAUGH: You mean White House and Justice Department people? BOOKER: I -- I -- whoever it might be helping you prepare for these hearings. KAVANAUGH: I -- I don't know what the white -- the White House and Justice Department people can speak for themselves about that, I don't (ph). BOOKER: I -- I guess what, you see, I'm asking you is if the folks that -- who are preparing you have been communicating with Bill Burke about these documents, what's being released or anything like that. And do you -- do you -- you have no knowledge of that, or do you know if people who've been preparing you have been in contact and communication with Bill Burke about these documents? KAVANAUGH: I -- I -- I don't know what the process has been, other than what I... BOOKER: But I'm not asking about the process. I'm asking do you know if the people who've been preparing you have been in touch will Bill Burke about the documents, the contents in the documents or anything related to the documents? KAVANAUGH: I don't know the answer to that question. BOOKER: You -- you do not know if the people who've been preparing you have in any way been communicating with Bill Burke about the documents? KAVANAUGH: Can you -- you want to identify some specific... BOOKER: No, sir. I'm just asking you that. KAVANAUGH: As (ph) who (ph) prepare -- just want to make sure we're on the same page... BOOKER: Yes, sir. KAVANAUGH: ... so that there's no confusion. I -- I don't know who's -- I've been staying out of it, for obvious reasons. I mean, I've -- I've repeated, it's not my privilege to assert. Page 3 of 60 SENATE JUDICIARY COMMITTEE HEARING ON THE NOMINATION OF BRETT KAVANAUGH TO BE AN ASSOCIATE JUSTICE ON THE SUPREME COURT, DAY 3, PART 3 BOOKER: And so you've never taken an -- you've never taken a stand regarding the release of the documents with anybody in the White House, the DOJ, or anyone else? You've never taken a stand on this (ph)... KAVANAUGH: This is an issue for the Bush Library... BOOKER: ... I -- I understand it (ph) was (ph) an issue, you've stated this on the record. I'm just asking have you ever taken a stand with anyone from the White House or the DOJ about document release? KAVANAUGH: No, I don't have a -- they -- I don't have a position stand on... BOOKER: I know you don't have a position. I'm -- I'm asking what has transpired. KAVANAUGH: ... Right. And I -- I'm in the position that, I think, Justice Scalia was in when he was being asked about his memos from the Office of Legal Counsel. And he said that's a decision for (ph)... BOOKER: Again, I... KAVANAUGH: ... quite (ph) a lot (ph)... BOOKER: ... (inaudible) short amount of time. I appreciate your knowledge of Justice Scalia's record and statements. I just want to know what you think, sir, and what you know. KAVANAUGH: What I think is that it's a -- I'm just going to repeat myself about what I think. It's an issue for the Senate and the Bush Library. BOOKER: So why -- why don't we move on. KAVANAUGH: OK. BOOKER: You told Ranking Member Feinstein and Senator Coons that you had never taken a position on the constitutionality of criminally investigating or indicting a sitting president. Do you stand by what you told the ranking member? KAVANAUGH: I'm happy to have my recollection refreshed. BOOKER: Sir... KAVANAUGH: But that's my recollection. BOOKER: ... OK. You've told Senator Klobuchar that you quote, "Did not take a position on the constitutionality. Period." end quote. You -- you stand by that? KAVANAUGH: Yes. And I'm happy to have my recollection refreshed, but that is my recollection as I sit here (ph)... BOOKER: And that's your position now? You -- that you -- you -- because you said this to me in private as well that... KAVANAUGH: ... Yes (ph). BOOKER: ... you've never taken a stand on the constitutionally of this issue about the -- about investigating or indicting a sitting president. KAVANAUGH: I -- I think in the various Georgetown events, I referred to it as a -- a open question. In my Minnesota Law Review, I referred to it as an open question. I think here I have referred to it as an open question. And I -- I -- I've said, if it comes to me, you know, a lot of things would have to happen... BOOKER: But have you indicated your views... Page 4 of 60 SENATE JUDICIARY COMMITTEE HEARING ON THE NOMINATION OF BRETT KAVANAUGH TO BE AN ASSOCIATE JUSTICE ON THE SUPREME COURT, DAY 3, PART 3 KAVANAUGH: ... Can I just (ph)... BOOKER: I -- I just... KAVANAUGH: ... just 20 seconds (ph)... BOOKER: ... I just want to try to get the question in, so you understand what I'm asking you. KAVANAUGH: ... Yes. Yes, sir. BOOKER: The constitutionality itself, have you taken an issue on the constitutionally of these issues about criminally indicting or investigating a sitting president? KAVANAUGH: No, I've said repeatedly and here's... BOOKER: No. That was it. Yes or no, you said no. Can I just... KAVANAUGH: ... But... BOOKER: ... Can I refresh your recollection with things you have said, sir? So, this is a Georgetown article and, again, I -- I have the quotes... KAVANAUGH: ... Right, that's -- seems -- that... BOOKER: ... OK. I'm just... KAVANAUGH: ... suggests... BOOKER: ... I just want to walk through it, OK. So you -- you -- you agree, you did say this. You said, quote, "The Constitution itself seems to dictate,"... KAVANAUGH: Yes. BOOKER: ... So you're expressing a view on the constitutionality. Look at what you wrote in the Washington Post, "The Constitution," again you use a conditional word, "appears to preclude,"..
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