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Supreme Court Showdown; The New Republican Ultimatum to Brett Kavanaugh's Accuser; Interview with President Trump's Lawyer, Jay Sekulow. Aired 9-10p ET

Aired September 19, 2018 - 21:00   ET


CHRIS CUOMO, CNN HOST: Thank you, Anderson. I am Chris Cuomo. Welcome to PRIME TIME.

You've got until Friday. That's the new Republican ultimatum to Brett Kavanaugh's accuser. Will the president bring in the FBI? The latest judgment call under review. And tonight, we've got an A-list lineup, including the president's own lawyer Jay Sekulow here to make the president's case on the Mueller interview, FISA declassification, Sessions slights, and Kavanaugh as well.

We also have Watergate figure John Dean here. He argues the FBI demand makes sense. Now, Dean already testified on Kavanaugh. Should Dr. Ford, if there is no FBI involvement?

And we're going to test who ultimately wins and loses in this Supreme Court showdown. That is going to be our great debate.

My friends, history is in the balance. What do you say? Let's get after it.


CUOMO: Our president is waiting on some big things tonight. He's waiting to hear what will happen with the allegations against his Supreme Court pick, waiting to actually read the Russia investigation documents that he's forcing his intelligence community to make public, and still waiting to hear where the negotiations between his lawyers and Bob Mueller go. The president's lawyer Jay Sekulow can speak to all of these issues with unique connection and competence.

Counselor, welcome to PRIME TIME.

JAY SEKULOW, LAWYER FOR PRESIDENT TRUMP: Thank you, Chris, for having me. Appreciate it. Look forward to being with you.

CUOMO: All right. So, let's make the most of this opportunity.


CUOMO: Kavanaugh.


CUOMO: This is a weird one. We struggle with this. There is no trial.


CUOMO: So how do you deal with the burdens, how do you deal with the presumptions, how do you deal with process in an overtly political context which this is, right?


CUOMO: The call right now is by the Democrats and by Professor Ford, let the FBI take a look and then I will come in and answer whatever you want. Fair ask?

SEKULOW: So, here's how it works. I mean, this is the way the Constitution -- I think Dr. Ford should get a fair hearing. I completely agree with that, the idea she should have a fair opportunity, a fair opportunity to present her case.

The way it works, though, as you said, Chris, this is not a trial. So this is a proceeding before the Senate. So, let's look at what the Constitution says. Constitution says the president has the right to nominate judges and justices, it doesn't actually use the phrase justices.

CUOMO: That's right.

SEKULOW: It says judges to the Supreme Court of the United States. OK, so he did that with Brett Kavanaugh.

Then, the Senate under their authority has the advice and consent role. That's not just a rubber stamp. That is a process. That process is underway.

Now, there's been an allegation. So I think the safest thing to do here is to follow the Constitution. I'm not going to get into whether two days or three days or it should be Monday or what -- that's the Senate's role here.

I think that Dr. Ford should be given an opportunity to appear and to make the case. I think that Judge Kavanaugh should be able to respond to that. I think that's appropriate. By the way, doesn't mean it has to be done publicly. They could decide if -- look, I understand the transparency issue, but if Dr. Ford wanted to do it privately, I think she would have the right to do that.


CUOMO: There's no question --

SEKULOW: They have.

CUOMO: Look, I get the sensitivities. I mean, she has the threats.


CUOMO: She's got kids. Her family is not living at home right now. I totally get that.


CUOMO: But, you know, for the full complement of senators to make an assessment for the rest of us to have any confidence in what happens there, especially given the poison politics of this confirmation process, I think it is going to have to be open. But --

SEKULOW: But you said something important there, Chris, that is for the Senate to have its role. And I think what's getting overlooked, and you haven't done this, and others have, and that's overlooking the Senate's role here. This is a situation where the United States Senate is vested with the advice and consent role.

CUOMO: Right.

SEKULOW: And that means they can have the hearing. They can vote yes or vote no. They determine veracity and they determine process. That is the appropriate venue constitutionally.

CUOMO: Right. But there is a "this and that" issue here I think you are neglecting with all due respect, counselor.


CUOMO: Which is the FBI is not a stranger to this process. They do the background assessments every time with judicial nominees and you have precedent here. With Anita Hill, when that came forward as an allegation, President Bush said to the FBI, take a look. They took a few days, they took a look, they said we can't corroborate this. It then leaked and you wound up having public hearings.

The same mechanism could be in place here. The president could go back to the FBI who already did a background review, which they always do. The Congress cannot go back to the FBI and say, reopen the background. That's at the White House's direction.

But he can, and do exactly what President Bush did, why not?

SEKULOW: Well, I'm not going to speak -- I'm not the president's White House counsel. That's not my job --

CUOMO: Don't hedge, Sekulow.

SEKULOW: No, no, Chris, now look, we're being fair here.

CUOMO: All right.

SEKULOW: I don't get to determine the policy and process that the White House engages in. That's not my job. My job is to look at -- and the reason we're talking about this tonight, look, a serious allegation has been raised. It needs to be handled appropriately.

I go to the Constitution and say, let's look at the way the process should workout. I don't think anybody actually disagrees with that.

CUOMO: Well, but the FBI --


SEKULOW: The question that you're asking is, what should the FBI do or not do? Now, let's look at that process, too. Number one, and I think you acknowledged this the other night. The FBI is not in this particular case looking at a criminal action investigation.

CUOMO: Right.

SEKULOW: So for those that are watching the broadcast, I think it's important to point out what would the FBI do. If the FBI were to do an investigation or follow-up, it's basically a follow-up to their report that they give to Congress that they would give to the White House if it was asked for. And that's the way the process would go out. So, again, I'm not one that gets to make the policy decision on that.

CUOMO: I get it. But what's wrong with that?

SEKULOW: It's not a question what's wrong with it. It's who makes that decision. It's not --

CUOMO: The president would have to make the decision.

SEKULOW: Not the president's private lawyers.

CUOMO: I understand. No, I totally get it. But what I'm saying is, I'm just asking you this as a legal mind right now. We'll get more and more specific to your current state of employment with the lawyer on these separate issues. But on this one, the president can make the call, right? Absolutely.


CUOMO: Presidents have made the call in the past. And at a minimum, it would ensure a little bit of more confidence in an overtly untrustworthy process because everybody has got a political agenda. Why wouldn't he want to give his own nominee the best look he can? Because Kavanaugh is going to want to have people look into this also.

SEKULOW: Look, I don't know what the president's thinking is on that. I don't know what the White House counsel's thinking is on that. Again, that's not my responsibility.

But what I do think is important here, there's been a serious allegation made. There needs to be due process. It's not -- again, not in the court system that we're talking about here.

CUOMO: Right.

SEKULOW: Within the Senate. And the Senate -- look, they're putting these people under oath. I mean, Brett Kavanaugh, Judge Kavanaugh, and Dr. Ford, they go under oath. So, it's under the penalty of perjury for all the parties that are witnesses. And I think then in that case, that's the way to do this. I think it needs to be fair. Again, whether it should be Monday or

Wednesday or whatever the period of time is, look, the Supreme Court starts its term, what is it, first Monday in October, this year it's October 1st. Will Brett Kavanaugh be confirmed by then or not? I don't know.

Again, because that's not my job here. My job -- I'm looking at this as an observer. I am not giving advice on this obviously. It's not my role.

But I think, look, again, needs to be done appropriately, needs to be done properly and it needs to get a fair hearing for both.

Look, for both individuals involved in this.

CUOMO: Absolutely.

SEKULOW: And I don't discount the seriousness in this. I think anybody that is, is making a mistake. But I also don't think that Judge Kavanaugh should be left out there. I think there needs to be a full and fair process. And how that process looks, again, Chris, that's not just my decision.

CUOMO: A hundred percent.

SEKULOW: I mean, that's not my decision actually at all.

CUOMO: A hundred percent.

SEKULOW: And that's the Senate.

You know, the Senate has a big role here, as you know.


SEKULOW: And they're going to --

CUOMO: They just can't call on the FBI, the president does. That's why I was asked you about it.

Let's take it one step closer to your official role --


CUOMO: -- with Sessions.


CUOMO: Hasn't anybody explain to the president that Sessions had no choice but to recuse himself. You know all the DOJ guidelines. But just for the audience, if we have it, put it up, of what the rule is here. That if you have a connection to anybody who is going to be a subject of or in any way affected by an investigation, you must recuse.

Where is the surprise for the president in this? SEKULOW: Well, look, the recusal took place -- the president, first

of all, I've said this before and you know this. The reports have been out there. The recusal took place before this was an inquiry like this. I mean, let's look at this.

So, I will tell you that -- I understand the president's frustration in this situation. I think if you were in the situation you would, too. Having said that, look, there was a process that was followed. Do I think -- and I think you can get lawyers that could agree and disagree. I will tell you this and I know my colleague Rudy Giuliani has opined on this as well.

But I think, look, the recusal and everybody needs to remember this, when did the recusal take place? Before what? Before the appointment of all of this. Before the appointment of the special counsel there was recusal (ph).

CUOMO: Right.

SEKULOW: Well -- I mean, so that tells you that the frustration point it wasn't where -- you just gave the regulation. That regulation --

CUOMO: Put it on the screen so people can see as we speak.

SEKULOW: Sure. Yes. The regulation has nothing to do with in this sense of what actually transpired.

Sure, there's internal regulations. But the recusal issue is one that, look, General Sessions made that decision. I don't think it was the right decision. There are people that could disagree. I get that.

It's -- people can disagree. Reasonable minds can take different positions here. But let's be clear, it was before there was any special counsel appointment.

CUOMO: Right.

SEKULOW: So, that to me, I think it was, again I understand --

CUOMO: But there was an ongoing investigation. It was going to involve all of the different checks that they have to think about with that guideline. And then the president says, if I had known, I would have picked somebody else. OK, fair point. You had a chance.

SEKULOW: Well, really a fair point.

CUOMO: But I'm saying fair point, I get it.

SEKULOW: Significant point.

CUOMO: I get it. So, you would have warranted somebody else. OK, you had a chance. You had Rosenstein. The president picked Rosenstein after the recusal and, as we know, the president and Sessions both massaged the situation with Rosenstein where he wrote that very favorable memo -- (CROSSTALK)

SEKULOW: I think that's an unfair -- hey, first of all, Chris, you're making an assumption. You just said -- if I heard you correctly, you said that Rosenstein -- Rod Rosenstein massaged a memo?

CUOMO: I'm saying the president and Sessions massaged the situation with Rosenstein.

SEKULOW: Why do you -- what's your basis of that?

CUOMO: Because they brought him in --

SEKULOW: I mean, what evidence do you have of that?

CUOMO: Timing.

SEKULOW: Oh, timing.

CUOMO: Well, it counts, hear me out, and then object as you like.


CUOMO: He comes in. He is then asked to write a letter about Comey and assess --

SEKULOW: Well, how do you know this?

CUOMO: Well, how did it happen?

SEKULOW: How do you know this?

CUOMO: Well, did he just do it on a whim? It was reported as such

SEKULOW: Let me ask you this question.


SEKULOW: You and I have been friends. Do you understand -- do you have the facts on that to support that?


CUOMO: It's been reported.

SEKULOW: Well, OK, it's been reported.


SEKULOW: But, you know, has Rod Rosenstein testified to that, that he was massaged -- no. I mean, let's go back --

CUOMO: No, no, you're talking about the massaging. Why did he write the letter, Jay?

SEKULOW: Why did he write the letter? I assume he wrote the letter because he thought that James Comey should not be the FBI director.

CUOMO: Who told him to make the assessment?

SEKULOW: Do you think -- who do you know who told him?

CUOMO: I heard somebody had to tell him because he wouldn't have just done it on his own. He came in to be the deputy acting and the first thing he decides to do is write a letter about how Jim Comey has to go with the FBI? Nobody asked him to do it?

SEKULOW: Here's the problem. You're making a factual assumption you have no basis to --

CUOMO: That's not true, I do have basis.

SEKULOW: Has Rod Rosenstein testified he did this because the president ordered him which is what you said basically? He has not testified to that.

CUOMO: Let's parse it. Have I heard Rosenstein say I only did this because the president told me to? No.


CUOMO: Do I believe that Rosenstein did this at the direction or suggestion of other people? Absolutely. Why? Nothing else makes sense.

SEKULOW: Well, Chris -- well, how do you know that?

CUOMO: Why else would he had written a letter?

SEKULOW: Let me give you a for instance because in an election, James Comey -- if you want to play the clips of Chuck Schumer and others who said James Comey --

CUOMO: Hated him.

SEKULOW: Well, look what he -- why?

CUOMO: Because they felt he tilted the election in favor or away from their candidate.

SEKULOW: He engaged, he violated the Department of Justice guideline.

CUOMO: Yes, that's what they say.

SEKULOW: That's what happened.

CUOMO: That's what they say.

SEKULOW: So, he was fired. Looking at it, Rod Rosenstein makes an assessment.

CUOMO: Why did he look at it?

SEKULOW: Because he was sworn in.

CUOMO: He made the assessment before he was fired. So why did he do it?

SEKULOW: Well, you tell me.

CUOMO: No, you tell me because you reject -- you reject my explanation.

SEKULOW: No, no, I'm not rejecting your explanation. What I'm saying is Rod Rosenstein made a determination --


SEKULOW: And made a recommendation to the president --


SEKULOW: That was also signed by the attorney general.


SEKULOW: And the president acted on that.

CUOMO: Maybe, maybe not. The president doesn't say that.

SEKULOW: Do you think that constitutionally under Article 2 -- you know this, you're a good lawyer.

CUOMO: He can hire and fire.

SEKULOW: Absolutely. James Comey said that. CUOMO: Not for bad reason, though.

SEKULOW: Well, hold it. The Constitution is very clear on this.

CUOMO: No, it's actually absent on it. It doesn't say hire or fire. It doesn't --


CUOMO: Not if it's illegal or nefarious.

SEKULOW: Chris, the Constitution doesn't say hire or fire. It's not in the Constitution. It's the Article 2 authority of the president to hire and fire. Not because the Constitution doesn't have the word hire and fire. That's the impact of the plenary authority of the president of the United States.

CUOMO: Understood, but there's got to be a check on that. It has to be reasonable that the firing can't be for bad or corrupt reason, right?

SEKULOW: What if the president thought James Comey was doing a bad job?

CUOMO: That's -- then he can fire him.

SEKULOW: What if -- OK, so you're now saying that a third-party can come in under your theory and come in and say, we want to examine the president of the United States intent as to why he took an action under his Article 2 authority?


SEKULOW: What prevents every U.S. attorney that doesn't like a decision any -- put this president aside -- that any president makes, what prevents that attorney, that U.S. attorney from saying, I want to subpoena the president and find out why he fired the under secretary --

CUOMO: You have to pass legal muster. And show that --

SEKULOW: What does legal muster mean under your theory?

CUOMO: You have to show that you have legal sufficiency. In this case --


SEKULOW: By the way, who are you showing that legal sufficiency to? It's not a court proceeding. So, who are you showing the legal sufficiency to?

So, here's the problem.

CUOMO: But you have -- the same guy that you put in, that the president asked to guide him and give him suggestions about Comey who is Rosenstein.

SEKULOW: Let's assume that was the fact for a moment.

CUOMO: No, no, it is the fact. Rosenstein said it.

SEKULOW: So, let's say it. So, is there anything wrong with the president asking of the deputy attorney general for recommendation on Jim Comey's employment as the FBI director?

CUOMO: I would say however, one step backwards.


CUOMO: One, you are questioning whether that ever happened.

SEKULOW: No, no, I'm saying --

CUOMO: You're saying I don't know that the president ever massaged the situation. Yes, I do.

SEKULOW: You don't know that. No, you don't.

CUOMO: He asked Rosenstein for a suggestion about what to do on Comey. SEKULOW: Is that a violation --

CUOMO: I'm saying it's a matter of fact. I'm saying it's a matter of fact.

SEKULOW: Fine. Does that violate a law?


CUOMO: I'm not saying it does. You said how do you know the president has (INAUDIBLE) Rosenstein said it.

SEKULOW: Rosenstein said -- he did not say he did it on the president's behalf.

CUOMO: He said the president asked him --

SEKULOW: For his opinion.

CUOMO: -- for counsel and suggestion. So he wrote the letter.

SEKULOW: So, let me ask you a question. Is that not appropriate for a president to ask?

CUOMO: One step at a time.


CUOMO: I'm saying that's why he did. You said, how do you know? Now I'm telling you how I know, so he did it.

SEKULOW: OK. So, is it appropriate for a president to ask the deputy attorney --


CUOMO: Yes, 100 percent.

SEKULOW: Very different than massaging it. You're giving nefarious intent.

CUOMO: That's my suggestion, my characterization based on what I understand.

SEKULOW: And I'm telling you if the president of the United States, any president of the United States asked their attorney general or deputy attorney general for advice, which by the way is what their job is --

CUOMO: Right.

SEKULOW: -- then if he acts on that advice, he shouldn't be investigated for acting on their advice.

CUOMO: But there is a but here. Because then what happened? It all worked perfectly. Rosenstein gave him this letter. It was damning of Comey, free, clear, go ahead, get rid of him.

SEKULOW: Do you think Rod Rosenstein is lying?

CUOMO: No, it's not about lying. So, listen, he writes this letter. This is his opinion. He can't be lying about his opinion, right, unless he gave it in bad faith and have no reason to believe that.


CUOMO: So, the president does the interview with Lester Holt and says, I was going to fire him anyway because I said this Russia thing, it's just not right. I'm getting rid of him.

SEKULOW: That's actually --

CUOMO: So he blows the Rosenstein letter out of the water and makes it clear --

SEKULOW: Actually, not correct.

CUOMO: -- that he acted on it because he was pissed off about what Comey was doing with him and the probe.

SEKULOW: There is actually a transcript of the entire Lester Holt interview, and as you know because you do TV and do a good job.

CUOMO: Thank you.

SEKULOW: You know that when there are interviews, there are edits and there is a longer transcript. And I will just tell you without disclosing any detail, that when you review the entire transcript, it is very clear as to what happened and I'm not going to give you information on how we provided it, but in our professional discussions with the office of special counsel, we have addressed that on multiple occasions appropriately. And the evidence, when you look at the entire evidence, you don't see it -- I'm not faulting anybody to run a clip or this.

But to turn it into a federal case we don't think it's right, we don't think it's constitutional and we think the entire transcript without question supports the president realized it when he fired James Comey, it might actually extend this investigation and he said that on the tape.

CUOMO: Look, not that it's the most compelling evidence. But then you have a scene afterwards with the Russians in the Oval Office where the president says to them, now a lot of pressure is off me now that I got rid of Comey with this whole Russia deal.

Well, look, if it wasn't on his mind, if it wasn't a motivation for him legal or illegal, right or wrong, it was clearly in his mind about why he wanted to get rid of Comey.

SEKULOW: But, again, you're acting as if that's not a constitutional right if that was, in fact, what was in his mind. Again, that's speculation. But I think that that's what we have to be clear here. I have to look at what the law is as the evidence exists and what the law is.

And when you get to the Article 2 issue, it's a very serious moment --

CUOMO: Right.

SEKULOW: -- constitutionally for our country if a president's decision making on what's called inferior office -- that's not in a pejorative way. It's just what the Constitution and rules and regulations actually say.

CUOMO: It does.

SEKULOW: And to say you can then cross-examine, so to speak, the president -- any president -- on that decision, very dangerous and exactly the reason we have separation of power.

CUOMO: You wouldn't suggest that you should never do it, would you?

SEKULOW: Never do what?

CUOMO: Would you suggest that you should never question a president's actions with respect to an inferior officer ever?

SEKULOW: Well, I think it raises -- I think the constitutional hurdle that you have to cross over to get into that which doesn't exist here, you try to put that into a perspective. What would be the standard --

CUOMO: When you believe there is corrupt intent, illegal intent.

SEKULOW: What would be the illegality --


SEKULOW: Do you think a president could shut down a investigation if that president decided to do it? Hasn't happened here, by the way. Despite all the protests to the contrary, the president hasn't done that.

Do you think that a president has the constitutional authority to shutdown an investigation? Because presidents have done it.

CUOMO: I think it gets complicated --

SEKULOW: I'm not saying it's not complicated. But it's historical fact that it happened.

CUOMO: Right. But context --

SEKULOW: But it's happened here. So, you know what? The fact is -- guess who is there? Jeff Sessions is still the attorney general and Bob Mueller is the special counsel.

CUOMO: Well, Jeff Sessions, he could move on because he recused himself. I don't know why he isn't, frankly. He drags the guy all through the mud, he embarrasses him. And I believe you could argue embarrasses the White House at the same time because of the way he speaks about his attorney general. But he keeps him there, I don't know why.

But that's a separate --


SEKULOW: You know what? You and I don't get to make that decision so --

CUOMO: I know. But I get to report on it and analyze it. That's all I'm doing.


SEKULOW: And the president decided that Jeff Sessions as of now is the attorney general. He hasn't moved him out.

CUOMO: But if Sessions were in charge of the Russia probe, which certainly involves the president, and then he removed him, when it seemed that it was getting inconvenient, when it seemed that it was pressuring him, when he didn't like it, now I think you have a different question and that's where obstruction of justice comes in.

SEKULOW: Except for one thing, one factual flaw. Where are we right now? Over a year into the investigation. Is Bob Mueller still the special counsel?


SEKULOW: Has he been fired?



CUOMO: But why is that the end of it? We're talking about Jim Comey.

SEKULOW: Well, let's talk about this --

CUOMO: We're talking about Jim Comey and why he got rid of Jim Comey and why Mueller wants to talk to the president about that decision.

SEKULOW: You don't know what Bob Mueller wants to talk about.

CUOMO: I believe that Bob Mueller wants to talk to the president about why he fired Jim Comey. And that he believes --


SEKULOW: You understand and you know this, Chris.

CUOMO: He's pushing you for an interview is because he believes he can only get that understanding from the president himself.

SEKULOW: I mean, just think about what you said just then. Like I said, we're friends. OK. You can only determine, in your view, what the -- the status of the intent is by interviewing the president. CUOMO: Yes.

SEKULOW: So, what prevents every U.S. attorney from doing the same thing? You fire somebody, you don't like it, I think there is bad intent, so I'm going to interview him. Do you think the president should be subject --


CUOMO: But it's not as simple a scenario as that.


CUOMO: He removed the guy. He says he removed him because he didn't like the probe and you want to know why.

SEKULOW: If Hillary Clinton would have fired James Comey, would that have been OK?

CUOMO: Would he have been in the middle of an investigation that involved her and threatened her presidency?

SEKULOW: Would you think she could not fire him?

CUOMO: Context matters, counselor. That's what I'm saying.

SEKULOW: That's what I'm saying. Do you think under the context of the election -- listen, I was very critical, you know this, Chris, I was critical about engaging and unengaging that took place during the campaign.

CUOMO: Right, I remember.

SEKULOW: There is a reason there is a policy that says don't do that.

CUOMO: He should have shut his mouth. I think that's fair consensus.

SEKULOW: OK. So he didn't, he's now terminated. But you know what? Here's where we are. Let's talk about where we are because you've asked the question.

So I'm not going to preempt you asking the questions, but I know the question. So where are we? So, we've been doing this now a little over a year. We have provided over 30 witnesses to the office --

CUOMO: Unprecedented.

SEKULOW: Unprecedented. Over 1.4 million pages of material, unprecedented. We have not done what -- by the way, I'm not saying President Clinton did not have the right to challenge the document productions that he did. He had the right to do it.

We didn't do that here. That's not what my colleagues did. They provided the information. They provided the witnesses. So, if you want -- as you know, the president is very direct with what his opinions are and his positions. You don't have to do a lot of investigating to determine that.

CUOMO: But it's different to speak to him directly. You know that.

SEKULOW: Yes, but here's -- well, look, Chris, here's the thing. I am representing with a team the president of the United States in his capacity individually. Then the White House has their own interests.

And you've got to be careful about precedence you're saying. But let me say this. We have had -- and I think Bob Mueller would say this -- a professional ongoing dialogue with incredible transparency. Are we entitled in good faith to negotiate these various issues you are about to raise that you are raising --

CUOMO: A hundred percent.

SEKULOW: Of course, that's our job.

CUOMO: A hundred percent.

SEKULOW: I'm not going to give you where it is in the investigation. I'm not going to tell you what we told them.

CUOMO: It would be nice if you did, Jay, especially your first appearance on the show, in the interest of transparency.

SEKULOW: I know, I know, but I'm not going to do that for anybody. That would be inappropriate for me to give that information.

But I will tell you this. The discussions ongoing, I believe there will be resolutions of this because that's the way these processes tend to work. And we'll see what happens.

I'm convinced at the end of the day that if we stick to the Constitution on all of these issues, it tends to work out best for the country and that's really important here. I think we all agree with that.

CUOMO: Rudy suggests -- Rudy Giuliani suggested to me that I will not be asking you guys these questions about whether or not there will be an interview after Thanksgiving. Do you still hold to that as a time line?

SEKULOW: Let me tell you -- let me tell you one thing I have not done, OK. I have not given a date. Despite a couple people, I have never given a date. I don't give dates. That is not the business I'm in.

I'm advising the client. Rudy --


CUOMO: It's a period, it's just a period, phase, season.

SEKULOW: Rudy has a lot more experience than I do in these kind of matters. I'm the constitutional lawyer here so I look at the Article 2 issues which you and I had a great discussion about. Rudy's job is different. He is the lead counsel in this and he's

evaluating those with our team. And that's the process we go through. And we all have -- we all have a collaborative effort as does the special counsel's office.

And Rudy may be right. Maybe it is resolved by Thanksgiving. I think for the good of the country it should be resolved really soon.

CUOMO: Well, if you want it wrapped up, you have to wrap this part up.

SEKULOW: Well, you know what, though, Chris, this is -- I think you know this. Let's be blunt about this. This is not exactly been a regular investigation. I mean, the things that have transpired over the last year are pretty unprecedented. And I'm not going to go through starting with the Christopher Steele dossier and the text message and all this. But you have to look at all the context.

But despite that, we still have maintained and the president has maintained transparency and a commitment to giving documents unprecedented in history. You acknowledge that and it's true. I mean, that was the position that my colleagues took about giving information and putting that information forward to the special counsel's office and they've done that.

CUOMO: But the key offer is him and we'll see where that goes.

We've got deeper into Kavanaugh in this than I expected to so let me get to one more thing. I don't want to take up too much of your time.


CUOMO: People will not probably know this, but you represent Pastor Brunson.


CUOMO: Who's Andrew Brunson? He is the pastor being held by Turkey. The United States government believes it's for wrong reason.

We thought there was going to be a breakthrough, that he was going to be released, that Turkey would at a minimum be pressured to make a show of what espionage or what grand claim they have against him. And then it went quiet. Why?

SEKULOW: Yes. Well, a couple things have happened. I really appreciate you bringing this up.

First of all, the charge actually against Pastor Brunson in the criminal indictment in Turkey is Christianization.

CUOMO: Right.

SEKULOW: So, what they believe is espionage is him, a pastor of a church of about 50 people in Izmir, Turkey. Look, I believe it's a political moment. The president and the secretary of state -- but the president has been

aggressive seeking his release. I do have some good news and that he's returned to house arrest. Now, that's a lot better than being in a jail in turkey as you can imagine.

CUOMO: True.

SEKULOW: But there is still an ongoing trial. And I will tell you this, the administration, the president in particular, the vice- president, secretary of state are working diligently to secure his release and the release means getting him home.

But at least he is out of that jail and that's a first step. But look, I think the politics of this are way beyond what we can deal with, and the fact is I really appreciate you raising it because meanwhile, this pastor has missed his daughter getting married --

CUOMO: Right.

SEKULOW: -- graduations from school. I can't even imagine the pressure. I got to speak to him when he got -- first time I ever spoke to him, Chris, was when he was allowed to go home. You know, he's under house arrest. He can't leave.

CUOMO: Right.

SEKULOW: But it was the first I ever spoke to Andrew Brunson. We took the case once he was incarcerated. We thought it would be a short term. And they would basically extradite him out or just throw him out of the country and they didn't.

CUOMO: Well, the trials there are so political that the concern is if they allow the trial to end and you get a sentence, it becomes much more entrenched in terms --

SEKULOW: And you know the other thing, Chris, here is the trials -- when we look at the (INAUDIBLE) and say the trial is going to be ten days, we think it's going to be two weeks.

CUOMO: Right.

SEKULOW: He's on day four of his trial. That will be October 12. You know when the first day of the trial was? In March.

CUOMO: Right.

SEKULOW: So, they use that as a holding. I appreciate you bringing that up.

CUOMO: Yes, we're going to stay on it. It matters.

And, Jay Sekulow, thank you for coming on. I know that you've been reluctant to come on. You're always welcome to come on here and make the case for the president of the United States.

SEKULOW: Thanks, Chris. CUOMO: Be well.

All right. So, the FBI's website lists all kinds of reasons to call them. Terror threat, civil rights violations, organized crime. It doesn't say anything about double-checking the Supreme Court nominee's past. So, you have this could/should issue, all right? Can the FBI look into this? Should they look into this?

We went in, we did some digging, we've laid out all the propositions we're dealing with here and we'll chart a path that goes forward, next.


CUOMO: You know, the first thing we have to do with Kavanaugh and Ford and these allegations is be honest with ourselves. We're not in a court of law and when we get into this court of public opinion -- and yes, one exists, we're living through it right now -- it's a struggle. It's hard. And the assumptions that people want to make are often related to political agendas and that makes it even harder, and that's the context we're in right now.

This situation is super charged. The right wants Kavanaugh. Why? They will solidify a generation of jurisprudence.

The left? They want to stop him anyway possible. So, what is the best way forward?

Let's take a look at the considerations, all right? Should Dr. Ford testify, she said she would through her lawyer, then there was an if, now it's unknown and she has until Friday morning to decide. We'll get into that time exigency.

What's her if? If the FBI takes a look, then she'll testify. If she do, should she? Absolutely, she has to if they do it.

Why? Because this is about her credibility. That's her ask. If they do that step, she has to take the reciprocal step.

What if the FBI isn't involved? I still say yes. Why? Because if this matters to her, her testifying is the only way to advance her cause of truth in this matter. If she doesn't, you have to believe it's over.

OK, so, if she does testify, should it be open or closed? Again, there are sensitivities involved. The professor reportedly has threats against her and her family. They are living outside the home. She has become part of this political maelstrom.

And let me tell you, we get a taste of it here with what we do and it gets ugly early. So, maybe she wants it be to closed. Maybe. And you can't judge her for that.

However, if it's closed, not only can the full complement of senators not get access to what's said, not only does it become subject to what is an obviously poisoned political environment, but the rest of us, we just won't have a basis of trust. So I believe it's got to be open. We have to hear the accuser. We have to hear the accused get his right to defend himself and confront those accusations and let credibility be the guide because that's all we have.

All right. Now, and on this note, who gets the benefit of the doubt in this kind of situation? You can say 14th Amendment, due process, presumption of innocence, those are all in a court of law. How do we apply them outside in this new cultural reality of acceptance of accusations, and that people should be heard, that there should be a presumption that if a woman comes forward, a victim comes forward, they should be believed? Why? They're most often telling the truth. Not always.

So how do we play this out? It's difficult. It's a struggle and we're dealing with it in one of the worst contexts because this confirmation process is a circus. So, the FBI could be a cleansing agent here. Can they? Absolutely.

This idea while it's not a criminal case, a jurisdiction, you have to go back to the state where it happened, not true, never true. Judicial nominees get a background check from the FBI as part of the practice.

Jay Sekulow argues that's not in the Constitution. True. But as a part of practice, the political reality, they get asked every time and there is precedent. President Bush with Anita Hill, he asked for the FBI to come in, reopen the background check and do it. President Trump had said he wanted a process, but now, he's saying this.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I don't think the FBI really should be involved because they don't want to be involved. If they wanted to be, I would certainly do that, but as you know, they say this is not really their thing.


CUOMO: None of that is true, OK? We have heard nothing from the FBI saying they don't want to do this. It's not their business to say they don't want to do it. He is the boss. He is the executive. He tells them what to take a look at for better or worse in context. He can do this, President Bush did it.

Why isn't he? Well, that takes us to should, OK? If they do this, and the FBI looks at it, are they going it give us an answer? No, not enough time, too long ago.

With Anita Hill, they took two days. That was pretty recent. They had people to interview in real-time context, and they came back saying they couldn't corroborate it. Here, it's likely that's where they'd come out as well.

But at least you know that people had made their best efforts. At least you know they made an attempt to get it right outside just pure politics. The negative? The Republicans don't like this. Why? Well, it's a delay tactic.

Who cares about the delay? They do. Why? Because the delay is a lost of control of the process. You get closer to the midterms and it injects doubt. What else will come out? How will Kavanaugh deal with it, will he make a mistake?

That's why they don't like this. But be clear, all right, this is not for Congress to decide at this point. This is for the president. He said there should be a process. He said everybody should be heard. The FBI can and should be part of that. Will the president make that call? We will see.

So, now, if the FBI were to come in, what can they do? What should Kavanaugh's accuser do about the Friday deadline? Who will win in this situation? What is winning?

All of that is great fodder for a debate. We have two great debaters, next.


CUOMO: Here is what the Kavanaugh accuser's lawyer, Professor Ford, says about the new Friday deadline from Chairman Grassley. That's how long she has to decide if she'll testify.

The lawyer says: The rush to a hearing is unnecessary and contrary to the committee discovering the truth. The committee stated plan to move forward with a hearing that has only two witnesses is not a fair or good faith investigation. There are multiple witnesses whose names have appeared publicly and should be included in any proceeding.

Chuck Grassley, again, the committee chairman, vows there will be no investigation. But by the way, it's not his call.

So, should Dr. Ford comply or walk away?

Great debaters Ana Navarro and Steve Cortes.

Ana, what's your answer?

ANA NAVARRO, CNN POLITICAL COMMENTATOR: Look, I think, I think judge Kavanaugh should ask the FBI for an investigation because I think it's as important for Judge Kavanaugh to clear his name if this is not true, as it is for us to know if it's true or not. It is important for Dr. Ford.

So, you know, to me, the idea of having a Supreme Court justice that a large swath of the country thinks is morally unfit to be sitting on the Supreme Court, a lifetime appointment that does not stand for election, that has no term limits, that has no retirement age or no Supreme Court justice has ever been impeached, should have the highest, highest, highest moral standard, character standard. And I, you know, I think it's awful that there might be a Supreme Court justice with this cloud hanging over his head. It should be Judge Kavanaugh, in his interest, if he is so adamant and

so convinced and he knows in his heart that he didn't do it. It should be him asking for his name to be cleared. Now, if that doesn't happen, I hope Dr. Ford does testify because it's really the only next step if there is no FBI investigation for America to get to hear what happened and make a decision.

CUOMO: I hear the logic of it. There's only one problem with that, Steve Cortes, it's not Kavanaugh's call. The Congress can't call for it. Grassley can say there is not going to be one, it's not his call. It's the president's call.

As we saw with George Bush and what existing precedent is. He can ask them to reopen the background check and look at this. They're not going to be able to prove it or disprove it. They're not going to have the resources or the inclination. But at least it would show best efforts in the situation.

Do you think that's the path to go?

STEVE CORTES, CNN POLITICAL COMMENTATOR: I do, and I think by the way, Judge Kavanaugh, what he can do is request from the president, I think the president would comply.

CUOMO: Yes, and he's meeting with them plenty.

CORTES: Right. That would do this. I totally concur.

Look, Judge Kavanaugh is going to become Justice Kavanaugh and I think it is in his interest personally and in the professional and institutional interest of the Supreme Court to try as best we can to clear this cloud away. One way to do that would be a very expedited, though, this can't be dragged on, it can be a delay tactic where the Democrats are trying to punt this to pass the election, but a serious but quick FBI examination.

CUOMO: That's on the FBI, not the Democrats. They decide how long it was. I think they took three days with Anita Hill. I mean, they don't have that much to work on.

CORTES: Right. But before we exonerate the Democrats, let's remember that they had this information at least Dianne Feinstein did many, many weeks ago.

CUOMO: But how do you deal with the fact that she asked for it to be kept anonymous? What are you supposed to do in that situation?

CORTES: There are many ways that she could have. For instance, she had a private session, apparently an hour long with Judge Kavanaugh.

CUOMO: With Kavanaugh.

CORTES: One on one, she could have presented this evidence with name redacted and questioned him directly, looked him in the eye and asked him about it. She could have shared it with Chairman Grassley. They could have done in private session. There were many ways, in written questions. Some of which --


CUOMO: Fair point. Let me get Ana's response.

CORTES: There are many ways for them to go down this avenue.

NAVARRO: Dianne Feinstein, who is a seasoned politician and who knows her way around knew exactly the same thing that Dr. Ford knew, that once her name became public, and if she had asked Judge Kavanaugh about it, it probably would have become public. It wouldn't have just been between the two of them. And other people would have known. The people accompanying him would have known.

And the same -- you know, Dianne Feinstein knew the exact same thing Dr. Ford knew. That once this became public, once this became known, she was going to be the subject of a negative smear campaign. She was going to be the subject of harassment. We are seeing what has happened to her where this woman is in hiding. Her children need security.

You know, it's an awful fate for somebody that comes forward in the midst of a political firestorm like this to make an allegation, wage an allegation like this.

CORTES: Before you acquit Dianne Feinstein of blame, we presume because it was sent to her office, she or her staff leaked this in the first place. So, I think you're being too far --

CUOMO: We don't know that.


CORTES: OK, but what we do know is this. What we do know is this, is that she held onto this information, she held onto this information, and she played this card, this slanderous card from the bottom of the deck after the hearings were concluded when she thought there was --

CUOMO: Who said it's slanderous?

CORTES: And she --

CUOMO: Who says it's slanderous?

CORTES: Judge Kavanaugh says it is. And she believed it would have a maximum political impact. So her aim here was not justice. It was not truth --

CUOMO: But we don't know that.

CORTES: It was the politics.


CUOMO: Ana, she says she was pushed into it. She says the Democrats asked her to do it.

CORTES: She could have confronted Judge Kavanaugh --

CUOMO: Hold on a second.

CORTES: -- person to person in her office, in private.

CUOMO: I know she could have. You made that point. And it's a fair point. I accept it.

What I'm saying is that Feinstein says, Ana, that the Democrats came to her and prevailed upon her to give it to the FBI and that's what happened, not that she was holding it as a trigger card.

NAVARRO: Look, and I believe Dianne Feinstein. I believe Dianne Feinstein. This woman, I have seen her cross party lines when it comes to issues of national security, you know, a woman who has been bipartisan in serving her country at times and sought bipartisan solutions. She's also a woman.

You know, the important thing here is that Dr. Blasey Ford made the decision of herself coming forward, herself sharing the story with "The Washington Post". So, we now -- what Dianne Feinstein did or did not do to me is less important than the fact that we have now got an allegation, a credible allegation from a woman who has put her name out there, told her story, come out after 35 years, talked about her trauma, and is telling her story.

And this is going to be a huge black cloud on top of Judge Kavanaugh's career the rest of his life. It is going to be in his obituary, the fact that this allegation came through. So, for the Supreme Court, for the institution, for the highest law in the land, I think it is important --

CUOMO: Right.

NAVARRO: -- that we do the most that we can as possible to be done to get to the bottom of it.


CUOMO: Let's see what happens on Friday. I've got to leave it there for time. We're going to talk about this again.

And, Steve, Ana, you're always invited back to do exactly that.

So, the most important Republican on Capitol Hill tonight says there is a difference between Anita Hill and Christine Ford when it comes to an FBI probe. John Dean says there certainly is a difference, but one that demands the FBI get back on the case to stop what he calls another predator on the Supreme Court. Heavy language from a man with a pedigree, next.


CUOMO: Whether or not Monday's highly anticipated hearing with Judge Kavanaugh and Dr. Ford, his accuser, happens at all, one thing we know, this is a critical moment in history. What will unfold will have an impact on the shape of our highest court and the state of the nation in decades to come.

John Dean, President Nixon's White House counsel, no stranger to such consequential moments.

Counselor, a pleasure.


CUOMO: Let's tick through some of the issues here. The FBI can't do this. It's not a criminal prosecution. It's not in their jurisdiction. They don't want to do it, the president says. Your ruling?

DEAN: Well, I think he's wrong. They certainly can. They have in the past.

I've seen all kinds of degrees of depth from very shallow to very deep in background investigations, and they can certainly do it here.

CUOMO: Anita Hill is precedent for this. President George H.W. Bush said to the FBI, reopen it when they got then a private allegation. It came public later.

Grassley says key distinction. That was private. This is public. It's already known. The FBI can't help.

DEAN: I can't buy that. It really is meaningless. We very much need for the fairness of the proceedings to have the FBI do this preliminary kind of work. It's getting late now. They're pushing the time. They're insisting on the Monday hearings.

But they could still do something if they were directed as you said earlier.

CUOMO: Now, what would that be? The practical consideration. If the FBI were to take this up, there's little chance they'd be able to prove or disprove. We know in Anita Hill, where they had a lot more going for them in assessing the situation, they were unable to corroborate the story.

What would the value be?

DEAN: Well, she might be able to mention friends who did or did not know. We obviously know her husband, her therapist had some corroborating knowledge. There may be other people that she has not wanted to involve, but she would do it on the basis of trying to find additional corroboration, family, friends, who knows?

The same on the judge's part. He's got a friend who allegedly was there, Mark Judge, who doesn't want to testify. Well, maybe he talked to the FBI. There's lots of groundwork that could be done. It would make this a much better proceeding and a much fairer proceeding. CUOMO: So they would ask them touch questions. They would record the

questions. You always have that problem of a penalty of 1001 violation to lie to the FBI.

DEAN: FBI does not record. They unfortunately do not record.

CUOMO: With their 302 reports, I'm saying. They would make a written report of what is said.

DEAN: Yes, right.

CUOMO: But it is my understanding that they would not assess credibility or veracity of any of the interviews. So, what is the value to the Senate?

DEAN: Well, it would be the record that they would prepare, the 302s would then be made available to the Senate. It would give them a basis to have their questions. In fact, the Republicans were pretty brutal with Anita Hill in using them to cross-examine her because she said things in the hearings that she had not told the FBI. And they tried to make that out as she was lying because she hadn't told the FBI.

That didn't work very well as cross-examination, but it was certainly an effort.

CUOMO: If the president refuses to go to the FBI, how big a stain is this on him?

DEAN: Well, I think the women of America have not built a lot of affection up for him in the way he's handled himself in general. This will be another severe mark against him by the women of America who are watching this.

CUOMO: And this close to the -- it's an interesting play by the Republicans. I get why they want it to happen. Remove the doubt. Don't let anything else come out. I get it.

DEAN: Yes.

CUOMO: But if they wind up elevating Kavanaugh with the specter of an allegation that they didn't fully pursue, this close to the midterms, that's risky as well, is it not?

DEAN: It is very risky. You know, I agree with what your analysis on the whiteboard. And what I would add to that is I think that the attorney general, who is not recused from this, should offer witness protection to Dr. Ford.

She's had threats against her. I'm somebody who was in a high-profile hearing and was given witness protection. In fact, I was in and out of the witness protection program for 18 months.

I think that should be offered to her. They could facilitate everything from travel to getting in and out of the hearings to her assurance of mind that her family and she were safe because this is going to be a circus if she appears.

CUOMO: It would also show respect for her as an accuser. This isn't 1991. We have a different cultural recognition of people coming forward.

Let me ask you, if the FBI is not brought in, do you believe that Professor Ford should testify anyway?

DEAN: I do. I think -- I said I agreed with you're whiteboard, including that point on the whiteboard. I think it's important she testify. I think a witness protection offer would help. I think she ought to go on "60 Minutes" on Sunday night with Anderson because another audience will see her much broader than might catch the hearings.

CUOMO: So, you think Dr. Ford should do an interview before she testifies?

DEAN: I think she should. Anderson is very familiar with -- he's on "60 Minutes," as we know, as a correspondent. He's very familiar with the subject. Nobody could get ready for it quicker.

CUOMO: John Dean, excellent insights. Appreciated as always. Thank you for making us smarter here tonight.

DEAN: Thank you, Chris.

CUOMO: All right. So, another hour of PRIME TIME is next. "Cuomo's Court" is in session, and some issues that really matter. Go nowhere.


CUOMO: All right. Let's keep it going. Don Lemon is trying his best to eat at every in-out burger he can find on the West Coast, so we have a bonus hour right now of CUOMO PRIME TIME, and we begin with a dramatic showdown.

Senate Republicans setting a Friday morning deadline for Professor Christine Ford to decide if she will tell her story to the Judiciary Committee. She says Judge Kavanaugh sexually assaulted her when they were teens. Her lawyer thinks more witnesses need to be added to the list, even as Ford makes the decision of her life.

We will take it up in "Cuomo's Court".