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Trump Lawyer: President Cannot Obstruct Justice. Aired 7-7:30a ET

Aired December 5, 2017 - 07:00   ET


ALAN DERSHOWITZ, LAW PROFESSOR: You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey.

[07:00:15] UNIDENTIFIED MALE: We don't have a King. We don't have a dictator. And he's not above the law.

REP. ADAM SCHIFF (D-CA), RANKING MEMBER, INTELLIGENCE COMMITTEE: If he just wrote an op-ed, he was trying to place this in clear violation of the court's instruction, then I think he's dead in the water.

SEN. RICHARD BLUMENTHAL (D), CONNECTICUT: What he's demonstrating here is sheer contempt for the judicial process.

CHRIS CUOMO, CNN ANCHOR: The RNC, throwing their support behind Roy Moore after President Trump's endorsement.

UNIDENTIFIED MALE: The president wants to make sure that his agenda is accomplished in Washington.

SEN. JEFF FLAKE (R), ARIZONA: We're going to have a tough enough time in the coming years. Being the party of Roy Moore is not going to help.

UNIDENTIFIED FEMALE: When I saw what I believe to be Roy Moore's handwriting, I just (UNINTELLIGIBLE).

UNIDENTIFIED MALE: He, of course, denies it. It's up to the people of Alabama now.


ANNOUNCER: This is NEW DAY with Chris Cuomo and Alisyn Camerota.

CUOMO: All right. Good morning and welcome to your NEW DAY. Alisyn is off. I have the star, Poppy Harlow--


CUOMO: -- beside me.

HARLOW: Good to be here.

CUOMO: Always a pleasure. We begins with a big legal question that is going to wind up setting

the tone for the weeks to come. Did Donald Trump obstruct justice when he fired FBI Director Jim Comey? Now, the latest and very, very important aspect, the president's personal lawyer uses a Nixonian defense and argues this: Mr. Trump is above the law as the nation's chief enforcement officer. He cannot be charged with obstruction.

HARLOW: Meantime, following the president's lead, the Republican National Committee overnight jumps back in the Alabama Senate race, throwing more support and funding behind embattled Senate nominee Roy Moore one week before the special election.

Now a woman who says she dated Roy Moore as a teenager when he was twice her age, is sharing physical evidence of their relationship. We have it all covered. Let's begin this morning with our Joe Johns at the White House on our top story.

Good morning, Joe.


What's happening here is an attempt to get a handle on the facts, the rules and law as a Russia investigation appears to have moved a step or two closer to the Oval Office. The president's critics questioning whether the elements of obstruction of justice are starting to appear, the president's legal team pushing back and then appearing to backtrack.


JOHNS (voice-over): White House lawyer Ty Cobb downplaying the obstruction of justice defense put forward by President Trump's personal lawyer, John Dowd, telling "The Washington Post" that while Dowd's assertion that a president cannot obstruct justice, because he's the nation's top law enforcement officer is an interesting legal issue, it is not Mr. Trump's official legal strategy.

SEN. CHRIS COONS (D), DELAWARE: Frankly, the idea that our president is above the law, not only above the law but free to interfere with any investigation and act in ways that are obstruction of justice is Nixonian and, I think, unacceptable.

JOHNS: Dowd floating his controversial defense amid speculation whether this tweet from the president's account could lead to a potential obstruction of justice case. The tweet, which Dowd says he drafted, suggests the president knew his former national security adviser, Michael Flynn, lied to the vice president and the FBI before he allegedly urged former FBI director James Comey to drop the bureau's investigation into Flynn.

A source now telling CNN that the president was told by White House counsel Don McGahn in February that Flynn misled the FBI about his contacts with Russians. McGahn reportedly telling the president Flynn should be fired. And after receiving a warning that Flynn might be compromised from then acting attorney general Sally Yates. SALLY YATES, FORMER ACTING ATTORNEY GENERAL: We told him we felt like the vice president and others were entitled to know that the information that they were conveying to the American people wasn't true.

JOHNS: Despite McGahn's recommendation, the president kept Flynn on the job for weeks with access to the nation's most classified information, Trump caving eventually to public pressure, firing Flynn but insisting he was a good man.

The president now defending Flynn, after he pleaded guilty Friday to lying to the FBI.

TRUMP: I feel badly for General Flynn. Hillary Clinton lied many times to the FBI. Nothing happened to her. Flynn lied, and they destroyed his life. I think it's a shame.

JOHNS: Flynn's deputy, K.T. McFarland, also under scrutiny over apparent inconsistencies in her testimony about Flynn. McFarland told the Senate Foreign Relations Committee in July that she was not aware of any communications between Flynn and former Russian ambassador Sergey Kislyak.

But unsealed documents from Friday's court filings show that Flynn spoke to a senior transition official before meeting with Kislyak. Although McFarland was not specifically mentioned, CNN has confirmed she was the referenced official.

REP. ADAM SCHIFF (D-CA), RANKING MEMBER, INTELLIGENCE COMMITTEE: It certainly appears that was a directly falsely misrepresentation to the Senate.


[07:05:03] JOHNS: In the midst of all of this, a big temporary win for the president and the court. In the courts, this is, of course, the issue of the president's controversial travel ban, a temporary greenlight for that policy to be implemented even as the challenges to it continue in the courts.

Chris and Poppy, back to you.

CUOMO: All right, Joe, appreciate it.

Let's bring in CNN legal and national security analyst Asha Rangappa and CNN Politics reporter and editor at large Chris Cillizza.

We've got politics, and we've got law. And we have it here in a very stark way, because we're talking about two entirely different systems of appraisal. Obstruction of justice for politicians will mean the impeachment process. Votes. That's it. At the end of the day, it's about votes. It's not about evidence. It's not about any of the legal terms that they may use. It's votes. And then you have what Mueller is doing.

So Rangappa, when we talk about whether a president can be charged versus should be charged, meaningful distinction. The Trump lawyer is only raising the first one at this point. The real appraisal is the second one. But what is your take? Can a president be charged with obstruction of justice?

ASHA RANGAPPA, CNN LEGAL AND NATIONAL SECURITY ANALYST: So you're exactly right. We're looking at two different things. As it's actually not clear what the argument Dowd is waiting. There is a general consensus it is DOJ policy that a sitting president can't be indicted while he's sitting.

CUOMO: So you'd have to impeach him first?

RANGAPPA: You have to go through the political process of impeachment and removal, which is a two-stage process. And then -- then he could be charged.

However, what Dowd was saying is that the president cannot even be guilty of obstruction. And that illegal matter is widely -- is dismissed as a not valid theory. He can be guilty, but it's true that at that point, Mueller can collect all the evidence and say, "Here is what I would do. I would bring a charge and then hand it over for the political process."

CUOMO: You think this is a tactic being used by the White House attorney?

RANGAPPA: I think it's a tactic. Look, lawyers use tactics. He has to make the best defense he can for his client. And if the facts are starting to stack up in a way that would be indefensible based on what the crime is, then he's got to switch tracks and make it a legal argument.

HARLOW: Chris, to Asha's point what does it tell us that the White House is choosing the strategy of using a Nixonian -- and that's a purely objective statement, because it is out of Nixon's own lips, right, that the president can't be charged with doing something illegal -- defense instead of just arguing on the merit of facts here?

CHRIS CILLIZZA, CNN POLITICS CORRESPONDENT AND EDITOR AT LARGE: Well, I think he's making a legal argument for political purposes. This will move, if it moves eventually, from Mueller to Congress. Right? I mean, that's just the way that it's going to go, to Asha's point.

I think what you're seeing here is Dowd offering a possible defense, a sort of trial balloon political defense: "If he's president, how can he obstruct justice? He's president of the United States."

I wrote about this yesterday. I just don't think that that, politically speaking, holds water, Poppy. It's hard for me to believe -- though not impossible but hard for me to believe you would have a sitting Republican senator use the defense of Trump as "Well, he's the president. He technically is the law." That's a tough argument to make politically. Not impossible.

I would not have thought that the Republican Party would come around to Roy Moore, but they are. So, I don't rule anything out at this point. But I do think it is important, and Asha makes the point and I think Jeff Toobin, our colleague in "The New Yorker," in a really good piece published earlier this week, yesterday, I guess, makes the point that you have to separate out legal and political.

As -- Chris Cuomo makes this point. They're two separate tracks here. And even -- even if you buy Dowd's argument legally, which I'm not sure you should, politically that argument goes nowhere.

CUOMO: Now, look, first of all, they're backing off a little bit. And that's always indicative. That's a signature of the Trump motto. You go as far as you can. You back up as little as you must.

HARLOW: Ty Cobb.

CUOMO: Right. So Ty Cobb, who is really the top of the legal team backed off -- backed off of this a little bit. But it does smack familiar of something we've heard before. Do we have the David Frost sound? Let's play it.


DAVID FROST, TALK SHOW PERSONALITY: What you're saying is that there are certain situations, the Houston panel, that panel was one of them, where the president can decide that it's in the best interest of the nation or something and do something illegal?

RICHARD M. NIXON, FORMER PRESIDENT OF THE UNITED STATES: Well, when the president does it, that means that it is not illegal.


CUOMO: OK. Now first, before we get to the legal analysis and the political analysis of what was going on there, if you can, please go back and watch the Frost/Nixon interviews. Not the movie. The movie does a decent job.

But it is one of the best examples of how an interviewer used facts and a flat tone to get an unwilling subject to say things they never wanted to say. It is a brilliant exercise, and it was one of the best I've ever seen.

So legally, when the president does it, it is not -- it is not illegal. Does that standard ever apply to anything?

RANGAPPA: The president is not above the law. That's been established over and over again. And if we had -- you know, that suggests that the president could commit murder and then just stop the investigation or say, you know, "I had to do it, because I was negotiating with this dictator and that's how we had to" -- you know, I mean, you can take this to extremes that would be absurd and totally against the principles on which our country is founded.

I also just want to point out that, as we're talking about the legal arguments, you notice what we're doing. Is we're not talking about the facts any more. And so it obscures what was actually happening in this situation. CUOMO: What do you think is so damning about the potential knowledge

that the president had of Michael Flynn lying to the FBI when he went to Jim Comey and said, "I hope you can see your way free to let this guy go."

RANGAPPA: Yes, I think there's two things. So the question is, you know, lying to the FBI is a felony. And that's bad enough.

Did he also know what -- what Flynn was lying about, that he was getting direction from senior members of the transition team and contacting the Russians? Because if that's the case, then there are many people who have been telling untruths, whether to the public, or to the Congress or even to the FBI.

And the other piece is that you have this very significant event where acting attorney general Sally Yates came and basically warned--

CUOMO: Don McGahn.

RANGAPPA: -- Don McGahn. Now my belief is that it was a counterintelligence investigation at that point. So she was getting this from very sensitive sources and methods.

For her to get the clearance to take that top-secret information, go to 1600 Pennsylvania Avenue, say, "You need to be careful," tells you that whatever they found was incredibly serious.

HARLOW: Let's listen to her. Because this was in her May 8 testimony under oath. Let's listen.


BLUMENTHAL: Did you tell Donald McGahn that then-national security adviser Flynn told the truth to the FBI?

YATES: No. He asked me how he had done in the interview. And I specifically declined to answer that. I was intentionally not letting him know how the interview had gone.


HARLOW: So, Chris Cillizza, to that, hearing from her directly, how does that complicate the White House narrative on this?

CILLIZZA: Well, I mean, it's -- I keep reminding people that these people are testifying under oath, right? I mean, it's just like Jim Comey when he said that Trump asked him to see this through. Trump is on Twitter calling him a liar. That's not -- that's not apples to apples. You can tweet what you want. This is under oath. Lying here has real problems, right? Legal problems.

So I think it just sets up very clearly that it went Yates, McGahn, Trump. The key is what Asha brought up. Did Donald Trump know what specifically Mike Flynn lied to the FBI about, or was it simply, look, this guy is dicey. You know, we've got reason to believe he's saying stuff that isn't true, not just to us, not just to Pence, but to the FBI. That's a different thing, if it's specific.

And then on the following day, Donald Trump says, "Hey, Jim Comey, is there a way you can kind of, you know, get rid of this"? That to me is very problematic. And again, I say very problematic, because as my mother always reminds me, I never went to law school. So I'm not a lawyer. So when I say problematic, I mean in a political sense. Because again, I think people -- the Mueller investigation's ultimate end, if there are recommendations, will play out first in the political sphere not, I don't think, in the legal sphere.

CUOMO: So you get to talk like a lawyer, but you didn't have to take that $100,000 hit to actually go. So good for you. You went two ways.

CILLIZZA: Chris Cuomo, I don't know.

CUOMO: He went two ways. He went two ways. Another key fact to Rangappa's point, we don't want to ignore the facts, is that when they start looking at what happened here, and what the president knew and when, they waited a long time to get rid of Michael Flynn. Why did they wait? What did that mean?

HARLOW: Well, and the president still thinks he got a raw deal.

CILLIZZA: And that's important. By the way, Poppy, that's important. I mean, even over the weekend, after Mike Flynn pled guilty and is cooperating with Bob Mueller's investigation, which Donald Trump has repeatedly described as a witch hunt and a hoax, Donald Trump is saying he's a good guy. Like, he's got railroaded. I mean, he is not someone who is terribly charitable, usually, about people who bring bad press on him.

[07:15:05] CILLIZZA: Good point. Last point.

RANGAPPA: Just because it's legal doesn't make it right. So I think the other thing we need to remember is it doesn't have to meet a criminal standard when people are being warned that somebody is untrustworthy and they're in the most important places in government and the administration was keeping them on it does make you wonder what -- what they were thinking.

CUOMO: Rangappa, former FBI, Yale professor. Cillizza not a lawyer. The point.

HARLOW: I'll give you a better description when you come back on next hour for the show.

The House and Senate ready to talk taxes. What will end up in this final bill? What will it mean for you, the American people? Senator Angus King joins us next.

CUOMO: He does have--


HARLOW: Welcome back to NEW DAY. President Trump's lawyer claims he crafted this tweet, saying the president had to fire Michael Flynn, former national security advisor, because he lied to the FBI. It's a claim that has brought renewed attention to this testimony before the Senate Intelligence Committee by fired FBI Director James Comey, who discussed his conversation with the president under oath. Listen.


JAMES COMEY, FORMER FBI DIRECTOR: What he wanted me to do was drop any investigation connected to Flynn's account of his conversations with the Russians.


[07:20:08] HARLOW: And the key question is, so would that constitute obstruction of justice on the part of the president?

Joining me now, independent Senator Angus King of Maine. He caucuses with the Democrats, and he also sits on the very central, certainly right now, Senate Intelligence Committee.

It is nice to have you here, Senator. So let's go to that central argument that some Democratic members of the Senate, Senator Dianne Feinstein and Senator Blumenthal in the last 24 hours have said that this looks a whole lot like obstruction of justice.

Do you think the president's words and actions constitute obstruction of justice?

SEN. ANGUS KING (I), MAINE: Well, I'm not prepared to reach that conclusion, but certainly, the tweet over the weekend, where the tweet said he fired him because he had lied to the FBI.

HARLOW: Right.

KING: And, remember, it was the day after he had fired him that he said to Comey, "Go easy on this investigation." I think that's a serious question. But I think all of this legal discussion, there's a -- there's a subtly here that I think is important. John Dowd and other lawyers for the president have asserted he can't -- nothing he does is legal. That's the Nixon defense.

HARLOW: That's exactly the Nixonian defense.

KING: But I think what they're missing, there's a -- there's a two- step process. Whenever I have a question about the Constitution or what it means, the first place I go is "The Federalist."

In the 69th "Federalist," Hamilton's writing about the powers of the presidency, an he says explictly the president can be -- if the president commits a high crime or misdemeanor, treason, bribery, he can be impeached. But interestingly, and I don't usually want to read on TV, but it's important to get this right.

He says, "The president can be impeached and removed from office and would afterwards be liable to prosecution and punishment in the ordinary course of the law. And I think that is a pretty clear statement that a sitting president can't be indicted. That's why Nixon was an unindicted co-conspirator in the Watergate case, and it's also why Gerald Ford pardoned him. Because he would be subject to criminal prosecution after he left office. So the intermediate step here is impeachment, and that's a question that the Congress will have to decide.

HARLOW: Right. And as you know, Republicans in Congress have used obstruction of justice as, you know, the first article of impeachment when it came to Nixon, when it came to President Clinton.

When it comes to Bob Mueller and this investigation. Now, we're going to get into some of the controversy around that, and the FBI agent who is a key part of the team who had to depart because of his political leanings in a moment. But if the president, Senator, were to move -- to remove Special Counsel Bob Mueller from the Russia investigation, would you view that as an impeachable offense?

KING: I would view that as a drastic attack on the rule of law, and I would hope that other members of the Congress, both Republicans, and Democrats and independents over the last six months, have said we would move with great speed to re-create the office of special prosecutor to be insulated from that kind of question.

But on the question of whether obstruction of justice is an impeachable offense, you need look no further than the words of none other than Jeff Sessions.

HARLOW: Right, in 1999.

KING: In '99, who were adamant that obstruction of justice in the Clinton matter was, in fact, an impeachable offense. So I'm not going to draw conclusion on that. The facts have to be proved and, in fact, in an impeachment. As you know the House impeaches and the Senate acts as literally a jury. I'm not going to express a final opinion on what it all means, because it may come before me in that context.

HARLOW: All right. Let's get to the FBI, and then I want you on tax reform, as well. Because you've been highly critical of the Republican bills that have made it through.

So on the FBI, as you know, one of the top agents that was leading the Hillary Clinton e-mail investigation and was a key part of Mueller's team on the Russian investigation has been dismissed because of his clear political leanings against President Trump and towards Hillary Clinton as displayed in text messages.

We've now learned in the last 24 hours, as you know, Senator, that he is the one who, in Comey's statement about Hillary Clinton's e-mail investigation, he changed the words from grossly negligent to extremely careless.

Now that's not just a pedestrian change. Not just something minor. That affects the criminality of it, criminal penalties of what grossly negligent means under the law, versus extremely careless.

Does it concern you, and would you go as far as "The Washington" -- "The Wall Street Journal" editorial board this morning says that, because of this Mueller is too conflicted to continue leading this investigation.

[07:25:00] KING: Well, you had two questions. One is, does it concern me? And the answer is yes.

But I reach the opposite conclusion with regard to Mr. Mueller, because he immediately fired him and immediately removed him off the investigation as soon as he got wind of this inappropriate tweet, which by the way, I still don't know what it is or text message, or whatever it was, last summer.

So I think Director Mueller acted exactly as we would hope that he would. He found some -- what appear to be an improper activity on the part of one of his investigators, and he got rid of him.

HARLOW: But the argument is -- that he made is from the "Journal" and others, is that Mueller wasn't fulsome in his explanation of why, didn't put -- struck up for interviews, for example; didn't disclose the tweets. You haven't -- the text message you haven't seen and didn't display to the public exactly what was going on. Does that concern you?

KING: But he got rid of him. I would certainly like to see the tweet or text message, whatever it was, to see how -- you know, what it betrayed, what it said. But I think the point is an employer saw inappropriate conduct on the part of an employee and got rid of him. I mean, that's what you want to have happen in this case. I think to stretch and say somehow it corrupts the whole process is, as I said, a stretch.

HARLOW: You've been very clear about how you feel about the Republican tax reform bills that have made it through the House and the Senate? The Senate one you called the, quote, "terrible bill" that will have terrible consequences. What's important so far is that this may be the most consequential vote that you and other senators may cast in your career, given the long-term impact. You read all 477 pages. You admit you didn't understand it all but you read it all, which not every senator did by their own admission.

Is this being rushed through to the detriment of the American people?

KING: Yes. Absolutely. The answer to that is yes. I'll share with you, I come up with something new I modestly call King's Rule. And King's Rule is the faster a bill goes through the Congress, the worse it is.

This is a tremendously important vote in terms of its long-term implications. This isn't the reauthorization of the FAA or something about, you know, whatever issue, Pell Grants or something. This is something that's going to affect every American, every American business, the entire economy for probably 20 or 30 years, and it went through literally in the middle of the night.

We got the 479-page bill at 6 p.m. at night. We voted on it that night. There are all kinds of provisions in there as I was going through it, and I couldn't answer all the questions. But that's sort of the point. What's in that bill that we don't know? And I think we're going to -- we're going to find out.

And the real -- you started your question about saying the Republican bill. And that's really the problem. It didn't have to be the Republican bill. It could have easily been a bipartisan bill. There were at least 15 or 20 Democrats that were anxious to do tax reform, cut corporate rates, deal with offshore profits, all of those issues. And there was never a chance, and it was -- you know, it was just a ridiculously rushed process, and I think it's -- it was just a terrible mistake. And I don't -- it didn't have to be that way.

And the final point is, if you have a bill that's really important, the process by which you get there should be very thorough. And instead, we had the most important bill and the worst process. That's just not any way to run a railroad or the United States Congress.

HARLOW: Independent Senator Angus King of Maine, thank you for being here.

KING: Thank you.

HARLOW: Chris.

CUOMO: All right. I thought the King rule was that you always have to have lobsters on your tie, which of course, the senator from Maine is famous for and sent me one. Very nice.

All right. So this is a big question. It's not just about being in the weeds. It's not just insider legal yap. Can the president obstruct justice? This is an important question. Legal scholar Alan Dershowitz says no. The president wants you to hear his case. So let's hear it. Let's test it next.