Rachel celebrates 10 years on the air. TRANSCRIPT: 09/07/2018. The Rachel Maddow Show

Guests: Daniel Goldman, Dahlia Lithwick

Show: THE RACHEL MADDOW SHOW Date: September 7, 2018 Guest: Daniel Goldman, Dahlia Lithwick

RACHEL MADDOW, MSNBC HOST: And thanks to you at home for joining us this hour.

Fridays, man. Fridays. We should change the name of the last day of the workweek to news day. Instead of Friday.

It`s annoying. I like to take Fridays off every once in awhile. Now my boss is like Friday, seriously, are you kidding me?

Today, the confirmation hearings ended for controversial Supreme Court nominee Brett Kavanaugh. We learned during his confirmation hearings that there is a record of him saying that he does not think that Roe versus Wade should be viewed as settled law, despite that he said exactly the opposite of that to key pro-choice senators in order to apparently try make them comfortable with the idea of voting for him.

We learned in the hearings this week that Brett Kavanaugh really does hold quite outside the mainstream views about whether or not a president should be protected from any investigation or any legal liability while he or she is in office. Democrats had signaled ahead of these hearings they thought that Kavanaugh`s views on that subject might be way out of keeping, from normal conservative lawyering. And they had suggested, particularly Senator Cory Booker of New Jersey, had suggested that those out of keeping with normal conservative legal views` positions specifically on a president`s susceptibility to investigation, Senator Booker and others suggested that maybe his views on that subject in particular might have been why Kavanaugh was picked for the nomination in the first place.

Brett Kavanaugh did not disabuse anyone of that notion during his hearings this week which ultimately culminated in this dramatic testimony from John Dean as the testimony wrapped up.

(BEGIN VIDEO CLIP)

JOHN DEAN, FORMER NIXON WHITE HOUSE COUNSEL: Under Judge Kavanaugh`s recommendation, if a president shot somebody in cold blood on fifth avenue, that president could not be prosecuted while in office.

(END VIDEO CLIP)

MADDOW: John Dean today, one of a number of witnesses whose testimony rounded out the confirmation proceedings making these folks, these witness who`s we heard from today sort of the forth major character in the proceedings after Brett Kavanaugh himself and the senators questioning him and, of course, there was as interesting fourth player in these hearings this week, the protests are who were a near constant feature of the whole confirmation proceedings. They made a huge, huge impression in the hearing room. They were thrown out of the hearing room one after the other, day after day after day.

There were also arrested at Committee Chairman Chuck Grassley`s office, as well. Over 200 people arrested this week over the course confident Brett Kavanaugh hearings. More than 200 of arrests, the majority of whom were women.

Now, as to whether or not Brett Kavanaugh is going to get confirmed, one of the sort of surprise endings in the hearing ended up being not just about Kavanaugh on policy. Not just about positions he had taken on things and issues he had been involved with that Republicans in the White House apparently had tried to keep under wraps by not providing access to records from Kavanaugh`s time working in the George W. Bush White House, what ended up potentially being the most potent twist in the Kavanaugh hearings is the evidence that was presented by Democrats that showed that Kavanaugh may have lied to the Senate pretty extensively in order to attain the current seat that he already has on a federal appeals court.

Good news for Judge Kavanaugh is his confirmation hearings are now over and he may well end up becoming a Supreme Court justice. The bad news for Judge Kavanaugh is that whether or not they decide to elevate him to the high court, dude might some day find himself being impeached, thanks to what Democrats proved about his statements under oath that were not true, during not just this proceeding but more importantly the one more than ten years ago that got him the judgeship that he`s got right now.

So, we got more on that coming up tonight. And today turned out to be the day that former President Barack Obama decided that he would come out to play ahead of the midterm elections which are now less than two months away.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: We are Americans. We`re supposed to stand up to bullies. Not follow them.

(APPLAUSE)

We`re supposed to stand up to discrimination. And we`re sure as heck supposed to stand up clearly and unequivocally to Nazi sympathizers.

(APPLAUSE)

How hard can that be? Saying that Nazis are bad?

(END VIDEO CLIP)

MADDOW: President Trump says that he is going to campaign in these midterm elections way more than a president typically would with approval ratings as bad as President Trump`s are right now. Well, now, we know as of today, that President Trump`s participation in the midterms will apparently be matched by a just as unusual decision by the immediate past president that he too will campaign in these midterms, only his approval ratings are doing pretty swimmingly both in absolute terms and particularly in comparison to President Trump.

The headline there on the left is about Trump. You see it. Trouble for Trump, disapproval at a high, half favor impeachment. (AUDIO GAP)

On the right, the equivalent headline except it`s about President Obama. Americans rank President Obama as the best president of their life times.

So they will both be campaigning for their respective parties during the midterm elections. President Obama will be campaigning tomorrow morning for Democrats who are trying to pick off Republican-held House seats in California. And he is going to be making specific appearances for specific candidates and groups of candidates apparently between now and the first week in November. But, clearly, he knows every time he campaigns from here on out, it`s going to be national news.

And it is a rare thing for former presidents to do this. But President Obama has decided that he is not going to be shy about talking about his successor and controversies that are plaguing his successor.

(BEGIN VIDEO CLIP)

OBAMA: By the way, the claim that everything will turn out okay because there are people inside the White House who secretly are not following the president`s orders, that is not a check. I`m being serious here. That`s not how our democracy is supposed to work.

These people aren`t elected. They`re not accountable. They`re not doing us a service by actively promoting 90 percent of the crazy stuff that`s coming out of this White House and then saying, don`t worry. We`re preventing the other 10 percent. That`s not how things are supposed to work.

This is not normal. These are extraordinary times. And they`re dangerous times.

But here`s the good news. In two months we have the chance, not the certainty but the chance, to restore some semblance of sanity to our politics.

(END VIDEO CLIP)

MADDOW: Two months to restore sanity. Two months until the midterm elections in between now and then, we will apparently be seeing a lot more of former President Barack Obama. Two months till the midterms.

And today, yet another member of the current president`s campaign staff was in federal court. This time it was campaign foreign policy adviser George Papadopoulos who was sentenced by a federal judge in Washington, D.C. today for lying to investigators.

Because Mr. Papadopoulos had entered into a formal cooperation agreement with prosecutors when he initially pled guilty, there were early expectations that he wouldn`t end up serving any jail time at all. But prosecutors did end up asking the judge to impose a custodial sentence on Papadopoulos because they said, in the end, actually, he was not all that cooperative. The judge obliged prosecutors in that wish today.

The judge ordered Papadopoulos to serve two weeks in jail. The judge said he had been inclined to give Mr. Papadopoulos a month in jail but he cut in it half because he was impressed by Papadopoulos` remorse over what he had done. So, George Papadopoulos impressed the judge with his remorse. He will do 14 days in jail, plus a year of supervised release, plus 200 hours of community service, plus a fine of $9,500.

That sentence led to these ecstatic tweets from George`s mom, Kiki Papadopoulos. It is amazing the number of people I`ve learned about who I would never otherwise encounter because of the criminal cases involving people close to the president and his campaign. Mrs. Papadopoulos said there had today after the sentence, quote, just left courthouse. Amazing judge. Judge gave George two weeks of jail time! Amazing. God bless America.

A few minutes later, Judge Moss is a fair and good man. Everything went amazing. He is great. Like Tony the Tiger. Great.

So, George Papadopoulos will go to jail for a very short stint. A dude holding a team Putin sign outside the courthouse did throw an orange jump suit at him which landed on him outside the courthouse. His lawyers told reporters and told the judge inside the courthouse today that George Papadopoulos` lack of cooperation couldn`t have hindered or obstructed the Mueller investigation nearly as much as the president of the United States had hindered the investigation himself. That was an interesting line of argument.

Mr. Papadopoulos` lawyer told reporter outside the courthouse today that he`s pretty sure that the guy who told his client Russia had hacked e-mails during the campaign, he`s pretty sure now that that guy must have been a Russian agent.

(BEGIN VIDEO CLIP)

REPORTER: You said Mr. Mifsud played him? Who do you think Mr. Mifsud was working for?

THOMAS BREEN, ATTORNEY FOR GEORGE PAPADOPOULOS: I have an opinion. I don`t know what the intelligence agency`s opinion is. My opinion is he was playing on behalf of Russia.

(END VIDEO CLIP)

MADDOW: So playing on behalf of Russia. George Papadopoulos` lawyer. That`s, of course, about the guy who gave George Papadopoulos during the campaign advance notice that the Russian government really had stolen Democratic documents and e-mails to try help Donald Trump win the presidency. Papadopoulos` lawyer today saying, he thinks the guy who told George that was the guy playing on behalf of Russia, maybe so seems entirely plausible.

But there`s one other big thing that happened today with Papadopoulos other than him getting his short prison sentence that just seems important in terms of how the Papadopoulos aspect of this relates to the overall criminal case, right? How the Papadopoulos criminal part of this fits into the larger Russia scandal and the president`s potential legal jeopardy. Remember how we first learned about the importance of Papadopoulos here, right? Right before the New Year, December 30th, how the Russia inquiry began. A campaign aide, drinks and talk of political dirt.

That`s how we learned on December 30th that the FBI according to four sources, opened its investigation in the first place into Russian interference in the presidential election and whether or not the Trump campaign colluded with it. They opened that investigation in late July 2016. That`s also where we learned why they did so, what was the occasion of them opening that inquiry.

Quote: During a night of heavy drinking at an upscale London bar in May 2016, George Papadopoulos, a young foreign policy adviser to the Trump campaign made a startling revelation to Australia`s top diplomat in Britain. Russia had political dirt on Hillary Clinton. About three weeks earlier Mr. Papadopoulos had been told that Moscow had thousands of e-mails that would embarrass Mrs. Clinton, apparently stolen in an effort to try to damage her campaign. Two months later when the leaked e-mails began appearing online, Australian officials passed the information about Mr. Papadopoulos to their American counterparts, to the FBI.

The hacking and the revelation that a member of the Trump campaign may have had inside advanced information about it were driving factors that led the FBI to open an investigation in July 2016 into Russia`s attempts to disrupt the election and whether any of President Trump`s associates conspired. He is the origin story, right?

For the first time, we`ve got a president under a serious counter intelligence investigation and he was under a serious counterintelligence investigation by the FBI when he was running for president and when he became president. Where that investigation came from is this guy. That is why George Papadopoulos is so important to the whole overall Russia scandal. He is why the FBI started looking into it in the first place, specifically him flapping his jaws about what the Russians were doing to an Australian diplomat who he met in London.

When it later emerged he wasn`t making it up because it looked like the Russians had stole a bunch of Democratic e-mails, how did that guy know in advance? The Australian government then told the FBI about that contact. That`s the whole reason this guy matters. And today on the day that guy was sent to prison for his role in the scandal, today, George Papadopoulos also recanted that central point.

Today for the first time, he said he at least doesn`t remember that happening. Really? As soon as the Mr. Papadopoulos was sentenced today, "The New York Times" publish there had interview with him. He basically says, I have to idea about the whole claim about talking to the Australian guy, I can`t remember anything about that.

Look at this. It`s Mark Mazzetti doing the interview. Mazzetti: going back to the meeting with Alexander Downer, the Australian diplomat, what were you guys drinking? Papadopoulos: I think I had a gin and tonic.

Mazzetti: Did you drink a number of gin and tonics? How much did you drink? Papadopoulos: No, I think I had one or two drinks. I think Downer himself in numerous interviews kept explaining that had he one or two drinks. No one was drunk, as some article stated that we might have been. At least I don`t remember being drunk. I don`t think he was drunk. I don`t think his assistant was drunk. I think we had a couple drinks and we were just talking.

Mazzetti: in interviews, Downer has said that besides having one drink, he has said that you brought up the Russian dirt on Hillary Clinton. Papadopoulos: I don`t remember talking about that with him at all.

Mazzetti: so you don`t remember at any point in that meeting talking about Russia dirt and Hillary Clinton? Papadopoulos: I don`t remember that at all actually.

That`s the whole origin story for the Russia investigation at the FBI. Papadopoulos is now like, uh-uh.

Imagine if you will, that George Papadopoulos is telling the truth here, that he honestly doesn`t remember anything like that happening. And it is not that he doesn`t remember because he was snookered. He says he wasn`t drunk. He doesn`t remember happening. Maybe it didn`t actually happen.

If that`s true, the whole story as we understand it about how and why the FBI started investigating Russian interference and the Trump campaign potentially collaborating in it, that story no longer holds. Oh! I would like too know more about that then please.

And then on top of all that happening today, tonight, "Bloomberg News" just dropped this. Trump executives face U.S. campaign finance probe. "Trump executives" means executives at the Trump Organization, the president`s business. They are not commenting to "Bloomberg News" for this story and nobody else has matched the story. Bloomberg admits even in their headline that this is a one source story, so caution.

But what they are reporting here is that federal prosecutors and the U.S. attorney`s office in Manhattan, federal prosecutors from the southern district of New York, the same prosecutors who two weeks ago secured a guilty plea on eight felony counts from the president`s personal lawyer, Michael Cohen, "Bloomberg News" is tonight reporting that the same U.S. attorney`s office that nailed Cohen is now pursuing a federal criminal investigation of the president`s business on crimes related to what Michael Cohen pleaded guilty to, particularly where the two crimes where Michael Cohen stood up in federal court and said under oath that he had been directed to commit those felonies by President Trump in an effort to influence the election.

Fridays. Fridays, I tell you.

If this "Bloomberg" reporting is true and executives are now under federal criminal investigation, who does that are we talking about here? How many Trump Organization executives are there really? It`s not that big a company.

If the president himself was involved in the alleged conduct that is now under criminal investigation by SDNY, how are SDNY prosecutors likely to handle that? He is after all the president.

And again, if this new reporting is correct, is there anything we can tell from the public record, say from the Michael Cohen case or anything else, about how strong a case this is likely to be? And how serious the legal jeopardy might be here for the president, for his business, for other executives at his business which we believe include his kids.

Joining us now is Daniel Goldman, former assistant attorney in the southern district of New York and a fellow at the Brennan Center for Justice.

Mr. Goldman, thank you for being here. It`s nice to have you here in person.

DANIEL GOLDMAN, FELLOW, BRENNAN CENTER FOR JUSTICE: Thank you.

MADDOW: Based on this "Bloomberg" story, which again I will give you the caveat again, NBC has not matched this story. McClatchy is on their own this. They`ve got a great track record on this story. And so, I`m inclined to be interested whatever they have to say but they`re not even claiming more than one source.

What would it mean for the Trump Organization to be under investigation? What does that mean for a business to be under investigation?

GOLDMAN: I really think that`s just shorthand to l discuss potential executives there.

MADDOW: OK.

GOLDMAN: Companies are very, very rarely charged criminally and when they are, it is when there`s a systemic and methodical, intentional breaking of the law, like something like Volkswagen where they tried to avoid emissions testing in a very methodical way.

MADDOW: Or Enron who was involved in a company-wide scheme.

GOLDMAN: Yes. In fact, that actually has -- the fallout from Enron and Arthur Andersen has even put the skids more on criminal prosecutions of corporations.

MADDOW: Making it even harder to do so.

GOLDMAN: Yes. Well, it`s just -- the Department of Justice less likely to do so because it`s so devastating to the companies if a company is charged.

I do think what they`re talking about here is the potential for more executives to be caught in the crosshairs of this campaign finance conspiracy that Michael Cohen has pled guilty to. That could be the person referenced in the Michael Cohen information as employee two.

Everyone is of the belief at this point, there`s been a lot of reporting that employee one referenced in that information who actually cuts the check to Michael Cohen to reimburse him for the payments that he made toy Stormy Daniels is Allen Weisselberg. But there hasn`t been much reporting on who employee two was who received a request for authorization from Allen Weisselberg.

MADDOW: OK.

GOLDMAN: And so, that`s someone that may be in the crosshairs of this campaign finance --

MADDOW: And they would be in trouble. And, again, there has also been reporting that Allen Weisselberg has been offered at least limited immunity in exchange for his testimony in conjunction with this case, and so, that`s another angle here. But they would be in trouble here for essentially facilitating that payment which was an illegal payment designed to influence the election and trying to make it look like something else? Trying to -- I mean, is it -- is it essentially participating in a cover-up of the crime for which Cohen has pled guilty?

GOLDMAN: So, there is a pathway to prosecution for that. But that`s much more difficult because the Trump Organization is a private company. That`s really a like a books and records accounting fraud offense which is often you`ll see with public companies where they itemize something in a false way. They don`t include the proper explanation for what an expenses.

And the Michael Cohen information somewhat notably lays out in greater detail than necessary the cover-up as you point out. If someone were to be charged, though, with campaign finance fraud, the conspiracy that Cohen pled guilty to which is what "Bloomberg" is reporting, they would have to be in on the conspiracy that Michael Cohen pled guilty to.

MADDOW: That it`s designed to influence the election, that it is -- it`s being disguised as something else, that it is an illegal campaign contribution.

GOLDMAN: Yes, they had to know that the payment was made to silence Stormy Daniels in this case so that the public did not hear about it. And that it was as you point out with the intent to influence the election.

MADDOW: So, they had to be in on that element of the conspiracy.

GOLDMAN: That`s right.

MADDOW: OK, and Donald Trump is the president of the Trump Organization. He has handed off supposedly control of the Trump Organization since he became president. But at the time of these alleged crimes, he was still obviously the principal executive at that institution.

If he is implicated in this conspiracy as Michael Cohen said he was in court and he`s implicated on the Trump Organization behavior side of it, as well if this being pursued by SDNY now as Bloomberg describes it. How does SDNY deal with the fact that one of the targets in this investigation is now the president.

GOLDMAN: My guess is they kick it down to Mueller who will be making any decision about what to do with Donald Trump. Or at least they will consult with the special counsel`s office.

This is my hunch as to how these things work. My guess is that when this case was referred to the Southern District, there was an understanding that anything that was related to the president because of the sensitivity of that and the legal issues surrounding whether a president can be indicted would ultimately be decided by the special counsel and really, ultimately, by Rod Rosenstein who is overseeing this part of the investigation. But they`re not going to do anything on their own without consultation.

We run into the same issue that we run into with the potential collusion discussion or obstruction of justice, which is can a sitting president be indict. I mean, if -- from based on the recording that was released with Cohen and Trump where it demonstrates that Trump knew about these payments to some degree, and Michael Cohen pointing the finger at him in court, I don`t think that`s enough, it would be enough to charge the president in and of itself. But if there is more evidence from a David Pecker who may have also received immunity and as a close friend of Donald Trump, or from Allen Weisselberg, who is compelled to tell the truth in front of the grand jury, or from executive two who is unknown, we don`t know, there`s a lot unknown, but Donald Trump could have committed a federal crime.

We don`t know that yet but then we run into the same issues that we`ve been talking about with the obstruction of justice investigation, in particular as to whether a sitting president can be indicted or not.

MADDOW: And if you`re sure he can`t be indicted as president, there`s a seat for you on the Supreme Court.

Daniel Goldman, former assistant attorney in the Southern District of New York -- thanks, Dan.

GOLDMAN: Thanks for having me..

MADDOW: All right. Much more to come this not quiet Friday. Stay with us.

(COMMERCIAL BREAK)

MADDOW: Two questions about the Brett Kavanaugh nomination for the Supreme Court. Number one, who will be in charge of rehydrating all those old people on the Judiciary Committee after four consecutive marathon days of testimony? Whew.

Second question, will Brett Kavanaugh get confirmed for the Supreme Court?

I do not know the answer to either question. One of the unexpected things that happened in the hearings this week for Kavanaugh is that he was revealed to have lied to the Senate on a host of things. A couple of them blatant enough to potentially follow him home, even if he doesn`t get confirmed to the Supreme Court.

The first has to do with his testimony in 2006 when he was a George W. Bush White House lawyer. He was up for a judgeship on the D.C. Circuit Court of Appeals. The senators understandably planned to and did grill him about controversial issues that happened during his tenure in the George W. Bush White House. They particularly grilled him about the process of nominating judges by that White House and which of those nominations Kavanaugh was involved in.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: During the Senate`s consideration of Charles Pickering`s nomination to the Fifth Circuit, the Judiciary Committee learned that he solicited and collected letters of support from lawyers who had appeared in his courtroom and practiced in his district. It later became an apparent that some of these lawyers had cases pending before him, when they wrote the letters that Judge Pickering requested.

Did you know that Judge Pickering planned to solicit letters of support in this manner before he did so? And if not, when did you become aware that Judge Pickering had solicited these letters of support?

BRETT KAVANAUGH, SUPREME COURT JUSTICE NOMINEE: The answer to the first question, Senator, is no. This was not one of the judicial nominees that I was primarily handling.

(END VIDEO CLIP)

MADDOW: Brett Kavanaugh telling it the senator under oath that this nomination of Charles Pickering was not one that I was primarily handling. Brett Kavanaugh`s characterization of that work on the nomination of that judge has now been contradicted by White House documents that Republicans apparently intended to keep confidential so they couldn`t be released to the public. Those documents got released to the public this week and it turns out according to the documents and his own e-mails, Brett Kavanaugh was absolutely working in the White House putting together binders of information about that nominee, Charles Pickering, drafting a letter to a senator about Charles Pickering, working on an op-ed for the White House counsel about Charles Pickering, getting questions abut whether they would need tables for a support Charles Pickering event.

We know all that now because we can see in it black and white. But he denied having played a significant role in that nomination while he was before the Senate the last time they had him under oath in 2006. So, just keep an eye on that question about his role in the Charles Pickering nomination. That`s a name that is not a household name.

But Charles Pickering, back in the day, was a disastrous nomination for the George W. Bush White House. Pickering eventually got recess appointed because they couldn`t get him through the Senate. And then he had to step off the bench and it was a big embarrassment and he did do stuff to get the seat that was seriously controversial.

So, you might understand why he didn`t want to be associated with that very controversial nomination. The bad nomination when that guy was such a bad headline for the Bush White House. You understand why he might have done that. But saying he wasn`t involved there, when we know in black and white that he absolutely was, understandable as it may be, trying to save his own skin and stay away from controversial issues, that appears to have been a really blatant lie that he told in sworn testimony. Judges aren`t supposed to do that.

Also, there is the time that Brett Kavanaugh got e-mails that had been stolen from Senate Democrats. They were stolen by a Republican staffer who then handed the stolen documents over to Kavanaugh in the Bush White House who then used those stolen documents to plot strategy to get Bush nominees through the Senate. They had the Democrats` game plan. It made it much easier, right?

It`s easier to get around opposition from the opposite party if you got all of the opposite party`s documents, memos, draft questions, research, et cetera, right? That was a big scandal at the type. The computer servers in the Judiciary Committee got seized as evidence. People got fired. People were referred for prosecution.

And so, Brett Kavanaugh as a Bush White House lawyer nominated to become a judge once they had him under oath, yes, he was definitely going to get asked if he had any role in that scandal, any knowledge of it. He appears to have lied in response to those questions under oath.

(BEGIN VIDEO CLIP)

SEN. ORRIN HATCH (R), UTAH: Did Mr. Miranda ever share, reference or provide you with any documents that appeared to you to have been drafted or prepared by Democratic staff members of the Judiciary Committee?

KAVANAUGH: No. I was not aware of that matter ever until I learned of it in the media.

SEN. CHARLES SCHUMER (D), NEW YORK: I want to clear up the questions that Orrin asked. You said that Mr. Miranda never provided these documents, you know, that were from this. Had you seen them in any way? Did you ever come across memos from internal files of any Democratic members given to you or provided to you in any way?

KAVANAUGH: No.

SCHUMER: Thank you.

(END VIDEO CLIP)

MADDOW: No, never saw it. I had no idea that was going on. Never saw that. Nothing that looked like that.

In 2004, when he was first nominated for a judgeship, Brett Kavanaugh said, no, he had seen nothing. He had been given nothing of the sort. He learned about it only from the media. His nomination was controversial and it languished for a while.

So, they first brought him up in 2004. He didn`t get confirmed. They ended coming back to the Senate with him in 2006. So, he had to do a whole second round of hearings here.

This is still a controversial matter. In 2006, he gets asked about it again and he appears to have lied about it again.

(BEGIN VIDEO CLIP)

KAVANAUGH: I did not know about any memos from the Democratic side. I did not suspect that. Had I known or suspected, I would have immediately told Judge Gonzalez who I`m sure would have immediately talked to Chairman Hatch about it. I did not know about it. Did not suspect it.

(END VIDEO CLIP)

MADDOW: Did not know about it, did not suspect it. I would have reported had I had any inkling.

Brett Kavanaugh on those leaked Democratic memos, those stolen memos in 2004 and then again in 2006.

Now, roll tape from this week.

(BEGIN VIDEO CLIP)

SEN. PAT LEAHY (D), VERMONT: When you worked at the White House, did anyone ever tell you they had a mole that provided them with secret information related to nominations?

KAVANAUGH: I don`t recall the reference to a mole which sounds highly specific.

(END VIDEO CLIP)

MADDOW: Reference to a mole. You mean the tiny rodent that`s kind of blind? Sounds highly specific.

It is highly specific, especially when a senator unearths and releases an email to Brett Kavanaugh with the subject line "spying". And the first line of the e-mail says I have a friend who is a mole for us, on the left. And the rest of the e-mail is Democratic documents and research on judicial nominees. Democratic senators posted a whole bunch of e-mails from that Republican Senate staffer who stole the stuff from the Democrats, e-mails from that staffer to Brett Kavanaugh in the White House.

This guy was providing Kavanaugh, quote, intel on Senate Democrats. He was providing, quote, my info on what was happening among Democratic staffers when it came to Bush judicial nominees. He was describing a confidential letter sent by a Senate Democrat.

So Brett Kavanaugh has gone from saying in 2004 that he didn`t have that inside information. He never heard about it. To saying in 2006, no idea, no inkling. I would have reported it if I heard anything about that, to now being confronted with the fact that he did have that information, he was told there was a spy, it was a mole. This is information taken from the Democrats, confidential stuff, do not circulate.

Now, confronted with that, his explanation for it this week is that it is normal to have that kind of stuff. It`s nothing weird about it.

Today, the former Senate lawyer who wrote those Democratic documents that were stolen made a forceful case at slate.com about this part of Judge Kavanaugh`s record.

Lisa Graves writing at "Slate" today, quote: Even if Kavanaugh could claim that he didn`t have any hint at the time he received the e-mails that these documents were of suspect provenance, which I personally find implausible, there is no reasonable way for him to assert honestly that he had no idea what they were after the revelation of the theft. Any reasonable person would have realized they had been stolen. Certainly someone as smart as Kavanaugh would have too, but he lied under oath.

Graves she says not only should Kavanaugh not be confirmed, she says, quote, he should clearly be impeached. He should not be elevated to the high court. He should be hauled down from the federal bench he serves on now.

And so, yes, the hearings adjourned late this afternoon. Senators have until Monday to rest up and then they`ll submit written questions before the process moves on to the next phase. Confirmation fights play out all sorts of way. How this unrolls from here, we do not know. He is a historically unpopular nominee being put forward by a historically unpopular president by Republicans in the Senate who enjoy a historically small margin in terms of their majority.

But among the other things that Senate Democrats believe they exposed to damage the Kavanaugh nomination this week, Senate Democrats do think they got him on at least a couple points that look like perjury. Now, they`ll try to make that stick.

(COMMERCIAL BREAK)

MADDOW: After a lot of controversy about abortion rights during Brett Kavanaugh`s confirmation hearings, amid certainty by observers on all sides that Kavanaugh will definitely be the crucial fifth vote that conservatives need to overturn Roe versus Wade and make abortion illegal, that, of course, was bolstered by a new e-mail that was exposed during the hearings in which Kavanaugh says that Roe shouldn`t be considered the settled law of the land because the court can always overrule it.

In addition to that emerging certainty this week, Kavanaugh did hit another trip wire on a similar and related issue in testimony under questioning from Texas Senator Ted Cruz. They were discussing a federal case involving access to contraception a ruling in which -- a case in which Judge Kavanaugh himself issued a controversial ruling. In their discussion, Judge Kavanaugh referred to birth control as, quote, abortion inducing drugs.

Now, whether or not Brett Kavanaugh personally believes that contraception causes abortion, which it doesn`t, he did rule in favor of employers who used that argument to deny their employees health insurance coverage for their birth control. Senate Republicans really are on the verge of cementing a Supreme Court majority that will likely be extremely hostile not just to core rights to have an abortion but also to a whole spectrum of reproductive rights including access to birth control, if they do get Kavanaugh onto the court.

That is why the constant back drop to Kavanaugh`s hearing has been woman after woman after woman after woman being dragged out of the hearing room while pleading with senators to protect women`s rights by rejecting Brett Kavanaugh.

More to come. Stay with us.

(COMMERCIAL BREAK)

MADDOW: This is the headline that just went up at "The New York Times" website tonight. I think we`ve got it there. Confirmed, Brett Kavanaugh can`t be trusted. A perfect nominee for a president with no clear relation to the truth.

That is a blistering long editorial that was just posted. It`s not an op- ed. This is from the "New York Times" editorial board. Quote you and I piece of it, quote: In a more virtuous world, Judge Brett Kavanaugh would be deeply embarrassed by the manner in which he has arrived at the doorstep of a lifetime appointment to the United States Supreme Court. Perhaps most concerning, Judge Kavanaugh seems to have trouble remembering certain important facts about his years of service to Republican administrations.

Joining us now is the great Dahlia Lithwick, senior editor and legal correspondent at Slate.com.

Dahlia, thank to you for being here.

DAHLIA LITHWICK, SENIOR EDITOR AND LEGAL CORRESPONDENT, SLATE.COM: Thank you for having me.

MADDOW: Confirmation hearings have ended. How did they go?

LITHWICK: I mean, you know, if you start from the proposition that all he had to do was tell the truth, he had the votes. There was very little he didn`t -- he could have right up to shooting somebody on Fifth Avenue.

MADDOW: Yes.

LITHWICK: And he had the votes. To just get time and time again into these kinds of nested lies within lies like the one you described or just refusal, these new standards I can`t talk about politics, I can`t talk about -- you know, I can`t even condemn Charlottesville Nazis, just the level to which it seemed as though he took that which was uncomplicated and made it harder and squirrely.

By the way, it doesn`t help that the drip, drip, drip of these documents which such a great thing, right? Withhold the documents. Only give 7 percent, but then not knowing what was coming as the documents came forth meant that he wasn`t prepared to deal with those documents.

I don`t think Senate Republicans helped him almost by holding these documents --

MADDOW: And those documents, we will get access to more and more of those documents as time comes -- as time goes by. I mean, the National Archives will complete their review.

LITHWICK: The documents I think we`re hearing will be out by 2019, 2020. So, this is not --

MADDOW: OK. The dissembling -- well, I should say that. The refusing to answer questions about politics, refusing to answer question about which cases were correctly decided, saying a lot of words while saying nothing, I feel like that`s become an art form. It gets a little bit worse with each new nominee.

When Judge Kavanaugh was before the Senate in 2006, he sang the praises of George W. Bush, the president who had nominated him. Invited to do the same for President Bush who was nominated this time around he said I couldn`t possibly. We know why that is. That`s because Justice Gorsuch issued a mild oblique rebuke of President Trump when he was being considered for the nomination. We know that the Trump White House then considered rescinding the nomination in the middle of his confirmation hearings.

So, we see why that stuff happened. But you`re talking about the lying. How much more serious is the lying? All you`re talking about there is a bad vet and stuff not being well done. But the lying seems like it is serious.

LITHWICK: You know, I could ask the fatuous question if this were a Hillary Clinton nominee who had done what we saw happen in the last three days. You know, just overtly saying, oh, I never ever knew about those documents or I didn`t get those documents that said spying on them.

MADDOW: Right, which he forwarded as interesting mail.

LITHWICK: Right, and said don`t disseminate. But, you know, this the coin of the realm. So, I think I just have this sense that, yes, this is a foregone conclusion. It doesn`t matter. And yet the granular level of obfuscating on the handful things he`s been cut out on is really dispiriting and stands in such contrast to these testimonials about, you know, his character and he`s a good dad. And he is, Rachel.

Nobody is -- you know, it`s worth saying again, Melissa Marie said it today in her testimony, professor from NYU. He`s great objectively. Doesn`t matter.

MADDOW: Nice guy.

LITHWICK: Doesn`t matter.

And the weirdness of just sort of having been a lifelong operative in this machine and those are all the things that, by the way, get him in trouble, right? I mean, what gets him in trouble is when he`s saying it doesn`t matter what the process is because we`re going to get these people on the courts.

MADDOW: Yes.

LITHWICK: And that`s such a pattern. In a way, it is such a paradox. This was Trump`s promise. It doesn`t matter. We`re going to get these people on the courts.

And that`s kind of the through line here. That`s what the obfuscation is about time and time again. It`s that given the opportunity to be sort of an operative, he took it and now he`s trying to say balls and strikes umpire. But all these documents are proving that he is exactly what he was, which is a part of this machinery, a huge machine that has had a decades long plan to install people like Brett Kavanaugh on the Supreme Court.

MADDOW: Dahlia Lithwick, senior editor and legal correspondent at slate.com, thank you for helping us cover this this week. It has been a remarkable week.

LITHWICK: Thank you.

MADDOW: Thank you, my friend.

All right. We`ll be right back. Stay with us.

(COMMERCIAL BREAK)

MADDOW: This terrifying big guy is a long fin eel. Long fin eels live in fresh water in New Zealand. They are long, slimey, slithery guys that got those big, wide set bug eyes. Good morning.

They`re nocturnal. They like to live in covered up spaces. And even for eels, the long fin eels, in particular is not to be secretive and mysterious.

What you need to know about long fin eels for our purposes this evening is that they live a long, long, long time, longer than a lot of other species on earth. Long fin eels have been known to live well over a century.

Tonight as our final story, I`m going to unveil the human equivalent of the mysterious astonishingly elderly long fin eel. That`s next.

(COMMERCIAL BREAK)

MADDOW: There was that time I did the show in a moon suit and the time I did it in cat ears. There was the time I wore a safari hat. There was a time I read the news like a beat poem.

There was the time my highlighter turned into a lightsaber and the time I won a trophy. I`m still confused about that. There were the dancing flamingos. There was the giant whale.

There was also the rinky-dink xylophone. There was that time that we cooked hot dogs in a TV studio. There was that time I made my producer deflate a bunch of footballs in the bathroom on live TV, I`m still sorry about that, Will.

There was the time we stuffed a cardboard cutout of a U.S. senator into an envelope. There was the one time I pretended to wear a dress literally the one time.

I`ve been doing the show for 10 years. I still have the same haircut. I wear same $10 blazers. I actually still have that blazer in the top left from 2008.

I`m telling you this because tomorrow is the ten-year anniversary of this show, which means we`re really freaking old. I mean, in cable news years, we`re like 1,000. We`re like great Uncle Pete who is always falling asleep in the Thanksgiving mashed potatoes. We are a long finned eel still swimming around New Zealand ready to embark on its next mysterious face of its fish life after the age of 100.

This show has had a kind of nine lives effect over the years. There was a big period of time when the top stories were about the tea party or health care or voting rights. There was a stretch when I was completely obsessed with this beauty pageant contestant and the yodeling ventriloquist dummy, or the pack of owls attacking people in Salem, Oregon.

We are now, of course, in a very different phase as a show and also as a country. Telling you tonight we will not always be in this moment. I do not know what comes next, but I want to thank you all for being here for all ten years of it. I want to thank everybody who has worked on the show in the last 10years. If it wasn`t for you guys, the show wouldn`t have made 10 minutes, let alone 10 years.

But mostly, I want thank all of you at home for watching. Thank you for letting us know when you like what we`re doing and when you don`t. I hope you will stick with us through whatever we do next.

My executive producer now wants me to promise you that I will get some new blazers, but I`m not going to and I probably also will not get a new haircut. Ten years.

That does it for us tonight. We`ll see you again on Monday.

"LAST WORD" starts right now. THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END

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