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Previously confidential Kavanaugh documents released after Democratic pressure

NBC News logo NBC News 9/6/2018 Rebecca Shabad and Frank Thorp V and Garrett Haake
Supreme Court nominee Brett Kavanaugh arrives before the Senate Judiciary Committee on Capitol Hill in Washington on Sept. 5, 2018, for the second day of his confirmation to replace retired Justice Anthony Kennedy.: Image: Kavanaugh arrives before the Senate Judiciary Committee on Capitol Hill © Andrew Harnik Image: Kavanaugh arrives before the Senate Judiciary Committee on Capitol Hill

WASHINGTON — Senate Democrats on Thursday released several documents related to Supreme Court nominee Brett Kavanaugh that had previously been classified "committee confidential," as his Senate confirmation hearing entered its third day.

As the hearing began, Sen. Cory Booker, D-N.J., said that he planned to release a document that he had referred to on Wednesday about Kavanaugh and racial profiling that dated to the nominee's days in the George W. Bush White House, despite the fact that its release would violate Senate rules.

“I openly invite and accept the consequences of my team releasing that email right now,” said Booker, noting that penalties could technically include being expelled from the Senate.

Lawyers for Bush and the Department of Justice reviewed requests from Booker and several other Democrats to publicly release certain "committee confidential" documents related to Kavanaugh, according to Bush lawyer Bill Burck. That request was granted Wednesday night, said Burck, in a statement accusing Booker of "histrionics."

Booker spokeswoman Kristin Lynch said the senator had "said this morning that he was releasing confidential committee documents, and that's exactly what he's done," saying that he and Democrats had been able to "shame the committee" into agreeing to make the documents publicly available. She did not specify when that approval had been granted.

At the Thursday hearing, Sen. John Cornyn, R-Texas, accused Booker of political grandstanding. “Running for president is no excuse for violating the rules of the Senate or the confidentiality of the documents that we’re privy to,” said Cornyn, adding that he viewed Booker’s action as no different from a decision to release a classified document — calling it “irresponsible” and “outrageous.”

Cornyn's reading of Senate rules warning of the potential consequences of Booker's actions sparked a defiant response from Booker. "Bring it. Bring it," he said. Fellow committee Democrats came to Booker's defense. "I concur with what you're doing," said Sen. Dick Durbin of Illinois. "Let's jump into this pit together."

Chairman Chuck Grassley, R-Iowa, on Thursday defended the decision to keep "committee confidential" documents private, saying that redactions were often needed to protect personal information.

A Grassley aide told NBC News shortly after the exchange that the email in question was now eligible for release, and no longer considered committee confidential.

In another Kavanaugh document provided to NBC News from two Democratic sources — an email from 2003 that was originally deemed “committee confidential” but made public at 4 a.m. ET Thursday — Kavanaugh seemed to question whether Roe v Wade, the 1973 landmark decision legalizing abortion, is settled law, and whether it could be overruled.

The existence of the email was first reported by The New York Times.

The report came a day after Kavanaugh testified before the Senate Judiciary Committee that the decision is "settled law" and "has been reaffirmed many times over the past 45 years." The document had been deemed "committee confidential," meaning senators were not allowed to discuss it in open session before the public.

Sen. Dianne Feinstein, D-Calif., on Thursday questioned Kavanaugh about the newly released email and whether he believes Roe v. Wade is settled law.

"I was referring to the views of legal scholars, and I think my comment in the email was that it might be overstating the position of legal scholars and so it wasn't a technically accurate description in the letter of what legal scholars thought at the time," Kavanaugh said. "Roe v. Wade is an important precedent of the Supreme Court. It has been reaffirmed many times."

Pressed further by Feinstein to answer whether the ruling is "correct law" with a simple "yes" or "no," Kavanaugh declined to answer and said that he's studied previous Supreme Court nominee confirmation hearings and says he can't "give a thumbs-up or thumbs-down."

Sen. Orrin Hatch, R-Utah, then gave Kavanaugh a chance to revisit an issue raised by Sen. Kamala Harris, D-Calif., on Wednesday by asking the nominee if he had any conversations about special counsel Robert Mueller or the Russia probe with anyone who works at the law firm run by President Donald Trump's personal lawyer, Marc Kasowitz.

"I don't recall any conversations of that kind with anyone at that law firm," Kavanaugh replied. "I didn't know everyone who might work at that law firm."

He added: "I haven't had any inappropriate conversations with anyone about that investigation. I've never given anyone any hints, forecasts, previews, winks, nothing about my view as a judge or how I would rule as a judge or anything related to that."

Harris told reporters Thursday before her second round of questions that she had "good reason to believe there was a conversation" on that topic with someone at Kasowitz's law firm, and that the information she received is "pretty reliable."

Sen. Lindsey Graham, R-S.C., returned to the issue of executive power, asking Kavanaugh if it's true that a sitting president can't be indicted while in office.

"That's correct," said Kavanaugh. "The Department of Justice for the last 45 years has taken the consistent position through Republican and Democratic administrations that a sitting president may not be indicted while in office."

Kavanaugh, 53, a federal appeals court judge, is facing the second and last round of questions before the Senate Judiciary Committee, a day after sitting for nearly 12 hours of testimony that included pointed questions from Democrats about his take on the limits of presidential power. Each member was allotted about 20 minutes on Thursday in a session scheduled to end at roughly 6 p.m. ET.

The hearings are expected to end Friday with about two dozen outside witnesses scheduled to testify, including John Dean, President Richard Nixon’s White House counsel.

The nominee appeared to say little Wednesday to assuage Democrats' concerns, particularly about his position on executive power, declining to weigh in on whether a president can be subpoenaed, fire a prosecutor who was investigating him or legally pardon himself, among other questions.

Kavanaugh has been interrupted repeatedly by protesters in the room since the hearings began on Tuesday. Grassley said that 70 people were arrested on the chaotic first day of hearings.


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