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Trump Attorney: "No Consideration" Of Firing Mueller; Trump On A Flynn Pardon: "Well See What Happens"; Trump Lawyer: White House Interviews Are Complete; Trump Judicial Pick Fumbles Basic Legal Questions. Aired 5-5:30p ET

Aired December 17, 2017 - 17:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


ANA CABRERA, CNN ANCHOR: -- is the White House saying about this idea of firing Mueller and where is this coming from?

BORIS SANCHEZ, CNN CORRESPONDENT: Hey, there, Ana. Well, all of this is stemming from several comments that have been made by the president and the Republicans more aggressively than the president. Just a few days ago, the president was speaking to reporters lamenting what he sees of the state of the FBI saying that it is a shame what is happening to the FBI.

He was specifically alluding to some messages that were exchanged between top FBI officials back in 2016 during the campaign that were very critical of the president among other lawmakers.

One of those officials ended up becoming part of the Mueller's special counsel. After those messages were revealed that officials were since reassigned, but you are hearing growing calls from Republicans arguing that now the special investigation is tainted because of what they see as a political bias that was revealed in these exchange messages.

The response from Democrats is that they feel that Republicans are now going to use this to discredit Mueller's investigation. Now, we heard from Jackie Speier, who is on the House Intelligence Committee.

She spoke to a San Francisco tv station and she said that in part, quote, "I believe that the president wants all of this shut down." Alluding to the several investigations in Congress and a special counsel.

She said, "He wants to shut down these investigations and he wants to fire Special Counsel Mueller." Another representative on the Investigative Committee, Adam Schiff, made similar comments yesterday on Twitter.

So, we reached out to White House Counsel Ty Cobb, who gave us the following statement. He said, quote, "As the White House has consistently said for months, there is no consideration of firing the special counsel."

So, the White House essentially denying these claims that are being made by Democrats in response to things being said by Republicans. All of this makes an interesting meeting coming up this week between attorneys for the president and Robert Mueller, making that meeting certainly much more significant -- Ana.

CABRERA: All right. Boris Sanchez, thank you. Let me turn to Evan, who has the reporting on this upcoming meeting. It is an interesting timing of that statement. Obviously, they want to have a fairly good relationship with Robert Mueller in order to glean the kind of information that they are after.

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Right, exactly. It is funny that Ty Cobb keep on having to say this and the reason is he has to do this is because we know that the president is very impatient with this investigation. It is something that's clouding his year-old administration obviously and he wants this to go away as soon as possible.

We know that this meeting which we expect to happen later this week is going to be focusing on the president's legal team trying to essentially get Mueller to put his cards on the table and explain where this in investigation is going and how much longer is this expected to go and what parts of the investigation are left to be done.

And the importance of this meeting is simply this, I mean, they have now turned over every document they say that Mueller has requested, and they also say that everybody who works at the White House that Mueller has asked to interview has now gone in for an interview.

We know Don McGahn, the White House counsel went in for his interview earlier in the past week. So, they believed that everything is done and so now it is in Mueller's court so to speak for him to do what he has to do next.

CABRERA: All right. So, that makes sense that they believe that because they have done everything that they have asked so far that that lead them to believe that the investigation could be wrapping up. We just don't know for sure.

PEREZ: That's exactly right. I mean, Mueller does not have to tell them anything and he does not have to show any cards so whatsoever. He has more to go and we believe based on talking to sources and other lawyers believe that there is a lot more investigation to be done.

CABRERA: They've had some meetings before, though, too.

PEREZ: Exactly. They've had more other meeting before. This one is important because of the timing of all the other parts of this that have been done.

CABRERA: OK. Evan Perez, thank you for that reporting and Boris as well, thank you. I want to bring in a couple of experts who has a lot of perspective for us. CNN senior political analyst, a former adviser to four U.S. presidents, David Gergen is with us. Joining us on the phone, CNN chief legal analyst and former federal prosecutor, Jeffery Toobin.

First to you, David, your reaction to the president's attorneys putting out there insisting there are no plans to fire Special Counsel Robert Mueller?

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Well, there are no plans. The question is what's going on in the oval office? That we simply don't know. What we do know is that that his attorneys have been promising President Trump for some time that this would be wrapped up by the holiday season. It is not.

They think all the people have been interviewed as we just heard so they would like to see if it will come to a conclusion. At the same time, we have the president in the last 48 hours not shutting down speculations about whether he may pardon his former national security adviser, Michael Flynn.

[17:05:11] From Michael Flynn's point of view that maybe encouraging not to be fully cooperative. The other interesting thing is very different straw in the wind was the starting that we had late this week that the lawyer for Jared Kushner are seeking a public relations firm that's used to handling crisis. That's a very interesting development.

CABRERA: That would suggest that his team does not think that this investigation is over any time soon.

GERGEN: Exactly right.

CABRERA: So Jeffery to David's point, while the lawyers are saying there are no plans to fire Mueller, yesterday, the president raised the specter of possibly pardoning Michael Flynn. I want to play it for us.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA: I don't want to talk about pardon for Michael Flynn yet. We'll see what happens, let's see. I can say this. When you look at what's going on with the FBI and the Justice Department, people are very, very angry.

(END VIDEO CLIP)

CABRERA: So, he just said let's see while his lawyers are clarifying, you know, what's going to happen with Mueller. They aren't putting out any statements clarifying what the president meant by those comments, Jeffrey?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST (via telephone): Well, you can listen to what President Trump says without also listening to the news media he follows. I mean, there is this enormous drumbeat on Fox News and Breitbart for this investigation to end and for Donald Trump to shut it down.

And you know, there is an interesting difference between Ty Cobb and Donald Trump. Donald Trump is president of the United States. Ty Cobb is a midlevel employee. I would listen far more carefully to what Donald Trump says than to what Ty Cobb says about what his intentions really are. And I think it is very unclear whether this investigation -- that the White House will attempt to shut down this investigation one way or another.

CABRERA: David, the president often says "we'll see" when he's asked tough questions about topics he really doesn't want to discuss. So, is it possible that he's just going to go into that throw away response sort of his natural instinct and that pardoning Flynn really isn't something he's considering.

GERGEN: Well, I found the operative word in that and the most striking word in his response on the pardon and I don't want to talk about pardoning Michael Flynn yet, yet. That suggests he wants to keep the door open in his own mind about what he's going to do.

That's a clear and obvious signal to the Flynn people to take some encouragement and possibly holding on and hope to get a pardon. That maybe better than whatever stories he got to spill.

What we don't know what -- you know, Flynn has been cooperating for a while. So, he may have already told a lot of these stories. We have to wait and see about what this is. I agree with Jeffery that we don't know yet whether the president tends to shut it down.

What I do think is so unusual and so odd is that in the past when the White House has hired a lawyer, and that lawyer is supposed to be the representative to the public and to the press.

But first it's supposed to reflect the views of the president and here we have this total disconnect again and again between what to say what the secretary of state says versus the policy that comes from the president.

What the lawyer for the president says and what the president himself maybe thinking. It leaves a great deal of uncertainty, but I think it also from the president's point of view perhaps maintain flexibility.

So, that if the pressure mounts as Jeffrey says from Breitbart and Fox and so forth and so on, he may feel he has more leverage to shut it down than he does six weeks ago.

CABRERA: So, Jeffrey -- go ahead.

TOOBIN: I just want to add one thing David, said. You know, he said one word jumped out of him and that word was yet. No pardon discussion yet. The other word that jumped out of me was "people."

He said, you know, people are angry at the FBI and upset at this investigation. If you look at the public opinion polls, that's not true for a considerable majority of the public. The people who are upset are the people who watch Fox and the people who are on Fox.

And that's those the opinion leaders that this president follows. I think as long as they are beating the drums for firing Mueller, that idea will never be off the table for this White House. CABRERA: I want to get your take, Jeffrey, on this idea that Ty Cobb is putting out there that the White House interviews are complete and that there were no requests to interview the vice president or the president himself.

[17:10:05] So, in their mind it suggests that the president isn't under investigation or isn't in the hot seat in their investigation. Do you think it's possible Mueller would end this investigation without ever questioning not only the president and the vice president, but also Ivanka?

TOOBIN: I would find it very hard to believe that Mueller and his team would shut down their investigation without talking to the president. That seems like performing "Hamlet" without Hamlet.

It would seem it would not be a thorough investigation. You know, Ty Cobb has been saying almost since he was fired in July that the investigation is wrapping up. He said Thanksgiving, end of the year, and now January.

I mean, I think he wants that to be true and I think he has taken a cooperative posture. He has made witness available. He has produced documents, but the person in charge of this investigation is not Ty Cobb. It is Robert Mueller.

And I certainly don't know that he's wrapping up this investigation. I would be very surprised if Ty Cobb knew for sure that he was wrapping up the investigation either.

CABRERA: All right, Gentlemen, I have much more to ask you about, but I need you to stick around, got to squeeze in a quick break. I want to talk about a revealing Q&A session that I am going to play for you where senators were questioning one of President Trump's nominees to be a federal judge. Here is the sneak peek.

(BEGIN VIDEO CLIP)

SENATOR JOHN KENNEDY (R), LOUISIANA: Have you ever tried a jury trial?

MATTHEW PETERSEN, DISTRICT COURT JUDGE NOMINEE: I have not.

KENNEDY: Civil?

PETERSEN: No.

KENNEDY: Criminal?

PETERSEN: No.

KENNEDY: Bench?

PETERSEN: No.

(END VIDEO CLIP) CABRERA: That did not end there. There is an apparent lack of legal knowledge with the follow up question that comes in this back and forth. What did that reveal about President Trump's efforts to remake the federal court if anything. We'll discuss, live in the CNN NEWSROOM.

(COMMERCIAL BREAK)

[17:16:13]

CABRERA: President Trump's efforts to remake the federal courts hitting an awkward moment this week. One of the president's judicial nominees, Matthew Petersen, coming under fire after failing on answer questions on basic legal knowledge.

CNN's Ariane De Vogue takes a look at the jaw dropping exchange between Petersen and Republican Senator John Kennedy during a Senate Judiciary Committee hearing. Take a look.

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: It is not often that a confirmation hearing for a district court judge grabs anyone's attention. But on Thursday, a Republican senator grilled nominee, Matthew Petersen. He's up for a seat on the United States District Court for the District of Columbia. The video of his testimony went viral. He stumbled on basic legal questions. Take a listen.

(BEGIN VIDEOTAPE)

KENNEDY: Have you ever tried a jury trial?

PETERSEN: I have not.

KENNEDY: Civil?

PETERSEN: No.

KENNEDY: Criminal?

PETERSEN: No.

KENNEDY: Bench?

PETERSEN: No.

KENNEDY: State or federal court?

PETERSEN: I have not.

KENNEDY: Do you know what a motion in Limine is?

PETERSEN: I would probably not be able to give you a good definition.

KENNEDY: Do you know what the Younger abstention doctrine is?

PETERSEN: I've heard of it, but I --

KENNEDY: How about the Pullman extension doctrine? You'll all see that a lot in federal court. OK.

(END VIDEOTAPE)

DE VOGUE: What's interesting here is the outrage of a Republican senator and it comes as Senator Chuck Grassley, the head of the Senate Judiciary Committee at the White House earlier in the week to withdraw two nominations.

One of the nominees had expressed early support for the KKK. But here's what is significant, despite this misstep, all and all they have had an unprecedented success. They put some 12 appeals courts nominee and that's a record. So, they may be losing the battle with these few nominees, but they are winning the war to reshape the judiciary -- Ana.

CABRERA: All right. Ariane De Vogue, thank you for that. Back with us, our panel as the White House -- by the way, I want to read the White House's response to this ongoing controversy surrounding the judicial nominee, Matthew Petersen. This is what they write in a statement.

"Mr. Petersen has spent nearly a decade as a commissioner of an important federal agency overseeing its litigation on regulatory issues -- the very kinds of issues federal district court in D.C. decides. It is no surprise the president's opponents keep trying to distract from record-setting success the president has had on judicial nominations."

Again, a reminder, it was the Republican senator who was asking those question. Back with us to discuss all of this is David Gergen and Jeffrey Toobin. Jeffrey, as a legal mind yourself, were these gotcha questions?

TOOBIN: No, they weren't gotcha questions. They were really easy questions. A motion in limine is simply a motion to keep evidence out of the view of the jury and abstention relates to federal state relations in court.

I mean, these are questions a second-year law student should be able to answer. It is more important I think to recognize what's really going on with the federal courts, which is that President Trump and Mitch McConnell, the majority leader's great (inaudible) is moving the courts in a dramatically more conservative direction.

Remember, it was Mitch McConnell, who kept Antonin Scalia's seat open for a year and did not allow a vote on Merrick Garland and he didn't allow votes on lawsuits of judicial vacant seats.

And Donald Trump is filling them mostly with highly qualified nominees. In fairness, I think Petersen was an exception in that regard. They are qualified and extremely conservative. That's going to be one of President Trump's most significant legacy.

CABRERA: I want to ask you more about that in a second, but it is not an isolated issue of what we just heard from Petersen. [17:20:04] I mean, the White House had to pull two other judicial nominees whose credentials were questioned by the Republican chair of the Judiciary Committee also happening this week.

I mean, Brett Talley, he was nominated to be a federal judge in Alabama. He has never tried a court case. He got a unanimous not qualified rating from the American Bar Association. We have also learned that Talley failed to disclose that his wife works for the White House Councils Office.

There's also Jeff Mattir (ph), who once described transgender children as part of, quote, "Satan's plan" and there's Leonard Stephen Brass (ph), who was narrowly confirmed despite his not qualified rating from the American Bar Association. David, what do you think is going on?

GERGEN: I think Jeffrey nailed it. The White House is in an enormous rush to fill over 143 current vacancies on the federal benches around the country because they want to -- they see the most single important legacies of the Trump years.

Something that cannot be undone if the Democrats come back into power. People who are very conservative and going into bench and having lifetime appointments. In that rush, I think the vetting process and the White House once again has been ragged and trying to fill out completely.

People are not told up in the Hill exactly what the backgrounds are of these people. If you look at Peterson's resume, I there are many strong qualities in it. You know, he's done a lot in life.

The stunning thing, though, was not only the vetting, but fact is he was nominated to this role three months ago, back in early September, he's had three months to prepare for these hearings to brush up, OK, he has not practiced this kind of law in a long time. He was on the (inaudible) of the University of Virginia.

This a guy who could have some days studying and then ready for all of these questions as Jeffrey said that are seen as pretty standard in law schools.

CABRERA: I also want to ask you guys about the lack of diversity in the president's picks because it is not just the knowledge in the Q&A, but I mean, we know the president is setting records for the percentage white people nominated for these lifetime appointments to the federal courts.

I want to show you this. Nearly 60 Trump's judicial picks, only one is black and one is Hispanic and three are Asians. And for more perspective that means only 8 percent of Trump's nominees are not white. The lowest share for a president in three decades when you look back at the percentages of his predecessors.

So, Jeffery, do you think this administration is failing to cast a wide enough net in search for talent of various ethnicities and backgrounds? TOOBIN: It's not a priority. I mean, this White House doesn't care about diversity. You know, now that Amorosa has left the White House staff. There are no African-Americans in the senior White House staff either. This is not something that this administration cares about.

What they care about is ideology and they are doing a very effective job of nominating judges who are against gay rights, abortion rights, voting rights for African-Americans, who are for lower barriers between church and state.

That's what they want and that's what they are getting. They don't care about nominating women and racial minorities, and you see that in the results of what they are getting.

CABRERA: David, your thoughts?

GERGEN: Well, I think we saw it before earlier when the president named the U.S. attorneys around the country. Now the president has a right to fire the standing U.S. attorneys when he comes in and he did that and exercised that.

In replacements of those people, there are dozens and dozens of U.S. attorneys that he named and only one is a woman. That was astonishing to me and picture after picture that comes out of the power structure in the administration when the president put his cabinet, you see only a barehand full of women and you see very, very few minorities.

CABRERA: Gentlemen, David Gergen, Jeffrey Toobin -- go ahead, last thought.

TOOBIN: It used to be said that there were not a lot of women lawyers and not a lot of minority leaders. That is decades in the past. There are thousands of women, thousands of qualified minority candidates. It is a question of ideology and that's what matters most to this White House.

CABRERA: I really appreciate the thoughtful discussion, guys. Good to have you both on.

President Trump claims the FBI is tainted and says it is a shame what's going on there. He claims the FBI is biased against him and the Russia investigation. We will talk it over with a couple of former FBI agents, coming up, live in the CNN NEWSROOM.

(COMMERCIAL BREAK)

[17:29:21]

CABRERA: Some breaking news coming into CNN, another member of Congress is stepping aside now amid sexual harassment allegations. Democrat Ruben Kihuen of Nevada says he will not run for reelection amid the House Ethics Committee investigation into accusations that he sexually harassed two women.

Now he is a first term congressman representing parts of south and central Nevada. Here is what Kihuen is saying in a statement. "I want to state clearly again that I denied the allegations in question. I look forward to clearing my name. Due process and the presumption of innocence are bedrock legal principles which have guided our nation for centuries and they should not be lost to unsubstantiated hearsay and innuendo. However, the allegations that have surfaced would be a distraction from a fair and thorough discussion of the issues in a reelection campaign."

Meantime, Rockstar Gene Simmons is being sued for sexual battery.