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Trump Lawyer Michael Cohen Under Criminal Investigation; White House Rips Comey Over Book "Disgraced Partisan Hack"; Rod Rosenstein Consulted with DOJ Ethics Adviser on Recusal. Aired 3:30-4p ET

Aired April 13, 2018 - 15:30   ET

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

[15:30:00] BROOKE BALDWIN, CNN HOST: The President as you're about to hear saying, I don't know anything. Ask Michael Cohen. Roll it.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE REPORTER: Did you know about the $130 payment to Stormy Daniels?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: No.

UNIDENTIFIED FEMALE REPORTER: Then why did Michael -- why did

TRUMP: What else?

UNIDENTIFIED FEMALE REPORTER: Why did Michael Cohen make it if there was no -- if they're allegations?

TRUMP: You'll have to ask Michael Cohen. Michael's my, attorney. Then you'll have to ask Michael.

UNIDENTIFIED FEMALE REPORTER: Do you know where he got the money? To make that payment?

TRUMP: No, I don't know.

(END VIDEO CLIP)

BALDWIN: So, Gloria, and Michael Smerconish who's also joining us as well as part of this whole conversation. But Gloria, I mean, that's the moment and that is when the President said, "ask Michael Cohen" and according to these court documents that Shimon and everyone at our justice seems to be reading through. This is coming back to bite him.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, it is. And it's clearly stated in a footnote here. They're saying, look, even if the President is Michael Cohen's only client, the Michael Cohen, the President said personally he did not know anything about this. And he did not know anything about the payment and you'd have to ask Michael Cohen. So, if he's denied knowing about it, they are, you know, they are saying that these communications -- there should not be any communications. Because they wouldn't be, you know, if he denies knowing about it, then why is Michael Cohen worried about it? Because it never happened. If we believe that the President is telling the truth. And so, obviously, they're saying this Stormy Daniels matter is really

not covered here. And they are questioning at every turn. Michael Cohen's assertion that he not only worked for Donald Trump that he had five other clients, which they can't seem to find. And he worked in a law firm that he rented office space in a law firm where only he had the key to his office. They surreptitiously -- it's very clear have looked at e-mails in which they seem to have seen no evidence that he was working on behalf of other clients. And if he helped anybody, it may have been at Donald Trump's behest.

So, you know, they're saying you represent the President and we had every right to do this. Because we believe otherwise documents might have been destroyed if we had not done this. And we believe crimes were committed. Although as I'm sure and I know -- has been pointed out to you earlier -- in reading through this there are a lot of very tantalizing redactions. In which potential crimes are laid out. Which were not privy to?

BALDWIN: Right. We only get to read bits and the pieces. But you know, Michael Smerconish, I'd love to hear from you. Not only as a host and a great voice to apply, but also just as a lawyer. The development that they're now arguing this, you know, the stormy payment wouldn't be covered under attorney-client privilege and

just the sheer fact that the FBI had to roll up on him when they did because they were worried he was about to destroy evidence.

MICHAEL SMERCONISH, CNN POLITICAL COMMENTATOR: We lawyers are obligated to take continuing legal education on an annual basis. It differs from state to state what the requirement is. But there's an ethical component to it. And this sounds like the type of lecture that you would hear in what we refer to as a CLE presentation or in a law school exam. And I would say that there's no simple answer to that which we've heard thus far.

I think though the court would be very hard pressed not to find an attorney legal client relationship here where the President says he's my attorney and where the attorney says, yes, he's my client. What I've long said to you, Brooke, is that the President is in a tough spot. He's trying to thread a needle by saying, I was not a party to the underlying agreement. I was out of the loop. But it's nonetheless a binding contract. That's what he's been trying to do and keeping the matter in arbitration that whole issue that is being litigated by Michael Avenatti on behalf of Stormy Daniels.

BALDWIN: OK. Let me come back to you in a second. Asha, you know, the government cited covert search warrants to search these different e-mail accounts. Can you explain that and what it means for Michael Cohen?

[15:35:00] ASHA RANGAPPA, CNN LEGAL AND NATIONAL SECURITY ANALYST: Yes. The burden of proof to get some kind of covert surveillance. That would be under Title III, which is what authorizes electronic surveillance for criminal matters is incredibly high. You have to show the court not only that you have probable cause to obtain evidence of a crime, but that you don't -- you can't get it through any less interest of means because the invasion into the person's privacy.

So, I think that combined with the aggressiveness of the search warrant and, you know, the fact they met this high bar to execute it on an attorney tells you that these -- that whatever -- that part is redacted in the motions. But the crimes that they are investigating are quite serious. And I think that Cohen's argument in response is quite weak. He wants his own counsel to be able to sift through whatever the government has collected, which, I mean, no defendant gets to do that. And the Department of Justice actually has a team that is going to do that for them. You know, and I think if he doesn't really have a lot of clients, it's hard to assert attorney/client privilege. I believe that the government's motion even said there aren't any communications directly between him and the President. So, he's got an uphill battle.

BALDWIN: But we know that the other piece of this -- and I'll bring it back up, Michael. Because I want you to specifically react to the piece that we learned from the nonredacted bits of the court hearings. Is that the government, the FBI had to -- you know, he was under surveillance, he being Michael Cohen. They raided him early in the morning. You know, when they did because they were worried the records were specifically the electronics he had -- there was a worry he would delete them.

S: Look, there were alternatives here that they obviously believed were not working. Alternative number one is that Michael Cohen could have cooperated. He could have voluntarily handed over whatever information they were seeking. They also could have executed a subpoena without a search warrant. They must have believed that was going to be insufficient. They also could have narrowly tailored a search warrant. This seems to have been very global. So, what we really need to know is what was the basis for the feds to believe there was a risk of destruction if they didn't go to these measures, which are, yes, aggressive is a good word to use to describe it.

BALDWIN: And then, Gloria, I want you to -- if people haven't been following your reporting over the last, I don't know, 12/24 hours on how Michael Cohen had this pit hit to record conversations. Right? He had audio recordings.

BORGER: Yes. If you have been in Michael Cohen's office, there are multiple phones, there's a computer. He's on two phones at a time. He records things. He's a multitasker extraordinaire. And our reporting is that he recorded conversations routinely leading up to the campaign and during the campaign. Say, with media personalities, et cetera, and defending the President, and then would play it back. You know, he'd play it back to the President -- or the candidate at that time I should say. He'd play it back to Donald Trump. He'd play it back to staffers. And this was something that worried some people. But he did that.

We don't know what else he recorded. We don't know, you know, we don't know whether he recorded other conversations with, say, even Donald Trump. All though Donald Trump's office is a couple doors down. So, maybe not. We know that Donald Trump has a couple of phones in his office and very often he'd be on a phone and ask people to pick up and listen on the other line.

But these two gentlemen were very close. And are very close. And so, I think that one of the reasons, and I was told this morning by two sources that, you know, one of the reasons the President has become what would be source called unmanageable because he's so furious. Is that the President is wondering, you know, what's in there? Because Michael Cohen has represented him as his fixer, proudly since 2006. So, there are a lot of things in Cohen's vault. There are a lot of things on his computer. He was a prodigious keeper of notes, et cetera. And so, I'm sure the President is just angry about this because he's going blame Bob Mueller and then he's going to blame Jeff Sessions, and then he's going to blame Rod Rosenstein.

BALDWIN: Yes. OK. I'm taking all this in. Sara Azari, I want to come over to you. You've been incredibly patient. You've been listening to all this. And so, all right, you have this -- we get it, you know, very close to the President.

[15:40:00] This attorney who's now under criminal investigation. It's a huge, huge deal. Right? That's the headline that came out this afternoon. Keep in mind it was SDNY, the Southern District of New York, who pulled the trigger on the raids earlier this week. This is not Mueller. But this is where I'm going. If depending on what they find, they can use -- they being prosecutors -- can use it as leverage because this is a guy who knows where all the bodies are buried in the Trump world. Finish my thought.

SARA AZARI, RIGHT CRIMINAL DEFENSE ATTORNEY: What the prosecutors will do is they'll pile on the charges based on whatever crime was committed after they conduct their investigation. And the more exposure that Michael Cohen faces, the more time he faces in prison and the more likely -- I'm speaking hypothetically, theoretically -- the more likely it is that he might flip. But this is a guy that said that he would take the bullet for the President. So, I'm not sure what it takes for him to flip. But it's absolute leverage because the more hot water that he's in, the more likely it is that he might flip on the President.

And, again, you know, he apparently now we know he's just an extension of Donald Trump because that might be his only client. And this attorney/client privilege that we've been discussing here is not absolute. You first look and see whether the documents, the communications are privileged. Some of them may not be. As to those that are, then you look and see whether the privilege was waived. Which appears that Donald Trump may have waived that privilege by what he said on Air Force One.

And then you also look at any exceptions, like the crime fraud exception that might apply. And I just want to make a point in response to Asha. I always usually agree with her, but I do have a slight disagreement. Which is the tank team as a self-serving mechanism within the DOJ. In other words, is the DOJ that's doing this investigation and it would be people within the DOJ who create a team who would vet and review these documents. As a defense attorney I don't feel comfortable with that. And I think that even though it's probably not a reasonable request by Michael Cohen for his lawyers to review. Because that's what they would have done in response to a subpoena. Obviously, there's a concern about that.

I think it would be reasonable if the court would appoint special master. An independent body that would -- not the DOJ, not the lawyers, neither side but an independent body that would review the communications, the items that were seized to see whether or not they're protected by the privilege.

BALDWIN: OK. Let me come back to Cohen in just a second. And Catherine Rampell, I want to get you in as well here. But we've got a lot to juggle this afternoon.

Because now the President has just tweeted. We're going to move off Cohen for a second and go back to Andy McCabe. Right? He was fired not too terribly long ago. He was the number two over at the FBI. He was fired. The IG just released their review. And I'll read it for you because this is context for this tweet. This is from the President.

DOJ just issued the McCabe report, which is a total disaster. He lied, lied, lied! McCabe was totally controlled by Comey. McCabe is Comey. No collusion, all made up by this den of thieves and lowlifes!

With an "f." OK, now context. The IG, the Inspector General -- Michael Smerconish, I'm coming to you for this. Had released this report, the findings of their report, the review of this firing from the Attorney General, Jeff Sessions. And I'll just go to the line.

The rush to judgment and the rush to terminate Mr. McCabe was unprecedented, unseemly and cruel. His treatment was far more harsh and far less fair than he deserved.

And it goes on. Thoughts on the President's words?

SMERCONISH: So, I think the President is playing, I would say, a pretty effectively political game. This conversation thus far has been about the legal minutia, very interesting unprecedented issues. But to the President, he's casting all of the above as being very partisan, very political actors. And, by the way, Brooke, I happen to think that Jim Comey played into the President's hands by going personal. By talking about his hands. By talking about his tan lines. By talking about whether his hairline is real. It seems so petty. And so, when the President now with regard to McCabe, says this is all politics and they're all liars and thieves and so forth. He's fostering a narrative that this is a political battle to the detriment and ignoring the rule of law and evidence. Which, by the way, is what Mueller is focused on.

BALDWIN: On your last mount -- point, and I think it's a really, really important one. And Doug, I've been watching you nod and Catherine, I want the two of you to weigh in. Because it's in the thick of all of these headlines that have been coming out in this Comey book. Yes, he points out that the President has orange skin and has little white circles around his eyes from clearly where he wears, you know, goggles to fake and bake or whatever. And, you know, that he has small hands. Some are arguing that it seems like he has an axe to grind. It does seem like he's undermining his own argument. Which is that he

is the better man. He's the one with character and with leadership and he was mistreated.

BALDWIN: Yes.

[15:45:00] CATHERINE RAMPELL, CNN POLITICAL COMMENTATOR: And he has been basically tarnished by this whole episode. I mean, Comey is a very interesting figure here. Right? He kind of stands before history. He may be the single person who is most responsible for both putting Trump in office by making that announcement about reopening the Hillary Clinton investigation. And also, we don't know. He may be responsible for taking him out of office. Right. Because he does clearly play an important role in terms of this whole investigation about obstruction of justice, the Russia collusion, et cetera.

But, again, he may be undermining his own cause, or it if he does cares about the character and principles behind this, he might be undermining, you know, the greater picture that he's trying to paint here by making these seemingly personal petty attacks.

BALDWIN: I mean, in some circles this is a man who's seen like the north star. In the fact that he did make these comments. Do you think that dings his credibility at all?

DOUGLAS BRINKLEY, CNN PRESIDENTIAL HISTORIAN: I was surprised he made those kinds of tawdry comments in the Comey excerpts and in the book. I mean, there used to be the establishment memoir. You know, Dean Acheson, the president, the creation of George Kennan's memoirs, George Schultz. Comey came from that kind of ilk. This book he's using terms like "holy crap" and, you know, as you mentioned the tan lines, golden shower. I mean, he knows everybody is google that and talking it.

RAMPELL: Well, that may not be his doing. Right? That particular reference.

BRINKLEY: No, No. But you know, I think it's put -- allowing what Michael was saying -- Trump now to say Comey is -- this is a gross book and now a pox in on all their houses. And then the firing today of Scooter Libby. I mean, the pardoning of Scooter Libby. We're now on the eve where maybe the President's going to will feel because of the Comey book, let's go after all these guys. Like you just saw in that tweet. Let's, you know, fire Rosenstein. Let's do it now. And make Comey the symbol because he's got those Democratic like we heard. You know, just a moment ago in the press conference. Pelosi and you know, Bernie Sanders and everybody saying horrible things about Comey.

BALDWIN: Note on Rosenstein and then are going to go to a quick break and will continue this conversation. We did just find out that -- Laura Jared just broke the news last hour. That Rod Rosenstein, who is overseeing this whole Mueller probe. Who is the Deputy Attorney General, has been meeting with an ethical -- ethics advisor about whether or not he should recuse himself. And so far, he's choosing not to. So, will have that for you coming up.

[15:50:00] (COMMERCIAL BREAK)

BALDWIN: All right. So, we have some full-throated assault in terms of words coming from the White House today with regard to the fired FBI director who has this memoir coming out, excerpts of his book have been released today. James Comey and also, we just read you that tweet from President Trump on the also fired former FBI, number two, Andy McCabe. So, let's go to Jamie Gangel with some news on that. Jamie, what are you learning?

JAMIE GANGEL, CNN SPECIAL CORRESPONDENT: So, one thing I just want to say, I've been speaking to very senior FBI sources, people who've worked there for a long, long time. And one of the things that they've been saying about the Comey book -- and let's just say we've only seen excerpts. We have not seen the whole thing yet. But they are really stunned and not happy about it. Because what we've seen deals with a lot of things that are petty, that are salacious, prostitutes. If there's one thing an FBI director or a former FBI director can do, he can dodge a question. There were places he went.

And the FBI folks that I'm talking to keep saying, you know, our institution has been under attack. And when he is out there selling a book saying these kinds of things they feel it's not the way the FBI conducts itself. And that it is hurting their reputation, both short- term and long-term, especially after President Trump has been attack, attack, attack. So, there is that concern as well.

BALDWIN: Got it. Jamie, thank you for weighing in on that. I want to get to now, the other piece of news we've learned today, that the special counsel's boss here, the deputy attorney general, Rod Rosenstein, learning he has had his own questions about whether or not he should recuse himself. It has been this growing call from the President's allies and since he first started overseeing the Russia probe and the Mueller team. Of course, we remember he was the one who penned that Comey memo which then ultimately what the President admitted to leaning on to justify the Comey firing.

So, I have CNN justice reporter, Laura Jarrett, who has exclusive details. Also, with us, CNN contributor, Walter Schaub, who once was director of the government ethics office. But Laura, to you, tell me what exactly he was weighing?

LAURA JARRETT, CNN JUSTICE REPORTER: Well, Brooke the situation here, of course, stems from that Comey memo.

[15:55:00] And since nearly the beginning of the investigation people have questioned how Rod Rosenstein, the number two official at the Justice Department, has been able to oversee Mueller's work given that he penned that memo which the President leaned on as a justification for firing James Comey. Remember it outlined a variety of offenses against Comey. Essentially saying that he flouted DOJ protocols. And people have wondered if you are a witness, well how could you be supervising the probe?

But I'm told that the deputy attorney general has actually consulted with the career ethics advisor at the Justice Department about his ability to oversee the situation. And he has been following that individual's advice. Now, I am not told about how frequent the conversations have happened or the timing. We do not know that.

But it provides a glimpse into Rod Rosenstein's mindset here. And it shows that he hasn't been operating in a vacuum all on his own. He had said in the past that he would recuse if he needs to, but this shows that he actually has had some advice. Of course, that hasn't stopped the President and his allies and his lawyers from coming out and saying that Rod Rosenstein needs to recuse here and that he's conflicted. Obviously, Alan Dershowitz has been the main proponent of this as well as Joe diGenova. And the President himself had tweeted about this back in June. But it provides at least some insight into Rosenstein's thinking here and ethics officials -- as I'm sure Walter Schaub will weigh in here -- have told me this was the right move -- Brooke.

BALDWIN: Walter, what do you think?

WALTER SHAUB, SENIOR ETHICS DIRECTOR, CAMPAIGN LEGAL Center: Yes, that's absolutely true. You know, consulting with an ethics official is exactly how the process is supposed to work. And in fact, there is a provision in this the standards of conduct issued by OGE, the Office of Government Ethics, that say that if you consult with an ethics official and rely in good faith on ethics official's advice, you're knocking to face disciplinary action. If later, it turns out the advice was wrong.

So first of all, there is an encouragement to go and do this, and then in any other administration it would be perfectly normal. In fact, encouraged for high level officials to consult with ethics officials about something like this. Now, in this case I absolutely also agree with the advice. It's fairly ironic that the President and Don McGahn and others in the White House who are pressuring Jeff Sessions to participate, are now terribly concerned about whether Rod Rosenstein should have recused.

Well the distinction is that as a campaign official who spoke with Russian officials during the election, Jeff Sessions had a duty to recuse because he was a potential subject of the investigation. Merely being a witness, somebody they may come and ask questions of, does not give you a financial investigation and there is no need to recuse.

BALDWIN: Walter Shaub, I'm also just curious, your thoughts on this president pardoning Scooter Libby today.

SHAUB: Yes, well that's very concerning because it is a strong message he's sending to people that don't -- you know, don't worry about cooperating with Mueller or other investigators, because I've got your back if you do it. And that seems to be loud and clear, the message there. And if there was any doubt, Kellyanne Conway went on TV and talked about the fact that she felt that Scooter Libby was the victim of -- as she put it -- another special counsel.

BALDWIN: Let me bring in -- stand by, everyone. I want to bring in Doug Brinkley to talk more about Michael Cohen under criminal investigation just in the last couple of minutes here. Again, if you are just joining us, the significant piece of news that dropped this afternoon is the President's personal attorney a man he's known and worked with for years and years. Who many would argue is more than just an attorney to the President. Is now in the wake of those FBI raids earlier this week, under criminal investigation.

BRINKLEY: It is the worst news that Donald Trump could possibly have.

BALDWIN: Why?

BRINKLEY: Because Trump is the kind of figure, the reason he got elected -- that's roguish, that does things out of the box. He's been somebody that has worked in building in New York and casinos. For that long of a period of time, they now are going to be able to find evidence of Donald Trump breaking the law and it doesn't take 15 breaks of the law. It's one. And if you are Trump, that the one thing you wouldn't want to happen. He figured he could handle how to deal with Rosenstein and how to deal with the Mueller report on collusion. But this gets back to Stormy Daniels and maybe much more. I don't know how any of us like our lawyers being raided, but the fact of the matter is though this is a President right now who has got to be in a kind of -- a move of the White House under siege.

BALDWIN: And what do you make of Trump's remark just opening this whole thing up.

BRINKLEY: Well, I mean, I've been surprised all the time he talks like he does and uses Twitter. He gives everybody rope. You saw the clip we ran a little bit ago on the airplane. Where he should have just said no comment. But he can't help himself.

BALDWIN: With regard to the Stormy Daniels --

BRINKLEY: Yes. So, reporters have been goading him since he's become president. To getting things on the record and it's boomeranging against him now. Today is a good day for Stormy Daniels and her legal team because it looks like they've got some momentum now.

BALDWIN: What did you think, Walter Shaub, just last said to you on the Air Force One comment where, you know, the reporters voice saying, Mr. President, what did you know about the $130,000. And he said, I knew nothing. And then ultimately, he says, ask Michael Cohen. And when you talk to our reporters who've been covering this Cohen hearing earlier today, that is precisely part of what was used against him today.

SHAUB: Yes. I mean, it's ironic too, because this President struggles with the truth. So, we don't even know if that is a true statement. But it would be more ironic if it turns out it is not, and he walked into a trap that way. But it certainly seems to have been the turning point in terms of open up a new line of inquiry as to whether or not the court should uphold the collection of this information and allow justice to look through it.

BALDWIN: And then lastly, just looking at my notes from the Sarah Sanders at the podium today and she was asked, any comment with regard to Cohen being under criminal investigation. Is he still the President's personal attorney? And she said something like, I've nothing more to add. Wouldn't confirm if he was still the President's personal attorney and then referred the press pool to the attorneys' attorneys for more than that.

That's it for us today. Thank you so very much for being with me. Walter and Douglas and a whole host of other people who weighed in on the breaking news on this Friday afternoon. I'm Brooke Baldwin. Thank you so very much for being with me. Let's send things to Washington, D.C. Our special coverage continues with Jake Tapper. "THE LEAD" starts right now.