Show: THE RACHEL MADDOW SHOW Date: September 28, 2018 Guest: Cory Booker, Frank Montoya
JOY REID, MSNBC HOST: You can`t make it up. If you made it up, no one would believe any of it at all. Thank you, Chris. Appreciate you.
CHRIS HAYES, MSNBC HOST Tomorrow.
REID: See you tomorrow at Global Citizen, yes.
And thanks to all of you for joining us this hour. Rachel has the night off.
OK. So when we woke up this morning, we all thought we knew how today was going to go. Despite wrenching testimony from Christine Blasey Ford yesterday and a strange hearing in which Republicans ceded the questioning to someone else followed by a volcanic performance by Judge Brett Kavanaugh, Republicans were going to come to the Senate this morning and vote him out of committee. Done deal.
The Senate Judiciary Committee vote was set for a 9:30 a.m. start time. And while acknowledging the impact of Dr. Ford`s words, Republicans were projecting absolute confidence they would hold this vote and Kavanaugh`s nomination would head to the full senate, as Mitch McConnell put it, quote, in the coming days.
This morning, even moderate Republicans who were still on the fence about Brett Kavanaugh appeared to be falling in line. Senator Jeff Flake, who was as of last night telling reporters that this was a tough decision for him and who was reportedly visibly torn over whether or not to confirm Kavanaugh, announced this morning that in fact he would vote to confirm Kavanaugh to the Supreme Court.
The White House expressed pleasure with the decision, as did Republican senators. There were even reports this morning that Democratic Senator Joe Manchin had decided to join and vote to confirm Kavanaugh as well. His office later denied those reports.
This morning, it really felt like this was it, game over. Until suddenly, it wasn`t. Throughout the morning, hundreds of protesters swarmed Senate office buildings. Their chants echoing through the halls, "we believe survivors." Some protesters were arrested.
Ahead of the 9:30 a.m. Senate Judiciary Committee meeting, women lawmakers from the House of Representatives showed up en masse to watch the proceedings and to literally stare down senators voting for Kavanaugh before walking out all together. This morning, in other words, the entire expected outcome of this Supreme Court nomination just blew up.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: On Monday, I stood in front of your office. I told my story of my sexual assault. I told it because I recognize in Dr. Ford`s story that she`s telling the truth. What you`re doing is allowing someone who actually violated a woman to sit in the Supreme Court.
This is not tolerable. You have children in your family. Think about them. I have two children. I cannot imagine that for the next 50 years they will have to have someone in the Supreme Court who has been accused of violating a young girl. What are you doing, sir? This is the future.
UNIDENTIFIED FEMALE: Nobody believes me. I didn`t tell anyone, and you`re telling all women that they don`t matter, that they should just stay quiet because if they tell you what happened to them, you`re going to ignore them. That`s what happened to me, and that`s what you`re telling all women in America, that they don`t matter. They should just keep it to themselves because if they have told the truth, they`re just going to help that man to power anyway.
That`s what you`re telling us all of these women. That`s what you`re telling me right now. Look at me when I`m talking to you. You`re telling me that my assault doesn`t matter.
UNIDENTIFIED FEMALE: Do you think that he is telling the truth?
UNIDENTIFIED MALE: Thank you.
UNIDENTIFIED FEMALE: No. Do you think that he is telling the truth to the country?
UNIDENTIFIED FEMALE: You have power when so many women are powerless.
UNIDENTIFIED MALE: Thank you.
UNIDENTIFIED MALE: Can you not give him an answer, senator? You just released a press statement. You can`t give them an answer?
UNIDENTIFIED FEMALE: OK, thank you.
(END VIDEO CLIP)
REID: That was raging. And by the time he actually arrived at the hearing, it became clear that Jeff Flake`s vote might not be a lock after all. It was clear the Democrats were not just doing theater, they were still actively trying to defeat Kavanaugh. They were still acting like this was not a done deal.
(BEGIN VIDEO CLIP)
SEN. CORY BOOKER (D), NEW JERSEY: We should not brush aside her comments. We should not belittle her testimony. We should listen to her. We should listen to women, and we should thoroughly investigate this before moving forward.
SEN. CHRIS COONS (D), DELAWARE: I worry sincerely about the message we are sending to assault survivors if we plow ahead with this nomination despite the seriousness of the allegations. And I have conveyed to my friends and colleagues that I had wished we would take a one-week pause. One week only. Not to spread this out past the next election, not to pursue some partisan goal, but to allow a professional FBI interview with everyone who may have relevant information.
SEN. AMY KLOBUCHAR (D), MINNESOTA: I have proposed and talked to some of my colleagues, and I know others have as well as a finite period for an FBI investigation, maybe a week. If we want to show Dr. Ford respect, we give her the respect of having her case heard and the evidence looked at.
I look at it as what are you hiding? What would it hurt? If judge Kavanaugh is so sure that he has this corroborating evidence and what this calendar means and what these things mean, then what is he afraid of if we just spend one week looking at the evidence?
(END VIDEO CLIP)
REID: Democrats at the committee meeting to vote on moving Judge Kavanaugh`s name out of committee still even then had not given up on the idea that they could change the course of this committee vote. After Senators Amy Klobuchar and Chris Coons made apparent last-ditch efforts to try and reason with Republicans, Senator flake pulled both of them aside out of the committee meeting for a little chat.
Now remember, this was all under the assumption that Kavanaugh was about to get voted out of committee on a party line vote and head straight to the Senate floor. Senator Flake had indicated he would vote yes on the committee vote. But here he was taking side meetings with Democrats who are actively trying to get Republicans on board with this idea of an FBI investigation.
When it came time for a vote, what I can only assume is Judiciary Committee Chairman Chuck Grassley`s version of hell broke loose.
(BEGIN VIDEO CLIP)
SEN. JEFF FLAKE (R), ARIZONA: Can I ask to see you for a minute?
SEN. CHUCK GRASSLEY (R-IA), JUDICIARY COMMITTEE: Yes. As a point of personal privilege, I`m going to call on Senator Flake to speak. Normally, we would start the vote right now, but as a point of personal privilege, I would call on Senator Flake.
FLAKE: Thank you. I have been speaking with a number of people on the other side. We`ve had conversations ongoing for a while with regard to making sure that we do due diligence here.
And I think it would be proper to delay the floor vote for up to but not more than one week in order to let the FBI continue -- to do an investigation limited in time and scope to the current allegations that are there.
GRASSLEY: Clerk will call the roll.
FLAKE: Wait, one second. Can Dianne speak?
UNIDENTIFIED MALE: Can we have a description?
LEAHY: When are we voting on?
GRASSLEY: We are voting on the report to call the motion to the floor. Clerk will call the roll.
SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Wait, that`s not my understanding of Mr. Chairman, let the senator explain it.
FLAKE: That is my -- my understanding, and if the Democrats can speak to it, if Chris or you as we talked about before, that the Democrats would accept and endorse a one-week FBI investigation limited in time and scope.
FEINSTEIN: That is correct.
GRASSLEY: Since you`re the deciding -- since you`re the deciding vote here, we`ll vote. And then if there is any sort of discussion, we`ll go do that after the vote. Call the roll.
(END VIDEO CLIP)
REID: OK. So here`s what happened. The committee voted Brett Kavanaugh`s name out of committee, as largely was expected. Jeff Flake, just as he said he would, voted yes to move Kavanaugh`s nomination to a full Senate vote, but he also indicated that before the final vote on Judge Kavanaugh`s nomination in the full Senate, he wanted a delay and an FBI investigation into the current credible allegations against him. If his colleagues pushed through and scheduled a final vote with no investigation, Jeff Flake would be a no vote on sending Brett Kavanaugh to the Supreme Court.
Jeff Flake`s stop the presses moment today set in motion two major things that have changed the course of events for Brett Kavanaugh`s nomination, possibly for good. For one, Democrats and Dr. Ford have now gotten what they asked for, what they have consistently demanded for days now, an FBI investigation into allegations against Brett Kavanaugh.
(BEGIN VIDEO CLIP)
FEINSTEIN: Why aren`t you also asking the FBI to investigate these claims?
KLOBUCHAR: Just ask the president to reopen the FBI investigation.
DURBIN: Judge Kavanaugh, will you support an FBI investigation right now?
BRETT KAVANAUGH, SUPREME COURT JUSTICE NOMINEE: I will do whatever the committee wants --
DURBIN: Personally, do you think that`s the best thing for us to do? You won`t answer?
COONS: -- calling for an FBI investigation?
BLUMENTHAL: So you`re saying that that is a substitute for an investigation? By the FBI?
DURBIN: An FBI investigation is the only way to answer some of these questions.
GRASSLEY: Stop the clock. This committee is running this hearing, not the White House, not Don McGahn, not even you as a nominee.
SEN. KAMALA HARRIS (D), CALIFORNIA: I`m going to ask you one last time, are you willing to ask the White House to authorize the FBI to investigate the claims that have been made against you?
KAVANAUGH: Well, I`ll do whatever the committee wants, of course.
HARRIS: And I`ve heard you say that. But I`ve not heard you answer a very specific question that`s been asked.
(END VIDEO CLIP)
REID: So Democrats took a lot of heat yesterday for repeatedly continuing to demand an FBI investigation into Dr. Ford`s claim. Republican Chairman Chuck Grassley insisting that Senate committee staffers were perfectly capable of conducting the investigation. Even after one of Grassley`s own staffers had to resign last week after old sexual harassment allegations against him emerged.
This has ban huge sticking point for Democrats, ever since Dr. Ford`s allegation came to light. And today, they got Senator Flake on board with that plan. And two more Republican senator, Senator Susan Collins of Maine and Senator Lisa Murkowski of Alaska who as of yet remain undecided on whether they will vote to confirm Judge Kavanaugh have come out in full support of Senator Flake`s call for an FBI investigation. So has Senator Joe Manchin, whose office insists that he is still undecided as well.
So this is a huge thing. The other thing that`s huge here is that a full Senate floor vote that had originally been scheduled for as early as tomorrow has now been postponed, probably for at least a week to make time for the FBI to do its investigation.
There is still a lot of unknown, particularly when it comes to the scope of the FBI investigation, whether it will only include Dr. Ford`s allegation, or whether it will include others. But for Democrats, this is a new reality that is very different from how things looked this morning when Brett Kavanaugh`s confirmation to the Supreme Court appeared all but set in stone.
And joining us now is Senator Cory Booker of New Jersey, a Democratic member of the Senate Judiciary Committee who was at that dramatic meeting today.
Senator, thank you so much for being here.
BOOKER: Joy, it`s really great to be on with you. Thank you for having me.
REID: Thank you.
So walk us through, because it looked -- when we came in this morning and all turned on the monitors here at MSNBC and I`m sure all around the country, like this was just going to sail through. It all started to fall apart when Jeff Flake came back from that elevator ride with those two women who confronted him. Was that the turning point in the way things were going today, or was there something else going on behind the scenes that we didn`t see?
BOOKER: Well, I think Jeff has been struggling with this for a long time. I was very disappointed when I heard that he was going to vote and support it, and very happy when he began to engage in conversations with those of us on the other side of the aisle.
And, look, there was a very strong shift not amongst Democrats, not among the Democratic senators on the committee, but remember, the American Bar Association, which had supported Kavanaugh`s nomination, the president came out and said that there should be a more thorough investigation. The former -- the law professor at Yale, actually my constitutional law professor who supported Kavanaugh testified for him, came out and said there should be more of an investigation. Even Alan Dershowitz on Fox News, someone who has been supporting this nomination.
So you saw a shift of people saying what is he really afraid of? Why don`t they do a more thorough investigation? Why are they rushing to a vote?
And so, I think in the totality of circumstances, and I give a lot of credit to folks who are out there pressing and protesting and telling their stories and sharing their stories. I think that Jeff finally stood up and said to me, as he said to me in private, for the good of the nation, we need to pause here and do a more thorough investigation.
REID: And for Democrats during the Kavanaugh and Ford testimony, was there a plan going in that the central sticking point that all of you were going to bring up over and over again, because there was a lot of commentary on social media. Why are they harping on the FBI investigation? Was that the plan going into the hearing?
BOOKER: I think all of us wanted to show that the way this process is running was a deep insult to Dr. Ford. Remember, she was willing to come, but she asked for a number of things which were rejected out of hand. She asked for an FBI investigation. She asked for a number of other witnesses, pertinent witnesses that could corroborate her story, be called. She asked for the other person in the room to be called, and a lot more.
And she was denied, denied, denied. And they rushed to a hearing, tried to really pressure her to coming into a hearing in a rushed manner and tried to create what they wanted to do which was a he said/she said. And then she came forward with such a powerful testimony. All the more credible, all the more believable to people that might have been doubting her story.
And so, I give her a lot of raw credit forecasting such a shadow on Kavanaugh who has said so many things that strained credulity that really I find hard to believe that he said and he talked about. So I think that public opinion had really shifted, that this was going to be a rush, that yet another woman who was telling her truth, yet another example of a powerful patriarchy that`s preventing the truth from coming forward. And when it does, what happens to those people who are truth tellers.
So I think this was a god moment for the country. I am grateful that Jeff Flake saw fit to make this happen, and I`m hoping now that this investigation isn`t just a perfunctory thing to get it out of the way, but that they do a thorough investigation, interviewing all of the people, not just Mark Judge, but all of the people that have been named by these two individuals who came before the Senate so we can really get to the bottom of what`s going on here.
REID: And as a United States senator and somebody who will be a recipient of whatever that FBI investigation finds, do you know what the scope of it is? Is it just going to be an investigation of Dr. Ford`s claims, or will there be an additional look into the other women who have come forward? Do you know if that is going to be a part of what was agreed to today?
BOOKER: I don`t know. When we agreed to pause for up to a week for an FBI investigation, the elements of that investigation were not discussed. It seems responsible to investigate this matter thoroughly, but there have been two other allegations that have been made that should be investigated. They should not just be left out there.
And so, there are three women who have come forward, and their stories should be investigated. They should be listened to. They should not just be brushed aside, diminished or degraded.
And so, I`m hoping that the FBI will do a thorough job for a background check. If someone was applying for a job and had this much -- I don`t care what the job is, if you`re applying for a federal job of some import, the FBI does background checks. They would not leave such serious allegations of misconduct uninvestigated, and they should explore and investigate those other two allegations as well.
REID: And lastly, this is speculative, but let`s say either way, whether Judge Kavanaugh is confirmed or not, he still sits on the federal bench. If Democrats control the United States Senate and control the Congress next year, do you anticipate that Democrats would want to call people like Mark Judge and would continue this inquiry even after the outcome of this vote, whether or not he gets confirmed?
BOOKER: Well, let me make it clear. I believe Dr. Ford. I believe not only her story but I believe that in the context of this moment in American history, not just this nomination, but at a time where one out of three American women according to the Center for Disease Control experienced sexual violence, sexual assault in their life times. I believe she is nothing less than an American hero. She has stood up to this body, and she has told her truth, despite the harassment, death threats and more.
And I believe that she should have a thorough investigation. And if it`s not gotten, yes, the Senate or the House had the power to investigate. That`s our job. And whether it`s -- we`re a coequal branch of government with the judiciary and with the presidency, and we have responsibility to conduct investigations.
So I don`t want to speak to what will happen after these midterms because right now in this moment in time, we still have not taken a vote there are undecided senators. We have a credible accusation against this person. Do you want to promote somebody? Would you hire them as a baby-sitter if they had someone like Dr. Ford having come forward having told such a story?
I`m glad the FBI is investigating. I hope they do a really thorough investigation, and we have to a lot to go through between now and the time we take a vote, and everybody has got to check themselves about voting. It`s not about a condemnation or a criminal trial about Kavanaugh`s guilt or innocence.
This is a job interview. Is she credible enough to say with all the other people that the president has on his list, is this the person that we want to put on the highest court in the land for a lifetime appointment. I say no.
REID: Senator Cory Booker of New Jersey, thank you so much for being with us tonight. Really appreciate it.
BOOKER: Joy, thank you very much, as always. Thank you.
REID: Thank you.
And joining us now is Leigh Ann Caldwell, an MSNBC political reporter who has been covering this rapidly developing story on the Hill.
So, Leigh Ann, this morning, the one thing that seemed certain was either Mitch McConnell didn`t have the votes and he was calling the bluff of his own caucus and saying I`m just going to put this on the floor and see where we are, or he went in thinking he did have all of his ducks in a row and Kavanaugh would be confirmed. Do you know which of those two things is more true this morning?
LEIGH ANN CALDWELL, NBC NEWS POLITICAL REPORTER: Hey, Joy. I don`t know if either one of those are necessarily true in the sense that he knew he had a lot of ducks in line, but there were still these outstanding senators. I mean, Jeff Flake came out this morning before the committee voted and said for -- before the committee even met and said he was a yes on Kavanaugh. So there were these two outstanding senators, Susan Collins and Lisa Murkowski.
The feeling on the Hill was that they were leaning toward a yes. I think that Republicans and Mitch McConnell felt more comfortable in moving forward with the confirmation vote out of committee, and then setting up this procedural vote that was supposed to be tomorrow. You know, when I started the day, I did not think that the day was going to end with the Senate unanimously by voice vote moving on to Kavanaugh`s confirmation. An FBI investigation being opened, and Jeff Flake coming and building these forces, this coalition to force that. So, it was quite a wild ride and something that was remarkable and totally unexpected when the day started, Joy.
REID: Yes, indeed. I think a lot of people are trying to speculate whether it was that elevator moment that changed Jeff Flake`s mind or whether it was that conversation that we saw him that have, that side conversation with Senators Coons and Klobuchar. Do we know what was said? Whether that was what moved him to change his mind to say he wanted these conditions met before he voted yes?
CALDWELL: Yes, I asked Jeff Flake these exact questions once he left the committee room. He said the women who were confronting him in the elevator didn`t play a role in his decision, but what he did say is that he -- when he put out that statement this morning saying that he was going to vote yes for Kavanaugh, he thought that that would be enough for Republicans, but then he felt that the process was completely broken.
And so, he reached out to Senator Chris Coons and said, look, the American people do not have a good feeling about this. They do not like where the Senate. They don`t like how this is unfolding.
So even if we have a partisan vote, he told Chris Coons, he said let`s try to get a bipartisan process. And he realized that so far the process has been completely broken. No one had trust in it. And so that was really his motivation. He has been talking for months ever since he announced his retirement about the degradation of the Senate. And so this has been a mission of his.
And so, trying to bring some comity to the process, collegiality. And so, so he started huddling with Chris Coons. Other Democrats got involve and started talking to him, and he said he wanted the Democrats to agree publicly that one week was going to be enough and that they would accept an FBI investigation.
Because part of the fear among Republicans was that they would say, OK, look, let`s open an FBI investigation and then what next would Democrats say? They thought that it was going to keep on going and that the politics would never end.
And so, what Jeff Flake feels like he accomplished today was bringing everyone back together, calming tempers a little bit, and getting a more transparent process that will give people the information on how they need to vote if it comes up to a vote next week.
REID: Leigh Ann Caldwell, NBC News political reporter who has been covering this story -- thank you very much for being with us tonight.
CALDWELL: Thanks, Joy.
REID: Thank you.
Well, there are a lot of open questions tonight about that FBI background check and what it will mean for Judge Kavanaugh. We will try to answer some of those questions next. Stay with us.
(BEGIN VIDEO CLIP)
JULIE SWETNICK, JUDGE KAVANAUGH ACCUSER: Brett Kavanaugh is going for a seat where he`s going to have that seat on the Supreme Court for the rest of his life. And if he`s going to have that seat legitimately, all of these things should be investigated because from what I experienced firsthand, I don`t think he belongs on the Supreme Court. And I just want the facts to come out, and I want it to be just and I want the American people to have those facts and judge for themselves.
(END VIDEO CLIP)
REID: Julie Swetnick, the third woman to come forward and accuse Judge Kavanaugh of sexual misconduct said that she wants the American people to have the facts and judge for themselves.
Well, after today`s totally unexpected turn of events, it appears that may will happen, after the White House backed down and requested the FBI reopen Kavanaugh`s background check and investigate the claims against him. Now we don`t know how extensive this investigation will be or what if anything it will turn up or resolve. The president stipulated the supplemental background investigation into judge Kavanaugh be limited in scope.
The Senate Judiciary Committee determined that it, quote, be limited to current, credible allegations and last no longer than a week. So, we don`t know which allegations will be deemed credible and worthy of investigation or who makes that call. Tonight, neither the FBI nor the White House would comment further on the investigation`s potential scope. Like how many witnesses might be interviewed or how many agents and resources will be devoted to it.
But today`s developments are a major victory for committee Democrats who hammered away at the lack of an FBI investigation in their questioning of Kavanaugh. And the fact that there will now be an investigation by the FBI increases the chances that we will finally learn more about what Kavanaugh`s friend Mark Judge knows.
Judge is the man Dr. Blasey Ford says was in the room when she says Kavanaugh attempted to rape her. Today, Judge released a signed statement saying that he would, quote, cooperate with any law enforcement agency assigned to confidentially investigate the allegations. In the same statement, Judge also denied Swetnick`s allegation that he and Kavanaugh were overly aggressive with girls, including grabbing them without their consent at parties in the 1980s.
Both Judge and Swetnick would presumably be interviewed as part of this FBI investigation, as could another man who Dr. Ford says was in the house at the time of her assault. Today, the lawyer for that individual said that he is, quote, happy to cooperate fully with this FBI investigation.
Another potential witness, Mark Judge`s ex-girlfriend, Elizabeth Rasor, who said that judge once told her ashamedly of an incident that involved him and other boys taking turns having sex with a drunk woman.
At its conclusion, the results of the FBI supplemental background check will be presented to the White House to all 100 senators as well as some staff members. It will be different from a criminal investigation in that it cannot compel testimony, meaning witnesses can decline to be interviewed if they want. Also, the FBI will itself draw no conclusions about whether the accusations against Kavanaugh are credible or not.
But even with those limitations, lying to the FBI is a federal crime, and that applies to everyone who does agree to talk to them. And as "The Washington Post" reports, if investigators uncover evidence that Kavanaugh lied to lawmakers during the hearings or on his background check forms, that could spark a criminal investigation in which law enforcement could use the full extent of its legal powers.
Joining us now is Frank Montoya, former FBI special agent.
Mr. Montoya, thank you so much for being here. Good to have you with us.
FRANK MONTOYA, FORMER FBI SPECIAL AGENT: Great to be here, Joy.
REID: So, let`s just walk us -- for the lay people out there, walk us exactly how this would work. The FBI reopens the background check. Does that mean that they then go visit door to door the people that they want to talk to or would people be called in to come to the FBI to speak to them?
MONTOYA: It could be a combination of those things.
In fact, one of the things that I would absolutely state up front is if there are any folks out there that have anything to provide to this information or this investigation, they don`t need to wait to be asked. They can go and knock on the FBI`s door. They can go to the nearest field office. They can call that field office. They can make their voices known.
But it will be a combination of things. There will be a follow-up on obviously Dr. Ford`s testimony to include a discussion with her. She will -- she provides names of other individuals that can be talked to, they will talk to them as well. You raise a great question or point on the idea of scope.
I think that first of all, the genie is out of the bottle. Scope in investigations in general are wild animals. The only way to control scope or an investigation is not to ask any questions.
And so, once the information starts flowing, you don`t stop and you don`t say well, I can`t go and check that or I can`t go and check this. You go out and take care of business. You ask questions. You interview people. You put together your reports.
I think the one thing that is a bit of an inhibitor in all of this is the fact that it`s seven days. You can do a lot in seven day, especially if you`re working long hours. But if the Senate, if the White House holds investigators to that seven-day period, that can be a limiter.
REID: But can the White House say well, you can`t go and interview Ms. Swetnick or one of these other accusers? Could the White House limit the FBI from who they could talk to?
MONTOYA: They could always try, but I think that would be considered an obstruction of the investigation.
MONTOYA: Keeping in mind of course this is not a criminal investigation. This is an update on the background. But still, that could be seen as obstruction.
REID: And could somebody in the situation where they`re being interviewed by the FBI, could they plead the Fifth?
MONTOYA: Well, it`s not necessarily plead the Fifth. They can just say they don`t want to talk to the FBI or they can fall back on some of these excuses that we have seen in recent days that they don`t recall or they can`t remember.
MONTOYA: So, you know, there are ways to address that. But at the same time, there isn`t a grand jury impaneled. So there is not a whole lot of ways to compel folks.
You really are relying upon the agent`s skill as an investigator, but also the willingness of individuals to speak. I would also add that in this kind of environment, there is going to be a lot of people that are going to want to speak. And time is the limiting factor. So, if they`re not contacted, they need to reach out and contact.
REID: Frank Montoya, former FBI special agent, thank you very much for answering those questions for us.
MONTOYA: You bet. Thank you.
REID: Thank you.
All right. Coming up, you know that thing they used to do on "Sesame Street" where Big Bird picks a word of the day to muppetsplain what it means? We have the news version of that, coming up next. Stay with us.
REID: OK, Muppet fans, the word of the day, really the word of the week is "credible". Going into yesterday`s hearing, everyone was focused on whether or not Christine Blasey Ford would be a credible witness. After her appearance before the Senate Judiciary Committee, several committee Republicans emerged to say that, yes, they found her testimony quite credible. Today, even Donald Trump said that he found Dr. Ford credible.
But there were two people who gave testimony yesterday, and over the course of Brett Kavanaugh`s confirmation process, even before yesterday, credible was not a word that sprang to mind regarding his testimony, and that was true in a way we`ve really not seen for very many Supreme Court nominee, at least since Clarence Thomas. As in the Thomas hearings back in 1991, the salacious nature of the sexual misconduct allegations against Brett Kavanaugh has overshadowed the other key information at issue in the confirmation process.
But even before Christine Blasey Ford came forward and upended this process, Democrats were raising substantive questions about Brett Kavanaugh`s credibility on a number issues related to his judicial and political career. For instance, whether Brett Kavanaugh lied under oath about receiving documents stolen from Senate Democrats while he worked in the George W. Bush White House, and whether he lied under oath about his involvement in a couple very controversial judicial nominations as the Bush White House`s point man on court picks.
There is the allegation just this week from Senate Judiciary Committee ranking Democrat Dianne Feinstein that Brett Kavanaugh was not honest with the committee when he was asked whether as a prosecutor on the Ken Starr team, he provided secret information from the grand jury process to reporters.
And there is the question of the credibility of Brett Kavanaugh`s insistence that he does not remember anything weird at all going on in Judge Alex Kozinski`s chambers when Kavanaugh clerked there, even though numerous former Kosinski clerks have described an atmosphere full of inappropriate sexual comments both in person and by e-mail. And even though Alex Kozinski resigned abruptly from the bench last year after a litany of sexual harassment allegations were made against him stretching back decades.
And really, that`s why Kavanaugh`s small scale untruths in his testimony yesterday about his youthful drinking or high school yearbook struck several Democratic senators as part of a worrying pattern, a pattern they brought up today before the judiciary committee vote.
(BEGIN VIDEO CLIP)
LEAHY: Time and time again, when confronted under oath about involvement in Bush era scandals or controversial matters, Judge Kavanaugh misled the Senate. Now, the fact that he has misled the Senate over and over and over again, that does not make him guilty of sexual assault of a 17-year-old, nor does the fact that he minimized the heavy drinking in his youth and misrepresented the misogyny in his yearbook. But it does go to the heart of Judge Kavanaugh`s truthfulness any time he is faced with potentially incriminating questions.
SEN. SHELDON WHITEHOUSE (D), RHODE ISLAND: I did not find him credible. I don`t believe boof is flatulence. I don`t believe the devil`s triangle is a drinking game, and I don`t believe calling yourself a girl`s alumnus is being her friend. And I think drinking until you ralph or fall out of the bus or don`t remember the game or need to piece together your memory the next day is more consistent with Dr. Ford`s and others` testimony than his own.
(END VIDEO CLIP)
REID: Christine Blasey Ford spent yesterday being scrutinized for anything that might possibly show her to not be 100 percent, one thousand percent credible. But Brett Kavanaugh has left some serious doubts on the table about his own truthfulness before the Senate committee as he seeks a promotion to a lifetime seat on the nation`s highest court.
And next week, an FBI investigation might deliver some answers to some of the questions raised during these hearings, and week is practically a lifetime in politics.
(BEGIN VIDEO CLIP)
KLOBUCHAR: Drinking is one thing, but the concern is about truthfulness.
(END VIDEO CLIP)
REID: So, the thing about the Supreme Court is that once you make there it, you are there for life, unless you choose to retire or you pass away. Or you decide that you would rather become a U.S. ambassador to the United Nations. That is what happened in 1965 when President Lyndon B. Johnson convinced then Supreme Court associate justice Arthur Goldberg to quit the Supreme Court and become the U.S. ambassador to the U.N. LBJ did that because he wanted this guy, Abe Fortis to be on the Supreme Court instead.
Fortis was an old friend of Lyndon Johnson`s. But it was not until he tried to elevate him to chief justice in 1968 that the Senate learned about just how close their relationship was. As the U.S. Senate history website notes, quote, as a sitting justice, he regularly attended White House staff meeting. He briefed the president on secret court deliberations, and on behalf of the president, he pressured senators who opposed the war in Vietnam.
And that closeness with the president is not even the scandal that ultimately led to Fortis`s resignation from the Supreme Court. There is a reason that our Founders wanted distance between Supreme Court justice and the president. They never wanted a person sitting on the Supreme Court feeling like they had any obligations to the president who appointed them.
But now in the current nominee, we may not just have the sense of obligation, but also the sense that the nominee is an open, admitted partisan of the president and his political party.
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KAVANAUGH: This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about president Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups. This is a circus.
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REID: Pent-up anger at the 2016 election, revenge on behalf of the Clinton, left-wing opposition groups. That sounds like Donald Trump talking, not a guy trying to become a just call the balls and strikes Supreme Court justice.
Now, no one is naive enough to believe that presidents don`t very often nominate people aligned with their own political party or ideology to positions on the courts, but Brett Kavanaugh is unique in that where as most nominees and even Kavanaugh himself in the first round of his nomination present themselves as fair mind, open-minded, nonpartisan umpires who just follow the law.
Kavanaugh is attempting to salvage that by dropping the pretense and being as openly partisan as Democrats already suspect that he is, showing he is willing to fight the Clinton culture wars from the bench, that he is willing to align himself openly with Donald Trump in style and in substance, which begs the question. Does that jeopardize his ability to remain in the job that he has now as a federal judge, let alone get a promotion to the Supreme Court?
Because there is a constitutional option that applies to judges just like it applies to presidents. It`s called impeachment. More on that next.
REID: This dapper fellow is Samuel Chase. He was a member of the Maryland assembly way back in the 1700s and served in the Continental Congress. He was a signatory to the Declaration of Independence. On unrelated note, he also had a killer wig.
In 1796, George Washington appointed Samuel Chase to Supreme Court. He served on the court for eight years until President Thomas Jefferson tried to kick him out. In 1804, Thomas Jefferson pushed to have the Supreme Court Justice Samuel Chase impeached.
Chase has a volcanic personality. He was seen as an extreme partisan and leaders in Washington thought Chase was no longer able to make fair decisions on the court, and so, Thomas Jefferson orchestrated I impeachment proceedings against him. He said he would wipe the floor with Samuel Chase.
Thomas Jefferson did not wipe the floor with Samuel Chase. The impeachment effort failed in the Senate, and Chase remained on the court despite those concerns that he was too partisan.
Appointments to the Supreme Court are for life. There are no take-backs. But the Founders granted the Congress the exact same method for removing justices who are deemed to have violated their oaths of office that they granted the first branch of government to use against presidents, impeachment, even works the same way, starting in the House with a trial on the Senate.
In all 13, federal judges have been impeached in U.S. history and eight have been removed, the wig fashion sense notwithstanding.
And joining us now is Michael Beschloss, NBC News presidential historian.
Michael, great to have you with us tonight after a very newsworthy day.
MICHAEL BESCHLOSS, NBC NEWS PRESIDENTIAL HISTORIAN: Right, and a long week. And you`re absolutely right, Joy. Samuel Chase really did have a killer wig.
REID: His wig game was very strong.
BESCHLOSS: Right, right. It was terrific.
REID: But, you know, I think it`s instructive because sometimes we do forget that that clause in the Constitution that gives the Congress the power to impeachment the president also extends to federal officers. And so, are we looking at a situation, a sort of Samuel Chase moment, where a new Senate, a new House if Democrats were to take over, could decide based on what we`ve heard from Brett Kavanaugh that perhaps he could be at least challenged as to whether he could keep his current job or the Supreme Court job.
BESCHLOSS: Not impossible. And if you use the example of Samuel Chase, there were eight counts, and the Senate cleared him but the result of that was to say for all of the next two centuries, he was had the only justice ever impeached that justices of the Supreme Court can`t be partisan, but even more to the point, they have to be independent of the president who appointed them. And the real problem with Kavanaugh is exactly that.
REID: And that`s exactly where I was going to go with you because I was taken aback by sort of the anger by Brett Kavanaugh, the yelling --
BESCHLOSS: It was almost psychiatric. It was a primal scream.
REID: It was really unreal to watch. But I was even more taken aback I have to say, Michael, by the partisanship, the Clinton conspiracy theories, aligning --
BESCHLOSS: Revenge on behalf of the Clintons.
REID: Yes, have we ever had a Supreme Court nominee go that partisan in their hearings?
BESCHLOSS: No. The first one to testify in his own hearing was Felix Frankfurter, 1939. You never heard anything like that. Clarence Thomas was supposed to be angry and he was, didn`t come near to what Kavanaugh said yesterday.
He was partisan, and the other danger is he reflected what he was saying, maybe this is revenge for the 2016 election. There`s a real danger if Kavanaugh goes to the court, he goes to the court as Donald Trump`s poodle.
He knows that he owes Trump. He spent the last two weeks closeted with the Trump people on how to get to the court. You can imagine that Donald Trump basically said to him, you toe the line or I`ll rescind your nomination as he threatened with Neil Gorsuch when Gorsuch was nominated.
And so, the result is if Kavanaugh goes on the court feeling indebted to Donald Trump, maybe even feeling some sort of blackmail or secret they had mentioned of the Trump circle, then if you have, let`s say, Joy, a case like U.S. versus Nixon, the tapes case of 1974, they were eight justices, three of them appointed by Nixon, they felt independent enough to rule against Richard Nixon.
Do you think that Brett Kavanaugh, with all these essential compromises by his closeness to the Trump administration, he`s much closer today than he was a week ago, can he make the same kind of independent ruling? I don`t think so.
REID: I think a lot of people are having the same question tonight. Michael Beschloss, NBC News presidential historian, it`s always such a treat to talk to you. Thank you so much.
BESCHLOSS: Me too. Loved it and have a great weekend, Joy.
REID: You too. Thank you.
We`ll be right back.
REID: That does it for tonight. I will see you again tomorrow morning right here at 10:00 a.m. Eastern for "A.M. Joy." We`re going to be wall to wall with the Brett Kavanaugh nomination fight.
You should also tune in at 3:00 p.m. for Global Citizen festival concert headline by The Weeknd, Janet Jackson, plus Shawn Mendes, Cardi B and Janelle Monae. I`ll be hosting our coverage co-hosting along with Chris Hayes and Ari Melber. You do not want to miss it.
And now it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL".
Good evening, Lawrence.
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