Stay Tuned Transcript: Kavanaugh and The Court (w Ron Klain)

Read

Preet Bharara: Ron Klain, welcome to the show. So good to have you.

Ron Klain: Thanks for having me, Preet.

Preet Bharara: So, you know, we could go over your various experiences. You’ve worked for pretty much everybody. You’ve had experiences dealing with the Ebola crisis, been chief of staff to an attorney general, to a vice president. But most notably for this period of time, you were the Chief Counsel at the Senate Judiciary Committee some time ago, and we had some proceedings last week in connection with putting the next Supreme Court justice on the court. It was an interesting series of hearings for Merrick Garland last week, right?

Ron Klain: Yeah. You know, it was great to see Judge Garland up there finally getting the hearing that was two-year overdue, and I thought he did a fantastic job.

Preet Bharara: Yeah, it took some time. It was a little bit delayed.

Ron Klain: A little delayed.

Preet Bharara: And I thought he—I thought Merrick was treated pretty fairly. What’d you think?

Ron Klain: Yeah, I thought—no, it was, you know, a fair hearing for him, the hearing he deserved. And, you know, his answers were really spot-on, so I expect him to be confirmed any day now.

Preet Bharara: Yeah, so. [Laughs] All right, it’s not—actually not funny.

Ron Klain: No.

Preet Bharara: So, I apologize to our listeners.

Ron Klain: It’s not funny.

Preet Bharara: It’s not funny at all. It’s kind of—you know, some people call it galling. Some people call it an injustice. So why wasn’t it Merrick Garland? Why was it Brett Kavanaugh?

Ron Klain: Well, so, you know, obviously it wasn’t Merrick Garland for a couple reasons. One, we—Democrats, progressives, the Obama administration—failed to put together the kind of political effort that we should have put together to get Judge Garland confirmed back in 2016 when he was nominated by President Obama, nominated on a timeline and a time plan that every other nominee’s—in the past hundred years, got a hearing, got confirmed, or got voted down, whatever. But got a hearing, got a vote. And we didn’t deliver that for Judge Garland.

Preet Bharara: Well, how were they supposed to do that? They don’t have the numbers in the Senate.

Ron Klain: Yeah, we didn’t have the numbers in the Senate back then. You know, I just think we probably should have put together a better effort to rally support for Judge Garland, to really increase the pressure on the Republicans. In the end, I suppose, they had the power. They had the power to say no. They exercised that power. They paid too little price for that. And then, of course, 2016 happened. Donald Trump won the White House, put Neil Gorsuch on the Supreme Court, and is now trying to put Brett Kavanaugh on the Supreme Court, and utterly and radically transform the direction of the court, of our constitutional rights, and so much about our society.

Preet Bharara: I want to get into all that in a moment. But just sticking with the Democratic effort for a second, do you think in part, people didn’t fight hard enough for Merrick Garland because, like everyone else, they assumed that Hillary Clinton was gonna become the president, and so, Garland would get his shot nevertheless?

Ron Klain: I think that’s certainly some of it, Preet. I mean, I do think that, you know, the greatest historical irony about 2016 is the only way Donald Trump could win is because no one thought he could. You know, that factored into perhaps how the Obama administration handled the evidence about Russian interference; how Republicans on the Hill dealt with Trump; and indeed, how the Garland thing played out.

Preet Bharara: Right. And Jim Comey decided to put out a letter.

Ron Klain: Comey himself has said it played a part in his decision to send the letter, his worry about his legitimacy if Clinton had won and he hadn’t sent the letter. So, a lot of people who made a lot of decisions based on the premise that Donald Trump would lose, and as a result, Donald Trump won.

Preet Bharara: Yeah, one should never assume, and one should never assume again this time around. So, now here we have Brett Kavanaugh nominated, and the Democrats still have their numbers problem. They don’t have enough people within their own caucus to block. Are they doing enough this time, or do you cast the same aspersions on them as you do about 2016?

Ron Klain: No, I think the Democrats have put on a really good fight. I think most of them did a really good job in the hearings of putting pointed questions to Judge Cavanaugh. I’d like to see more of the members of the Senate come out against him a little more quickly than they have, but we saw a couple people announce their opposition to Judge Kavanaugh every day this week, and I think that’s gonna continue. Look, I think the hearings as a whole pierced the fundamental contentions that Republicans had about the nomination. You know, they said that Donald Trump ran a campaign saying he would appoint conservatives to the Supreme Court, and he won the election, and that Kavanaugh was clearly the best person for the job, and therefore, he was nominated. And I think the facts show that that story is missing some key pieces. And I think the hearings really brought that out.

Preet Bharara: So, there was a swirling controversy about documents. And on the Democratic side, they said—and I think they had a good argument—that the documents from the time that Brett Kavanaugh worked in the White House should be released because he worked on policy issues, and they were incredibly formative for him. And on the other hand, the Republicans said, well, you don’t need to see all the documents because there is executive privilege, and also, he’s been a judge for 12 years, and so, any kind of analysis you want to do about his judicial temperament and his judicial ideology, such as it is, can be gleaned from his opinions. So, who’s right about that, and how did that play out in your mind?

Ron Klain: I think there’s no question that the committee had the right to see the documents. And indeed, I think it had an obligation to get the documents. So, look, every modern nominee has turned over all their documents from prior service in the executive branch to the Judiciary Committee. That included Chief Justice Roberts, who had service in the executive branch, and more recently, Elena Kagan, who served two different jobs in the Clinton administration highly similar to the jobs Brett Kavanaugh served in the Bush administration. Every single piece of paper, every single one from that time, was turned over to the Judiciary Committee, and 99 percent of them were made public and put on the Internet. So, with Kavanaugh, before you get to the issue of executive privilege, the bulk of his documents weren’t even requested by the committee. That was his services staff secretary. Now, staff secretary sounds like kind of a technical job.

Preet Bharara: Right.

Ron Klain: It has the word “secretary” in it. But it’s a really important job in the White House. When advisors to the president disagree, the staff secretary pulls the advice together and writes up a summary and advice to the president. And if you think staff secretary’s an unimportant job, I can tell you it was a job John Podesta held in the Clinton White House before he became White House Chief of Staff. And Kavanaugh himself says it was the most influential job in his thinking about executive power and a number of other legal issues. And so, those documents—the committee didn’t even try to get those documents.

Preet Bharara: When you say the committee didn’t try to get them, you mean the Republican chair. You don’t mean that the Democrats didn’t want to get them.

Ron Klain: Correct. The Republican chair, Chuck Grassley, broke precedent here. Didn’t really do it on a bipartisan basis. Said, “I’m in charge of the committee. I’m gonna make the document request. We won’t even ask for these documents from his services staff secretary.” So, before we get to the question of which documents among the pile they asked for were withheld because of executive privilege, the largest pile of documents from Kavanaugh were never even considered by the committee.

Preet Bharara: And how do you think that comes about? Do you think Grassley knows, well, the White House will be angry if we ask for them? And is there a consultation between the White House and the judiciary chair about what should be requested, and if so, is that inappropriate?

Ron Klain: Yeah. So, look, I think we know from reporting that Mitch McConnell said, “Hey,” to Trump, “Don’t pick Kavanaugh, because he has this document pile, and I think it’ll be difficult to get him confirmed with all those documents.”

Preet Bharara: Right.

Ron Klain: Trump picked him anyway, and then they went to work on not submitting the documents.

Preet Bharara: So, they had a workaround.

Ron Klain: They had a double workaround, because they got Grassley to restrict the document request. That was the first big workaround. And then for the documents they did request, they did something really extraordinary, Preet. They didn’t let the National Archives submit these documents. They didn’t have them review which documents should be withheld by executive privilege. They had a private lawyer that former President Bush picked be the decider on what documents the committee got. And that lawyer happened to be Brett Kavanaugh’s former deputy.

Preet Bharara: Also happens to be, I should disclose, a friend of mine.

Ron Klain: Yes. And I don’t mean to disparage him as a lawyer. You know, obviously a very talented lawyer. But nonetheless—

Preet Bharara: But he worked directly for Brett Kavanaugh.

Ron Klain: But he worked directly for Brett Kavanaugh.

Preet Bharara: He is acting at the direction of the prior president.

Ron Klain: Correct.

Preet Bharara: He is not a lawyer who works with the committee.

Ron Klain: And not a lawyer who works for the Archives—

Preet Bharara: Right.

Ron Klain: —which, in the case of the Kagan nomination, were the arbiter of what documents got turned over. So, it’s an extraordinary procedure on top of an extraordinary procedure on top of an extraordinary procedure, which means that really, the committee saw maybe seven, eight, ten percent of the total amount of documents it should have seen from the time Kavanaugh served in the White House.

Preet Bharara: Right. And that lawyer, of course, is the now-famous Bill Burke.

Ron Klain: Indeed.

Preet Bharara:  I watched the hearings and kept hearing senator after senator saying, “Who the hell is Bill Burke?” Who indeed?

Ron Klain: Who indeed? Who indeed? Well, not the person who should have been deciding what documents the Senate Judiciary Committee got.

Preet Bharara: But then there’s a third issue with respect to the documents that’s confusing to a lot of people. So, once documents then came to the Judiciary Committee, the senators all were able to see them. But a large number of them were unable to be viewed by the public or by the press because they were marked “committee confidential.” This was a weird and odd procedure that people had not seen before. Explain the whole controversy around having documents but not allowing them to be used at the hearing.

Ron Klain: Yes. So, this again was the third irregularity on top of the other irregularities, which is once the documents finally were given to the Judiciary Committee, Chairman Grassley said, “These documents will be committee confidential,” which is like double secret probation from Animal House.

Preet Bharara: [Laughs] That’s right.

Ron Klain: It’s like—it’s a status that doesn’t really exist.

Preet Bharara: These documents have cooties. You cannot use these documents.

Ron Klain: Yeah, these documents have cooties. Only people with special gloves can read them. So, as a result of that designation, that unprecedented designation, the documents could only be seen by senators. Chairman Grassley took the position they couldn’t be used in the hearings at all.

Preet Bharara: I don’t—I don’t even get that.

Ron Klain: Yeah.

Preet Bharara: Even in crazy places, explanations have to be given. What was the explanation given as to why certain documents that were not classified that bore on the qualifications and on the quality of the representations made by this nominee, why they had to be committee confidential? Especially when, ultimately, many of them were made public and were inevitably going to be made public.

Ron Klain: The short answer to that question is that there’re always, with regard to every nominee, some documents that are kept confidential by the committee. The committee, for example, gets nominee’s credit reports and other personal information about them. It’s information that obviously the senators need to see to make sure someone’s, you know, not corrupt or doesn’t have some kind of problem. Those kinds of documents are indeed kept confidential. The senators can see them, but they’re not supposed to be made public. The hundreds of thousands of pages of Brett Kavanaugh’s government documents should never have been committee confidential. They’re way outside the realm of what’s been considered committee confidential in the past, and it’s just really an abuse of a designation that has a very, very, very limited purpose.

Preet Bharara: So, do you think part of the reason to keep those things committee confidential, so that senators on the Democratic side couldn’t sort of examine Brett Kavanaugh’s views with the strength of those documents in the open hearing? Because by the end, a lot of that stuff became public.

Ron Klain: Some of it became public. And I agree, I think the basic approach of the Republicans was to do whatever they could to shield Brett Kavanaugh from scrutiny. They shielded him from scrutiny by not asking for many documents. They shielded him from scrutiny by allowing this extraordinary process to withhold documents. They shielded him from scrutiny by then saying those documents couldn’t be used to question him in public. Several Democratic senators rebelled against that and insisted they were gonna use the documents, and did use the documents. But overall, this was an effort to kind of put a big cone of protection around Judge Kavanaugh and prevent him from getting the kind of scrutiny we should all—whatever your partisan affiliation is, we should all expect to get.

And, you know, I wrote a column on this where I made the point that the person who should most want these documents to come is Brett Kavanaugh, because here’s the bottom line. Under the Presidential Records Act, these documents will eventually come out. They’re confidential now, but starting in 2019 and picking up in 2020, under the Presidential Records Act, all these documents will gradually be released.

Preet Bharara: But he’ll be on the court.

Ron Klain: He will be on the court. I think it could be an institutional embarrassment, maybe even an institutional crisis, if something comes out later that really calls into question his suitability for confirmation. Senators will have voted for him, put him on the court for life, and then these documents will come out. And it would be better for all of us and for him to face the documents, to face the questions now. Presumably he has answers. Presumably he has explanations. If for some reason he doesn’t, then that’s definitely a reason why we should know about that now before he’s confirmed, not after he’s confirmed for life.

Preet Bharara: So, when you are having your Supreme Court conversation hearing—

Ron Klain: Yeah.

Preet Bharara: We’re gonna get all your documents?

Ron Klain: Yeah., I don’t think you need to worry about that too much.

Preet Bharara: I don’t know.

Ron Klain: But I can tell you—

Preet Bharara: I went—in the intro, I went through the litany of your qualifications. So, you know, we can talk about that another time. I don’t think Trump’s gonna nominate you.

Ron Klain: No, I’m pretty sure about that. I think we’re pretty safe for a couple years here at least.

Preet Bharara: And then the final sort of document irregularity that led to fireworks at the beginning of the hearing was the dumping of I think something like 42,000 documents literally the night before the hearings. And anyone who’s practiced law has—this point was made repeatedly at the hearing—when you get a huge document up on the eve of a hearing or a trial, you get a continuance, and you don’t proceed the next day. And so, what did you make of kind of the hot language by various senators at the beginning of the hearing?

Ron Klain: Well look, clearly it was an attempt to jam the committee with these documents. And it’s even more compelling—the case for a delay here is even more compelling than in a trial or some other kind of litigation. First of all, this is a confirmation for life. There’s no appeal. There’s no do-over. There’s no chance to get it right later. It has to be gotten right the first time. And so, there should have been a delay for all the documents; certainly for these last 40,000 pages dumped on the committee in the wee hours of the morning before the first day of the hearings. And there should have been a thorough review of Judge Kavanaugh’s record. Good or bad, right or wrong, everything should have been on the table.

Preet Bharara: But if you’re the majority, you can get away with it.

Ron Klain: Well, you know, no majority ever has tried it before. And indeed, Democrats were the majority when Elena Kagan was nominated to the Supreme Court, and both the Democrats and the Republicans on the committee agreed that the hearing wouldn’t start till all the documents were received. Republicans complained that they only had them for a few weeks as opposed to a couple hours, and they said that wasn’t enough time. So, there are precedents here. There are past practices here. All of them were blown through to jam through the Kavanaugh nomination.

Preet Bharara: So, there are a lot of issues that people are concerned about, because the Supreme Court, nine men and women decide a lot of things about freedom and equality in this country. Let’s pick two. Let’s talk about Roe v. Wade and reproductive rights, and then let’s talk about executive power, because that’s important in the age of Donald Trump, even more so than usual. So, on the issue of Roe v. Wade, you’ve been very strong on this. You said absolutely, Brett Kavanaugh will be a vote to overturn Roe v. Wade. Why is that?

Ron Klain: Let’s go back to how Brett Kavanaugh got picked for this. The Republicans made a big deal about the fact that Donald Trump campaigned on the Supreme Court, and he put out two lists during the campaign of people he would pick for the Supreme Court. And you know who wasn’t on those lists? Brett Kavanaugh. Trump put out 21 names of people he’d pick for the Supreme Court in September of 2016. Kavanaugh wasn’t in the top 21. So, how does someone who’s not in the top 21 get picked for the Supreme Court? He shows up for the first time on a list that Trump puts out in November of 2017. Now, what changed? Not his sterling credentials; not his judicial service. What changed?

Two things changed, Preet. The first is, a few weeks before Kavanaugh appeared on that list, he wrote a decision in the Garza case where he dissented from the DC Circuit, saying that a minor in custody as an immigrant should be released to get an abortion. And not only did Kavanaugh issue this decision in accord with the views of the anti-choice forces—that opinion he wrote is a love letter to the Right to Life movement. He calls the minor’s petition to be released a request for abortion on demand. Well, abortion on demand is not a legal phrase. It’s not something judges say. It’s a political phrase. It’s a disparaging phrase about abortion rights. This minor wasn’t demanding an abortion. This minor was seeking a medical procedure. And so, using that phrase was a big signal to the Right to Life movement.

Preet Bharara: So, are you saying that Donald Trump sat back in his office at the White House and read the Garza decision, and decided, this is my guy?

Ron Klain: No. What I’m saying is that Kavanaugh campaigned to the Right to Life movement, and they gave him a big gold star next to his name, because not only did he call her claim a claim for abortion on demand; he added in that opinion—he said—we talked about Roe and [?Kasey], these decisions, and he called them existing Supreme Court precedent. Now, Preet, if my wife introduced me to people as her existing husband, I’d be checking the state of our insurance policies, okay?

Preet Bharara: Right.

Ron Klain: So, there are signals in that decision about where he’s headed on Roe v. Wade. He had, earlier that same year in 2017, given a speech praising former Chief Justice Rehnquist for being a dissenter in Roe v. Wade. He was flashing every signal he could to the anti-choice forces, I’m your guy.

Preet Bharara: You’re saying something really significant. Are you saying that he actually sort of shaped his language in a particular opinion, the Garza opinion, as a kind of public audition for the role of Supreme Court justice?

Ron Klain: You know, it seems that way to me. I mean, I think you read that opinion, and it comes on top of him that same year giving a speech where he embraces Chief Justice Rehnquist as his judicial hero and cites his dissent in Roe as an example of that.

Preet Bharara: Right.

Ron Klain: So, you know, look. I think Brett Kavanaugh—let me be clear. I think Brett Kavanaugh is certainly qualified—you know, intelligent; he’s capable. When he was nominated to the Court of Appeals, I was interviewed by the FBI as part of his background check. I said good things about him then. But he wasn’t on that list in September 2016. He got on that list in November 2017. And I think the Garza opinion and the statements he made about abortion between those two periods were one reason why he got on the list.

Preet Bharara: By the way, I should also disclose at this point—I don’t know that I said this before—that in 2005, when he had his second hearing, and the confirmation vote to go to the DC Circuit Court of Appeals, I was chief counsel to Senator Schumer, and was on the floor when he voted no against Judge Kavanaugh to be on the DC Circuit. How do you think it is the case then, Ron, that he got from not being on the list and then putting out these sort of, you know, self-promotional catchphrases and opinions and otherwise, to actually making it on the list? You know, who did the thing that got his name on there?

Ron Klain: Well, I think that was part of it. And then I think there’s a second thing that happened between the list in September 2016 and the list in November 2017. And that second thing was the Mueller investigation. You know, that obviously was not something that existed in September of 2016. But by November of 2017, Donald Trump and his people are looking for a Supreme Court justice who might rule with him if any issues in the Mueller investigation make their way to the Supreme Court. And you know, Preet, that’s a hard thing to look for, because to find someone who’s gonna rule that a president can’t be subpoenaed, who’s gonna rule that a president isn’t subject to legal process, that’s a pretty out of the mainstream view with most lawyers. And yet, they found someone who holds those views: Brett Kavanaugh.

Preet Bharara: And it’s even worse—who used to hold the opposite view.

Ron Klain: Yeah, exactly. Who had the opposite view in the ‘90s.

Preet Bharara: It’s a recent convert to a convenient view, no?

Ron Klain: A post-2000 convert to a very, very, very extreme view of the president’s immunity from legal process, suggesting at one point in time that the classic US v. Nixon case might be wrongly decided, saying that the president can’t be subject to a subpoena, writing a whole Law Review article on how the president should be exempt from legal process. I mean, if Donald Trump was looking for someone other than Rudy Giuliani who had extolled his point of view on these legal issues, it was a very short list, and Brett Kavanaugh really was number one on that list.

Preet Bharara: Can I play devil’s advocate for a moment?

Ron Klain: Sure.

Preet Bharara: Do you think Brett Kavanaugh and other people like him, like Bill Burke, who I know, and people who are smart lawyers, conservative, you know, to the right, who worked for President George W. Bush and also have a certain affection for George H. W. Bush, and they see President Trump demean those folks, belittle them, make fun of them—you know, trash folks like John McCain, who these people also liked and admired—do you think that Brett Kavanaugh has any respect, admiration, or affection for Donald Trump?

Ron Klain: That’s a hard question to answer, Preet. Obviously, I don’t—I don’t know. I do know that he stood—

Preet Bharara: I’m betting not.

Ron Klain: Well, but I do know that he stood in the East Room on the night he was picked—

Preet Bharara: Because he wanted to be on the Supreme Court of the United States of America.

Ron Klain: Yeah. And said that the process by which Donald Trump picked him was the most extensive vetting process in American history.

Preet Bharara: Yeah. So, he might be the most dramatic suck-up onstage in the White House we’ve ever seen, but that doesn’t necessarily mean that he holds the president in high regard.

Ron Klain: It doesn’t, and we’ll see. And look, you know, you never know. And if he’s confirmed, we all have to hope for the best, because we really have no choice at that point in time.

Preet Bharara: I mean, the only thing I’m saying is—look, hey, I don’t know. I’m speculating about a hypothesis, which you’re not supposed to do. And maybe this—you know, hope springs eternal that if you get to this point there, isn’t there some chance that he thinks to himself, oh my god, this president actually is an abomination to the rule of law, is an abomination to equal justice, is an abomination to free press; and that, you know, in that position in the future, when he has the job and the door has been shut behind him, maybe he will have a different view? I’m not saying that’s what we should rely on—

Ron Klain: Yeah.

Preet Bharara: And I’m not saying that’s the basis on which people should vote. But isn’t there some possibility that that is so?

Ron Klain: You know, look, I like a good fairytale as much as the next person. And if he is confirmed, that will have to be our hope. But obviously, hope is not a basis for a vote in the US Senate.

Preet Bharara: Correct.

Ron Klain: And we have to vote based on the record that we’ve seen and the statements that he’s made—

Preet Bharara: Right.

Ron Klain: —and the things he’s written.

Preet Bharara: So, speaking of votes, then, that’s a good segue into Susan Collins—

Ron Klain: Yeah.

Preet Bharara: —and Roe v. Wade. So, you have sketched out a pretty persuasive brief here no why he’s not gonna be a vote to uphold Roe. Meanwhile, he went through the song and dance or the dog and pony show, or whatever metaphor you want to use that involves showmanship, with Susan Collins, who said she was satisfied because Brett Kavanaugh said something like, “Roe v. Wade has settled the law.”

Ron Klain: Yeah.

Preet Bharara: Why is that meaningless?

Ron Klain: It is meaningless because, you know, it simply suggests, as he kind of more candidly put it in his decision in Garza, it’s the existing Supreme Court precedent. Justice Gorsuch sat before that committee in the summer of 2017 and said that he had a great respect for precedent, that precedent was the anchor of the law, that precedent was the most important thing that judges could rely on. And this past summer, he joined four of his colleagues to overturn a precedent from roughly the same era as Roe, a precedent that had been unanimous, the Abood decision regarding labor rights, and voted to overturn it in the Janus decision this past June. And so, vague statements about settled law and precedent just don’t cut it. What we do know is that Kavanaugh also told the committee this time in his testimony that he leaned towards a definition of unenumerated rights from an opinion by Justice Rehnquist. And that definition definitely leans against recognizing an abortion right.

So, you take his work on the Court of Appeals, you take him saying Rehnquist was his judicial hero for his dissent in Roe; you put all this together, and it’s just as clear as day as to where Brett Kavanaugh is headed if he gets confirmed. And let’s just also be clear about one other thing, Preet. To the extent that your listeners say, well, look, I hope Roe v. Wade isn’t overturned, but I live in New York or California, and abortion will be legal where I am, be legal for myself, or my wife, or my daughter, or my sister, whatever. That may turn out to be not enough protection, because there are academics and there are politicians—and indeed, the Iowa legislature tried to enact this last year—who believe that they will not stop at overturning Roe. They will say that a fetus has rights under the 14th Amendment, and not only does the Constitution not protect abortion rights, but that the Constitution bans abortions, or the Constitution requires some kind of due process procedure before a woman can get an abortion. I mean, every year, there’s this huge protest in Washington on the anniversary of Roe v. Wade. And the people marching in that protest do not hold up signs that say, “Federalism now.”

Preet Bharara: Right, right.

Ron Klain: They hold up signs that say, “Ban abortion.” And so, this will not stop—

Preet Bharara: Yeah, I think it’s a very—I think it’s an incredibly important point, and your op-ed on this issue was very powerful. And you talk about something, as you just have, that a lot of people don’t focus on. There’s no reason to believe—it doesn’t make logical sense that the people who oppose Roe are not just in support of state’s rights. They think the practice is—and they’re entitled to this view, but they think the practice is murder, and it should be banned and it should be outlawed, and that’s just the next step after Roe is overturned.

Ron Klain: And a step they will use the courts to try to impose on all the states. So, even if you live in a blue state, even if you live in a state that has a progressive abortion law on the books now, there’s no guaranteeing that the Supreme Court won’t go beyond repealing Roe to actually try to strike down some of those laws using the due process clause of the 14th Amendment.

Preet Bharara: You used a fancy lawyer term a minute ago, unenumerated rights.

Ron Klain: Yeah.

Preet Bharara: What does that mean?

Ron Klain: So, a lot of the basis for Roe is a series of decisions by the Supreme Court dating all the way back to the ‘40s about the fact that in our society, we have a concept of ordered liberty, a concept that people have a fundamental right to run their families and their personal lives, their intimate lives, the way they want. Now, those rights aren’t spelled out specifically in the Constitution. They’re unenumerated rights. Your right to decide whether or not to have a child, to use birth control, to decide where your child goes to school, whether or not your child learns a foreign language. All these things are kind of personal, intimate family decisions. Historically, the court has upheld those rights as being beyond the reach of government. But whether or not that would continue with a very conservative Supreme Court majority with Brett Kavanaugh as the fifth vote in that conservative majority, that’s a very, very open question.

Preet Bharara: Very well answered, Professor.

Ron Klain: Thank you.

Preet Bharara: Look, I think you’d sound pretty good at a hearing, I’m just saying.

Ron Klain: [Laughs] Thanks but no thanks, Preet.

Preet Bharara: As long as your documents are gonna be clear.

Ron Klain: Yeah, yeah.

Preet Bharara: But can I ask you a question? I know the answer to this question, but I think it’s just worth asking in light of this discussion we’re having. So, what the Federal Society says—you know, other folks say that they want people to be on the court who will not support Roe v. Wade, and Donald Trump, the president who’s gonna be making the appointing, says the same thing. And then they finally have a guy about whom there’s all this evidence that he’s gonna be a vote against Roe v. Wade, then why not just say that?

Ron Klain: Well, the problem is, they would lose if they were honest about it, because the majority—strong majority of the country supports Roe v. Wade, and a majority of the US Senate supports Roe v. Wade. And now we get to kind of the votes, right? There are two Republican senators, Susan Collins and Lisa Murkowski, who describe themselves as pro-choice, who say they’re committed to Roe v. Wade. Brett Kavanaugh doesn’t get confirmed unless he gets their votes. And so, they have to do this kind of dipsy doodle, where they pick him because he’s against Roe v. Wade; Trump promises he’s gonna pick someone against Roe v. Wade, but they need Collins and Murkowski to blink and vote for him. And so, that’s why they’re trying to, you know, hide the ball on this.

Preet Bharara: Right. You have just used a second fancy legal term, dipsy doodle.

Ron Klain: Dipsy doodle, yeah.

Preet Bharara: Yeah. What is that, sir?

Ron Klain: Yeah, exactly. It’s a very sophisticated legal phrase.

Preet Bharara: [Laughs] Okay. So, what’s gonna happen? So, let’s move on from this in a second after you tell me how Collins and Murkowski are gonna vote.

Ron Klain: Well, you know, just like you have hope about Brett Kavanaugh ripping off his mask once he’s confirmed and proving himself to be willing to stand up to President Trump, I still have hope that Collins and Murkowski are gettable votes. Senator Collins is committed to a woman’s right to choose, and I think the evidence about Kavanaugh is piling up, and hopefully, that will resonate with her. The same thing with Senator Murkowski, with one other factor now creating some pressure on Senator Murkowski. One other thing that came out at the hearing that may be an obscure issue to many Americans, but an important one to a small group, is Kavanaugh’s view on Native American rights. Senator Hirono asked about this.

Preet Bharara: The senator from Hawaii.

Ron Klain: The senator from Hawaii asked about this and some disparaging things that Judge Kavanaugh wrote about the rights of Native Americans in Hawaii. That has resonated with Native American tribes around the country, and they are very influential in the state of Alaska. And so, it’s possible that those concerns will also press Senator Murkowski to vote against Kavanaugh.

Preet Bharara: So, let’s talk about some other controversies that happened, because I did not have as many experiences as you in Supreme Court confirmations, but I was in the Senate when we did the confirmation hearings of Alito and Roberts as Chief Justice.

Ron Klain: Yeah.

Preet Bharara: And you, I think overall, both on the Senate side and in the executive side, have been involved in like, eight. There were a lot of allegations that Brett Kavanaugh, depending on the language used by the particular senator, misled, lied—even suggestions of perjury on a number of different issues. What do you make of the allegations that Judge Kavanaugh didn’t tell the truth on one or more issues?

Ron Klain: In my perspective, the fairest thing to say would be that his testimony was misleading. I don’t think it was perjury. I’m not even sure I would go to lie. But I think the—

Preet Bharara: What’s the issue in which you think he’s most vulnerable to the accusation of being misleading?

Ron Klain: So, I think there are a couple of these things where, you know, to use the old phrase “the truth, the whole truth, and nothing but the truth,” he told some truth, but not quite the whole truth.

Preet Bharara: Right.

Ron Klain: So, he was asked in his prior confirmation about his involvement in a very controversial judicial nominee, Bill Pryor. And he said, you know, “I didn’t work on that,” and now there are documents that prove that he did work on that. And he kind of clarified and said, “Well, what I meant by that was I really wasn’t a primary staffer on that. I didn’t have much involvement in that.” That’s, you know, again, kind of one of those part-truth part-untruth things.

Preet Bharara: Right. And also, with respect to whether or not he worked on the conversation of Judge Pickering too, right?

Ron Klain: Exactly. Same kind of thing. On Pickering, there was this bizarre controversy at the Judiciary Committee where a number of Democrats’ documents were stolen by a Republican operative named Manny Miranda. Miranda got those documents to Kavanaugh while he worked in the White House, and Kavanaugh testified before that whatever he saw, he didn’t really realize it had been gotten improperly. And again, now there are some emails that say—that came to him with a heading that said “Spying on them.” They had markings on them that suggested they were confidential to the senators who wrote them. And so, again, there’s a question of like, well, was he completely forthcoming about that? Likewise, some issues about things he said about his prior work on abortion in the White House and whatnot.

Look, the bottom line here, Preet, is that with some small percentage of his documents, there are questions about his candor. And that above all should be a blinking yellow light that before he’s confirmed for life, the Senate needs to see all the documents. These are the questions we have after seeing a small fraction of the documents. What would we think after we saw the largest corpus of them that no one has seen yet?

Preet Bharara: Right. And isn’t there reason to—don’t you infer, given logic and politics, that the documents that have not been disclosed are the ones that would be most damaging?

Ron Klain: I certainly think that’s what you would be arguing if you were before a jury.

Preet Bharara: Right.

Ron Klain: And somehow, you know, there was some damaging stuff in a small subset of documents you saw, and the defendant was withholding many more documents. That would be a—I think an inference you’d be allowed to put before a jury in this case.

Preet Bharara: Let’s talk about some other senators and their role, and how they conducted themselves, and whether they were auditioning for their own future positions. What do you think about how the chairman, Grassley, handled the hearing?

Ron Klain: Well, look. I think it’s a shame. I worked on the Judiciary Committee when Chuck Grassley was a senator there, and he had a reputation for being independent. And he really stuck it to both President Bushes on a number of issues. And, you know—and a devotion to the institution. And I think he gave up on all that in this nomination. He didn’t work with Senator Feinstein on the document request. He didn’t stand up for the committee’s rights to see the documents, and really did everything he could to push this nomination through.

Preet Bharara: Why do you think that is? Do you think he’s changed his temperament of independence?

Ron Klain: I think we’re seeing this throughout the Republican Party, Preet. I think we’re seeing that in general, a lot of these senators who came to office with some kind of sense of independence have just become part of Donald Trump’s Republican Party. I think however Trump has done it, he has broken the spirit of a lot of these senators, and a lot of them now just kind of nod and go along. A few of them occasionally tweet out some criticism of the guy. But by and large, they march down to the Senate floor, they vote with him. That’s what the Republican Party is today. It is the party of Donald Trump; nothing more, nothing less.

Preet Bharara: What about ranking member Senator Feinstein?

Ron Klain: You know, I thought she did a very good job of trying to stand up for the committee’s prerogatives, and put some very good questions to Kavanaugh about abortion, about a lot of issues. I know she’s up for reelection; there’s a lot of pressure on her, and I thought she bore up well through it.

Preet Bharara: I mean, her statements were very strong. I tweeted about them. In my time in the Senate, knowing Senator Feinstein and her staff very well, she doesn’t make super strong statements about peoples’ character and about their potential lying. And she’s sort of done so here. Let’s talk about Senator Kamala Harris, who people think is—if somebody’s gonna run for president, who I know and have worked on issues with, I should say. So, she had an exchange that went fairly viral—

Ron Klain: Yeah.

Preet Bharara: —with Brett Kavanaugh on the question of whether or not he had ever had any conversation with a member of the firm run by President Trump’s personal lawyer, Marc Kasowitz. I think a lot of people observed that Brett Kavanaugh was sort of evasive and like, “What do you mean? Who’re you thinking of?” And Senator Harris said something like, “I think you’re thinking of someone, and you don’t want to tell us.” [Laughs]

Ron Klain: Yeah.

Preet Bharara: Why did that go viral, and what do you make of that exchange?

Ron Klain: Well, I think it went viral because it was one of those rare moments where Kavanaugh seemed like he was drawn off his talking points.

Preet Bharara: Right. And a moment—a rare moment when a senator knew how to ask a question.

Ron Klain: Knew how to ask a question. And I think the jury’s still out on that. And in this respect, we need to hear what Senator Harris had in mind, what she knew about or thought she knew about, and judge that. I mean, the next day, Marc Kasowitz, the head of that law firm, said, “No one here had a conversation with Brett Kavanaugh.” There are 250 lawyers—

Preet Bharara: I don’t know how he could know that, right? [Laughs]

Ron Klain: How could he possibly know that, right? So, there is something going on here. And before the Senate votes, we need to get to the bottom of it.

Preet Bharara: A lot of things in life, in the courtroom and otherwise, can be revealing, separate and apart from a truthful answer. You know, you ask a question and the person’s gonna lie or the person’s not gonna tell the truth. But you know what? You can sometimes learn a lot by how someone shifts in his seat. You can learn a lot by how they, you know, bide for time. You can learn a lot by what happens to their brow before they answer your question. And that’s why I think part of the reason that went viral was not the transcript of what—you know, what the back and forth was, but how uncomfortable Brett Kavanaugh looked, because he thought someone must know something. And is the next question from the prosecutor when I deny it going to be, well, weren’t you at such-and-such place at such-and-such date? Now, we don’t know if Kamala Harris has that or not, and she won’t disclose.

Ron Klain: Yeah.

Preet Bharara: I tend to believe that she has some basis, and she said she has a basis. But I think, actually, there should be a lot more questioning like that. Not that hearings in the Senate should all be, you know, prosecutorial proceedings, but we need a lot more of that.

Ron Klain: And I’d say one other thing about that. Kavanaugh’s testimony before the committee was, “I can’t answer your questions about Trump being subject to a subpoena. I can’t answer your questions about the reach of prosecutors’ ability to come after President Trump, because those questions may come before me, and it would be inappropriate for me to discuss them with you, members of the Senate Judiciary Committee.” Fine. But if it’s inappropriate for him to discuss them with members of the Senate Judiciary Committee, who was he discussing these questions with? And his inability to say about her question, “Oh look, I couldn’t have talked to anyone at the Kasowitz law firm because I’ve never talked to anybody about the Mueller investigation—I just finished telling you it’d be inappropriate for me to discuss it.”

Preet Bharara: Right.

Ron Klain: “So, I must not have discussed it with anyone.” You know, that, the non-answer kind of belies his core position about these questions before the committee, because clearly, he’s thinking in his mind, I talked to someone about this. I don’t know if they’re at the Kasowitz firm or not. Even if you give him the most benign interpretation of his non-answer, it’s an implicit admission that he has discussed these issues with other people. And if he’s discussed them with other people, then he should discuss them with the Senate Judiciary Committee.

Preet Bharara: Well, I believe once upon a time, then-Judge Thomas said he had never discussed Roe v. Wade with anyone ever.

Ron Klain: Yeah. In law school when he was there when it was decided, yeah. That seems unlikely.

Preet Bharara: Right. I guess he skipped that day.

Ron Klain: Yeah, exactly.

Preet Bharara: And didn’t participate in the class discussion. Why is it, though, that Senator Harris won’t just say what her basis was for asking the question?

Ron Klain: Don’t know. I think it’s a good question, and hopefully we’ll find out.

Preet Bharara: Cory Booker had a moment where I think young people may not know what the hell he was talking about when he said, “I am Spartacus.”

Ron Klain: Yeah. [Laughs]

Preet Bharara: I don’t think if you are Spartacus, you’re supposed to say, “I am Spartacus.”

Ron Klain: Yeah.

Preet Bharara: You want someone else to say like, “Hey look, he is Spartacus.”

Ron Klain: Yeah.

Preet Bharara: I don’t know. What do you think about the Spartacus—do you know what the hell was going on there?

Ron Klain: Yeah. So, I mean, what was really going on there was that he was prepared to use some of these committee confidential documents, and he and his colleagues were all standing up for one another when the Republicans said, “If you use these documents publicly, we’re gonna go get you expelled from the Senate,” both he, Senator Durbin, Senator Harris, ultimately Senator Leahy, others, all kind of came together and said, “Hey, if you’re gonna go after one of us, you have to go after all of us.” That is the “I am Spartacus” moment. And look, I thought Senator Booker was very effective in putting Judge Kavanaugh on the spot on his views on affirmative action and on his views as race as a legitimate factor in government programs. And his use of these documents, which suggested that Kavanaugh did have a very sharp view on this, I thought was very effective.

Preet Bharara: So, what happens now?

Ron Klain: What happens now is that the committee will meet on the 13th of September or 14th of September to hold a vote. The Democrats will use their rights under committee rules to delay that vote for a week. So, sometime around the 20th, 21st of September, Kavanaugh will get a vote in the Judiciary Committee. That vote will be a straight party line vote.

Preet Bharara: You believe every Democrat will vote against and every Republican will vote for.

Ron Klain: I do, on the committee. I think that’s how it will play out on the committee. And then some time after that, probably the following week, there’ll be a Senate debate and a vote in the Senate. And you know, obviously that will tell.

Preet Bharara: So, if Brett Kavanaugh gets confirmed to the court, how long before Roe is actually in jeopardy?

Ron Klain: I think, you know, a year or two, Iowa will pass some version of a very, very restrictive abortion law. They passed it before; it’s been struck down before. They certainly are teed up to do it, other states will do it, and it will work its way up to the Supreme Court. Whether it’s later this term or the following term, I don’t think it will be long before we see Roe overturned.

Preet Bharara: And what happens in the case of another Trump nomination? Let’s say, God forbid, one of the other justices, let’s say one of the liberal justices, like Ruth Bader Ginsburg, leaves the court for whatever reason. What about what transpired in this confirmation process will inform what happens in a year or two years, if we have that moment?

Ron Klain: Well, God forbid, God forbid, God forbid, let’s start there.

Preet Bharara: Yeah. You can say it three more—three more times, you can say it.

Ron Klain: Yes, many more times. Look, I think what you saw was a rising of grassroots activism. I mean, you know, one thing, Preet, about this issue is historically, until now, Republicans have had a lot more energy around these judicial nomination issues. And Republicans have gotten their voters out on these issues and really mobilized their senators on these issues.

Preet Bharara: Right.

Ron Klain: Democrats, much less.

Preet Bharara: Well, that’s in part because Republicans want to undo something—

Ron Klain: Correct.

Preet Bharara: —and Democrats have the benefit of the good status quo on some of these issues.

Ron Klain: Right. I mean, you know, it’s an interesting paradox, because in fact, we have a pretty conservative Supreme Court. You’d think Republicans would be happy. But on a couple of these big headline issues, like abortion and like marriage equality, there have been progressive results at the Supreme Court. And so, the grassroots Republicans are dissatisfied. They see this as a big political issue. Democrats, not so much. I think you’re starting to see that change this time. You saw larger protests by the anti-Kavanaugh forces than the pro-Kavanaugh forces. You saw the anti-Kavanaugh forces bringing a lot of heat on the Senate. So, I do think the tide is turning, and I think in the next nomination, if not—I mean, maybe Kavanaugh will be defeated. Even if he’s not, I think the pressure from the left will continue to grow. We’ll get better and better about organizing and mobilizing on these issues, and I think—and, you know, we’ll be even more effective in the Senate next time.

Preet Bharara: Do you think Kavanaugh’s gonna get any Democratic votes?

Ron Klain: He might. Might get a few. I think it kind of depends. I think if Murkowski and Collins vote against Kavanaugh, I think you might get all the Democrats in line. If—

Preet Bharara: Right. Because nobody—because nobody has the courage to want to be the deciding vote.

Ron Klain: Correct. So, I mean, you know, these things tend—

Preet Bharara: [Laughs] So, if it’s a fait accompli, then they’ll vote against.

Ron Klain: Correct. I mean, these things tend not to go by one vote one way or the other. So, I think you’ll see a little break either for him or against him here at the very end.

Preet Bharara: Right. So, is the Senate gonna switch hands or not?

Ron Klain: Don’t know. It’s a very, very, very tough battlefield. I think we’ve got a great chance to pick up seats in Nevada and Arizona and Tennessee. But I think obviously, we’ve got a number of our incumbents in very red states. Senator Donnelly in Indiana, Senator Heitkamp in North Dakota, Senator McCaskill in Missouri. These are tough races, and it’s gonna go right down to the wire.

Preet Bharara: How about the House?

Ron Klain: I think we’re gonna win the House. I mean, again, I think these races—a lot of the races’ll be close. A lot of them’ll be tight. But I think that there are, you know, 26 seats the Secretary Clinton carried in 2016 that have Republican members of Congress. Trump’s eroded a lot, I think, since then, and I think that we’ll flip most of those seats. We’ll flip some others, too. And I do think we’ll have a Democratic majority in the House come next year.

Preet Bharara: Can I ask you this thing, because you’re a gentleman and a scholar? For purposes of being a check on what a lot of people think is an overreaching executive in the form of President Trump, which body would you rather have change hands to the Democratic side, the House or the Senate, for the country?

Ron Klain: I mean, look, I think in some ways, it would be more important to have the Senate if you could really choose because of its power to confirm or not confirm judges. I mean, we’ve talked this time about the Supreme Court nomination, and obviously, it’s the central issue right now on the legal side. But, you know, in some ways, even the bigger thing or just as big a thing that President Trump has done is stack the lower courts. And the pace with which he’s filled lower court nominations is record-setting. It’s amazing. This man who can’t fill the government, can’t keep the White House staffed, has—by outsourcing this function to the Federal Society, has set a record for the number of judges he’s nominated to the courts of appeals. They are younger than ever; they are more numerous than ever; they are more conservative than ever. And with a Republican Senate in tow, they are getting confirmed at record speed. He’s put more judges on the courts of appeals already than Obama did in his entire first term, even before this midterm election. So, having a Democratic Senate as a check on that would be a really powerful and consequential thing.

Preet Bharara: Because I have you, I want to ask you about the raging controversy and mystery in Washington and all over the country in the past few days, and that is, who is the author of the anonymous New York Times op-ed? And I know you have said publicly, because you didn’t want to break the news here on this podcast first, for which I will forgive you—but you said it’s Dan Coats. Who is he, and why is it him?

Ron Klain: I think a lot of clues point to him. He’s the Director of National Intelligence. He has publicly sparred with the president, which is a rare thing in the Trump administration. He’s criticized him publicly. He’s contradicted him publicly. So, to me, the clues are there. So, I think the person who wrote it works on the national security side of the house, because they’ve cited the two-track policy on Russia as a success. I can’t believe there’s any person who actually believes Trump’s policy on Russia is a success. But if that person exists, they work in national security in the Trump administration. At the same time, I don’t think it’s a general or some kind of pure national security person, because the piece also talks about historic tax cuts and effective deregulation. That’s the rhetoric of a Republican politician.

So, you’re looking for a Republican politician who works in national security issues and who’s willing to stand up to Trump. Coats fits that bill. And if you add to the fact that the piece ends with a tribute to John McCain, who was a colleagues of Coats in the Senate and someone who Coats really liked, yeah, I think the number of clues point to Coats. You know, I’ll be disappointed if it’s someone who’s not a household name.

Preet Bharara: Do you think that person should be resining instead of writing op-eds anonymously?

Ron Klain: I do. I think that person—I don’t think it’s an act of heroism to write an op-ed and basically say, hey, nine days out of ten, I facilitate what President Trump does. One day out of ten, I find some way to kind of throw a few tacks on the road. If you think the president is unfit, if you think that there was a justified discussion about disqualifying him under the 25th Amendment, you need to come forward with that and explain what the evidence for that is, and let the country decide, let the Congress decide. I’m not a fan of the anonymous op-ed, and not fan a of the fact that there’s a legion of people apparently inside in our government who think that they have some kind of authority to contradict the president.

Preet Bharara: Right.

Ron Klain: They don’t. They don’t.

Preet Bharara: Final question, Ron. During your time working in the White House in various capacities, ballpark figure, how many anonymous op-eds did you write, but that were not published?

Ron Klain: 0.00000. Look, I had my disagree—

Preet Bharara: When you have your confirmation hearing and we make the request for those documents, we’ll find out if that’s true or not.

Ron Klain: You know, there’s a lot of stuff in documents, I’m sure. But anonymous op-eds saying that the president I worked for was mentally unfit to serve, there are none of those in the file, I assure you.

Preet Bharara: Well, that’s good to hear. Ron Klain, thank you so much for being with us.

Ron Klain: Thanks, Preet. Thanks for having me.

[End of Audio]