Kavanaugh hearing v. Clarence Thomas hearing. TRANCRIPT: 09/20/2018. The Rachel Maddow Show

Guests: Patrick Leahy

Show: THE RACHEL MADDOW SHOW Date: September 20, 2018 Guest: Patrick Leahy

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thanks, my friend.

And thanks to you at home for joining us this hour.

Right up until just moments ago, I thought we were going to be joined tonight live right about now on this program by one of the lawyers who is representing Christine Blasey Ford, the California woman who has come forward with this very serious allegation that Supreme Court nominee Brett Kavanaugh attempted to rape her when he was 17 years old and going to a prep school in suburban Maryland. It is still unclear as to how the Senate is going to handle that allegation and if there is going to be any impartial investigation whatsoever of Dr. Ford`s claims.

At the time that we booked Dr. Ford`s attorney to be on the show tonight, it really looked like Dr. Ford`s lawyers and the Republican chairman of the Senate Judiciary Committee might be on track to negotiate some sort of mutually agreeable terms under which Dr. Ford would appear in some way before that committee to discuss her allegation. The fact that those negotiations were underway tonight is publicly known.

The written communication from Dr. Ford`s lawyers to the committee, which sort of started off those negotiations today, that statement is also publicly known. I`ll share that with you in just a second.

As of tonight, heading into air time tonight, we thought those negotiations were far enough along that Dr. Ford`s lawyer would be able to join us live to tell us tonight right here what was going to happen, but no. It sort of fell is the apart at the last moment.

Now, they were very nice about it. I`m not mad, my feelings are not hurt.

But the reason they gave us for cancelling sort of at the last minute tonight may itself be news. Dr. Ford`s legal team telling us tonight that they couldn`t be on the show, and they cited, quote, active efforts to reach the committee as their reason why Dr. Ford`s lawyer couldn`t appear with us live.

So, we infer from that that these negotiations were continuing into this evening, and for some reason Dr. Ford`s lawyers believed it might have impeded the prospects for them coming to some negotiated conclusion for them to do any live interviews at this moment while these negotiations are underway.

So, here`s basically the status as far as we know it. Justice Anthony Kennedy announced his retirement months ago. The vacancy on the Supreme Court created by his retirement has been there for more than 70 days.

The Supreme Court is not in session at this point. We know there is no special freshness date after which a Supreme Court vacancy goes bad and starts to stink up the fridge. We know that because Republicans held open a vacancy on the Supreme Court for nearly a year rather than allow President Barack Obama to have his nominee considered to fill the seat that was vacated by Justice Antonin Scalia after Scalia died in the winter of 2016.

So, given that, we know there is no external constraint here. There is no ticking time bomb that is going to go off if the Brett Kavanaugh nomination process is slowed down to allow for the consideration of this new serious allegation against him. We know that, in part, because of the Antonin Scalia/Merrick Garland example where they held that seat open forever.

But we also know that today there was no vote on Judge Brett Kavanaugh in the Senate Judiciary Committee. They were planning on voting today, they didn`t vote today. So, the Kavanaugh nomination process is already delayed as of today.

Today, there was no vote, right? Kavanaugh nomination process is already delayed. How long it will be delayed while this allegation is considered is something for which there are no external rules. There is no set time frame. They can take as much time or as little time as they want to make sure they have thoroughly considered this nominee and what it would mean to put him on the Supreme Court for the rest of his natural life.

But despite that fact, despite the fact they really can take all the time they want, the committee chairman, Republican Senator Chuck Grassley, has informed the lawyers for Christine Blasey Ford that she has a deadline. She has a deadline of 10:00 a.m. Eastern Time tomorrow by which time she must inform the committee whether or not she intends to testify on Monday.

And the Republicans thus far have been saying, that`s it. That`s her only chance. It`s Monday or nothing and she has to commit tomorrow morning as to whether or not she`s going to be there on Monday. And that`s it. That`s her only chance. Time`s up. It`s over.

Because of this sort of imaginary external imperative that they must hustle through this on a time frame they have newly imagined this week, that`s what they`ve been demanding of her. That`s it, that`s your only chance, deadline`s tomorrow morning.

Well, as we reported last night, the main sticking point appears to be whether or not Republicans in the Senate and the White House will allow the normal procedure that is usually followed in cases like this to apply to this case, too. I mean, Brett Kavanaugh is not the first nominee for the Supreme Court or the first nominee for any other high ranking Senate confirmed position who has gone through the process of confirmation hearings only to see a serious allegation of some personal nature raised against him by a member of the public late in the process. That has happened to other nominees before. There is a system for dealing with this. That, of course, is what happened to Judge Clarence Thomas after his confirmation hearings were concluded in 1991, and then law professor Anita Hill came forward with serious allegations of sexual harassment against him.

Our friend Steve Schmidt from the George W. Bush White House and the John McCain campaign reminded us today that a similar dynamic was at play when George H.W. Bush nominated Senator John Tower to be secretary of defense. Deep into John Tower`s nominating process, serious allegations came forward about Tower`s personal life, including infidelity and particularly allegations about excessive drinking.

In both the Clarence Thomas case and the John Tower case, it was an absolutely mundane, noncontroversial part of those controversies that when late allegations emerged about those nominees, as part of the FBI`s standard role in doing background investigations on nominees, in both of those cases, the FBI reopened those background investigations and looked into these new allegations when those new allegations arose during the confirmation process. The FBI part of it is not a high-profile part of the history of those controversies, right?

If you ever take a class where you study the controversial nomination of Clarence Thomas or the controversial and ultimately failed nomination of John tower, if you ever study those matters, the FBI looking into the allegations won`t come up in class because it`s such a mundane normal part of the process. It`s not even remarked upon.

But when the history of Brett Kavanaugh some day is told, the thing that will stand out like this one like a 10-foot tall high hat on a horse, this one, the Republicans and the Senate and the White House couldn`t even explain the reasons why they absolutely insisted the FBI must not be allowed to do that in this case. The FBI must not be allowed to reopen and complete their background investigation on Brett Kavanaugh to account for this new allegation.

That would be regular order. That`s the way that it always goes whenever there is a controversy that arises during the confirmation process. FBI reopens its background investigation process, accounts for these new allegations, reports on what they find. It`s factored in the confirmation process.

That is a no normal part of the process. Republicans in the White House insist that that cannot be part of the process this time.

Why not? Well, tonight, Christine Blasey Ford`s legal team is apparently negotiating with the Senate Judiciary Committee about the terms under which Dr. Ford might testify about this allegation.

In her legal team`s letter to the Judiciary Committee, her attorneys told Chairman Grassley today that there really ought to be an investigation of her claims before she sits down with senators. Quote: Her strong preference continues to be for the Senate Judiciary Committee to allow for a full investigation prior to her testimony.

A statement released moments ago by Senator Chuck Grassley confirms discussions have been taking place, but so far no announcement as to what they have decided.

I have to say just as an observer of this process, I would like hear a reason from the Republican-controlled Senate Judiciary Committee as to why they are insisting the FBI shouldn`t look into this, why they are insisting the normal procedure for dealing with this shouldn`t apply in this case. They really haven`t made an argument for why they want this departure from normal order for Kavanaugh specifically.

But here`s what else Dr. Ford`s lawyer said to Senator Grassley tonight. Quote: As you are aware, she has been receiving death threats which have been reported to the federal bureau of investigation. And she and her family have been forced out of her home. She wishes to testify provided we can agree on terms that are fair and which ensure her safety. A hearing on Monday is not possible and the committee`s insistence that it occur then is arbitrary in any event.

So, we don`t know how these negotiations are ultimately going to land. If we get a call on the air this hour, I will let you know as soon as we know. But as far as we can tell, the bottom line is her attorneys are saying Monday is impossible. Some other day next week might be possible. They want terms that they believe are fair and that, quote, ensure her safety.

We`re not exactly sure what that might men, what kind of assurances they may be looking for there. But also again, Dr. Ford is expressing her, quote, strong preference that there`d be a full investigation prior to her testimony.

Now, how could that full investigation happen? They don`t want the FBI to do it for some reason. They won`t say why they don`t want the FBI to do it. But they won`t let the FBI do it even though that`s what would normally happen.

I don`t know if that`s tenable, if that`s going to hold, but that`s still seems to be what they`re insisting on. Senator Grassley, chairman of the committee, has insisted that you know what, his own staff can do the whole investigation and that will be fine, that`s good enough.

A couple of problems have emerged with that approach over the past day or so. Number one, it`s clear from the letter from Dr. Ford`s attorneys that Dr. Ford and her attorneys don`t consider Chuck Grassley`s own staff looking into it to necessarily count as a full and impartial investigation. Also, members of Chuck Grassley`s committee seem to have a problem with this idea from their chairman.

You might remember how -- you might remember this is how Chairman Grassley announced that his own staff was taking care of it. He said online, quote, no other outside investigation is necessary for the committee to do its investigation. Committee investigators are following up on leads from Dr. Ford`s allegations and news stories.

Committee investigators are following up on leads.

Democratic Senator Sheldon Whitehouse of Rhode Island is on that committee. He responded to that from Chuck Grassley.

Quote: Really? When? Who will locate and interview witnesses? Has the Judiciary Committee hired independent investigators that we don`t know about?

When will the witness statements be taken? When will they be shared? Will the minority get to call witnesses or will that just be the Republicans who get to call witnesses?

Senator Grassley has also run into a problem in the form of his top staffer on the committee. His person he has apparently tasked with investigating this attempted rape allegation. The investigator is named Mike Davis. He says that he is the chief counsel for nominations working for chairman Chuck Grassley on the Judiciary Committee.

Last night, Mr. Davis decided for some reason to get on Twitter and let it all hang out in terms of how the supposed investigation is going. He said online, quote, I personally question Judge Kavanaugh under penalty and five years of imprisonment if he lies. I`m still waiting to hear back from the accuser`s attorneys, which means by his own description, he`s the guy who is personally conducting the investigation of this matter when Chuck Grassley says that the committee investigators are following up on leads and doing these -- apparently who he`s talking about is Mike Davis.

I personally question Judge Kavanaugh. I`m waiting to hear back from the accuser`s attorneys. The very next tweet in Mike Davis`s time line, also from last night is this one: Unfazed and determined. We will confirm Judge Kavanaugh. #ConfirmKavanaugh #Scotus.

OK, you can see the problem. If this is the lead investigator that Chuck Grassley has put on this matter, this guy who is #ConfirmKavanaugh all the way, right, already proclaiming himself to be unfazed by this little problem that`s arisen in the confirmation process, right?

And there`s Chuck Grassley saying no other outside investigation is necessary because his committee investigators are taking this on and nobody should have any reason to doubt their impartiality or whether they have an open mind on these matters. #ConfirmKavanaugh.

After posting his unfazed and determined #ConfirmKavanaugh tweet last night, Chairman Grassley`s chief investigator Mike Davis deleted those tweets and he locked his Twitter account.

So, there`s no explanation still from the White House or from Republicans in the Senate as to why they will not let the FBI include this matter, this serious allegation against Judge Kavanaugh in their Kavanaugh background check, which would be standard procedure. Obviously now, there are seemingly untenable problems with Chuck Grassley insisting that he and his staff can look in this themselves. It would be a totally unbiased look. Why would you think they`re unbiased, #ConfirmKavanaugh, unfazed, determined?

We believe that negotiations continued into this evening. As to whether or not there will be any investigation of this matter and the question of whether there will be testimony by Dr. Ford on this issue, this is a totally live concern. This is unsettled.

We really do not know how this is going to go, either in terms of whether or not Kavanaugh is going to be withdrawn from consideration, whether he will be confirmed if indeed they go forward with it, we don`t even know what`s going to happen in terms of the next steps of how this element of his confirmation process is going to be handled. It is totally open. Anything could happen here.

Given that, I want to leave you with three little points that you might not have seen in the news today even if you were following this closely, but you should know if you are trying to figure out where this is going to go next.

I should also tell you that in just a moment, we`re going to be live with Senator Pat Leahy who is one of the most senior Democrats on this committee. He was there during the Anita Hill/Clarence Thomas controversy. He`s helping to lead the Democratic side of this fight right now. I`m going to put three little pins in this map and then we`re going to bring in Senator Leahy.

So, number one. First thing you should know is that "The New York Times" reports tonight and NBC News later reported tonight that on the Republican side, they have apparently decided they are going to hire an outside lawyer, an outside counsel, not to investigate this allegation, but rather to perform the questioning of Dr. Ford if she does ever end up testifying on this matter before their committee.

This means Republican senators themselves don`t want to be seen on TV asking questions of this witness. They are apparently engaging and they are apparently going to pay an outside lawyer to question her for them. Even as they are unwilling to allow the FBI to investigate this matter or to appoint an outside counsel to investigate this matter as a factual basis, they are still going to appoint an outside counsel just to do their questioning so they don`t have to do it. That`s one thing you should know.

Second thing you should know -- and this is not directly materially relevant to how this controversy is going to unfold, but I think it`s very politically relevant. NBC News has just published new polling data on Kavanaugh`s nomination. The first time they polled on Kavanaugh was in July. And in July, Kavanaugh had historically low levels of support in the NBC poll. The raw numbers were 32 percent of Americans wanted to confirm him, 26 percent did not.

It`s sort of easy to look at the total, the right column there, right? Thirty-two percent in support, 26 percent not in support. And that means he was plus 6 in terms of the difference between the number of people who wanted him on the court and the number of people who did not want him on the court. Plus six is really, really, really low for a Supreme Court nominee. That was July.

Then the next month in August, NBC did the exact same poll and his support actually dropped a little bit. He went from plus 6 in July down to plus 4 in August. Well, now, NBC tonight has just unveiled new polling that`s been in the field since this serious allegation was made against Brett Kavanaugh by Christine Blasey Ford.

And support for him already low, plus 6, plus 4. Support for him now has fallen off the cliff. Support now is at minus 4, by a four-point margin, more Americans want him not on the court than want him confirmed.

And, you know, every poll is a little different. You want to make sure you compare apples to apples when you`re comparing polls and seeing the way they change over time. But this is an apples to apples comparison. He`s gone from plus 6, to plus 4 to minus 4.

And in the history of NBC poll Supreme Court nominees, no nominee has ever had negative support before, ever. But Brett Kavanaugh does by a good margin.

So, if the White House is deciding whether or not they`re going to abandon this nomination, if Republican senators are deciding whether or not they really want to go out on a limb for this particular nominee at this particular moment, those kinds of terrible, in fact, unprecedentedly terrible polling numbers for Kavanaugh suggest that that kind of calculation might not work in his favor. So you should know that, too.

And I just want to make one last point here. The allegation that Dr. Christine Blasey Ford has made against Brett Kavanaugh is a serious allegation, right? She is alleging that he attempted to rape her. Attempted rape is a felony.

And even though we are in this weird twilight zone where Republicans and the White House insist that the FBI should not be allowed to look into this as part of Brett Kavanaugh`s background investigation, without even explaining why they are insisting on that, there is also a live question as to whether or not this could be pursued as a criminal matter. There is no statute of limitations for a felony like this in Maryland. This alleged assault is said to have happened in Montgomery County, Maryland.

Local authorities in Montgomery County, Maryland, now say that while this allegation does pertain to their jurisdiction, the reason they have not yet opened a criminal investigation of this matter is because they have not received a criminal complaint from the alleged victim in this case. I don`t know if it will always be that way.

Whether or not the White House and Senate Republicans ever get it together to allow the FBI to look into this matter before they try to vote on Kavanaugh as a Supreme Court nominee, even if they did vote on him, even if they did vote on him and confirm him to the court and he became a sitting Supreme Court justice, there would remain the possibility indefinitely if Dr. Ford ever wanted to pursue it this way, that she could at any point make that criminal complaint to the police in Maryland who would not be bound by some expiration of the statute of limitations here.

Such a complaint could start a criminal investigation, conceivably of a sitting Supreme Court justice for felony attempted rape. If law enforcement found that allegation to be substantiated and they found sufficient evidence to bring charges, there is no rule against indicting a Supreme Court justice. There is not even Justice Department policy against indicting a Supreme Court justice the way there is for, say, a president of the United States. Wouldn`t that be great for the court?

Senator Patrick Leahy joins us live next. Stay with us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. PATRICK LEAHY (D-VT), JUDICIARY COMMITTEE: She then went to a university where she is a law professor and has done well enough to become tenured. Holding that not only the law degree, but the license to practice law is something she has worked extremely hard for for years. Protected and nurtured its way through, added to her experience. Why would she come here and perjure herself, throw away all of that for what?

(END VIDEO CLIP)

MADDOW: Why would she throw away all of that for what? That was 27 years ago in Senate Judiciary Committee. Senator Patrick Leahy of Vermont questioning Judge Clarence Thomas about serious sexual harassment allegations that were made against him late in his confirmation process by Professor Anita Hill.

Tonight, another very accomplished professional woman, PhD research psychologist with degrees from UNC Chapel Hill, Pepperdine University, USC and Stanford, who has authored or coauthored more than 50 scientific books and publications, tonight, Dr. Christine Blasey Ford`s legal team is negotiating the terms under which she might testify to that same committee about her allegation of attempted rape against Supreme Court nominee Brett Kavanaugh.

Joining us now is Senator Patrick Leahy of Vermont.

Senator, I really appreciate you being here tonight, sir. Thanks very much for your time.

LEAHY: Happy to.

I -- it was interesting watching as you were laying out what`s happening here and seeing that throw back to the Anita Hill hearing. I thought over 40 plus years, I thought I`d seen everything you could in the Senate. But not this. I mean, this, this whole thing has become a deterioration of what the Senate should be.

Anita Hill, I stated at the time, you know, I stated at the time as you recall, that I believed her. But the system still failed her. But we did so much more than we`ve done here. There, the Republican president said, OK, we`ll send the FBI out to do an independent investigation of everything involving all the allegations.

Now, when you talk about Dr. Ford, it makes no sense for somebody to come forward and say, this terrible thing happened. Would you please have the FBI talk to me and everybody else involved, knowing that if they`re lying, they face problems.

You don`t lie about a thing like that. You don`t go to the FBI and lie about something like that. It`s hard enough for her to come forward in the first place.

And the treatment she is getting from the -- at least from the Republicans in the Senate judiciary committee is wrong. It does not reflect what the Senate should be. We`re not being the conscience of the nation. We`re trying to slam the conscience behind a closed door.

MADDOW: Senator Leahy, we`ve heard from Senator Grassley tonight that there have been discussions between him and the legal team that represents Dr. Ford in this case. Senator Grassley just told "The Washington Post" that he would be consulting with colleagues on how to proceed after having those discussions tonight, I wonder if you`re one of the colleagues if he`s talking to Democrats at all in terms of how to put together this process.

LEAHY: I suspect he`ll go first to Senator Feinstein as the ranking member on the judiciary committee among the Democrats. But it`s very -- you don`t have to consult. Just say, OK, we want the FBI to check this. You get Dr. Ford, you`ve got judge Kavanaugh, but you also have a third person who said was there, Mr. Judge. Go and talk to each one of them. That wouldn`t take very long. But have people who are trained in this kind of investigation who will be totally impartial.

Listen to what Senator Grassley, who is a friend of mine, but I just cannot believe the way he`s handled this. Look what he did. He sends his political counsel to say, I`m investigating and I`m asking all these questions. And then immediately afterwards sends out a tweet saying, confirm Kavanaugh.

Well, there is not even a semblance, not even a pretense of doing this in a non-partial way. Just do what we have always done. I did it as chairman. I did it as ranking member of that committee. When a question came up, whether it`s a Democrat or Republican nominee, questions came up, we`d say, here, this is what the FBI is for. Let them give us an impartial report.

What is so difficult to do that? Stop the playing games. It`s a Democrat or Republican nominee, questions came up, we`d say, here, this is what the FBI is for. Let them give us an impartial report. What is so difficult to do that?

Stop the playing games. This is a lifetime appointment. If it takes a few days longer, so what? What are they trying to hide?

MADDOW: Senator, we`ve learned tonight that the Republicans on your committee have planned to hire an outside counsel, not to do an investigation. There had been some question as to maybe they were so uncomfortable with the FBI, there would be an independent outside counsel that might be brought in to do the investigation. In this case, they appear to be hiring outside counsel to do their questioning of witnesses in any hearing that may eventually happen in this matter. I just wanted to get your reaction to that.

LEAHY: I cannot think of a time that`s ever been done. I would think that they have the courage to stand up and ask the questions themselves. Many of them have denigrated Dr. Ford. Some have been very forthcoming and saying she should be heard.

Whichever way, if you want to sit on that committee, have the courage to ask the questions yourself. Are they afraid of the answers?

I`m not. I`m willing to ask the questions myself. I was a prosecutor for eight years. I`m used to questioning people.

But I`ve also when I was a prosecutor, you had an independent, nonbiased investigator go out and get you the facts. That`s not been done here. I`ve not seen this bypassed once in over 40 years.

MADDOW: Senator Patrick Leahy -- excuse me, sorry.

LEAHY: I keep asking the question. Why are they bypassing it, what are they trying to hide?

MADDOW: Have you actually heard an argument from them about why they aren`t going to the FBI? I mean, we`ve had spurious arguments that, oh, the FBI doesn`t do this or the FBI doesn`t want to do this. We know factually that those are untrue assertions.

Have you heard a substantive argument from them for why the FBI shouldn`t look at this?

LEAHY: Not a one. They were told by their leader, you`ve got to hurry up and get this person on the Supreme Court. It`s a lifetime appointment. A month from now nobody is going to talk about the hurry up. They`re only going to have facts come out we didn`t do the job right. That` that`s all you`re going to hear about.

Take an extra month. What difference does it make?

MADDOW: Senator Patrick Leahy of Vermont, sir, I really appreciate your time tonight. Thank you for being here.

LEAHY: Thank you.

MADDOW: Thank you. All right. We`ve got much more ahead tonight. Stay with us.

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MADDOW: Supreme Court nominee Brett Kavanaugh spent just over three hours at the White House today. Throughout this week, he has reportedly been drilled for hours by a group of senior White House staff in preparation for a possible hearing on the attempted rape allegation that`s been levied against him by a California PhD research psychologist who says Kavanaugh attacked her when he was 17 years old.

On Monday alone, Kavanaugh was at the White House for more than nine hours. He was then back at the White House on Tuesday. He was reportedly back again today, again for more than three hours.

Now, Kavanaugh does have an office, right? He does have another place to be. He`s a sitting federal judge in the D.C. Circuit Court of Appeals. But he`s been spending all of this time at the White House.

And maybe it`s not surprising that Kavanaugh is spending all this much time at the Trump White House as the Trump administration fights with everything they`ve got to try to save his nomination. But if Kavanaugh is confirmed, will there be consequence for his Supreme Court tenure? Given that he and this president, he and this president`s administration, have now sort of gone into war room mode together to try to save this nomination?

I mean, Supreme Court justices obviously are supposed to be separate and independent from other branches of government. They`re not supposed to owe any president or anybody outside the court anything. Is it possible that Justice Kavanaugh is going to feel some sort of unusual obligation to this administration? Or this is kind of par for the course? How has this played out for past Supreme Court justice s?

It got me wondering which got me calling NBC presidential historian Michael Beschloss.

Mr. Beschloss, thank you very much for your time. It`s nice to have you here.

MICHAEL BESCHLOSS, NBC NEWS PRESIDENTIAL HISTORIA: Pleasure. Thank you, Rachel.

MADDOW: So, we`ve been thinking about this dynamic. And, obviously, there are questions about how Brett Kavanaugh was picked for this nomination in the first place given that President Trump has been essentially named as an unindicted coconspirator in multiple felonies, given the fact that he`s the subject of a very serious, ongoing criminal investigation. That raised questions anyway in terms of whether or not there might be some sort of implicit or explicit arrangement between the president and his own liability.

BESCHLOSS: Sure.

MADDOW: -- choosing this nominee.

Now, we`ve got this whole new element, similar dynamic where this nominee is really holing up in the White House trying to save this nomination while they are really going to the mattresses for him. Are there historical parallels here? Is there anything we should look for in history in order to understand the importance of this?

BESCHLOSS: Well, I think we should look to the founders, Rachel, and what they wanted was a big distance between the justices of the Supreme Court and the American president. And the problem with this is that if he gets confirmed, Kavanaugh is going to be way too indebted to Donald Trump.

I mean, I think Trump to begin with chose Kavanaugh because Kavanaugh has these extremely permissive views of presidential power that maybe presidents should not be subpoenaed or investigated or indicted or they could use pardons in a big way. And Trump knew that. And Trump knows that he might be in trouble with Supreme Court one day. He wants someone who is going to be unlikely to do something that`s against him.

So Kavanaugh now just as you were saying, has been for hours and days closeted at the White House with Trump circle and maybe Trump himself. And one of the things they do in these meetings is they say, what are their other damaging secrets might there be that could be dangerous to your nomination or your presence on the Supreme Court?

And we know that Donald Trump is not exactly shy about making you feel indebted. You know, when Neil Gorsuch, as you remember, was talking to senators, he was faintly critical of the president and Trump said, I`m going to pull your nomination if you say anything more like that.

Most presidents don`t talk that way. So, if a result is that if at the end of all this, Neil Kavanaugh does to the -- excuse me, Brett Kavanaugh does go to the Supreme Court, you`ve got a relationship with the president who sent him there that I think is much too close. Donald Trump is notorious for making people feel as if they should be grateful to him.

And with all this history and with the Trump people knowing his secrets, is this someone who is going to have the independence if something comes to the Supreme Court concerning Donald Trump, will Kavanaugh recuse himself? Will he dare to vote against Donald Trump? I`m not sure he`s going to have that kind of independence.

MADDOW: Michael, Senator Sheldon Whitehouse today suggested that if Democrats win control of the Senate this November, one of the things they might look into is opening this investigation if the Republicans are successful and sort of preventing this from being investigated and they push through his nomination anyway, Whitehouse suggested -- Senator Whitehouse I should be clear.

Senator Whitehouse suggested that the Democrats in the Senate might essentially open this investigation. There were very serious charges levied against Kavanaugh during the confirmation process thus far that he may have lied to the Senate during the confirmation proceedings.

I mean, no Supreme Court justice has faced the threat of impeachment since Abe Fortis. But, I mean, going back to Abe Fortis, wasn`t part of the controversy about him what was seen as sort of his unseemly closeness with the president at the time?

BESCHLOSS: You are exactly right. Abe Fortis is a negative role model. Lyndon Johnson put Abe Fortis on the Supreme Court in 1965. He was his extremely close friend and crony.

And even though Fortis was on the court, Johnson used him almost as a staff aide. He would have Fortis come to the Oval Office and write the president`s speeches. He would sometimes almost help LBJ choose bombing targets.

That`s exactly the kind of intimacy that you should not have between a president and a justice, and you certainly should not have a justice on the Supreme Court feeling such a sense of indebtedness to the president who sent him there that he`s not going to rule against the president if one day that should be required.

MADDOW: Michael Beschloss, NBC News presidential historian, thank you, my friend. It`s good to have you here. Much appreciated.

BESCHLOSS: Thank you. Thank you so much, Rachel.

MADDOW: All right. Lots more of this busy, busy night. Stay with us.

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MADDOW: The developing news about the Kavanaugh confirmation or lack thereof has been sort of overwhelming today. That story has continued to develop into tonight. I actually should tell you that we just got in a brand-new piece of news on that that`s sort of weird little curve ball from the Kavanaugh side. We are teeing that up. I`ll have that for you in just a minute.

But before we get to that story, there`s another important story that was just broken by ABC News that I really don`t want to get lost in the sauce here. Here`s that story. You might remember that before the president`s personal attorney Michael Cohen was brought into federal court last month where he pled guilty to eight felonies, before that happened, Cohen did an interview with George Stephanopoulos from ABC News.

It was a sort of weird logistically, right? We never actually saw it on TV. We saw the still images. Interview took place over the course of a weekend in a hotel room where Cohen had been living. We saw these stills, remember that?

I mean, a lot has happened since then with Michael Cohen. He did plead guilty to eight felony charges. In the course of that court proceeding, he said in court he committed two of those felonies, quote, in coordination with and at the direction of a candidate for federal office.

That statement was under oath in front of a judge. Michael Cohen essentially naming President Trump as his conspirator in two of the felonies to which he was pleading guilty.

Now, when Cohen pled guilty, there was a lot of speculation about whether or not he was also starting to cooperate with prosecutors, starting to tell them what he knows. I mean, he did say those literally incriminating things about the president in open court, but there were questions about whether there was a bigger cooperation deal. There was no formal cooperation agreement that was filed with the court at the time he pled guilty to all those felonies.

Now, his lawyers told us he was eager to cooperate, to tell all he knows, including to the special counsel`s office. Honestly, though, we had no way of knowing if that was really true or that was PR.

And "Vanity Fair" last week reported that it was understood by people in Cohen`s circle that he had started some kind of talks with the special counsel`s office, but we didn`t really know more than that. Well, now, George Stephanopoulos and ABC news have a follow-up to that strange exclusive interview they got with Michael Cohen back in the day before he pled guilty. And their scoop tonight is that not only is Cohen willing to tell prosecutors all he knows, he is now doing so at length, including to the special counsel`s office.

And if this reporting is accurate, he`s not talking to them only about campaign finance violations and the other stuff he`s already pled guilty to. What they`re talking to him -- what the special counsel`s office is reportedly talking to him about is specifically Russia, Trump and Russia and Trump and Russia and money.

From the ABC report tonight, quote, President Donald Trump`s formal personal attorney Michael Cohen has participated over the past month in multiple interview sessions lasting for hours with investigators from the office of special counsel Robert Mueller. The special counsel`s questioning of Cohen is focused primarily on all aspects of Trump`s dealings with Russia, including financial and business dealings. And the investigation into alleged collusion with Russia by the Trump campaign and its surrogates to influence the outcome of the 2016 election.

The ABC report goes on to say that the special counsel`s office has also asked Cohen about whether Trump offered to pardon him, and they say Cohen is also cooperating. In addition to the federal cooperation he`s offering, he`s also cooperating with New York state authorities and their active investigations into the Trump Foundation, the president`s purported charity which has come under serious legal scrutiny in New York already, and the Trump Organization the president`s business.

Even just that last part would be a bit of a bombshell, right? Michael Cohen was an executive vice-president at the Trump Organization for years. We already know that the chief financial officer of the Trump Organization is also cooperating with prosecutors in a deal under which he`s been granted immunity from prosecution himself in exchange for his testimony.

So, if there is anything to worry about in terms of the Trump Organization and its business practices, ek! Just the New York part of this story is a big deal, but there is also this specificity in this reporting about what Cohen is talking to Robert Mueller about when it comes to Trump.

You know, whether or not you are persuaded about the accuracy of what`s in the Christopher Steele dossier, former high-ranking intelligence officials have told us on the record that there is nothing in the Steele dossier that they know to have been disproven. And Michael Cohen is all over the Christopher Steele dossier. As someone who is purportedly aware of and helping cover up the interactions between Russian operatives and the Trump campaign while the campaign was underway, Cohen was definitely deeply involve in the secret Trump Tower Moscow plan which Trump was actively pursuing during the campaign with a sanctioned Russian bank controlled by the Kremlin even while he was pledging publicly that he had no deals with Russia.

Right after the election, Cohen was definitely involved in efforts to try to get Russian sanctions canceled. Also Cohen mysteriously ended up on the payroll of a financial firm that handles the money of a Russian oligarch to do what work exactly? He wasn`t totally clear.

But if Russia is what he is now testifying about to the special counsel`s office, that could pose much more of a liability to the president than even the two felonies in which Cohen has already implicated the president.

So as I say, lots going on right now, I know. But this Michael Cohen news, if it`s accurate -- and I should tell you "The Wall Street Journal" broke a very similar version of the story after ABC News initially broke it, if what`s being reported by ABC and the "Wall Street Journal" is accurate, this news about Michael Cohen, this is the news the White House has to be most worried about when it comes to people flipping against the president.

I mean, this is somebody inside his business for years, close to his family, and his children`s business dealings for years. Somebody inside his political operation from the very start, and somebody who has been a point person inside Trump`s Russia business dealings from well before his run for the presidency and continuing with those right through the campaign, including the secret ones.

And now that`s the guy who is telling all he knows. That guy. Gulp.

(COMMERCIAL BREAK)

MADDOW: All right. Here`s the curve ball. Maybe more like a boomerang. This did not workout well for the Kavanaugh folks.

A couple days ago, a conservative columnist published this piece in "The Washington Post". Quote, is there a Kavanaugh doppelganger? This column posited that the woman who`s accused Supreme Court nominee Brett Kavanaugh sexually assaulting her in 1992, OK, maybe she was assaulted, but maybe not by Brett Kavanaugh. Rather, what he said was, quote, sorry, what he said would, quote, make the most sense to him, is that somebody else who looks exactly like Brett Kavanaugh might have done it and Brett Kavanaugh is being unfairly blamed.

It`s kind of a weird argument, but today that theory exploded online thanks to a man named Ed Whelan. He`s president of something called the Ethics in Public Policy Center. He`s a former clerk to the late Justice Antonin Scalia. He`s very well known in right wing legal circles.

According to "The Washington Post", quote, Ed Whelan has been involved in helping advise Kavanaugh`s confirmation efforts and he`s close friends with both Kavanaugh and Leonard Leo, the head of the Federalist Society which is the organization that basically chose Trump`s nominee list.

Today, in a series of tweets, Ed Whelan floated a very detailed theory that, yes, someone other than Brett Kavanaugh attempted to rape Christine Blasey Ford when they were in high school. Mr. Whelan even included blueprints of a house he seems to think the sexual assault could have occurred in.

And Ed Whelan then went on to name the person who he thinks might have done it. He posted a picture of him. A high school classmate of Brett Kavanaugh`s who kind of looks like Brett Kavanaugh sort of.

Just in the last few minutes, Professor Blasey Ford released a statement in response to this theory, which did go viral today. Dr. Ford says, quote, I knew them both meaning Brett Kavanaugh and his classmate. I knew them both and socialized with, the man`s name which we have redacted here. I visited, the man`s name, when he was in the hospital. There is zero chance that I would confuse them.

So for all those people who like Senator Orrin Hatch think Christine Blasey Ford is just a mixed up lady, Dr. Ford tonight is saying she definitively - - definitively, definitively is not just mixed up about this. She didn`t just confuse these two guys. And now, some random middle school teacher who went to high school with Brett Kavanaugh is being blamed by the right for what she says Brett Kavanaugh did.

Stay with us.

(COMMERCIAL BREAK)

MADDOW: That does it for our show tonight. This is one of those nights, though, where the news sort of started breaking when you got up this morning and kept breaking all day and into this evening. This is one of those nights if you have the chance where you may want to just keep an eye on the news. We have a sense that things are going to continue to develop over the late evening hours this evening.

That said, we`ll see you again tomorrow.

Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL".

Good evening, Lawrence.

END

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