An intensifying battle over Supreme Court nominee Brett Kavanaugh

ROBERT COSTA:  September surprise:  an intensifying battle over Supreme Court nominee Brett Kavanaugh.  I’m Robert Costa.  Welcome to Washington Week.

PRESIDENT DONALD TRUMP:  (From video.)  To see what’s going on is just very, very sad.  You say, why didn’t somebody call the FBI 36 years ago?

MR. COSTA:  President Trump questions the credibility of the allegations against Supreme Court nominee Brett Kavanaugh, firing off a tweet about the accuser and her parents.  Mr. Trump wrote in part, “I have no doubt that, if the attack on Dr. Ford was as bad as she says, charges would have been immediately filed.”  Professor Christine Blasey Ford says she is willing to testify that Kavanaugh sexually assaulted her when they were teenagers, but not until later next week.  Talks continue.

Kavanaugh denies the allegations and says he, too, is ready to testify.  And the Senate Judiciary Committee, led by Republicans, considers its options and the political tightrope ahead just weeks before the midterm elections.

Democrats stand by Dr. Ford.

SENATOR KIRSTEN GILLIBRAND (D-NY):  (From video.)  I believe her because she’s telling the truth.  Someone who is lying does not ask the FBI to investigate their claims.

MR. COSTA:  Key Republican senators are in the spotlight.

Plus, did Deputy Attorney General Rod Rosenstein, who heads the Russia probe, suggest secretly recording the president?  We cover it all next.

ANNOUNCER:  This is Washington Week.  Once again, from Washington, moderator Robert Costa.

MR. COSTA:  Good evening.  Federal Judge Brett Kavanaugh once appeared to be on the fast track to being confirmed to a lifetime appointment on the Supreme Court.  Now his nomination’s fate is uncertain.  In The Washington Post on Sunday, Professor Christine Blasey Ford accused Kavanaugh of sexually assaulting her at a party when she was 15 years old and Kavanaugh was 17.  On Thursday, Kavanaugh sent a letter to the Senate Judiciary Committee saying he is prepared to testify on Monday, writing:  “Since the moment I first heard this allegation, I have categorically and unequivocally denied it.  I remain committed to defending my integrity.”  Dr. Ford, who’s in seclusion because of death threats, says she’s willing to testify next week but no sooner than Thursday, if certain conditions are met, including Kavanaugh would testify first; no questions from outside counsel, only senators; a subpoena for testimony from alleged witness Mark Judge; and robust security.  Kavanaugh and his family have also received threats, according to his allies.

Joining the Washington Week table tonight are four veteran first-class reporters:  Peter Baker of The New York Times, Nancy Cordes of CBS News, Andrea Mitchell of NBC News, and Dan Balz of The Washington Post.

President Trump’s response to this firestorm was at first out of character, restrained about the accuser, even as he stood by Kavanaugh.  Yet, that changed on Friday.  Is the president’s aggressive turn a sign of what’s to come next week, Peter?

PETER BAKER:  Oh, it’s a small preview, but only a small one.  It could be so much more vitriolic and combative.  And I think that we’ve now established the outer limit of the president’s ability to restrain himself when he has circumstances like this.  It’s about 100 hours, right?  His advisors said to him, don’t inflame it; if you tweet about it, you’re only going to make things worse.  And he more or less showed that he actually can discipline himself, at least for a short amount of time.  He said he stood by Brett Kavanaugh, he felt sorry for his family, what was happening to him was unfair, but he didn’t take on the accuser in the direct way that he had been known to in the past, until Thursday night.  And immediately, of course, generated exactly the kind of blowback that the White House feared, which is to say that he doesn’t understand women, he doesn’t understand what it’s been like for women over these last 35 years that we’re talking about; how can he think that, you know, you have to come forward as a 15-year-old girl trying to explain to your parents why you were at this party in the first place?  You’re supposed to go to the police?  Unrealistic, many women would say and did say today.  So it was not what the White House was hoping for, but I think you’re right is probably a preview of what next week will be like.

MR. COSTA:  How do his top advisors see it, Andrea?  You sat down today with Secretary of State Mike Pompeo.

ANDREA MITCHELL:  Well, and he, of course, is getting ready for the U.N. meetings.  They want the president to be on the world stage next week talking about Iran, talking about North Korea, taking credit for changing the whole climate on North Korea, but they’ve got this great shadow and potential hearings during the very time that he’s going to be chairing a U.N. Security Council meeting.  And they are very defensive about it.  And, in fact, what Pompeo was saying is that Judge Kavanaugh, you know, has a great record as far as he knows, and they are going after Dianne Feinstein for, they say, covering this up, not understanding or acknowledging what, you know, she says, which is that she was honoring the confidentiality of a witness who was so reluctant to speak out and that’s why she did not want to share the information with anyone, including her own colleagues to some, you know, consternation on their part.  But the fact is they’re going after Dianne Feinstein, and now we see the president, as Peter just said, really going after Dr. Blasey Ford.

MR. COSTA:  Dan, this has brought up memories of 1991 with Anita Hill testifying against then-nominee Clarence Thomas, now Justice Clarence Thomas.  And some of the players then, like Senator Orrin Hatch of Utah, a Republican, are still with us today.  How is that whole moment, that charged national spectacle from Anita Hill, informing today’s moment?

DAN BALZ:  Well, I mean, spectacle is a kind word for what happened in those hearings.  And Andrea covered it; I covered part of it.  It was a debacle.  The Republicans in that case aggressively went after Anita Hill to try to demolish her story.  The Democrats weren’t quite sure what to do.  And when Clarence Thomas proclaimed that he was a victim of a high-tech lynching, which was the most memorable phrase of that whole episode, they backed off.  But they sparred constantly.  They were crossing at one another.  The hearings went on for several days.  Nothing, in the end, was resolved, other than that Thomas became a Supreme Court justice.

Flash forward to where we are today.  If, in fact, we have a public hearing on this, I think that the challenge for the Republicans is to avoid what their colleagues did in 1991.  As we all know, we’re in a much different moment about issues having to do with sexual harassment, sexual assault.  They have to be very careful in the way they conduct themselves.  But Democrats will also have a very difficult time.  It’s difficult in those moments because this is so – the stakes are so high and this is so difficult, it’s difficult for senators to restrain themselves.

MR. COSTA:  I’m glad we could get you here from Capitol Hill.  You’ve been busy all week, Nancy.  Where do the negotiations stand?  Republicans, as Dan said, need to be careful.

NANCY CORDES:  Right.

MR. COSTA:  Where is Dr. Ford, where is Chairman Chuck Grassley of the Judiciary Committee as of tonight?

MS. CORDES:  Well, in fact, they’re so keen to avoid what we saw with the Anita Hill hearings that Republican senators are actually considering ceding a lot of their right to question Christine Blasey Ford to an outside lawyer.  When is the last time that you have seen senators willingly take a step back and let someone else ask the question?  And it’s because they’re so concerned about the optics.  There are still 11 men on the Republican side on the Senate Judiciary Committee, so that hasn’t changed since the Anita Hill days, and they think the optics of that are pretty bad.

As far as where we are tonight, well, the two sides – the lawyers for Ford and the Republicans on the Senate Judiciary Committee – have basically been negotiating through the press for a couple of days now.  The chairman of the Senate Judiciary Committee, Chuck Grassley, is now giving the lawyers until 10 p.m. tonight to officially say that she is going to appear at a hearing on Wednesday.  As you know, her lawyers say she can’t make it until Thursday.  Republicans initially wanted to hold the hearing on Monday.  They are now willing to push that back, but they also say they are not going to accept some of her other demands.  Republicans say they’re demands; Democrats say some of these were just questions or requests.  For example, she wanted to testify after Kavanaugh.  Republicans said no can do.  She wants to make sure that she’s questioned only by other senators, not outside counsel.  That starts to feel like a trial, many Democrats say.  Republicans say they reserve the right to have these questions asked by someone else.  So this is the back and forth that we’re seeing.  It feels like we are narrowing in on an agreement between the two sides, but there are a number of outstanding issues.

MR. COSTA:  And we’re taping live at 8:00 Eastern on Friday, so we’ll see what happens by 10:00 Friday.  (Laughter.)  And we’ll see what the president says at his rally, then what he tweets.

MS. MITCHELL:  I mean, she hasn’t said – her lawyers have not said it’s a deal-breaker if they insist on this outside counsel, which to them seems terribly important.  They want a woman lawyer questioning her.  That said, I think it’s going to be very difficult for her not to show up, even though this – these seem to be, to her supporters, very reasonable requests, because they have the votes.  And if she doesn’t show up, they’ve made it very clear they’re going to – they think that they can barrel through.  I think there’s a great risk there politically in the midterms in some of these Senate races as well that are so critically balanced right now, so, you know, tied in some of these states, which we can talk about later.  But I just think it’s going to be the politics of her refusing or the politics of them proceeding are very uncertain right now.

MR. COSTA:  And both sides pretty much know that.  Amid all this, you have Senator Majority Leader Mitch McConnell, his message to colleagues full speed ahead in a chamber where the GOP has narrow control.

SENATE MAJORITY LEADER MITCH MCCONNELL (R-KY):  (From video.)  You’ve watched the fight, you’ve watched the tactics, but here’s what I want to tell you.  In the very near future, Judge Kavanaugh will be on the United States Supreme Court.  (Cheers, applause.)  So, my friends, keep the faith, don’t get rattled by all of this.  We’re going to plow right through it and do our job.

MR. COSTA:  So as I said, it’s Friday night.  The president’s in Springfield, Missouri, Peter.  He’s having a rally talking to the faithful in his base.  He just said a few moments ago that he’s going to stand by Judge Kavanaugh.  He called Kavanaugh someone out of central casting.  So you see the Republican Party, whether it’s McConnell or Trump, they’re digging in.

MR. BAKER:  Well, they are digging in.  But they have to have 51 votes in order to actually proceed.  And as Andrea just said, this is a very volatile situation.  When Clarence Thomas and Anita Hill had their confrontation, it was a full year before the next election and it still shaped that election, right, to the detriment of some of the Republicans and even some of the Democrats who got turned out as a result.  This happening just six weeks before an election, an election that was already on the tenterhooks, and with just two votes to spare in the Senate, you can see why the Republicans are desperate, anxious to get their nominee through now.  Because if they don’t have the Senate come November, they’re not going to get him through afterwards.

And so – and by the same token, the Democrats are just as motivated to delay as long as possible.  Because if they can somehow knock this nominee off, they might be able to influence the next choice.

MR. COSTA:  Does it actually really play in the midterms to that extent, based on your read?

MR. BALZ:  Yes, I think very much so.  I think Peter’s right.  The timing of it could not be more fraught.  I was in Denver this week talking to some voters and particularly talking to a number of women voters.  I’ll say two things about it.  One is there is a partisan split on this question.  People who are loyal to Trump or like Trump, want Kavanaugh, they don’t believe her.  But on the other side, which is where there is more energy, they are – they are totally in support of Dr. Ford and they see this as a critical issue.  It is energizing people beyond the energy that was already there.  So I think that, depending how this plays out, the Republicans are more at risk as a result of it.

MS. MITCHELL:  And they have to figure out what the president’s going to do.  If he – if there’s another tweet like today’s, they’re going to have a real problem because they have no votes to spare, arguably.  And Susan Collins, who was leaning in the direction, we think, of confirming, making, some would say, rationalizations about what he had assured her about Roe being settled law, even though there was nothing specifically committed to not carving away at Roe and at the precedent of that – but she came out very strongly today really objecting to the president’s tweet where he went after her as a victim and said she should have – why wasn’t it reported to the FBI?  Well, she was 15 years old and she was afraid to tell her parents she was drinking with older boys at a party where there were no – there was no parental supervision.  And that was the panic that set in, if it is as she claims.  That is her story.

MR. COSTA:  So you’re saying, Andrea, that Republican votes, moderate Republicans, that’s a fragile thing right now for McConnell.  But what about the red-state Democrats running in states won by President Trump?  Do they now have less pressure to vote for Kavanaugh?

MS. CORDES:  I think they absolutely have less pressure.  Look, you know, Kavanaugh, according to the polling, was never all that popular, but they still clearly felt a lot of pressure to side with the president on an issue this important in their red states.  Now, suddenly, they have a pretty good case to make if they decide to vote no, if they vote a different way than they did with Gorsuch.  And they can rest assured that it’s probably not going to hurt them in their midterm elections the way it might have otherwise.

MR. BALZ:  I think related to that is the degree to which it could hurt them if they vote for him.  They need – they need an energized base.  And again, in talking to some people this week, one of the things that came through is that these voters want their representatives, their senators to stand up for the things that they claim to believe in.  And so if a red-state Democrat supports Kavanaugh in the end, if it comes to that, they could pay a price.

MR. COSTA:  And midterm voting starts now.

MR. BAKER:  Right.

MR. COSTA:  It’s beginning.

MR. BAKER:  Right.  As people go to the polls, they’re all – this is what they’re talking about, this is the national conversation.  And it’s a much more visceral conversation than some of the more esoteric things that we tend to get absorbed with in Washington.  This is something that is easy for everybody to understand because –

MR. COSTA:  Gender, culture, not just the tax cut and foreign policy.

MR. BAKER:  Exactly.  Nobody may understand North Korea, but they definitely understand this kind of thing because everybody knows somebody who had an experience, everybody, you know, sees it through this lens or that lens and they apply their own background to it.  So it’s about as salient an issue as you can get this close to an election.

MS. MITCHELL:  I mean, I think the only other really overriding issue is right now health care.  A lot of people are feeling that, the pain of prices.  And soybean prices and tariffs –

MR. COSTA:  Trade, right.

MS. MITCHELL:  If you go to Minnesota, trade is a very, very big deal.

MS. CORDES:  And keep in mind that the hearing hasn’t even happened yet.  I mean, if people are talking about this now and fired up now, imagine what it will be like after this hearing.  You know, we have one adult picture of Christine Blasey Ford right now.  When she’s actually sitting there testifying in person, telling her story, you know, that is going to be a very sympathetic image for a lot of people.  There’s a reason why Brett Kavanaugh has spent every single day this week prepping for this hearing.  It’s going to be really high stakes.

MS. MITCHELL:  And the other thing is he’s prepping with people at the White House who are not necessarily very sympathetic or understanding of these issues.  Some of the people prepping him have had their own questions in the past.

MR. COSTA:  You’re talking about Bill Shine, the deputy chief of staff –

MS. MITCHELL:  Yeah.

MR. COSTA:  – a former executive at Fox News who used to advise Roger Ailes, the late Roger Ailes, the late executive who had allegations of misconduct.

MS. MITCHELL:  And even the White House counsel who overlooked questions about the staff secretary’s domestic abuse allegations, I mean they’re –

MR. COSTA:  Don McGahn.

MS. MITCHELL:  It’s not a great sensitivity to the way to communicate with women.  The only other thing I would say is, thinking back, we didn’t have – there was – there was CNN, but there was not a lot of cable and now you have saturation through social media and cable.  So these hearings will be even more widely viewed than the weekend hearings on –

MR. BAKER:  And the other thing is the default setting has changed.  You know, in 1991, the default became, fairly or not, for Anita Hill to prove it, she had to have the burden of proof.  That’s what people objected to who were her supporters.  Today, because of the #MeToo movement, because of the last year, the presumption is sort of the other direction.

MR. COSTA:  So true.  Times have changed.  And this is not 1991.  Everything is different, but yet some of the people from ’91 are still around.  (Laughter.)

Let’s turn to the other major story that broke on Friday.  The New York Times is reporting that Deputy Attorney General Rod Rosenstein, who oversees the Russia probe, suggested having someone wear a wire to secretly record the president inside the White House.  According to The Times sources, Rosenstein also considered recruiting Cabinet members to invoke the 25th Amendment to remove Mr. Trump from office.  Rosenstein and the Justice Department have disputed the story saying it’s inaccurate and factually incorrect.  A person familiar with the exchange also told The Times Rosenstein was being sarcastic.  The Washington Post and others following this story said people familiar with the discussions and the memos about it have offered wildly different accounts of what was said and what it meant.

So this is the big story on Friday night.  But the big question, of course, is, how does President Trump see it?  Peter?  (Laughter.)  It’s a Times story.  I ought to go to Peter Baker.

MR. BAKER:  No, that’s fine.

MS. MITCHELL:  You know, channel your inner – (laughter) –

MR. BAKER:  Yeah, I’m going to channel my – well, look, he’s not a fan of Rod Rosenstein.  Let’s remember, of course, he has been publicly bashing Rosenstein for more than a year now, so you can see how this story might get under his skin a little bit to hear that his deputy attorney general, whether joking or not, talked about bugging him.  And the idea is it fits into President Trump’s theory, which is that they’re out to get him.  So if you’re Rod Rosenstein today, you’re a little worried about that.

Having said that, somebody who’s close to the White House told me today, look, Rosenstein’s actually done a much better job than Sessions of working with the White House since this blowup back a year-and-a-half ago.  The White House has basically been defending and disputing the story since it came out.  So it may be that it doesn’t, you know, cost Rosenstein his job or anything like that, but it talks about what a dysfunctional administration that this is, that the number-two person in the Justice Department thought, even as a joke – let’s just give benefit of the doubt – that it was OK to talk about bugging the president of the United States or invoking the 25th Amendment.  It tells us a lot about this administration.

MS. MITCHELL:  Well, I mean, what some of our reporting was – and I know The New York Times reporting has been superb throughout this whole extraordinary 18, 19 months, so I don’t want to, you know, challenge it directly.  But what we were told was that he basically said in frustration during one of these meetings – and we know exactly who was in the meetings and a number of these people have been talked to – that he said, what do you want me to do, Andy?  Bug the – you know, wear a wire?  It was in that context.

And you have to realize that Andy McCabe was fired by Rod Rosenstein, essentially, and may in fact face ramifications for that.  You know, there’s a whole issue of whether he lied to the FBI.  So there’s a book deal involved, you know, we don’t know about the motivations there.

MR. COSTA:  Just to be clear, The Times story is based on reporting about memos about these discussions from 2017.  Andrew McCabe was fired from the FBI.  An IG report at the DOJ found him to have taken some improper action.  And so now you have Andy McCabe with tensions with Rod Rosenstein, the current deputy attorney general who oversees the Russia probe.

But you brought up about the different people in this administration who are – you know, think back to the Woodward book, Bob Woodward’s book, Fear, the New York Times op-ed.  Is this an administrative coup d’etat, to use Woodward’s phrase from his book, that is being painted by all these different stories and anecdotes?

MS. CORDES:  It certainly felt like that.  When you read the story today, it certainly felt like somebody thought it was time to start building a case for getting rid of Rod Rosenstein and started talking.  And you have, however, seen a big shift among Republicans in their comfort level with the president perhaps replacing Jeff Sessions.  So the question is, would they have that same comfort level if Rod Rosenstein was to depart?

MR. COSTA:  What happens if he – if Rosenstein goes?

MS. CORDES:  Well, then you’d have to replace him.  You’d have to have another confirmation process.  And you’ll remember that Grassley very famously said months ago that he doesn’t have time to confirm a new attorney general, and he appears to have softened on that.  But, you know, much like Sessions, Republicans by and large in the Senate actually think that Rosenstein is doing a good job.  And he’s obviously playing a very delicate and important role overseeing the Russia investigation.  So they don’t have any interest in rocking the boat.

MR. COSTA:  Joke or not, Dan, when you have a person at this level of the Department of Justice using this kind of casual conversation, regardless of how we want to interpret it, what does that tell you about how this administration sees its own president?

MR. BALZ:  There have been now so many examples of this that what it tells you is that there is no confidence at very high levels of the administration in the president’s consistency, his reliability, his judgment, the way he operates.  They may share the agenda, as the anonymous op-ed writer did.  But as they watch this president, they are alarmed any number of times.  And this has happened over a long period of months.  This is just one more example.

I think the other thing it tells us is what we already have known, which is the degree to which the Justice Department is now in turmoil, some of it caused internally, some of it caused as a result of what the president has done with Jeff Sessions.  But we’re – we have not seen the end of that piece of the story.

MS. MITCHELL:  I don’t think there’s any doubt that Jeff Sessions either will be resigning or will be fired after the election.  And that would potentially lead to a domino effect where Rod Rosenstein’s job already would be in jeopardy.  And it does jeopardize some aspects of the Mueller probe.

The other thing is that we’ve noticed that – I’ve been told since the Woodward book came out in particular that at some of the key meetings of the principals and deputies committee, the key national-security meetings that Bolton’s running, that key agency players who disagree with policy decisions are excluded, are not invited, to eliminate potential leaks.  They are really closing the – you know, circling the wagons and trying to crack down on any kinds of reporting out of some of these meetings in the future.

MR. COSTA:  Andrea brought up that Attorney General Jeff Sessions – who the president said this week I don’t even have an attorney general, talking to The Hill.  How close are we, when you’re at the White House talking to your sources, of some kind of major upheaval at DOJ, getting rid of not only Sessions but Rosenstein, potentially disrupting the probe?

MR. BAKER:  You could see something has – Andrea just said after the election really blowing up.  The other thing he said, by the way, in the interview that I didn’t think got much attention was what he called the FBI.  He said the corruption at the FBI is a cancer on the country; the FBI, a cancer on the country.  That’s extraordinary.  Imagine being – what Dan just said; I mean, he is at war with the law-enforcement apparatus of this country.  Now, he’s also under investigation by the law-enforcement apparatus of this country.  We’re in uncharted territory in a lot of ways.  And I think after the election anything could happen, especially if the Democrats were to win.

MR. COSTA:  The Time story mentioned the 25^th Amendment, about potentially getting members of the Cabinet, like the attorney general, like then-DHS Secretary –

MR. BAKER:  Which is still a far-fetched scenario.  It’s something that a lot of people on the left sort of like say, oh, my gosh, wouldn’t this be great?  It requires the vice president of the United States and half the Cabinet to say – and then there’s an appeals clause in effect.  The president could say I don’t agree that I’m incapacitated, and I go to Congress, and then two thirds of both the House and the Senate would have to overturn the president’s judgment to put the vice president.

MS. CORDES:  You also have to think about the timeframe in which all this happened.  As volatile as things are right now, that was right after the president had met with Russian officials in the Oval Office, had divulged some classified information to them.  It was right at the start of his presidency, so people were already very nervous.

And this was a very real concern that we were hearing at that point is, you know, is he going to understand the rules of classified information and all the other strictures that exist when you’re president of the United States?  So there was, you know, a great deal of nervousness.  Some of that has relaxed over time as they’ve put in, you know, place some boundaries – and Peter knows more about that than I do – you know, to make sure that some of these third rails aren’t touched.

MR. COSTA:  Some things have changed, but these weeks are as busy as ever.  (Laughter.)  Thanks, everybody.

Our conversation will continue online on the Washington Week Extra.  You can find that later tonight and all week long at PBS.org/WashingtonWeek.

Thanks so much for this great table tonight; a wonderful conversation.  And thank you for joining us.  I’m Robert Costa.  See you next time.