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House GOP Not Ready To Move Past Health Care; "Anger, Frustration" In GOP's First Meeting Since Failure; Defiant Nunes: Trump/Russia Probe "Moving Forward"; Dems Ask If Trump Admin Blocked Yates From Testifying; Gorsuch's Path To 60 Votes Looks Bleaker. Aired 11-11:30a ET

Aired March 28, 2017 - 11:00   ET



PHIL MATTINGLY, CNN CORRESPONDENT: It's time to move on to tax reform, health care is too important, it's too important politically and policy wise for these members to move on. So, while there's no timeline on health care, work will continue behind the scenes -- Kate.

KATE BOLDUAN, CNN ANCHOR: So, there is a -- is this to appease and kind of satisfy House Republicans who are furious that they would give up on something they promised for so long? Do you get the sense that there's going to be a real, concerted effort to try to get to 218, 216, 215, whatever it is on a given day?

MATTINGLY: I think it's a little bit more the former than the latter at this point, but I do think that really the motivation behind the rank and file, the motivation behind the members is to continue to work.


MATTINGLY: Now, I think you have to look at how they're trying to do this right now. They were using a procedural mechanism to move things through that has kind of a small time window to actually work on. If they want to try and move something over into the Senate that only takes Republicans to pass.

There are a lot of road blocks in the way, not the least of which that they've declared publicly, the president himself, that they've moved on to tax reform, which really isn't that small of an issue to move on to as well.

So work will continue. I think the scope of that work and what that actually means going forward is still to be determined, because Kate, I can tell you, I spoke to the House Ways and Means chairman, Kevin Brady, yesterday.

He's one of the authors of this bill and he made clear, we're moving on. So, apparently if something in that message has changed, we'll see how much in the days ahead.

KEILAR: Yes, and Greg Walden (ph) on Friday said this bill is dead. It doesn't get any more clearer than that. Great to see you, Phil. So that is one of the big issues, of course, as they were talking about in this closed-door huddle between House Republicans. Another big issue facing them when they left that closed-door huddle is what is the latest and where do things stand with the House Intelligence Committee and their investigation into Trump ties, potential Trump ties to Russia?

And also, where does the credibility stand right now of the House intelligence chairman, Devin Nunes? Manu Raju has been following, caught up with the chairman earlier this morning. You want to take a look at this.


REP. DEVIN NUNES (R-CA), CHAIRMAN, HOUSE INTELLIGENCE COMMITTEE: We're not going to talk about the investigation. If you have any intelligence questions, I'll brief you at the proper, appropriate time when we have new information, just like I always have been doing.

UNIDENTIFIED FEMALE: -- which you've almost given. At this time, you are not considering stepping down?

NUNES: Look, I'd like to answer your question, but I'd like to know first what the purpose of that would be, why that would be because someone asks? I mean, that's not how --

UNIDENTIFIED FEMALE: Other leaders in Congress are calling for your recusal, saying you have a conflict of interest.

NUNES: I just left -- well, what would that be? Help me understand.

MANU RAJU, CNN SENIOR CONGRESSIONAL REPORTER: Their criticism is that you're too close to the White House, you shouldn't have briefed the president last week, and you can't credibly run the investigation. That's what they're saying.


RAJU: So, do you -- what's your response?

NUNES: You guys know the truth to that. You were told -- you guys know exactly what was said.

UNIDENTIFIED FEMALE: We're asking you if you feel you have a conflict of interest.

NUNES: I briefed all of you last week many times, so you guys know everything that's going on in this investigation, so I would say just go talk to them and ask them why.

RAJU: But are you going to stay as chairman and run this investigation?

NUNES: Well, why would I not? You guys need to go ask them why these things are being said.

RAJU: So, can this investigation continue as you as chairman?

NUNES: Why would it not? Aren't I briefing you guys continuously and keeping you up to speed?

UNIDENTIFIED FEMALE: So, in other words --

RAJU: But they're saying it cannot run with you as chairman.

NUNES: You've got to go talk to them. That sounds like their problem. I don't have -- my colleagues are perfectly fine. They know we're doing an investigation and that will continue.

UNIDENTIFIED FEMALE: Do you think that the committee, that --

NUNES: Guys, I've got get going.

UNIDENTIFIED FEMALE: -- that the investigation at this point will not be affected by all this, though? Will it change in quality or how it runs?

NUNES: No. We're doing a very thorough job on this investigation. As you know, this Russia issue we have been on it for many, many years, and so, we'll continue to be on the issue.

UNIDENTIFIED FEMALE: Also (inaudible) --

NUNES: Look, we're not going to get into who we're going to interview or not interview at this point, unless they publicly come forward, and you know, so, last week when someone publicly came forward, I announced it to all of you. There's really nothing more, guys.

RAJU: Did your former attorney, Mike Ellis, was he your source?

NUNES: How many questions are you going to ask? There's like 20 questions every day.

RAJU: But Mike Ellis, your former lawyer, a lot of speculation about whether he was your source.

NUNES: You can continue to speculate. As I told you before, we're not going to get into sources, methods, anyone.

RAJU: But you're ruling out it came from the White House now.

NUNES: I can tell you, just go back and look at the stories that have been written, and you know, I think those are pretty accurate, interviews that I did with CNN, last night on your show, on Wolf Blitzer. I don't think there's any more questions that you can ask.

RAJU: Intelligence source.

UNIDENTIFIED FEMALE: Can you comment on why the intelligence committee meetings were canceled this week?

NUNES: Look, there's no -- everything is moving forward as is. I'm not going to get into internal communications between us and the Democrats, but I would go ask them that question and have them tell you.

UNIDENTIFIED FEMALE: But did you cancel the meeting?

NUNES: Guys, you're going to have to -- I told you, I've been very fair to brief all of you when there's something to report, but there's nothing new to report right now.

[11:05:10]UNIDENTIFIED MALE: Did the Trump administration seek to have Sally Yates not testify?


KEILAR: All right, there's Devin Nunes speaking to Manu Raju and a whole slew of reporters in the capitol. Let's go to Manu Raju live now, following. So, Manu, House Speaker Paul Ryan was asked about this as well. His take on this, because Devin Nunes for his part is standing firm.

RAJU: Yes, he is, and Paul Ryan's standing behind him, only saying no and no when he was asked a question about whether or not Mr. Nunes should recuse himself from this investigation or if he knows of the source of that information, this coming after Ryan's office issued a statement yesterday saying that they have full confidence behind Nunes running what they consider a credible investigation.

But notably, also, Ryan was nearly an hour late for this press conference, only took four questions, only one on Nunes, and of course, that was something that a lot of reporters had questions on, whether or not this intelligence committee can move forward.

Now, Nunes is, of course, signaling that he's ready to move forward, continue as chairman, but there are a lot of questions about whether he can do that and whether the committee can produce a bipartisan report.

Kate, also this week, the committee canceling all of its meetings that it planned to have, not just that public hearing that was supposed to also hear the testimony of Sally Yates, who is a former, of course, number two at the Justice Department, but also private briefing with James Comey, Mike Rogers that was supposed to happen today. That's not happening.

Even their private briefings among the committee itself not happening, all showcasing how tense this committee is, a signal whether they can actually reach any sort of consensus. It is a very, very serious doubt, as they try to figure out, get to the bottom of those ties that allegedly occurred between Trump officials and Russian officials during the presidential election -- Kate.

KEILAR: And the most immediate terms, do you get a sense from Nunes or anyone else on the committee or any of your sources that any of these closed-door meetings or public hearings have been rescheduled yet?

RAJU: None yet. Now, Nunes is -- an aide told me that they are looking at rescheduling these meetings, but nothing yet, and Nunes would not commit to having another public hearing, saying that we're looking at trying to reschedule a public hearing with Sally Yates.

Now, of course, there's been a lot of questions about whether or not the White House wanted to actually prevent her from testifying to raise -- because she was likely going to raise more questions about Michael Flynn, the former national security adviser and the communications they had with the Russian ambassador, whether he would have been "blackmailed," in her words.

We asked Nunes directly whether or not they canceled the briefing -- the public hearing -- to hear the testimony at the White House request and he said come on, that's not a fair question. It's speculation. So, he would not rule that out either. So, more questions about this investigation and whether or not it can credibly move forward -- Kate.

KEILAR: Yes, that's an important point. He did not ask your question when you asked it very directly. We'll get to that new reporting coming out right now. Manu, thank you very much.

We are pointing out breaking news -- the top Democrat on the House Intelligence Committee, Adam Schiff, is now raising questions on of whether the White House made moves to try to block Sally Yates, the then acting attorney general who President Trump fired, from testifying before the House Intelligence Committee on the Russia investigation.

For more on this, I want to go to Devlin Barrett, a "Washington Post" reporter who is breaking the news on this very story. Your headline says it all, Devlin. You lead it out for me. "Trump administration sought to block Sally Yates from testifying to Congress on Russia." What are you picking up?

DEVLIN BARRETT, NATIONAL SECURITY REPORTER, "WASHINGTON POST": So, we're told that what happened last week in the run-up to this hearing that ended up being canceled was that there was a building tension between Sally Yates, the former acting attorney general, and the administration over whether or not she would be allowed to discuss the non-classified details of her discussions with the White House about, you know, the whole controversy surrounding former national security adviser, Michael Flynn.

And basically, what happened was the administration told Sally Yates that that was considered protected -- those details were considered protected by executive privilege, meaning she couldn't talk about it in an open hearing.

She disagreed, she objected, and last Thursday, it became clear that Yates' intention was to tell the committee things about those conversations that contradicted some of what the White House has said about those conversations, and the following day the hearing was canceled.

KEILAR: And as I was looking through your article, you also have a letter from her attorney to the White House that I believe was sent over there on Friday saying pretty much this, right?

BARRETT: That's right. This is outlined in a series of letters back and forth where Yates' attorney tries to pin down -- both pin down the Justice Department and the White House on exactly why they don't want her to talk about these discussions.

[11:10:09]And at the same time argue that asserting executive privilege for her testimony is inappropriate in this case. That was the argument that Yates' lawyer made, and it sort of ended up, didn't completely getting resolved, because last Friday in one of those letters, Yates' lawyer said, look, if we don't hear back from you guys, we're going to assume that we are going forward with our testimony. And because the hearing was then canceled, frankly, the White House didn't have to respond at that point or have to sort of throw down a final marker, let's say.

KEILAR: So, Devlin, what has the White House said to you about this?

BARRETT: So far, we haven't heard an answer from the White House as to why they were asserting the privilege, why they think it applies in this case, particularly to the non-classified information. Yates' position has always been, I can talk about -- Yates can talk about -- the non-classified parts of the discussion.

But apparently, the White House kept signaling no on that. First the Justice Department delivered that message, and then as the argument went on, the Justice Department said, look, you have to talk directly to the White House. And when Yates' lawyer engaged in that conversation, the hearing was shut down the next day.

KEILAR: All right. We'll stand by and see what the White House has to say about this because we're sure they'll be responding in short order. Devlin, thank you very much. I appreciate it. A lot to analyze and discuss right now.

I want to go to CNN senior legal analyst, Jeffrey Toobin, joining me on the phone right now. Jeffrey, can you hear me?


KEILAR: Hi there. This "Washington Post" report and the top Democrat on the House Intelligence Committee raising questions along these same lines. Can you break this down for us? It sounds like, Sally Yates, she was planning on testifying. If you go along with this reporting, Jeffrey, the White House thinks that her communications, those conversations what she knows, is covered under executive privilege, so she should not have been able to testify. Give me your take on this.

TOOBIN: Well, first of all, it's just important as background that, you know, cabinet and subcabinet officials like Sally Yates, testify in front of Congress all the time. I mean, so, it is unusual, for starters, for them to be stopped for any reason at all. Now, there is the question of executive privilege.

That is not the same thing as attorney-client privilege. You know, lawyers for the government don't have attorney-client privilege in the same way that if a criminal defense attorney can't talk about what he or she discusses with his client. This is executive privilege, which is a much more difficult concept to define, but it basically protects the internal deliberations of the executive branch, you know, what the president discusses with his advisers in the oval office is something that is generally considered off limits to congressional investigations in court hearings.

However, it is usually very narrowly defined, and courts have basically said we are not going to put the whole executive branch off limits because of executive privilege. So, if this were ever to go to court, it would be a very difficult legal question, I think, for the Trump administration to say that everything Sally Yates knows about Michael Flynn, about that investigation, would be off limits.

So, I think the White House, if they go -- you know, if this were ever to wind up in court, would be in trouble. In addition, of course, the broader point is that it's a political problem for the White House. It looks like they're covering something up about Russia again.

KEILAR: Because as you point out, it's one thing to have a difference of opinion between Sally Yates and her attorney and the White House and the Trump administration, but then it became pretty much null and void and doesn't even matter because Devin Nunes, the chairman of the House Intelligence Committee, he canceled that public hearing.

So, he is the one person who can control the guest list, the testimony list, the witness list for these hearings. I want to discuss those political implications right now. Jeffrey, thanks for jumping on the phone. I appreciate it. Jeffrey Toobin for us.

Also joining me to discuss all of this and what really played out and seems to have really changed in the political landscape in the last 15 minutes, CNN senior political analyst, Mark Preston, and CNN political director, David Chalian, joining me now.

So Mark, there's a lot to get to. Let's start with Sally Yates. You have the top Democrat on House Intel raising questions about what went on there, because she sought permission, could she not have gotten it.

Difference of opinion of what she should or shouldn't have discussed, we'll leave that to Jeffrey Toobin. Looking at the timeline, what is Devin Nunes as the chairman's role in all of this?

MARK PRESTON, CNN SENIOR POLITICAL ANALYST: Again, totally unclear right now because he hasn't been very open about what he learned and where he's going to go with it. In fact, we talk about how a lot of Democrats are upset with Devin Nunes.

[11:15:11]But let me just read you three quotes from three different Republicans this morning. John McCain, speaking of Chairman Nunes -- "He has a lot of explaining to do." Susan Collins, another Republican senator -- "I believe our Senate investigation has more credibility than the House." Senator Lindsey Graham on another network says "I think he has to repair the damage. My belief is that the House is off track and probably can't get back on track."

So, when you talk about Sally Yates, the idea that she could actually testify in public would probably go a long way, but now if she's being blocked, what are people hiding?

KEILAR: David, but Mark reads those quotes from Republicans who have questions and concerns about the credibility and objectivity of Devin Nunes now, but the one person who really has a say in it is House Speaker Paul Ryan, and he said definitively he's not going to ask him to recuse. So --

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Kate, you know how much House members love when senators across the Congress weigh in on their own internal matters.

KEILAR: Love it.

CHALIAN: Yes, no, you're exactly right. Paul Ryan's made clear that he's not persuaded by the McCains, Collins, Grahams yet, but that's just this morning Mark read those quotes from. So, we have to see if those Republicans calls stop there with those three Republican senators and really do not have much sway with House Republicans, Speaker Ryan, other members of the leadership, other Republicans on the Intel Committee.

It's those voices that we really need to watch to see if they feel this is -- and of course we heard from Speaker Ryan this morning clearly that he doesn't feel that way at all. He thinks Chairman Nunes should continue in the role he's doing and should move ahead with this investigation just like Chairman Nunes said he's going to.

KEILAR: Yes. Jeremy Dimon getting a statement from Deputy Press Secretary Sarah Sanders about the question of Sally Yates testifying and that hearing being canceled, as we were discussing. Let me just read it, because the White House should have their say in this.

This is a statement -- "The "Washington Post" story is entirely false. The White House has taken no action to prevent Sally Yates from testifying, and the Department of Justice specifically told her that it would not stop her and to suggest otherwise is completely irresponsible."

So when it comes to that question, one would be led to believe this hearing could be rescheduled and she should be able to testify then, right, David?

CHALIAN: Well, I think we're going to have to parse that statement as we do all White House statements. Taken no action, well, what does that mean? Taken no action may mean that they did not actually go ahead and assert executive privilege and they didn't want to take that action.

But are there other ways in which the White House made clear to Sally Yates and her attorney that they did not think that her testify out in public would be a wise thing because some of that stuff could eventually be claimed as privilege.

We just have more to learn here, but that White House statement at the outset seems very specific. They may not have taken a formal action, but we need to learn more about the way in which they indicated to Sally Yates, if they did at all, that they didn't want her to testify.

KEILAR: And I've got to get going, but I do want to point out for our viewers, this hearing was supposed to happen this week. It was canceled on Friday. Why? The chairman at that point said they needed to have a closed-door hearing with the FBI director and the head of the NSA. That actually never ended up happening this week.

So there are real questions of what was scheduled what was canceled, and for what reasons. That continues to kind of muddy the waters of what is exactly known and how this committee is going to be moving forward. I just wanted to make sure we all had that at least out there and clear.

Mark and David, thanks, guys. Mark's going to come back and join me in a little bit to discuss some of these issues further.

This is also ahead for us -- the path to confirmation for the president's Supreme Court nominee getting tougher by the day, it appears. Will Republicans use the nuclear option, or will Democrats turn? One key vote in this is joining me next.

Plus it has nothing to do with Obamacare, but President Trump today is making moves to try and dismantle one of former President Obama's biggest legacy items. Details on that ahead as well.

And CNN is on the ground in Iraq as the U.S. investigates now reports that more than 100 civilians were killed in a coalition air strike. Is the U.S. to blame? You're going to see what we found. We'll take you there.



KEILAR: The next big fight for the Trump administration, the confirmation of Neil Gorsuch to the Supreme Court. The Senate committee in charge of his nomination is expected to vote on the nomination on Monday, but it may not be easy.

Right now, Gorsuch needs 60 votes to get to final confirmation. There are 52 Republican senators, of course. That means they need to convince eight Democrats to vote with them. If not, Republicans are considering a rare and controversial move known as the nuclear option.

They can change the Senate rules, essentially, to make it easier to approve his Senate confirmation, requiring just a simple majority. OK, so, joining me now to discuss, very important senator in all of this, Democratic Senator Jon Tester of Montana. Senator, thanks so much for the time.

SEN. JON TESTER (D), MONTANA: It's great to be here with you, Kate. Thank you.

KEILAR: Thank you. A lot of people wondering this very question about you. Are you going to vote to confirm Neil Gorsuch? TESTER: Well, look, I'm still taking input from Montanans. We're still -- I'm in the middle of reading an extensive document on some of his decisions and opinions that he's written. So I'm still in the mix of trying to figure out how I'm going to vote. I haven't decided yet.

We will be deciding soon, though, and I think it was very, very instructive. Look, I think I was the second senator to meet with him, asked him a number of questions that he referred to past, present and on, and really didn't really answer them.

And also did kind of the same thing during the hearing, especially as it revolve around Citizens United, and so I've got to do some more due diligence, make sure I'm doing the right thing here.

[11:25:01]I think this is one of the most important decisions a senator will make, and that's confirmation of a Supreme Court justice, but my decision will be coming soon. I've just got some more work to do.

KEILAR: What's your gut right now? Are you leaning yes or leaning no?

TESTER: Actually it depends on what time of day you ask me that question. So, like I said, we'll read the opinions. We'll make sure we know what he has stood for in the past, because I think that will indicate where he's going to make his decisions in the future. And I've really got to tell you, Kate, it's totally up in the air at this point in time.

KEILAR: So, it's a procedural question, but it is an important one. Regardless of how you eventually intend to vote, will you vote to allow the nomination to move to the floor for an up or down vote?

TESTER: Well, my vote for the nominee will be the same as it is on the filibuster. I will either vote for him in both cases or against him in both cases. So, that's always been kind of the way it's been around here. The procedural motions have kind of flowed with how you were going to be on the issue, whether it's a person or whether it's a policy and so --

KEILAR: Not necessarily, though. It's one thing to say you're not going to support the nomination, but you will allow for the vote to occur. I've seen that many times.

TESTER: It has.

KEILAR: -- on various pieces -- various bills that have come up.

TESTER: You're right, Kate. In my case, though, and there's been a few exceptions, but darn few, I voted the same way on both because I think you're attached both ways. If you vote yes-yes, it's much cleaner. If you vote no-no, it's much cleaner.

KEILAR: So, Republicans, of course, are threatening to use the nuclear option now. They're going to change the Senate rules. They are threatening to change the Senate rules to make it easier. Democrats started down this path back in 2013. They did this with regard to other presidential appointments. Do you regret that now because you might be facing it while you're in the minority?

TESTER: Well, look, I think there was incredible filibusters and stopping the process for the first six years I was here and we were getting nobody across the line. I wish he had done something in 2013, but he made the call and that's the way it proceeded, but remember, we did not apply it to Supreme Court justices or policy decisions, and I think it's important.

I don't think Mitch McConnell wants to change the filibuster. Back in the day when Mike Mansfield was majority leader it was 67 votes. Today it's 60. I think the problem has always been, quite frankly, people not coming together.

And not to go down a different line with you, Kate, but a lot of that has to do with dark money A lot of it has to do with campaign finance reform. It really has created a hyper-partisanship here in Washington, D.C., that we need to fix also.

KEILAR: When do you think you'll have your decision made? The committee votes on Monday.

TESTER: Yes, I think it will probably be around that time. I don't want to nail myself down because I want to be able to take enough time to make sure we do this. And you know, we've been at this for a couple months now, but it's been extremely busy here in Congress.

And so, we've had a lot of work that we've been doing, and I haven't been able to devote the time I've needed to really investigate his opinions, but I'm going to make sure I get that done over the next five to seven days, and then we'll have a decision.

I want to give the guy a fair shake. I want to give him every opportunity to know who I'm voting for when I cast that vote.

KEILAR: Just one quick final question on health care, since it's all over the news and it's very important. The president tweeted this last night. I want to read it to you, "The Democrats will make a deal with me on health care as soon as Obamacare folds. Not long. Do not worry. We are in very good shape!" Do you think you can work with this president on a health care bill, if the promise is still to repeal and replace Obamacare?

TESTER: I absolutely do and I hope it happens sooner rather than later. I think it's kind of a self-fulfilling prophecy to say that Obamacare's going to go down when the administration can have a lot of effect on that, on its demise.

But the truth is, it's done a lot of good things. It's got some problems, and I think we need to sit down in a bipartisan way and go to work and fix the problems it has. I think one of the problems with the House bill --

KEILAR: If the bill says repeal on it, are you going to be able to support it? TESTER: Well, it depends on what the replacement is.


TESTER: If the replacement increases access and affordability, you're darn right, I'll be there. If it increases access but not affordability, then we've got a problem.

KEILAR: Senator Tester, always great to have you. Thank you, Sir.

TESTER: Thanks, Kate.

KEILAR: And whenever you make that decision on Gorsuch, you've always got time on my show.

TESTER: All right, thank you.

KEILAR: Thank you.

KEILAR: Coming up for us, more on the breaking news. The Republican in charge of the House Intelligence Committee refusing at the moment to step aside over his questionable actions in the committee's investigation into the Trump campaign's ties to Russia.

The House speaker standing beside him, backing him up. One of the big questions right now, who approved Devin Nunes getting on to White House grounds? That might tell us something. That's ahead.