Lee: Morrison applies only to context that irrelevant here, correct?
Kavanaugh: Morrison is a one-off case about a one-off statute that no longer exists, that's why he can talk about it.
Lee: That's why you can talk about it. It's a dinosaur.
Lee: What's the difference between independent counsel and special counsel?
Kavanaugh: Appointment, removal, jurisdiction -- so many different features.
Lee: When you create an unaccountable entity, isn't that the problem Justice Scalia was pointing out in Morrison?
Problem was independent counsel was not accountable to anyone. Many people found that problematic, including in Congress.
Kavanaugh: Watergate was special counsel, the kind we now have.
Lee: Nixon fired the special counsel, and we all know how that turned out. It seems to me that this remains an important tool.
Lee: You've never taken a position on the immunity question.
Kavanaugh: The question is about deferral. And I have no taken a position on constitutionality.
Grassley: Another request for documents.
Grassley: 30 minute break.
Cornyn: Every committee confidential document requested by a senator has now been vetted and made available?
Whitehouse: Could you build in time for our 1:45pm vote?
Grassley: There are two votes.
Okay, we're getting going again. Tillis is serving as chair.
Sen. Whitehouse, D-Rhode Island, now up.
Whitehouse: Journalists go to jail to protect confidentiality. Will you release any journalists from that obligation?
This has to do with reporters Kavanaugh spoke to during the Starr investigation.
Whitehouse: Will you release those reporters from the confidentiality they feel they owe you?
It's just Tillis and Whitehouse here now. And the nominee.
Whitehouse: Reporters may have information about what you told them that they are unwilling to divulge because you were a confidential source. Can you release them from that?
Kavanaugh: I spoke to reporters at the authorization of Judge Starr, so it's up to him. I was not acting on my own.
Whitehouse: That's not how reporters see it. You were the source.
Kavanaugh: I don't think I should do that given that I was working for someone else.
Whitehouse: Your answer is that you're unwilling, so I'll move on.
Whitehouse: Has there ever been statutory law on presidential immunity?
Kavanaugh: Justice Department law...
Whitehouse: Justice Department is not a law-making body, is it?
Kavanaugh: If law includes regulations.
Whitehouse: There is no law Congress has passed to protect a president from indictment.
Kavanaugh: Congress has not, the Justice Department has a policy.
Whitehouse: So if not law, then an opinion on it must be constitutional law, right?
Whitehouse: Let's go back to 1998. The panel you were on was asked, who believes as a matter of law that president cannot be indicted. (Two pictures are behind Whitehouse.) Did you mean "as a matter of law" the OLC guidance?
Kavanaugh: I was saying that there was a lurking constitutional question.
Whitehouse: There are two types of law. Laws Congress passes and the Constitution. It's a stretch to call policy law.
Kavanaugh reiterates that it's a long-standing Justice Department position.
Whitehouse: You've been telling us that I've never taken a position on constitutionality.
Whitehouse: It looks to me like that's bit of a conversion.
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