Kavanaugh accuser wants FBI investigation. TRANSCRIPT: 9/18/2018, All In w Chris Hayes.

Guests: Linda Chavez, Jim Manley, Zerlina Maxwell, David Brock

Show: ALL IN with CHRIS HAYES Date: September 18, 2018 Guest: Linda Chavez, Jim Manley, Zerlina Maxwell, David Brock

CHRIS MATTHEWS, MSNBC HOST: Thanks for being with us. All In with Chris Hayes starts right now.

CHRIS HAYES, MSNBC HOST: Tonight on All In.

BRETT KAVANAUGH, SUPREME COURT JUSTICE NOMINEE: What happens at Georgetown Prep stays at Georgetown Prep.

HAYES: The Kavanaugh controversy continues.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I feel so badly for him that he's going through this.

HAYES: As an embattled Supreme Court nominee gains a character witness.

TRUMP: This is not a man that deserves this.

HAYES: Tonight, will there be a real investigation?

TRUMP: I don't think the FBI really should be involved.

HAYES: Democrats raise alarm bells.

UNIDENTIFIED FEMALE: We should not be rushing to judgment with a sham hearing on Monday.

HAYES: Plus.

SEN. MAZIE HIRONO (D), HAWAII: I just want to say to the men in this country, just shut up and step up.

HAYES: New reporting that the all male Republican Judiciary Committee may use female staffers to question Kavanaugh's accuser. And my interview with the man who helped lead the attack on Anita Hill.

UNIDENTIFIED MALE: The battle of credibility is settled, hands down, in favor of Clarence Thomas.

HAYES: On the Republican strategy this time around.

ANITA HILL, AMERICAN ATTORNEY: Their claims of sexual harassment were just not even worthy of the Senate.

HAYES: And All In starts right now. Good evening from New York. I'm Chris Hayes. We are now just six days from what could be the most explosive congressional hearing in a generation, the Senate Judiciary Committee hearing to assess Christine Blasey Ford's allegation that she was sexually assaulted by Trump Supreme Court nominee, Brett Kavanaugh, when both were in High School.

But what that hearing will look like, and whether it will even happen remains very much up in the air up to this very moment. Both, the top Republican on the committee, Senator Chuck Grassley, and the top Democrat Dianne Feinstein, say that Dr. Blasey Ford, whose lawyer says - whose lawyer says is willing to testify, has not responded to a request to appear at the hearing Monday, which was scheduled without her consent.

The New York Times reports that she has been emendated with vulgar email, and social media messages, and even death threats, and has moved out of her house, is arranging for private security for herself and her family, and is, affectively, in hiding with her teenage children.

Kavanaugh, who denies the allegation, does plan to testify Monday, but amazing, Senate Republicans say they don't want to hear from anyone else, not even the alleged eye witness to the alleged crime.

Kavanaugh's high school friend, Mark Judge, who Dr. Blasey Ford says was present for the alleged assault. And alternated, she says, between encouraging Kavanaugh and telling him to stop.

SEN. CHUCK GRASSLEY (R), IOWA: We've got two people involved and two people ought to be able to present their stories. And then, we'll have to be the jury.

UNIDENTIFIED MALE: Now, according to newspaper accounts, Dr. Ford has said Mr. Mark Judge was in the room at the time of the assault. Mr. Judge has denied remembering anything like that. Should Mr. Judge testify?

GRASSLEY: At this point, we have two people testifying. That's all I can tell you.

HAYES: In a letter today, Mark Judge himself, writing I have no memory of the alleged incident. Brett Kavanaugh and I were friends in high school, but I do not recall the party described in Dr. Ford's letter. More to the point, I never saw Brett act in the manner Dr. Ford describes.

Judge goes on to say he does not wish to speak, publically, on the matter any further. There's a lot for a Senator to ask him about under oath, including his memoir about his schoolboy days of blackout drunk, and his assertion that when my high school buddy and I got together and exchanged memories of that time, we found ourselves, genuinely, shocked at the stuff we got away with.

In an op-ed today, Anita Hill laid out how the committee could do a better job in assessing Dr. Blasey Ford's allegation than it did when she testified against Clarence Thomas 27 years ago, including have a, quote, neutral investigative body with experience in sexual misconduct cases, investigate the incident in question and then present its findings to the committee. But Senate Republicans have refused to allow for such an investigation. And the President, today, dismissed calls for the FBI to examine the allegation.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Will you ask the FBI to open up the file?

TRUMP: I don't think the FBI really should be involved because they don't want to be involved. If they wanted to be I would, certainly, do that. But as you know, they say this not really their thing.

(END VIDEO CLIP)

HAYES: It's not really their thing. In fact, it could be their thing, but according to Bloomberg, the White House hasn't asked the FBI to investigate the allegation. A request required for the bureau to take further action.

And while Senate Democrats, today, express support for Dr. Blasey Ford who, reportedly, first discussed the alleged assault with their therapist back in 2012. Trump, today, made clear that his deep and profound sympathies lie elsewhere.

(BEGIN VIDEO CLIP)

TRUMP: I feel so badly for him that he's going through this to be honest with you. I feel so badly for him. This is not a man that deserves this. This should've been brought to floor - it should've been brought up long ago.

I just think he is at a level that we rarely see, not only in government, anywhere in life. And, honestly, I feel terribly for him, for his wife who is an incredible, lovely woman, and for his beautiful young daughters. I feel terribly for them.

(END VIDEO CLIP)

HAYES: Joining me now for her perspective on the allegation, the plans for the hearing, Senator Kirsten Gillibrand, Democrat of New York. Senator, first, do you understand what the goal of the hearing that Republicans have set for this Monday is?

SEN. KIRSTEN GILLIBRAND (D), NEW YORK: No. I think it's intended to be a sham hearing because they only want a he said, she said scenario. In fact, they should be allowing the FBI to do a complete background check now that they have this allegation, which has not been done, which is the normal course for any Supreme Court nominee.

HAYES: Is that the normal course, the FBI conducts a background investigation?

GILLIBRAND: Yes, for all nominees, for judges, and for Supreme Court justices. And they need to do a complete investigation. And they haven't been able to do it because this is a new allegation. And so, we shouldn't even have the hearing until the FBI completes their background check.

HAYES: So, we just got word that Dr. Blasey Ford's lawyer has announced that she has written a letter - her client has written a letter to the committee asking for, precisely, that, asking that an FBI investigation be conducted before a hearing. What do you think happens next?

GILLIBRAND: Well, I think she - we should have that investigation because as you mentioned Dr. Anita Hill's editorial, she wrote that you really need to have a nonpartisan review of facts so that the senators can then use those facts as a basis to form their questions.

If you have the sham hearing that is intended for Monday, it's just going to be setup to be just one word against the other. Where as, there are cooperating witnesses, why isn't his former colleague being questioned? Why isn't her therapist being questioned? There's corroborating evidence that should be brought to bear in this hearing.

HAYES: Yes, what do you make of the fact that Senator Grassley, and others, seem to have no interest in Mark Judge who is named as the other person present in the room during the alleged assault. They have no interest in hearing from him, and he has no interest in talking.

GILLIBRAND: So, Mark Judge, first, should be questioned by the FBI. And that investigation should take place under oath. And then, second, when they do have a hearing, he should have to answer questions by senators under oath as well.

HAYES: There's also talk - Susan Collins floated the following scenario for the hearing that I want to get your reaction to which was - I had not heard of this idea, but take a listen and tell me what you think.

(BEGIN VIDEO CLIP)

SEN. SUSAN COLLINS (R), MAINE: It might be effective to have the two attorneys who are representing Judge Kavanaugh and fetch (ph) a report, do the questioning for the first round.

(END VIDEO CLIP)

HAYES: What do you think of that?

GILLIBRAND: I think that would turn the hearing into a circus. It is not the job of outside lawyers to cross-examine witnesses in front of the Judiciary Committee. That is the job of the senators on the Judiciary Committee. And if the Republican senators are unwilling to do that, they shouldn't be on the committee.

HAYES: What do you think about the idea that, apparently, has been floated that Republicans are considering using women that work for them on their staff? It's an all male group (INAUDIBLE) - Republican side of the Judiciary Committee using women staffers to ask the questions in the hearing?

GILLIBRAND: I think that's an absurd idea. If they, literally, can't do their jobs as senators on the Judiciary Committee and need to ask female staffers to do it for them then they should step down from the committee. It's their job.

HAYES: So, let me ask you this, what - I mean, one thing, I think, that's unclear to a lot of people as they watch this unfold is, what are we trying to - like, what's the thing that gets determined, and what's the standard of evidence that you're looking for?

I mean, what - as someone who's going to vote, and I suspect I know how you would vote, even before this allegation. But as someone who will vote if this nomination goes forward, like, what are - what is your understanding of the - the benchmark, or the standard you're looking for?

GILLIBRAND: Yes. Well, the question is, is Judge Kavanaugh fit to be a Supreme Court justice? Does he have the character and the integrity that is necessary to be a justice?

And if he has this violent background where has assaulted a woman and covered her mouth when she's trying to scream, then why should he be a justice on the Supreme Court with a lifetime appoint, who's going to make fundamental decisions about women's lives? I don't think he's qualified because of his record on women's issues, specifically.

He doesn't believe that women should have the ability to make decisions about their reproductive freedom. He believes that their boss should decide whether or not you have access to birth control. And if he has this history, then he is unfit for the court. And he doesn't have the character and integrity.

And you add to that, Chris, a lot of things that have been actually documented during these hearings that - that, perhaps, he wasn't straight in the last set of hearings when he received his confirmation for his last judgeship.

HAYES: There has been a lot of controversy around - there's been a lot of questions about, sort of, Me Too and accusations, and the standards that we use for them, particularly, in the political sphere. And the ways different parties have reacted to them, and Senator Franken's departure from the Senate which was something you and other colleagues called for, although for some reason you get singled out for it which I'm not clear about.

But has - has been a, sort of, source of controversy ongoing. There are donors who have said they're happy with it, et cetera. I wonder what you think of that moment for the Democratic caucus, the Democratic party in this era at this particular moment when Judge Kavanaugh faces allegations.

GILLIBRAND: Well the question is do we value women. And that's the fundamental question. Do we believe women, do we give them an ability to tell their story, to be heard, to have some measure of accountability? And you know, sometimes it's very hard. And you have to do what's right, even when it's hard. Especially when it's hard.

And so I think that this is a moment when there's a reckoning for the U.S. Senate. We need to have a proper hearing where this witness can tell her story and that the corroborating witnesses can also be questioned and so that they can tell their story. And it's really important that we have transparency and accountability. We should not relive the hearings that Anita Hill had to go through.

That was a -- that was a dark moment for the United States Senate. It was one of the lowest moments of the U.S. Senate. And if we can't do better than we did then, that's shocking. And so we need to have a transparent and accountable hearing and it starts with an investigation by the FBI to develop the facts, and then you can have an appropriate questioning of the witnesses.

HAYES: Final question. Do you believe that Dr. Blasey Ford is telling the truth about what happened?

GILLIBRAND: I believe her. Her -- her story is credible. If -- if you listen to everything about it, the fact that she told her therapist about it five years ago, a friend most recently, she told a reporter before Kavanaugh was even named to be a nominee. This is a woman who has endured trauma.

And experts have said, this is what trauma looks like. These -- these -- it gets relived much later in time.

HAYES: Right.

GILLIBRAND: A lot of -- you don't remember everything, you remember the most poignant moments, you remember the things that are seared into your memory and have effected you your whole life. I believe her. She is credible. She should be heard and this Senate should treat her with the respect and dignity that she deserves.

HAYES: All right. Senator Kirsten Gillibrand, thank you so much for being with me tonight.

GILLIBRAND: You're welcome.

HAYES: All right. Joining me now with more on how this is playing out in the White House and on Capitol Hill, Seung Min Kim. She's a White House reporter at the Washington Post and Lachlan Markay, who's White House correspondent at the Daily Beast. Seung, let me start with you. Things seem to be moving around a lot in terms of what's happening. Let's start with the Republican side and then let's talk about the -- the -- the Democrats.

The Republicans seem to have scheduled this on Monday with the idea of we're having a hearing Monday no matter what, it's going to be two witnesses and that's it. Is that basically their approach?

SEUNG MIN KIM, WHITE HOUSE REPORTED, THE WASHINGTON POST: That's -- essentially yes. I mean, the Judiciary Committee had reached out to Dr. Ford through her attorneys at least twice so far, one to schedule kind of a follow-up to the background check call. This is a version of call that they already had with Judge Kavanaugh on Monday evening, and then a second time to tell them that -- to notice them of the hearing that had been scheduled for Monday.

And that's been the protest coming from Democrats, saying this hearing was held, first of all, without consultation from Senator Dianne Feinstein, who is the top Democrat on the committee, which they usually coordinate to set hearings and to -- to kind of set all these dates up, with no -- with no invitation or no consultation with Dr. Ford herself. And when we kept asking questions of Republican senators, such as are you going to ask Mark Judge, this friend who was allegedly there when this alleged incident happened, is he going to come?

And Republicans started making clear earlier today there would only be two witnesses, Kavanaugh and Dr. Ford and then obviously release a letter from Mark Judge himself later -- earlier this afternoon saying, I don't have a recollection of this incident and also I am not going to testify before this committee.

HAYES: Lachlan, do you have a sense of what the White House is thinking right now? The -- the -- the judge spent the second day there for a better part of the day. There are sort of swirling stories coming out about them making the decision about whether to plunge ahead or not. What -- what's your reporting indicate?

LACHLAN MARKAY, WHITE HOUSE CORRESPONDENT, THE DAILY BEAST: Yes, the White House spent the day yesterday really making the rounds, hitting the phones, talking to allies to get their sense of where things stood and make sure they were on board with Kavanaugh. Because the White House as of right now has no plans to pull the nomination and they see backing away from this as absolutely politically disastrous heading into the midterms.

Donald Trump, of course, two planks of his political appeal are that he will take the fight to the Democrats, and he won't back down and that he will stack the judiciary with conservative-leaning justices. So to -- to back away from Kavanaugh would not necessarily alienate Trump's base from Trump, but would severely depress enthusiasm for Republicans heading into midterms. That's at least how pro-Trump political folks see it.

So they're absolutely determined to stick by him and I think this sort of rushed hearing was -- was -- was planned in anticipation of it being almost infeasible from Dr. Ford's part at least, in the hope that they could continue moving on this and saying (ph) the process play out normally.

HAYES: Yes. I mean, look, if -- if you really want to hear from her, if she had surgery scheduled on Monday, like is (ph) clearly -- like, you have to schedule it with her. Right? I mean, it just seems to give away the game a little bit. And -- and Seung, I also just wonder -- the Republicans -- I get the sense the Republicans in the committee think that she's not going to show up. Like it almost feels a little bit like a bluff, that they don't actually want to go through with it.

KIM: We sensed some growing impatience from some Republican senators when we -- when we just continued to not hear from Dr. Ford and all her attorneys throughout the day. Even Senator Jeff Flake, who was one of the first Republican senators to say look, let's put this on pause, we need to hear from this woman, kind of expressed a little bit of frustration to us earlier today, saying, like, well, like, we're -- we're -- you know, she -- we are happy to hear from her if she wants to appear and whatnot.

And I think a lot of that -- and -- and everything that's going on kind of all adds to this changing sentiment that I have noticed through my reporting over the last couple days. I think, on Sunday and Monday there was a sense that his nomination really was in trouble. You had a lot of Republican senators saying we needed to hear from her, expressing a lot of discomfort about going ahead with this key committee vote on Thursday.

And in my conversation with Republican senators throughout the day today, as we continued to have no word on whether Dr. Ford was doing to come to the committee on Monday, they seemed increasingly defiant and ready to defend Kavanaugh.

HAYES: To ho ahead (ph).

KIM: The judge had been making private calls to senators and telling them I did not do this and I am ready to fight. Dr. Blasey Ford through her lawyer released a letter that she wrote to the committee, Lachlan. I don't know if you've seen this because it just broke in the last few minutes, essentially endorsing the position that Anita Hill basically called for and Senate Democrats had called for, which is there should be an FBI background check that looks specifically into her allegation and should present those findings.

You -- the president was asked about that today and it -- that -- the White House and Republicans seem to want to have nothing to do with that. Is that right?

MARKAY: Yes, and the FBI kind of punted on it a little bit early this morning, saying that as far as they're aware, no one's alleged a federal crime. But I will tell you that if -- you know, this puts not just Trump in a -- a more difficult position, but look at Jeff Sessions. If the FBI were to open an investigation that the president perceived as imperiling his Supreme Court nominee, there would be absolute hell to pay for the attorney general, who of course is already on thin ice with the president.

So I think the odds of that FBI investigation are relatively slim and I expect that certainly the White House is going to push forward with -- with a committee vote and a floor vote. The question, of course, is whether there can be that -- at least a facade of thoroughness to -- to the degree that can keep Susan Collins, Lisa Murkowski and even someone like Jeff Flake on board.

HAYES: Yes. Fa‡ade of thoroughness is a good term. I should -- I should note here, my understanding of this here is that the call for the investigation on the FBI is not to open a criminal inquiry, but rather to use the people inside the FBI to do background checks that have already done background checks for all sorts of federal positions. This is for security clearance purposes, this is all for (ph) federal judges, this is the background check that revealed that Rob Porter, for instance, had been accused of spousal abuse by two previous wives.

That unit already exists within the FBI. Those folks do this kind of thing all the time. They go talk to people. I think my understanding of what's being called for here, Seung is -- is not the opening of a criminal inquiry, but rather that that process be used or that facility or capacity of the FBI be used.

KIM: That's absolutely correct. I mean, the FBI essentially said last week it was in no way opening a criminal matter into this.

HAYES: Right.

KIM: Obviously there's a statute of limitations issue with this. And again, generally crimes of this nature are not federal crimes anyway.

HAYES: Right.

KIM: But -- and what Democrats have been calling for specifically was to reopen that background check investigation, the version of the probe that Judge Kavanaugh has gone through about six times in his 25 year public career, to add this information, to talk to the woman (ph) to try to verify this and add this to the file. But there are procedures in place. And so the FBI, what they did when they received this letter late -- late last Wednesday night from Senator Feinstein, they referred it -- they referred it and added it, basically, to Kavanaugh's check -- check file, sent it to the White House counsel's office and the White House counsel's office then subsequently quickly sent that back to the Senate Judiciary Committee. But in terms of reopening a background check investigation, there are no indications that the FBI is going to do that at this point.

HAYES: Right. Absence, I think, a directive. Seung Min Kim, and Lachlan Markay, thank you for your time tonight. We have -- we're trying to get Peter Baker, who -- who -- who wrote the New York Times article about the latest development in the case, the lawyer from Dr. Blasey Ford and her lawyer -- the letter from Dr. Blasey Ford and her lawyer. Stick around, we're going to get to that next.

(COMMERCIAL BREAK)

HAYES: All right, so breaking news, just in the last few minutes, after a day and a half in which the committee members of the Judiciary Committee said they had not heard from Dr. Blasey Ford or her attorney, we have now a letter that the attorney sent to Senator Grassley, who's the chair, basically asking that the Judiciary Committee has recognized and done before, and as the Judiciary Committee has recognized and done before, an FBI investigation into the incident should be the first step in addressing her allegations.

A full investigation by law enforcement officials will ensure the crucial facts and witnesses in this matter are assessed in a non-partisan manner and that the committee is fully informed before conducting any hearing or making any decisions. I have Peter Baker now who is the Chief White House Correspondent for the "New York Times." Peter, what's the background on this letter?

PETER BAKER, CHIEF WHITE HOUSE CORRESPONDENT FOR THE "NEW YORK TIMES": Well, it's a letter that is basically intended to say slow down, that the committee shouldn't have this public hearing or even a private hearing on Monday as Senator Grassley has scheduled. And in fact, that it's basically saying their client, Dr. Blasey - Dr. Ford, does not plan to be there. There has to be first an investigation of her charge before she goes before the committee.

It describes her already feeling aggrieved by this. She says -- the lawyer says in the letter the hearing was scheduled in six short days, an interrogation by Senators who appear to have made up their minds, that she is quote, "mistaken and mixed up," unquote. And she obviously is looking ahead to the prospect of, you know, an Anita Hill type scenario. She doesn't want to feel like she's under the gun without some sort of non- partisan assessment by the FBI or something else to back her up.

HAYES: It also seemed crucial here that they ask that this line here, which has been a theme in some of the conversation today, a full investigation by law enforcement officials will ensure that crucial facts and witnesses, plural, in this matter are assessed in a non-partisan matter. This seems crucial from the perspective of Dr. Blasey Ford that it is more than just she and the judge who talk about what happened given the fact she says, alleges there was a third individual present in that room.

BAKER: That's right, the third individual is Mark Judge (ph); he's a friend of Brett Kavanaugh's from school. But he says that nothing like this happened, or he doesn't remember anything like this happening and that he never saw Judge Kavanaugh ever behave in the manner that Dr. Blasey Ford has described. He sent a letter of his own to the committee today saying he didn't want to testify, that he didn't have anything more than to share with them than these two, you know, assertions.

So, you know, obviously he doesn't have the ability to resist a subpoena, presumably, if one were to be issued and the committee, you might imagine, might want to hear it. But for the moment that's not what Senator Grassley has said. He said he wanted to hear from Judge Kavanaugh and hear from Dr. Blasey Ford, but just the two of them; Democrats think that's not enough.

HAYES: We should also note in this letter that Dr. Blasey Ford's lawyer says the following. "In the 36 hours since her name became public Dr. Ford has received a stunning amount of support from her community and from fellow citizens across the country. At the same time, however, her worst fears have materialized. She's been the target of vicious harassment and even death threats. As a result of these kinds of threats her family was forced to relocate out of their home, her e-mail has been hacked and she has been impersonated online."

It seems that Dr. Blasey Ford is well aware that however much notoriety and attention she has now, a live televised hearing before the nation is going to be an absolute irreversible step in her life trajectory.

BAKER: Well, that's certainly right. And, you know, of course, it's hard to know what she expected when she first wrote that letter back in July to Senator Feinstein on the committee. But you have to understand, in today's political world, this is where it was likely to head. If you're going to make allegations like this, that it can't remain, won't remain secret if you want it to be, to have any impact on the deliberation involving the judge.

So it was almost inevitable that it would end up in a public hearing. But she, understandably, perhaps, is not, you know, excited about the idea, and probably nobody would be. Probably Judge Kavanaugh's not either. But that seems to be where the Senate wants to go at this point. Republicans for the moment are saying we're not planning to reschedule because she wants to do it on a different timetable.

HAYES: Have they responded already to this letter?

BAKER: Before the letter even came out Senator Lindsey Graham who's on the committee appeared on "Fox News" and he said that, in fact, we're not going to reschedule it. If she doesn't appear on Monday, we will go ahead and schedule a vote on Wednesday and move the nomination out of committee.

HAYES: All right. Peter Baker of the "New York Times" with that breaking news. Thanks so much for joining me. I want to bring in Melissa Murray, Professor at New York University School of Law who testified earlier this month at Kavanaugh's Senate hearing against his nomination. And MSNBC legal analyst Jill Wine-Banks, former assistant special Watergate prosecutor, co- author of this "NBC News" Think Piece today explaining why the allegation against Brett Kavanaugh is not simply a he said/she said situation. Your reaction to where we stand now and the letter to the committee?

MELISSA MURRAY, PROFESSOR AT NEW YORK UNIVERSITY SCHOOL OF LAW: I think this is exactly right. An FBI investigation slowing this down, I have always said that this entire nomination process has been like a juggernaut and there's been so many unprecedented efforts to force this through, when some more thoughtful and contemplative deliberation would have been in order. The documents and now this, I think it's appropriate to slow down and think about what's happening.

HAYES: What do you say who people that - who will say -- who support Kavanaugh, who say Democrats and liberals and others who oppose his nomination want to slow it down anyway because they think it will give them a chance to kill it. This is just their latest excuse for that.

MURRAY: I mean I understand the partisan griping here, but these are serious allegations. Regardless of whether they are true or not, they warrant an investigation. They warrant some discussion in a contemplative way about what's been said here and I don't think you can do that on Monday. I don't think you can push this through and vote on Thursday.

HAYES: Jill, what is your thought about this development?

JILL WINE-BANKS, SPECIAL PROSECUTOR FOR THE WATERGATE INVESTIGATION: I think the entire rush to judgment is unwarranted and unnecessary; there is absolutely no reason for this. And now it looks like the Senate wants to repeat all the errors of the hearing for Clarence Thomas, which has left him with a permanent cloud over his sitting as a Supreme Court justice. It is wrong and they need to take the time. I think the letter is 100 percent correct. That is exactly what we wrote on nbc.com today was that the FBI should investigate before there's a hearing, not after, not during, but first you need some facts on which to question witnesses.

So they're proceeding in all the wrong way. It is not a he said/she said. Prosecutors deal with this all the time in sex offense cases where it isn't he said/she said. There is also some corroboration for one party or the other, something that will make a jury, which in this case would be the senate or the American people, believe one over the other.

We have at least one witness to the actual assault. But in addition, I don't know who she might have mentioned it to or someone who might have seen how upset she was after the fact. And so there's a lot of other potential witnesses; there's her therapist, her husband, and there are a lot of classmates who should be asked about both Georgetown Prep.

I think not only has she been corroborated by her therapist, but he has made himself look bad by his comment about what happens at Georgetown Prep stays at Georgetown Prep and that's a good thing for all of us who were there. That really does show something that says what did he do there that he was saying that about? So I think there's a lot.

HAYES: His defender I think would say that that was a joke about high school high jinks as opposed to what is happening. Here, obviously it takes on a very different cast in light of what's been alleged.

The hometown paper -- there's another corroboration -- the hometown paper talked a friend of hers who said amidst the kind of #metoo moment that we've had over the last year-and-a-half that she spoke to the friend back before Kavanaugh was even nominated to the Supreme Court, when he was a federal judge and said that she had been subject to a violent attack by a federal judge. That's a woman who is on the record in the newspaper today.

Again, doesn't corroborate at the time, but there is corroborating evidence there.

MURRAY: Certainly...

WINE-BANKS: I think we cannot let what happened at the Anita Hill hearing where there were three witnesses waiting to testify.

HAYES: Right.

WINE-BANKS: And they were cut off, they wouldn't give them the time. We have the time. We need the time. And it must proceed with all possible witnesses.

HAYES: Melissa.

MURRAY: I think this is right. We have an eyewitness who should be brought forward and his account discussed, although he may have issues with remembering some of those details.

HAYES: Yeah, he wrote a book abgbout being blackout drunk through most of high school. I mean, literally, that's his memoir.

MURRAY: But I mean, that's relevant to the situation given everything she said.

HYAES: Brian Boiler (ph) of Crooked Media made this point, which I thought was a good one. He said if a friend of mine from high school was falsely accused of rape in the national spotlight a few votes away from a Supreme Court nomination, I would rush to any venue anywhere under oath to say that it was not true, right?

I mean...

MURRAY: One would expect.

HAYES: There's a certain logic there that so far has not manifested itself in this phase.

MURRAY: But then there are other things to corroborate her story, like she's provided so many detailed aspects of this night, of the house, the staircase, finding people who could corroborate these aspects of her story I think would be really important. An investigation seems appropriate.

HAYES: Well, let me ask you this, and I'll ask both of you this question, which I've seen is like -- and I asked Senator Gillibrand, what's the standard, right? I mean, you testified in opposition to his nomination before this, right, so put that aside. There are other reasons that you don't think he should be on the Supreme Court.

But were this, say, a nominee who you did think should be on the Supreme Court and then this happened, this exact same fact pattern, like what's the standard to you that makes someone fit or unfit, confirmable, unconfirmable?

MURRAY: So, this not a criminal case. The standard is not beyond a reasonable doubt. But IU think here where someone is about to take on the mantle of Supreme Court justice, have the power to interpret the constitution, to interpret former precedents, you need to have a person of sterling and impeccable integrity. If there is any doubt that this person doesn't meet that standard, and I think it's a lower standard than proof beyond a reasonable doubt, then I think you ought not confirm.

I mean, it's not as though there aren't other people who might be able to meet the standard. I mean, if you think this is a person whose account you don't find credible, and in that situation may have abused what power he had as a 17-year-old, I don't think it's appropriate to give that person the kind of power that a Supreme Court justice would have.

HAYES: What do you think, Jill?

WINE-BANKS: I agree with Melissa completely. I think in this case there are so many indicators of red flags for Judge Kavanaugh. There are the standards here which would not be the criminal standards, but which would be something that we would look at as part of a pattern of his behavior.

He clerked for a judge who was forced off the bench because of sexual misconduct in his chambers, but he claims he knew nothing about it. That strikes me as really hard to believe. And I think that if you would talk to and investigate that and talk to the people he clerked alongside who were in the office I think we might find that to be unbelievable, as I would find his saying I didn't know anything about those stolen Democratic documents when it's clear from the emails that he did know about it. That makes his earlier testimony a lie.

So when you put multiple things together it accumulates into a pretty compelling case that he is not qualified to sit on the Supreme Court. And that's not have anything to do with politics or his views on issues that probably Melissa and I would not agree with, but that isn't what I'm judging it on. I'm judging this on his character. And I think it's something that we should all be looking very closely at.

HAYES: Just some more news here, I should say that the attorney for Dr. Ford says that she will not appear on Monday, absent an FBI investigation. Of course, that can't happen by Monday, which is part of the point. And the ranking member on the Judiciary Committee, Dianne Feinstein, says that she agrees with the course of action that is being advocated by Dr. Blasey Ford.

The decision to come forward or not come forward has always been a difficult one. And she says that she should -- that everyone should proceed with some kind of FBI investigation, that's the statement there from Dianne Feinstein, just a few minutes ago.

Melissa Murray and Jill Wine-Banks, thank you both very much.

HAYES: Ahead, a man on the inside of the operation to smear Anita Hill is here with a warning for Brett Kavanaugh's accuser. David Brock joins me next.

(COMMERCIAL BREAK)

HAYES: Here's what the editorial page of Rupert Murdoch's Wall Street Journal looks like today from the paper's editorial board, the #metoo Kavanaugh ambush, a story this old and unprovable can't be allowed to delay a Supreme Court confirmation vote. And just for good measure, in case you didn't get the idea, two more op-eds, one of them comparing the accuser to women from the Salem witch trials.

That should not be surprising. The last time Republicans faced a nominee imperiled by accusations of sexual misconduct, the conservative media did everything it could to destroy her, a rising star in conservative circles, David Brock wrote a piece in the American Spectator, and later an entire book, viciously attacking Anita Hill, a stance he has long since renounced and repeatedly expressed regret for, most recently writing, "I lifted the Republican playbook against Hill, the same playbook Ford should now expect to be used against her, but I went further than Republicans were then willing to go in public."

Joining me now is David Brock, founder of Media Matters for America and American Bridge 21st Century, who now has an ABC News think piece predicting that Kavanaugh's accuser should unfortunately expect the Anita Hill treatment from Republicans. And that is a perfect segue to the fact that she seems intent on avoiding precisely that.

DAVID BROCK, FOUNDER, MEDIA MATTERS FOR AMERICA: Yes.

Well, that's what she's learned a lesson, clearly. And there have been warnings, and I issued a warning myself, because what she will face is a full scale smear campaign.

What people have to understand is the mind-set of these people. I mean, I knew Brett Kavanaugh. I knew Orrin Hatch. Orrin Hatch helped me with the "Real Anita Hill."

HAYES: Did he really?

BROCK: Yes. Yes, he did. Including his staff leaking FBI documents.

This is a voluminous FBI file on Anita Hill, by the way. They did do an investigation, and they should do one now.

But here's the point about the mind-set. The mind-set is, one, win at all costs, because they have to cement this conservative majority for a generation. And two, it's OK to lie to outsiders.

So let me tell you what their playbook is, what's going on in this nine hours in the White House with the White House counsel's office and Brett Kavanaugh, OK, they have a problem, Republicans have a problem and Kavanaugh has a problem. They need a theory of the case. OK. And there are basically two options, because he's categorically said it didn't happen.

HAYES: Right, so they can't say...

BROCK: It can't be high school. It can't be, you know, something else.

HAYES: This should not be disqualifying.

BROCK: I lost control. I blacked out. It can't be any of it.

HAYES: They're pot committed to denial.

BROCK: Right.

So here are the possibilities. One, she's lying. But for that, you need a motive. And what they did, and I did to Anita Hill, was try to impute a political motive. But it wasn't so much Anita Hill, it was the people around Anita Hill who tried to create a conspiracy that there was a shadow Senate behind her, that sort of thing.

I don't see that happening here, because I don't see much evidence for political motive.

So where they're going to go, and it's funny you quoted the Wall Street Journal, because my favorite quote from The Wall Street Journal editorial page in these last couple days is, they said she misremebered in a cauldron of a therapy session trying to save her marriage.

So, option two is what -- you know, I wrote that Anita Hill was a little bit nutty and a little bit slutty, which is something that I deeply regret. And the only reason I'm revisiting it now is actually painful to revisit it, is this is where they're going.

And you saw it with Orrin Hatch.

HAYES: Mixed up.

BROCK: Mixed up.

So, she's confused. It's a case of mistaken identity. There's something a little off with her.

HAYES: That is absolutely, clearly -- and we should note that Dr. Blasey Ford's lawyer's letter to Chuck Grassley says the hearing was scheduled for six short days from today and will interrogation by senators who appear to have made up their minds that she is, quote, mistaken and mixed up. So, they understand that that is the argument they will make as well.

It does seem to me that we're in a very different political context then during. I mean, there were two women in the United States Senate during the Anita Hill period.

BROCK: Right.

HAYES: It was not in the crux of this seismic social reckoning with story after story after story after story of men engaging in sexual assault, sexual harassment and sexual misconduct. Going after the victim seems to me a far dicier proposition politically in the year 2018 than it did back in 1991.

BROCK: Yeah. I don't think you're going to see any nutty/slutty this time, I mean, which is sort self-evidently monstrous.

HAYES: It was gross and monstrous then.

BROCK: Right.

Here's what you're going to see. The change is tonal. And you can see it. They're going to respect the accuser. The accuser should have her fair say. And I imagine that Kavanaugh's demeanor will be that, and I imagine to the extent they can control themselves, the Republican senators will not be as -- the role of interrogator the way they went after Anita Hill, and people remember they really went after her.

HAYES: They have also set up a situation, I think, in which because we now -- she's saying I'm not going to come to your hearing where there's only two people and which is going to be set up essentially precisely like the Anita Hill hearing.

BROCK: Right.

HAYES: They are now going to say, I think, OK, well, we gave her a shot.

BROCK: That's what it seems like.

HAYES: I mean, this has been the gamble all along. Like basically it was a bluff to be like OK, fine, come in, create conditions that were wildly unfavorable to her in many ways. And then when she didn't come, say...

BROCK: The mind-set is to brazen this out.

HAYES: Yes.

BROCK: People have a hard time understanding this mind-set, because people are basically decent. But they want to win this. And that's what they're going to do.

HAYES: What do you know -- Brett Kavanaugh was in the circle. He was with Alex Azar who is now running HHS, Ann Coulter, who people probably know of...

BROCK: Sure.

HAYES: Yourself.

BROCK: Right. Laura Ingram.

HAYES: Laura Ingram. This is the crew of people around the sort of Starr investigation who were determined to bring down the Clinton...

BROCK: That's right.

HAYES: Presidency.

BROCK: That's right.

And, you know, I mean, there was unethical behavior by Brett Kavanaugh then in my view. I mean, I witnessed it. His -- he took a starring role in the Starr investigation in leaking to the press, and some of that was clearly unethical, it may have even been illegal. He pursued obsessively the Vince Foster case even after it had been closed once, spent millions of dollars, a year-and-a-half.

You know, and there's one anecdote in my book "Blinded by the Right," where I remember very clearly Kavanaugh making a kind of -- losing a little bit of control and making an obscene comment about Hillary Clinton when she came on the air, and maybe that says something about -- certainly the attitude to Hillary, I don't know and women.

HAYES: It also seems to me that this is someone who in some ways has been in kind of conservative knife -- I mean, this is someone who has been a federal judge for awhile, but before that he was working on the Starr investigation, went down to Florida to work on the recount there. Been in high stakes conservative knife fights before.

BROCK: Yes. We were all partisan warriors. And we were being groomed for the next level of media, politics, and government. And he was in that. But we were all a very hard core group. And it was raw politics. He wasn't involved back in the day with Thomas. He's a little younger than I am. But it's the same kind of thing.

HAYES: All right, David Brock, it's great to have you here. Thank you very much.

BROCK: Thank you.

HAYES: We'll have much more on the breaking news tonight, right after this.

(COMMERCIAL BREAK)

HAYES: All right, breaking news again tonight, the woman who says she was sexually assaulted by Supreme Court nominee Brett Kavanaugh is now saying through her lawyer that she will not appear before the Senate Judiciary Committee until an FBI background investigation into the allegations is initiated.

Here to help me understand what this hearing could mean, MSNBC political analyst Zerlina Maxwell, senior director for progressive programming for Sirius/XM and co-host of the show Signal Boost; Jim Manley, former chief spokesperson for Senate Majority Leader Harry Reid; and former Reagan administration official Linda Chavez.

And Linda, let me start with you, this entire thing has struck me as people kind of flying by the seat of their pants. And the Republican members of the judiciary basically trying to check a box when it became clear they didn't have the votes.

What do you think the position they're in now in response to this letter?

LINDA CHAVEZ, FORMER REAGAN ADMINISTRATION OFFICIAL: Well, I think everybody is in a very tough position now.

And by the way, I should mention that Brett Kavanaugh once co-authored an amicus brief for my organization The Center for Equal Opportunity, so I know him and respect him, and I had been an advocate for his appointment.

But in terms of what we're seeing now, I was, as you may remember, a nominee for Secretary of Labor under George W. Bush. And when allegations were made that I had taken in a woman into my house who is illegally in the country, I can tell you by the time I got home, after I'd received the call that that news had broken, the FBI was on its way to reinterview me.

So I think it is absolutely normal that the FBI should, in fact, reinterview Brett Kavanaugh. They should interview Mark Judge, and they should interview the accuser, and perhaps also the therapist if she is willing to talk and if it does not violate ethics, and if the accuser allows her to do that. So I think that is accurate and true that that's the way it should proceed.

But I also think that Dr. Ford has to come forward. And she does have to make these accusations in public. And I think not doing so and not doing so quickly is very unfair to Judge Kavanaugh.

HAYES: What do you think, Zerlina?

ZERLINA MAXWELL, SIRIUS/XM RADIO: I think with Anita Hill and her history, what Dr. Ford is trying to avoid is Anita Hill 2.0.

I was really young at the time, but that was one of my first examples of what sexism looks like, because it was very clear that a panel of white men were berating and shaming this very poised and articulate African-American woman who really dressed up like she was going to Sunday school to make the point that, you know, I have credibility. I'm just coming in to tell the truth. I have no agenda here. And they still shamed her and smeared her.

And so I think Dr. Ford is doing the right thing here, asking for an investigation, because at the heart of this is something very serious.

I think when you see Orrin Hatch say she is a little mixed up, that makes it seem like this is a misunderstanding and not a crime, that if he had been caught at the time it happened, he would have been investigated by the police. We're talking about something that's a crime.

So while it's way back in high school, it's still relevant because he is denying that any of it ever happened.

HAYES: Right.

MAXWELL: And so if that is a lie, it goes to his present integrity.

HAYES: Jim, what do you think the next move is here?

JIM MANLEY, FORMER SPOKESPERSON FOR SENATOR HARRY REID: Well, it's another interesting plot twist, but I think the fact is that his nomination is still taking on water. So what we're looking at right now is a hearing next Monday with 11 white guys on the Republican dais questioning Kavanaugh, I assume with kid gloves, and we'll see how folks react.

But, you know, the reality is the outside groups are beginning to throw their smear and fear stuff out. You know, I think this has still got the potential to be really, really, really ugly.

HAYES: The thing that's strange about this whole thing to me is that it was very clear that, Linda, I just felt like the Republicans of the committee don't really want to have the hearing with her there. I mean, there is almost this kind of pretextualism to it. I mean, the president today saying, you know, we'll do it and then we'll have the vote. And Lindsey Graham saying, we'll come out do it and then we'll go on and move on to the vote.

And it's like, well, if you're saying we're going to move on to the vote, maybe that says you've already made up your mind, right?

CHAVEZ: Well, first, the best thing that Donald Trump could do as a favor to Brett Kavanaugh is to keep his mouth shut. I would not want Donald Trump as my character witness on this kind of an issue.

HAYES: You could see alarm bells going off today as the president edged further and further into his real opinions about the matter.

CHAVEZ: But I do think it's unfair to assume that Brett Kavanaugh is guilty because an accusation has been made. I mean, we do live in a country in which there is a presumption of innocence when you're accused of essentially a crime.

And so, yes, I think the FBI ought to reinvestigate, go back and question witnesses. I think Mark Judge should come before the committee and have to testify under oath as well. But I don't think it's fair to assume that Brett Kavanaugh did these things. And everybody seems to be jumping to that conclusion on the other side.

MAXWELL: I don't think that's what's happening. What we are taking seriously is her account, which was detailed and documented by a therapist. That's not assuming that he is guilty. Because, again, Chris, we're not in a court. We're actually just in the public. He is trying to essentially apply future a job.

And so is the bar to entry that job which is a permanent position that, I mean, essentially is forever until he dies, right? That's going to impact policy for women's bodily autonomy for the rest of my life. And so is the bar to entry that there should be no suspicion that he may have attempted to rape someone in high school? I think that's a reasonable bar to have.

HAYES: Well, the question to me then, right, is like is the accusation enough, right? I think you can have the position that say look, the accusation is enough to be disqualifying.

MAXWELL: Yeah.

HAYES: There is some small risks that this is true, and that small risk is enough to disqualify.

MAXWELL: Yes.

HAYES: Or Linda, it sounds like you're saying like what's important here is to make a determination as best as possible to the veracity of whether this happened. And I think you and I agree, and everyone agrees that the Senate Judiciary Committee asking the two of them in open session is not the way to do that.

CHAVEZ: Well, it is and it isn't. I mean, David Brock, at the risk of falling right into his conspiracy theory, one of the question I had is it took 32 years or however many for the woman to remember this incident and to bring it out in therapy.

You know, there was a whole scandal back in the 1980s involving therapy and so-called recovered memories. I would want the make sure that this is not a so-called recovered memory, because we went through that. We had a lot of people go to jail on the basis of recovered memories.

So, I do think that it needs to be questioned, and that we don't automatically assume that the party who is making an accusation -- I'm sure that Dr. Ford believes, you know, what happened is what happened, but I'd like to know how she got there. I'd like to know more. She does have an awfully lot of gaps in the memory, so I don't think we can just automatically assume that because a woman makes an accusation that that is going to ruin someone's career.

HAYES: We should note that as far as I can tell, he is under no threat of anything other than not getting the Supreme Court job.

CHAVEZ: Well, I think if -- no, I think he might actually be forced out of his current judgeship if...

HAYES: Well, right. I mean, again, I think it depends on what the evidence says. I think we all agree at that level.

MAXWELL: Right.

HAYES: I would like to...

MAXWELL: I want a full accounting. I want to know what happened. I want to hear from everybody.

HAYES: And also, Jim, just to harp on something that I've harped on before all day, but like, you know, people use the cliche he said/she said to describe incidents in which men and women are in a private setting and when an allegation is made.

MAXWELL: Right.

HAYES: That's not what's true here. There is a third person, which basically almost never happens. I mean, mostly it is the cliche, he said/she said. In this case, Jim, you have this third person.

The Senate does have the power to compel his testimony, right?

MANLEY: They sure do. And I really doubt they're going to go for it, in part because his credibility has already been seriously questioned. This is a guy who bragged about being a blackout drunk and also denied knowing anything about the situation, despite the fact that he was drunk. So this is really treacherous territory for Republicans.

And to harp on something you said earlier, I got a sneaking suspicion a whole bunch of Senate Republicans, despite all the tough talk from the usual suspects -- Lindsey Graham, et cetera, there is a whole bunch of Republicans that don't want this nomination to go forward.

HAYES: Linda, let me ask you this. You are someone -- you said you know Brett Kavanaugh. I know that among conservatives in Washington, and I know even on the D.C. Circuit among people across partisan backgrounds, has a good sort of personal reputation as a genial guy and all of those things.

All of that said, and whatever your sort of personal feelings about him, from the sort of political logic, it does strike me that he is not irreplaceable from the perspective of the kind of general world view of the court for conservatives, right?

CHAVEZ: Well, that's true. There are other people -- Amy Barrett keeps her name keeps coming up. A lot of conservatives would actually have preferred her. She's actually more hard right on some issues and would be less to the liking of your -- my fellow panelists.

But, you know, -- and yes, there is a political consideration. And I certainly didn't have to step down and step aside when my nomination went into trouble, but I did because I thought it was in the best interests of President George W. Bush.

So, you know, there are political considerations. But I think it's just a terrible precedent that something like this can happen at the last-minute. And if Brett Kavanaugh really is the man described by Dr. Ford, I would think that we would have heard other people come forward. Even in the Clarence Thomas case there were other women who came forward with allegations.

HAYES: Yes.

CHAVEZ: ...of his bawdy talk and stuff. And we haven't seen anybody else come forward.

HAYES: Who we should note for history's -- posterity's sake -- were not allowed to testify, were kept out of testimony, much to the chagrin of many people, including Anita Hill. Joe Biden has subsequently apologized for that.

And of course Clarence Thomas is now a Supreme Court justice.

It does matter ultimately, Linda -- I've heard what you're saying echoed by others sympathetic to Judge Kavanaugh, and ultimately that sympathy I think does turn on whether it's true or not. That's really what it comes down to, right. I mean, if it is the case that he has been falsely accused at this point in his life and that's the thing that derails him, I think anyone would think if he is being falsely accused, it is unfair.

CHAVEZ: But if it is true, but if it is true I think it is disqualifying. So...

HAYES: It's interesting you say that, too...

CHAVEZ: You know, we need to have -- I do think the FBI should go back and re-question all the witnesses involved -- all those involved.

HAYES: We have achieved consensus for America here moving forward.

Zerlina Maxwell, Jim Manley, and Linda Chavez, thank you all.

That is All In for this evening. The Rachel Maddow Show starts right now. Good evening, Rachel.

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