Tort law, as the nfl has experienced with the concussion issue, state tort law always exists as a way to ensure or help ensure safety in things like the seaworld show. Thank you. A question, if i may, about independent agencies. Congress has established several independent agencies. We believe theyre essential to enforcing our laws and safeguarding consumers. Congress requires the president to have good cause to remove the heads of these agencies to insulate them from political interference. You have objected to this limit on the president s power and struck down the for cause requirement in a case involving the Consumer Financial protection bureau. The d. C. Circuit disagreed and overturned your decision. If the president can fire the heads of independent agencies for any reason, whats to prevent political interference in these independent agencies . Senator, i have followed the humphreys executor precedent. Ive referred to it as entrenched. That is the precedent that allows independent agencies and protects them from at will firing, so as a general matter i have affirmed the or i have followed the precedent of humphreys executor. The example youre talking about, the congress established a new independent agency that did not follow a traditional model of independent agencies of having multiple members. Thats all i thought was problematic there. I did not invalidate or say the agency should stop operating. I said the agency can continue performing its important functions on behalf of consumers but either it had to be restructured as a multimember agency or the president had to be able to remove the single head at will. The limited set of documents weve received indicates that you are heavily involved in the white houses response to congressional investigations after the enron we need to break in with a story out of cincinnati. Police Just Announced three people have been killed in a shooting at a bank in the downtown area. The police have confirmed that the shooter was also killed. Joining me now with all of the details, nbcs rahema ellis. Whats going on here . This is still unfolding. Let me tell you what we know. Just as you reported, a total of four people are dead, one of them, as you said, is the shooter. Police are saying there were two other people that were hurt. The university of Cincinnati Medical Center says they have received four shooting victims. They did not identify if the shooter was among them. We were told that this erupted early this morning around 9 00 in the morning in downtown cincinnati at the Fifth Third Bank in fountain square. Anybody who knows that area, this is a very popular area, very heavily populated area. And the shooting erupted around 9 00. They said shots rang out. Police immediately responded to the area. Early reports were that there was a shooter officer involved incident. Again, these are early reports. As you know, stephanie, in situations like this, it often changes, but those were the early reports. Soon after that we were told that the incident had been brought under control, however, the area is still on lockdown. Theyre going through the bank area making sure that there is no other emergencyinvolved situation in the area and we expect to get a full update from authorities before the morning is out. Once again, four people dead, including the shooter, and two other people have been hurt in this incident. Rehema, thank you. Were going to continue to update you on this story out of cincinnati, but for now lets go back to the other breaking news were watching all day. The Senate JudiciaryCommittee Hearing right now. Lets listen in. I dont think that was my area of expertise so im just not recalling it specifically, senator. Thank you, mr. Chairman. Thank you. Senator hatch. Well, thank you, mr. Chairman. Appreciate the way youve conducted these hearings despite these irresponsible outbursts. Thats hard to believe. Judge kvapil that you, id like to commend you for how you have conducted yourself the past few days. You have displayed the level headedness that many of your friends say exist. Your friends and foreign colleagues have described in their letters to this committee, i wish you could say the same about everyone who has attended the hearing or conveyed it or covered did on social media, but i cant. Im deeply concerned about the theatrics weve seen these last two days. Ive been on this committee for 42 years, longer than any other person except senator leahy. Im the former chairman. Never have i seen the constant interruptions we witnessed at this hearing. Confirmation hearings are supposed to be an opportunity for the American People to hear from the nominee. Unfortunately, it seems that some on the political left have decided to try to turn this hearing into a circus. Now i worry about the precedent this is setting for future confirmations, but thats not the worst. The worst of it are the attacks against people who arent even up for confirmation, who just happen to be here in the room to support the nominee. Its bad enough that Supreme Court nominations have turned into all out war against the nominee. Have we really reached a point where anyone who supports or even sits behind a nominee must also be destroyed . Has our society reached that low . To those who have been caught up in the mob mentality of the past two days, i just want to say your right to be here supporting someone you believe in, dont let the fact that there are a lot of frankly sick people out there cause you to lose faith in our political process. We need good, decent people to step forward, to contribute even when its ugly, particularly when its ugly. Just now to my questions. Let me ask you this. As i did yesterday, id like to ask you to keep your answers to my questions concise so we can get through as many of them as we can. Late last night one of my colleagues asked you a series of openended questions about any conversations you have had with anyone at a 350 person law firm about special kounl bob mueller or his investigation. You said you do not remember having had any such conversations. My colleague clarified and did not allow you to complete your answers. I want to give you a chance to respond if youd like to. Senator, i dont recall any conversations of that kind with anyone at that law firm. I didnt know everyone who might work at that law firm, but i dont recall any conversations of that kind. I havent had any inappropriate conversations about that investigation with anyone. Ive never given anyone any hints, forecasts, previews, winks, nothing about my view as a judge or how i would rule as a judge on that or anything related to that so i thank you for the opportunity to clarify and reassure you on that. Well, thank you. With all of the accusation and insinuations and innuendo being heralded around yesterday, theres something i have to come clean about. Im on the board of the Federalist Society. Its true. For those who are not familiar about the Federalist Society, it holds debates and puts together issues covering all sides of these issues, the liberal, the conservative, et cetera. Its a very responsible association. The american constitution society, the democratic organization, does much the same thing, and i respect them. Except it focuses on liberal or progressive lawyers. This is familiar to my democratic colleagues on this committee. Theyve been involved with acs from keynoting the annual conference to being an annual Host Committee chair, to speaking on panels, writing blog entries for the organization. I even heard a nasty rumor that one of them spoke at a Federalist Society event. Can you believe that . Youve already said that when it came to your nomination, you spoke with the president , the Vice President and the white House Counsel, don mccann, not the Federalist Society. So i dont need to ask you about that. My question for you is this, what has your involvement with the Federalist Society been . Senator, thank you. The Federalist Society, as you note, provides holds debates at law schools. On both sides. On both sides. The Typical Program of a Federalist Society will have two speakers and thats typical with the two speakers presenting views on an issue. It could be Fourth Amendment when you have people with fourth amendme amendment, free speech, all sorts of legal issues. They try to have debates where both sides are presented at the law School Events that ive been to. At the conventions theyll always have panels of four or five with a moderator where theyll have a spectrum of views represented on a different topic. Theyre very enriching in terms of your knowledge of the law and theyre also enriching, i believe, in terms of providing different perspectives on the law and they welcome and insist on having people from all different perspectives at the event. So it is very beneficial to the l law. The programs are very educational. They provide some of the best debates at the law schools. The organization, which itself does not lobby and does not file amicus briefs, does a very valuable service at the law school for bringing together different views on important legal issues and i applaud them for their efforts to bring speakers to campus and provide legal debates on campus and in lawyers conventions. Youve described it quite well. Earlier this year i attended oral argument in microsoft versus United States, also known as the microsoft ireland case. Naturally i was very interested in that. At issue in the case was the meaning of the stored Communications Act and whether a warrant for data over seas falls within the acts confined. I had introduced legislation known as the cloud act to resolve this issue. Following oral argument Congress Passed the cloud act thus mooting the case. At specific issue has been resolved by my legislation but the case also raised a broader question that id like to ask you. When it was passed in 1986 no one imagined a world where data could be stored overseas but accessible instantaneously in the United States. It was clear that the app covered data stored in the United States but it was less clear that it related to data stored abroad using new technologies that were not available in 1986. How do we interpret our laws in light of changing technology . How do we determine whether the authors and enactors of legislation would have intended them to cover new technologies and unforeseen situations . Senator, i think there as well as elsewhere, the job is to focus on the words written in the statute passed by congress. Sometimes congress will write a statute where the words are very precise and its quite clear it covers only something that might be in existence at the time. Sometimes congress will write broader, more copacious words, as does the constitution at times, that can apply to new technologies, for example, the Fourth Amendment in the constitution applies to things that were not known at the founding, including cars and communication devices tharp not known at the start. So do statutes depending on how narrowly or broadly youve written it. Your question raises privacy and liberty on the one hand versus security, Law Enforcement on the other is an enormous issue Going Forward for the congress in the first instance, i believe, and also for the federal courts, including the Supreme CourtGoing Forward. The carpenter case this past term is a good example of that written by chief justice roberts. As i look ahead over the next 10 to 20 years that balance of Fourth Amendment, liberty and privacy is an enormous issue. I appreciate youre lucy days on that. On the domestic front theres been debate for some time now in congress about whether our laws should be updated to require a warrant for the content of Electronic Communications regardless of how old those communications are. As you may know, the Electronic Communications privacy act currently distinguishes between communications that are less than 180 days old and those that are more than 180 days old requiring a warrant for the former but not the latter. Can you speak generally to the importance of warrant requirements of why theyre important over the government overreach . The warrant requirement ensures the executive branch is not able to unilaterally invade someones privacy, someones liberty without judicial oversight that ensures that theres probable cause or whatever the standard might be in a statutory situation to get someones records or information or otherwise invade that privacy. Congress has written that into several statutes, as you know, senator. Well, i want to return to the email senator feinstein was asking you about. You were asked for your comments on an op ed that was going to be published by a group of pro choice women in support of a Circuit Court nominee. You said, quote, i am not sure that all legal scholars refer to roe as the settled law of the land at the Supreme Court level since court can always overrule its precedent, unquote. You then added, quote, the point there is point, unquote. Were you giving your opinion on roe there or were you talking about what law scholars might say . I was talking about what legal scholars might say and i thought the op ed should be accurate about what in describing legal scholars. Okay. So we got that cleared up. Youve been critical of the practice of judges sentencing defendants based on uncharged or acquitted conduct. With regard to acquitted conduct, i talk about the fact that a judge can sentence a person to a long prison term flies in the face of a right to a jury trial. Youve written that you believe, quote, it likely will take some combination of congress and the Sentencing Commission to systematically change federal sentencing to preclude use of an acquitted or uncharged conduct, unquote. Why do you take issue with the use of acquitted conduct at sentencing and why do you believe this is an issue that will likely require intervention by congress to resolve . The opinions ive written on this, and ive written several, say in essence the following, senator. When a criminal defendant, for example, lets say, is charged with ten counts, lets suppose, and is acquitted on nine and convicted on one and then the criminal defendant is sentenced as if he or she has been convicted of all ten because the judge just says, well, i think, you know, you did x or y, im going to sentence you to the same anyway. Defendants and the public, the families of the defendants understandably say that seems unfair. I thought the point of the jury trial was to determine whether i was guilt kri or ny or not guil of those charges and i am getting sentenced as if i was guilty on all the charges. It seems like a violation of due process. So ive written about the fairness or the use of perceived fairness of acquitted conduct at sentencing. Judge molette on my court and i have both written about it several times and made clear our concern about the use of a quilted conduct and how it affects the sentencing system. Why ive said Congress Might need to look at it, although ive also pointed out individual district judges can look at it, is because under the Current System sentencing judges have wide discretion in picking sentences so its hard for an Appeals Court to say that youve infringed your discretion given some of the case law the Supreme Court which grants that discretion. But i dont like the practice and ive made that clear in my opinions because. Unfairness or perceived unfairness of it. This country has been chasing an elusive deal for quite some time. One has been adequate rea reform. A person has to know their conduct is unlawful. Everyday citizens can be held liable for an act they dont know is wrong. They claim the effort is a ploy to get corporations and white collar defendants off the hook but stronger mens rea requirements work in the criminal justice system. Youve written about the importance of mens rea requirements including in cases of like an armed robberer. Why in your view are mens rea requirements are so important . Mens rea requirements are so important because, senator, under the due process clause and the precedence of the Supreme Court it is not right to its an elemental due process. Its as elementary as he said as the school childs, i didnt mean to, i didnt noempt and if someone truly didnt know a fact thats relevant to their conviction to nonetheless cop vikt them is contrary to due process. I see cases where a man do torr ri minimum based on a fact that the defendant did not know, dissented in that case and in that case judge tattle who was appointed by the president in that case. I wrote about the history of mens rea and the violation of due process that i thought it was a complete process of complete violation of due process of mens rea to give him a 30 year mandatory minimum for a fact he did not know. I have joint an opinion and wrote a Second Opinion where the jury instruction were left clear of the murder state of the murder. Question of man lawsuit ter versus mur de la rose. I wrote an opinion given the facts but the jury instructions were flawed. My exact line was i didnt want to sweep it under the rug. No matter who you are in my court, if you have the right argument on the law, im going to rule in your favor and mens rea is foundational to due process. Ive written that repeatedly and i share your concern about mens rea reform, senator hatch. Thank you. Some people seem to think that religious people should not work in government because they swear allegiance to their church, ive served in the country for 44 years and i believe im a religious person. Now religion is a part of your church supported soup kitchen. I know religious faith is there but i want to know how you can have those beliefs and be devout in your faith and still uphold the law . My religious beliefs have no relevance to judging. I take an oath to do that. For 12 years ive lived up to that oath. At the same time, as you point out. I am religious and i am a catholic and i agree up attending Catholic Schools and the constitutional people say people who are religious. As i said, in one of my opinions, the nudal opinion, were all that was an important provision to have in the founding constitution to ensure that there was not discrimination against people who had a religion or people who didnt have a religion. Its a foundation of our country. Were all equally american. Thank you. Senator leahy. Thank you, mr. Chairman. As i mentioned to you earlier, i have a number of letters that hi consent to be placed in the record and emails i asked that they be placed into the record. Without objection, so ordered. Thank you. And i know there was claim this morning that the committee was following my precedent, not so. Justice kagan, we had 99 of her documents of her time at the white house and of course we do not have we have less than 10 of yours. There were 860 documents designated as Committee Confidential by the nonpartisan. Lets go to follow up on our questions yesterday. We discussed the fact that while you worked on nominations in the Bush White House you received stolen material from a Republican Senate staffer named Manny Miranda. I thought it was a digital watergate. He stole 4,670 computer files from six Democratic Senators and he was doing this in an effort to confirm some of the most controversial nominees. They were some of the most contentious fights of the day and this republican stole 4,670 computer files. Now in 2004 and 2006 you testified a number of senators, both republicans and democrats asked you and you said you never received any stolen materials. That doesnt appear to be accurate. You also testified you knew nothing about the scanned dam until it was present. If you had suspected anything untoward you would have reported it. You testified to senator hatch you never received any document that even appeared to be drafted or prepared by democratic staff. I also asked you yesterday whether mr. Miranda asked to meet privately off site to hand you documents related to senators biden and feinstein. I also asked about him sending, you quote, intel with extraordinary detailed specifics about what i was going to ask, a highly controversial nominee just days later, something i never said publicly. I asked for a draft before any letter was made public. You testified you didnt recall anything specific but you thought sharing information between staffs was common so let me ask you this. Has anyone told you what any Democratic Senators have been advised to do by our staff at this hearing . I think theres been a lot of tell the truth. Tell the truth. Theres been a lot of discussion about what individual senators might be interested in, and when i met in the american way of life. I really want to hear what you have to say, judge. Protesters have to say. Please go ahead. Have you been advised have you been told what any Democratic Senators have been advised to do by our staff at this hearing . Right. So when i met individually with the 65 senators, including almost every member of the committee, a lot of the senators a lot of you in the meetings told me issues you were interested in. Has anybody said to you, for example, senator leahys staff is asking him to do this at the hearing tomorrow . Well, i think you yourself told me what you were going to ask so i i tried to give you a good heads up and i appreciate the meeting, but has anybody else told you, this is what leahys staff is asking to do at the hearing tomorrow . Again, i think this might be a different kind of process because you all were very transparent when i met with you in looking around saying heres what im focused on, heres what im going to ask you at the hearings and it turns out you were telling you were accurately telling me your concerns. But anybody hand you anything marked highly confidential about any one of these senators . No, im not remembering in like that, but you all did talk about theish use. In other words, there are no surprises. Well, there are not no surprises but, you know, you gave me basic concerns. I want to make sure you understand this. Nobody handed you material marked confidential but that is the material you received from miranda. Days before an extremely controversial hearing for fifth circuit nominee priscilla owen, mr. Miranda sent you an email with the subject line highly confidential, informed you that senator bidens staff was asking him not to attend the meeting that day. On march 18th, 2003, mr. Miranda sent you several pages of talking points that were stolen, verbatim, stolen verbatim from democratic files. The talking points revealed arguments democrats were making on another controversial nominee, miguel estrada. The subject line is not available for distribution meaning mr. Miranda was asking you not to share the information. This has now been as of 3 00 this morning made public. So yesterday you said you didnt have any recollection. Im not going to ask you if you remember receiving this email. Im going to ask you this. Why would you ever be asked to keep see ved democratic talking points if they were illegally obtained . I am looking at these, senator, and it looks like bidens staff is asking him not to attend the hearing. I dont know why that look how you received it. I know. Highly i dont know why thats even confidential because it whether it is or not, would you consider that somewhat unusual, to be receiving from a republican staff marker . As i explands yesterday, senator, my understanding of this process is that the staffs do talk to one another, that theyre not camps with no communication. That was my experience when i worked in the white house so this it looks like bidens staff is asking him not to attend the hearing. That would be pretty standard information. Not really. I would be amazed if somebody handed me a memo saying this is a confidential memo that senator grassleys staff has prepared for him. I not only would not read it, i would be on the phone immediately to senator grassley, say im bringing over something that just a arrived and we distributed a letter to, he said i received that letter. You were asked specifically by mr. Miranda to take no action on the email without his, his instructions. You never asked him how he obtained the letter sent in strict confidence to me. July 30th, 2000, you received an email on 100 that i was receiving a meeting about a controversial meeting. Then further on august 13th, 20200, email bsly being taken from my eye view. Did any of this raise a red flag in your mind . It did not, senator, because it all seemed consistent with the usual kinds of discussions that happen and sometimes people do say things of heres what my boss is thinking but dont share it around. I must have had, you know, so many conversations in the course of my life like that where someones saying like that about something. In other words, trying to give you a heads up on something. And that just seemed standard senate staff. So nothing the direct answer to your question is, for example, biden looks like hearing. Not even where it came from . On june 5th, 2003, you received an email from a Republican Senate staffer with the subject li line, spying. That is not overly subtle. 1,000 documents. She says she has a mole for us and so forth. None of this raised a red flag for you . It did not, senator. Again, people have friends across the aisle who they talk to. At least this was my bag then. Maybe its changed. There is a lot of problems account staff. People would talk about i have a friend on senator hatchs staff. That information sharing was common. I was born at night but not last night and if i found if i had something that somebody said weve stolen this or this is highly dont tell anybody we have this, i think it would raise some red flags. Now we only have a fraction of your documents. As you know, the president asserted executive privilege. The first time weve had to face this on a nominee of 102,000 pages of material, 102,000 from just your time in the white house. That includes a lot on judicial nominations. Can you confirm for me today that in that 102,000 pages there are no emails from mr. Miranda marked highly confidential, or do not share, or take no action on this describing what he has found out the democrats are thinking . Senator, i am not involved in the documents process so i dont know whats in them. Well, that is convenient. We dont know whats in them either because weve never had so much held before. We dont know whats in all of the documents that are still being gone through by the archives because this is being rushed through and we dont get a chance to see them. Thats not fair to us and, frankly, judge, its not fair to you. You probably have been told you have to be confirmed so you dont care but i care. I care about the integrity of the Supreme Court. I care about whos on there. I think you should care whats in that just as we should care whats in it. There are even more documents than i have time to discuss today. I find it impossible to reference out what youre regularly being told. Its your testimony youve received nothing stolen and no reason to suspect nothing was being stolen when, frankly, as we now know, republican Manny Miranda stole things and some of the things he stole went directly to you. Let me ask you another one. You testified in 2004 that aside from testifying in a moot Court Argument you did not work on the nomination of judge William Pryor. Now he was a controversial nominee, called roe versus wade the worst abomination in history in regard to constitutional law. He said samesex marriage would go to necrophelia. You did work on the prior practice group, did you not . We all were met just so you know the process, theres something called the white house i think judicial selection committee, and judge gonzalez, the counsel to the president chaired that committee. That started immediately after president bush came into office in 2001. So we would meet with memos and individual members of the staff would be assigned to different did you interview William Pryor . I dont believe so. Its possible, but i dont believe so, but if i did, it would have been part of the general process where people came in id put in the record our exhibit c which said you did interview him. Its possible. We interviewed hundreds of nominees, as i said, senator, and and we met every week for several years to go over nominees and we worked closely with the home state senators. I had various district states. I had illinois, california, senator feinstein, senator boxers staff, maryland, senator sarbane. Then we would meet and go over the memos. We met every week with the president before september 11th. After september 11th those meetings became less frequent. You had recommended him internally for the 11th circuit seat, had you not . Well, i cant i have no reason that i wouldnt have recommended him because he was a highly qualified attorney general of alabama and senator sessions, of course, knew him well and he was well respected. The only reason i ask is one of the emails we have up here, brent, at your request i ask to speak with pryor about his interests. Im not im not asking these questions to get you in a bind, judge, im asking them because it is so easy on these hearings to say i dont remember, and often times thats the case. But you mentioned mr. Gonzalez. He had difficulty remembering when he came here. He had one hearing where so he wouldnt have that problem i gave him i think 35, 45 of the questions ahead of time. On everyone of them he said, i dont remember. I dont recall and then every question almost every question answered i dont recall, i dont remember. Shortly after that he went into private practice but the d i think it is i think it is so difficult when that you dont remember the things done by somebody who i think on both sides of the aisle we would both agree is one of the most egregious breaches of Committee Confidentiality, Manny Miranda stole material from here, stole it to send it to you and others at the white house. You have no recollection of that . I obviously recall the emails or have seen the emails, but your question your larger question was did that raise a red flag, and ive answered that no. Well, i when you were in the kwhiet house was it your job to coach president bushs judicial nominees how to answer democr democrats questions about roe versus wade . Part of our job would have been to prepare nominees more generally and it was common for senators to ask that question then as it is now and so, kwa, i assume that i would have been involved in going through mock sessions. I know we were involved in going through mock sessions, which is very standard for democratic youve been going through some mock sessions with at least one republican senator from this committee and other republican senators, and im not saying that is a gotcha thing. You have every right to do that. You did advise sal owen how she should respond to that. My last question is do you agree that a plastic firearm created with a 3d printer so that we would not have been in the minds of our Founding Fathers at the 18th century, would you agree that that could be regulated orbaned without creating any Second Amendment questions . I think there might be litigation coming on that, senator so, consistent with judicial i independence principles i shouldnt comment on that. Thank you. Ive actually written out your answer ahead of time, and i just wrote it so that you did not see what i wrote. Thank you very much, mr. Chairman. Senator. Thank you, mr. Chairman. Id like to introduce into the record an op ed from the l. A. Times Editorial Board entitled can the Supreme Court confirmation process ever be repaired, from 2003 from judge kavanaughs class, a letter from georgias secretary of state brian kemp, an op ed by mississippi governor bill bryant. So i ask that that would be allowed. Just say without objection. Thats good. Thank you, judge. There are several things i want to go over with you. One, i want to complement senator leahy in this regard that he worked with senator grassley to get what had been previously Committee Confidential released to the public and sort of thats the way it works around here. You dont always get what you want but you try to work with your colleagues and many times you can succeed. From the publics point of view, its got to work this way. You just cant do everything you want in a electilek legislative. There are rules and its frustrating to be told no on something youre passionate about, but im often asked, people wonder are these hearings turning into a circus. And i want to defend circuses. Circuses are entertaining and you can take your children to them. This hearing is neither entertaining norah pope rate for young people. Now some of my colleagues i respect greatly are trying to make a point. I dont know what that point is, but i do know this. If you want to be president , which i can understand that, its hard. And what you do will be the example others will follow. Back to the subject matter. The morrison case. Was that about separation of powers . That was a separation of powers case. Okay. It was about a congressional statute and the authority of the executive branch and how they cooperated, is that correct . Thats correct. And apparently kagan and scalia agreed. Yes. Kagan agreed with scalias dissent. Shes called it one of the greatest ever written and shes added, it gets better every year. I dont want to get into the habit of saying, listen to elena kagan, but listen here, because shes a fine person. The situation about mr. Mueller, thats not a separation of powers issue, is it . Mr. Mueller was appointed through department of justice regulations. Sir, i dont want to talk specifically about current events, but i will just refer back to what ive written about special counsel. Im not asking you how to decide a case, im just asking you, do you read the paper . Do you watch television . Statute counsel in question doesnt exist anymore. The statute does not exist anymore. Its the ordinary way that outside investigation. Is that an executive branch function . That is appointed by the attorney general. Who is a member of what . Executive branch. Thats time i checked thats not separation of powers issue. Thats been an executive branch. The question is, if someones appointed as special counsel by the department of justice regulations who has authority over implementing those regulations and overseeing those regulations, all i can say is thats different, legally and factually than the no, smorriso situation where you had a statute. Lets talk about the law regarding the president. Clinton v jones tells us that you can be president of the United States, you can still be sued for conduct before youre president and when you invoke executive privilege, the court said wait, you have show up at a deposition because it happened before you were president , is that correct . In the civil case of clinton versus jones or suit involved activity before clinton became president. Its pretty well understood through Supreme Court precedent that if youre the president of the United States and you engaged in conduct that allowed you to be sued before you got to be president , you cant avoid your day in court on the civil side. The nixon holding said what . In the context of the specific regulations there that a criminal trial subpoena to the president for information, in that case the tapes, could be enforced. Not with standing the executive privilege recognized in that case. Thats the law of the land as of this moment . United states versus nixon is the law of the land. Whether or not the president can be indicted while in office has been a discussion thats gone on for a long time, is that true . In the legal world. Thats correct. 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. The most thorough is written on randy moss who was head of president clintons office of Legal Counsel in the late and 2000. Hes now a district judge appoint by president obama. I think youve written on this topic as well. Ive not win on the constitutionality. Talking about whether it would be wise to do this . Ive made my thoughts known for congress to examine in the wake of september 11, i thought one of Things Congress would look at is how to make the presidency more effective. I just want my democratic colleagues to remind you that when president clinton was being investigated you took the position that hes not above the law but in terms of indicting a sitting president , it would be better for the country to wait. The person who echoed that the most was joe biden. Theres nothing new here, folks. When its a democratic president they adopt the positions that their arguing against now. Thats nothing new in politics. Im shuure we do the same thing. This man, judge kavanaugh, is not doing anything wrong but talking about this issue the wap way he talks about it. What were doing wrong is blending concepts. To justify a vote thats going to be inevitable. You dont have to play the games to vote no. Just say you dont agree with his philosophy. The thing i hate the most is to talk concepts and turn them around, upside down to make people believe theres something wrong with you. Theres nothing wrong with you. The fault lies on our side. Most american, after this hearing, will have a dimmer view of the senate, rightly so. I dont want anybody to steal anything. Did you steal anything from anybody why you were working at the white House Counsel . No. Did you know that anybody stole anything or did you encourage them to steal anything . No. Did you use anything that was stolen . No. You can talk about mr. Miranda and he deserves all the scorn you can heap on it. I dont want the pulpit to believe that you did anything wrong because i dont believe you did. Its okay to vote no. Its not okay to take legal concepts and flip them upside down and act like were doing something wrong on the republican side when you had the exact same position when it was your turn. Roe v wade, youve heard of that case, right . I have. Flst a ltheres a lot of peo it. A lot of people dont. Its an motionemotional debate country. Its there anything in the constitution about the right to abortion . Anything written . The Supreme Court has recognized the right to abortion since the 1973 roe v wade case. My question is did they find a phrase in the constitution that said that the state cannot interfere with a womans right to choose until medical viability occurs . Is that in the constitution . Supreme court applying its a pretty simple. No, its not. Those words. I want to be very careful. This is a topic on which if youll just follow me. Ill let you talk. The point is will you tell me, yes or no, is there anything in the document itself talking about limiting the states ability to protect the unborn before viability . Is there anything phrase in the constitution about abortion . The Supreme Court has founded under the liberty clause, but youre right that specifically is there anything in the liberty clause talk about abortion . It refers to liberty. Okay. Last time i checked, liberty didnt equate to abortion. The Supreme Court said it did. Heres the point. What are the limits on this concept . You had five, six, seven, eight or nine judges. What are the limits on the ability of the court to find a number of rights that apply to a particular situation . What are the checks and balances of people in your business if you can find five people who agree with you to confer a right with the public likes it or not based on this concept of a number of rights. What are the outer limits to this . The Supreme Court in in case in the lay 90s, is the task that the Supreme Court uses to find unenumerated rights of the due process clause of the 14th amendment. That refers to rights rooted in the history and tradition of the country so as to prevent let me ask you this, is there any right rooted in the history and traditions of the country where legislative bodies could not interseed on behalf of the unborn before medical viability . Is that part of our history . Supreme Court Precedent has recognized the right to abortion. Im just saying what part of the history i dont think our Founding Fathers, people mention our Founding Fathers, i dont remember that being part of american history. How did the court determine that it was . The court applied the precedent that existed and found in 1973 that under the liberty clause before 1973. When you talk about the history of the United States, the court has found that part of our history is for the legislative bodies not to have say about protecting the unborn until medical viability. I dont think thats part of our history. Fill in the blank. What are the limits of people in your business applying that concept to almost anything that you think to be liberty . Thats the concern that some have expressed about the concept. Heres the concern that i have. That you have one word that has opened up the ability for five people to tell everybody elected in the country you cant go there. Whether you agree with roe v wade or not, just think what could happen down the road if five people determined the word liberty means x. The only real check and balance is a constitutional amendment to change the ruling, do you agree with that . Im not going to comment on if we pass a statute tomorrow in congress saying that good day everyone. Were going to keep bringing you all the news throughout our program this hour. Starting first with new reaction to the scathing anonymous column in the new york times. The column engulfing the trump white house. The papers opinion page editor refusing to explain whether that means a cabinet secretary or deputy or one of thousands of aides in the white house. President trump described as a fury