AUDIE CORNISH, HOST:
More drama on the third day of confirmation hearings for President Trump's Supreme Court nominee Brett Kavanaugh - Democrats accuse Republicans of trying to hide documents related to Kavanaugh's time in the George W. Bush administration. Today some Democrats decided to take matters into their own hands. That was just the beginning of another day of questioning for the nominee. To break it all down for us is NPR's legal affairs correspondent Nina Totenberg. Hey there, Nina.
NINA TOTENBERG, BYLINE: Hey there, Audie.
CORNISH: So Senator Cory Booker started off today's hearing with a bang, putting out documents that were previously not released. Explain what he was trying to achieve.
TOTENBERG: Well, Booker says he decided to release the documents stamped committee confidential. These were emails on racial profiling and affirmative action programs that Kavanaugh weighed in on when he was in the Bush White House. Booker said he was taking this action because there's nothing in the documents that's personal or that involves national security.
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CORY BOOKER: And I understand that that - the penalty comes with potential ousting from the Senate. I openly invite and accept the consequences of my team releasing that email right now.
TOTENBERG: Other Democrats then chimed in.
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RICHARD DURBIN: Let's jump into this pit together. I hope my other colleagues will join me.
MAZIE HIRONO: Count me in, too.
TOTENBERG: That was Democrat Richard Durbin followed by Mazie Hirono. Republican John Cornyn, the No. 2 Senate Republican, then took out after Booker for the document release.
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JOHN CORNYN: That is irresponsible and outrageous. And I hope that the senator will reconsider his decision because no senator deserves to sit on this committee or serve in the Senate, in my view, if they decide to be a law unto themselves and willingly flout the rules of the Senate and the determination of confidentiality and classification.
CORNISH: We spoke with Senator Cory Booker elsewhere in the program, and he has not yet been thrown out of the Senate. So was this all political?
TOTENBERG: Well, you have to look at this in the context of presidential politics and the widespread expectation that Cory Booker will throw his hat into the ring at some point before 2020. Certainly if he wanted to light a fire in the committee room, he succeeded in getting some traction. He's been trending on Twitter for much of the day.
CORNISH: Let's turn to Brett Kavanaugh. These hearings are supposed to be about him. You've written a lot about his views on presidential power. And over the last two days, have we learned anything new about those views?
TOTENBERG: Well, he declined to answer a bunch of questions because they might come before the Supreme Court. Still, these are questions that are of considerable concern to members of the committee. President Trump, for instance, has maintained that he could pardon himself. Kavanaugh ducked that question, and he similarly refused to say whether a president could pardon someone in exchange for that individual refusing to testify against the president.
CORNISH: Those are obviously of concern to the special counsel, Robert Mueller - right? - as well.
TOTENBERG: Yes, especially in light of the conviction last month of Paul Manafort, the president's onetime campaign manager, on eight criminal charges. And the president could pardon him if he wanted to. But if he did it in exchange for Manafort's silence and you could prove that, there isn't much doubt that could constitute an impeachable offense.
CORNISH: Kavanaugh has written in the past in favor of giving the president immunity from criminal investigation and prosecution. What has he said about that over the last couple of days?
TOTENBERG: Well, he reiterated today that he was only suggesting that Congress pass a law giving the president that kind of immunity while in office. And he said that he came to this view after seeing the pressures on President Bush after 9/11. He did not say in that law review article that the president has that kind of immunity under the Constitution. And his point in the law review article was - he said that if the president is really guilty of bad acts, like, let's say, obstruction of justice, well, the remedy, he said in that article, is impeachment.
CORNISH: When it comes to presidential power, Kavanaugh has said two things that might sound contradictory. He's praised the Supreme Court's Nixon tapes decision as one of the greatest moments of judicial independence in American history. He's also criticized the Nixon case, suggesting that it may have been wrongly decided. Has he clarified this?
TOTENBERG: Well, he made those 1999 critical remarks at a roundtable discussion put on by the Bar Association. And the moderator, Philip Lacovara, who was the deputy Watergate special prosecutor, said he took those remarks as being in disagreement with the Supreme Court's decision. But Kavanaugh tried today to explain what he meant. He said that at that roundtable, President Clinton's lawyers argued that the courts, by enforcing subpoenas against Clinton, had weakened the presidency. And so, Kavanagh's said...
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BRETT KAVANAUGH: My position was, either you're wrong, or Nixon's wrong.
TOTENBERG: And having read the transcript of that roundtable, I would have to say that's a fair point. But Kavanaugh also seemed quite clearly to suggest that the supreme court should not have intervened in the Nixon case at all.
CORNISH: What does that mean?
TOTENBERG: Well, presumably that it would have been up to Congress through the impeachment process to try to get the tapes, an effort that almost certainly would have failed knowing what we know now about the incriminating conversations on those Oval Office tape recordings. And so this proves that nothing is simple in the law.
CORNISH: That's NPR's Nina Totenberg. Nina, thank you.
TOTENBERG: Thank you, Audie. Transcript provided by NPR, Copyright NPR.
