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White House Says FBI Not Limited in Kavanaugh Background Probe. Aired 7-7:30a ET

Aired October 02, 2018 - 07:00   ET

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


ANNOUNCER: This is NEW DAY with Alisyn Camerota and John Berman.

[07:00:04] ALISYN CAMEROTA, CNN ANCHOR: You're ready.

JOHN BERMAN, CNN ANCHOR: I'm ready.

CAMEROTA: I can tell.

BERMAN: I've been paying attention. Good morning and welcome to your NEW DAY.

Two major unresolved questions this morning. Just what is the scope of the FBI investigation into Brett Kavanaugh, and how much should UB40 be a part of it?

CAMEROTA: Wow.

BERMAN: We'll have more on that in a second.

The White House claims that FBI agents are free to talk to anyone they please in their investigation of Brett Kavanaugh, no limits. No limits except that Majority Leader Mitch McConnell has promised that a vote will take place this week, no matter what.

CAMEROTA: There's also new information about Kavanaugh's drinking in college and his honesty about that. A 1985 police report obtained by CNN reveals that Kavanaugh was questioned by police after allegedly starting a bar fight after a UB40 concert.

BERMAN: I told you it was part of it.

CAMEROTA: I know. We have been playing some UB40 music during this. Stick around for that. Kavanaugh was not arrested, but one of his friends, with him that night, says that that hair-trigger temper was typical of Kavanaugh.

Joining us now we have CNN chief legal analyst Jeffrey Toobin.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: I'm researching UB40 here.

CAMEROTA: Oh, my gosh.

TOOBIN: I'm trying to see which of their songs is my favorite.

BERMAN: "Red, Red Wine." There's only "Red, Red Wine."

TOOBIN: "Red, Red Wine," yes. Basically, they're like a one-hit wonder.

BERMAN: Neil Diamond.

CAMEROTA: No, they're not --

TOOBIN: Really?

CAMEROTA: Neil Diamond wrote it.

They're not a one-hit wonder.

CNN political commentator Joe Lockhart has a lot of thoughts on this, as well. UB40. He was press secretary for the Clinton White House. And Anita McBride, chief of staff to first lady Laura Bush and a longtime friend of Brett Kavanaugh. We'll get her thoughts on UB40 shortly.

OK, Jeffrey, let's talk about where we are today. Because new information comes out every day. So now Chad Ludington, a friend of Brett Kavanaugh's from Yale, also testifies that "He had a hair- trigger machismo, which was pathetic. He was aggressive and belligerent after drinking. It was kind of Brett's shtick," he says. So not a one time, that he was known for this.

TOOBIN: Correct. Yes.

CAMEROTA: He -- most importantly, had memory lapses where he couldn't remember things, quote, "many times."

TOOBIN: Yes, you know, there's sort of two categories of inquiry here, and I don't know which -- you know, how this all plays out. But there is certainly -- the sexual assault issues are obviously the most important. And if there is proof of that, that is, I think everybody agrees, disqualifying.

The other question is did he lie, mislead about his drinking during his testimony? Those are related questions, but they're actually separate. The stuff that came out yesterday is much more related to the drinking, certainly Ludington's comments. The mysterious UB40 incident, I think, in and of itself is not terribly significant.

CAMEROTA: It's not mysterious. There's a --

TOOBIN: It's part of a pattern.

CAMEROTA: -- somebody was arrested. There was an actual fight. This is no longer -- this is now -- it's no longer alleged. There was a police report. People came to the incident.

BERMAN: Chris Dudley was taken in for questioning. I don't think there were any arrests and, certainly, Kavanaugh was not arrested, but there was questioning.

CAMEROTA: Fair enough. There's now documentation about this.

But my point, Jeffrey, is that this is part and parcel of the same thing. If you are a mean and aggressive drunk, if you have repeated memory lapses, that does play into whether or not you can be trusted about the sexual assault that a woman says she remembers 100 percent.

TOOBIN: Right. I think that is -- as I say, these questions are related, but it is not direct proof that the sexual assaults took place.

CAMEROTA: Fair.

TOOBIN: I don't think you can really say that, because of what Chad Ludington said, he is more likely to be guilty.

CAMEROTA: Of course. I just think that it's relevant. It's relevant information.

TOOBIN: I would agree about that.

BERMAN: The other side of that is what I've been hearing all night from supporters of Brett Kavanaugh and, Anita, I don't know if you want to weigh in on this, but they say almost verbatim, if throwing ice in someone's face in a bar after a UB40 concert where there was no arrest, if that's the best you have, then you have nothing.

ANITA MCBRIDE, LONGTIME FRIEND OF BRETT KAVANAUGH: This goes back to what we were saying yesterday about our kids and teenage drinking and college antics. These things can come back to haunt you. And, you know, in the broader scope of things, are they indicative of the full totality of your life?

And I agree with Jeffrey on this. The serious issue that we really want the FBI to get to the bottom of and the best that they can is the sexual allegations, sexual assault allegations, which are serious.

You know, this other -- I'm starting to -- you know, we get to think a little bit like McConnell. The goal post is going to keep moving and, you know, we just want the FBI to do their job.

CAMEROTA: So that brings us, Jeff, to what will happen on Friday. So the FBI is busy doing their job, we assume, right now. They're interviewing as many people, I suppose, as they can. We don't know exactly what the parameters, unfortunately, of this FBI probe is.

But when they come back with these various anecdotes and stories, then what? What will the White House do with that?

[07:05:04] JOE LOCKHART, CNN POLITICAL CONTRIBUTOR: Well, it's not particularly -- it's not clear at this point whether the FBI has been given free rein. There is a lot of reporting out there coming from the FBI, saying that the White House, while the president is saying publicly one thing, Don McGahn is saying something very different; and Don McGahn and Mitch McConnell are working to limit this. That's wrong. I think it goes to a mistake Kavanaugh made, an important political

mistake. He should have weeks ago said, "I want the FBI to look at this. I want my name to be cleared. I'm innocent."

CAMEROTA: How would that have changed anything?

LOCKHART: It would have certainly opened this up, and we -- people would have confidence at the end of this period. And if they'd started two weeks ago, we probably would know by Friday.

McConnell's entire strategy is "We're not going to go on Friday." So what it means is you've got these three senators that it hangs in the balance. They're going to have to decide, and we're going to find out was this week that Jeff Flake generated and Chris Coons? Was this a fig leaf for them, or was this a serious effort on their part?

BERMAN: Look, they have the power. If those three senators say, "We're not ready yet. We want more. They can say that, and then they'll delay it another week. I doubt that will happen.

Jeff Flake seems pretty clear that he wants this to be a week. And Susan Collins and Lisa Murkowski seem pretty clear that they want a finite period of time here. They're the ones with the power. And so far, they seem to be giving McConnell the power to say this is what's happening on Friday. Is that correct?

LOCKHART: Well, I don't know that they gave McConnell. I think McConnell is just asserting it.

BERMAN: But they have -- they haven't fought back and said, "Listen, leader --"

LOCKHART: But I -- listen, I think the other point to be made is we get caught up in a lot of the legalities here. This is a political decision, pure and simple. Everyone is playing politics.

And I think what the country is struggling with is, you know, a lot of this stuff, if it came from a politician, you know, this sort of looseness with the truth, this sort of shading the truth, they would say, "Oh, he's just a politician."

We're not talking about a politician who faces the voters every two or six years. We're talking about a Supreme Court justice and a lifetime appointment.

And I think the standard should be much higher and, if we go forward with this vote on Friday without the FBI being able to look into these things --

CAMEROTA: But they are looking into them. I mean, that's what Anita is saying, is they're moving the goal posts. They had three days with Anita Hill. Now they have a week. I mean, that's why Republicans think they're moving the goal posts.

LOCKHART: But we don't know this. We don't know -- there's certainly information out there that most of these people who say they have information have not been talked to.

TOOBIN: The -- Ramirez's lawyer gave the FBI a dozen names that they think are corroborative of her story.

CAMEROTA: Where he exposed -- he allegedly exposed herself -- himself to her when she was intoxicated, and he was at Yale.

TOOBIN: At Yale, correct. And that -- you know, in a thorough investigation, you would talk to all 12 people, if you can find them. These things take a certain amount of time. And, you know, the insanity of an artificial one-week deadline for something of this magnitude is just profound.

Now, you know, it is true that you could increment lies this into forever, that, you know -- you could say --

CAMEROTA: Moving the goal posts.

TOOBIN: The investigation could continue forever, but for a political party that kept a Supreme Court seat vacant for a year, the idea that a one-week deadline is absolute and inviolate seems preposterous.

BERMAN: I have two questions, actually, for you. Then we'll get to -- No. 1, you have a really good point. I want you to articulate it if you can. Again, last hour about the conflicting witnesses to these accounts, and people say, "I never saw Brett Kavanaugh do that," but --

CAMEROTA: Well, I mean, look, Anita, here is my point. When you are trying to figure out if someone did something, you don't ask the 100 people who weren't there who never saw that person do the crime. You ask the witnesses.

And so the idea that I never saw Brett Kavanaugh belligerent. I never saw Brett Kavanaugh do anything -- be staggeringly drunk. That's not. You're not relevant. The people who are relevant are the people who did see you act belligerent and get into a bar fight and be staggeringly drunk.

So I don't understand all the --

TOOBIN: Just to push back a little bit on that, I mean, people have personalities, and they have characters. And the presumption is you, by and large, act in -- in accord with your character.

If a bunch of people who know you well say he's a teetotaler, he's a great guy, he respects women, I think that's relevant. That's not --

CAMEROTA: But if you weren't at the bar fight, don't you want to talk to the guy who saw you throw ice in somebody's face?

TOOBIN: And all the members of UB40. Just not --

Not just like one.

BERMAN: You couldn't name one member of UB40. TOOBIN: I could not.

BERMAN: The other point that Alisyn was making -- actually, this is the third point, is that is there some connection, this is my argument. Is there some connection about the belligerence at the bar, throwing the ice in someone's face, and the belligerence we saw last week?

CAMEROTA: Well, that -- that is my point, Anita. If you are known as a mean-spirited, belligerent, staggering drunk, doesn't that lend credence to Christine Blasey Ford's depiction of you?

[07:10:06] MCBRIDE: Well, I think the point that was made just a few moments ago is really taking into full account the reports of everybody that knows you, both those that may have been witness to these alleged incidences and then those that have known you over the full scope of your life.

And to be able to paint a full picture of a person who, as you say, is going into a lifetime appointment. I think -- I honestly have been thinking about this in the last few days.

And I think all of us could say to have the full weight of the U.S. government and the FBI, you know, looking into every aspect of your life, you know, how any of us would handle this.

TOOBIN: You know what?

MCBRIDE: The punching back and the fighting last week, I know that was hard for me to see. That was not the Brett Kavanaugh I'd known for 17 years. And I really have to think, wow, if my family was threatened, if everything I've built in my life was being completely upended, you know, how would I respond?

Actually, being on your show yesterday, my tweets were burning up with horrible things about me. I'm a moron, my questioning -- questioning me as a mother, the people that I worked for. Like, holy cow, this -- our whole country is -- is burning up.

But, again, Jeff, I know you rolled your eyes at me yesterday.

TOOBIN: What?

MCBRIDE: I do want to feel like we can move forward from this. I'm not sure what we're going to come out fully on the other end, but we have to be better than this.

TOOBIN: Do you know what you should do and I -- this is the one piece of advice. Turn off your mentions on Twitter. I'm telling you, your life will improve so much.

MCBRIDE: I did. I did.

TOOBIN: What was the other point you were making?

LOCKHART: As a political point, I think it's important that the White House with Brett Kavanaugh went out and go back to the FOX interview. They presented him as an altar boy, as someone who had led a perfect life --

CAMEROTA: And so, Joe, he had said, "You know what? In college I did get drunk, and sometimes I don't remember things. And I'm really sorry about that, and I really behaved boorishly, but I don't do that anymore." Would that have sunk his nomination or would that have helped?

LOCKHART: I think it would have helped. It would have shown a moment of honesty.

What he's now seeing is we're measuring his against, and we're measuring both his temperament and his honesty. And what we're finding out is his temperament is not what we're looking for in a Supreme Court justice, and he's not honest. The -- and it sounds trivial that he lied about his yearbook, things in his yearbook, but it's provable that he knew what these phrases meant, and he stood in front of the Senate under oath and said something that's not the truth.

BERMAN: Could I bring up something else which is a trend now, I think going beyond Brett Kavanaugh, and it's an argument being made by Republicans. There's a question about whether he was true, but there's a whole "Washington Post" article this morning where the title is "Male Fury and Fear Rises on GOP in Defense of Kavanaugh."

And the notion is -- is that men are somehow being threatened in a larger sense by what's happening.

CAMEROTA: And that they're as energized now. That if Brett Kavanaugh is an avatar of how men, white men are now being victimized and besieged by this #MeToo movement are they as energized as women are.

BERMAN: One second, Jeffrey, because I want to do two things. I want to play Donald Trump Jr., who in this interview made this case. So let's play DJT.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Who are you scared most for, your sons or your daughters?

DONALD TRUMP JR., SON OF DONALD TRUMP: Right now, I'd say my sons. But when the other sides weaponizes it against men and says, you know, 40 years later we can bring it up. And you did something in high school that no one remembers, but it should disqualify you from every doing anything again, it really diminishes this, the real claims.

(END VIDEO CLIP)

BERMAN: That's text and subtext right there.

TOOBIN: Every night, I cry myself to sleep over the fate of white men in America. White men have no power. White men -- I mean, it's such garbage. I mean, it is so ridiculous. CAMEROTA: You are not listening to right-wing media, where there is a talking point that has gone on like wildfire.

TOOBIN: I understand that. And you know what, if you sexually assault someone in high school, your life should be ruined. Your life should be pursued.

I mean, the idea that this is somehow unjust -- remember, this all started with accusations of sexual assault. How about the lives of the women who were sexual assaulted in high school? How about 15- year-old Ms. Blasey? She wasn't Ms. Blasey Ford in those days. How about her life? All this whining about the poor plight of white men is ridiculous.

BERMAN: Can I share one thing here, because the case is being made among the -- in the Republican Party that there is this raise, this rising and it could have an impact in the polls.

Well, we have a poll from Quinnipiac which shows perhaps something different. It gets to the idea of support for Brett Kavanaugh. And support for Brett Kavanaugh has dropped substantially over the last week.

Forty-eight percent now oppose his confirmation. It was 42 in this Quinnipiac poll on September 10. You can see the opposition growing. We don't have the poll out here, but the male numbers actually haven't changed. You know, men are not supporting or opposing this confirmation in any greater numbers. Women, however, are opposing this confirmation in much greater numbers: 55 percent oppose the confirmation, Anita.

[07:15:20] So if there is energy, Republicans making the case that angry white men are going to change the fray. Maybe it's not the angry white men, maybe it's the angry women.

MCBRIDE: Well, I think, you know, listen, women have a voice in this country, and they need to and they do exercise it. We see this, too, in record numbers of women that are running for office this time. That -- that's a good thing. I think women bring great sensitivity and clarity to a lot of big issues in our country.

And I think, you know, with the clip that you showed from Don Jr., you know, maybe not the best messenger for this issue of what I take from that really is an issue of fairness for both men and women, to be treated appropriately fairly, you know, for all their voices to be heard. Maybe he's not the best messenger for it, but as a mother of a son and a daughter, I worry about both of them.

CAMEROTA: Yes. Me, too. I understand.

LOCKHART: I think we can all agree that Don Jr. is -- if you're in the war room for Brett Kavanaugh and you saw that, you'd cringe and you said that's a setback for us.

CAMEROTA: Absolutely. And I think we can all agree with Anita that, if there's a silver lining, this is a teachable moment for our sons and daughters.

LOCKHART: But the teaching has to be done by the men at this point. Women have made their point, and Jeffrey made an important point yesterday --

CAMEROTA: You mean the burning has to come to an end?

LOCKHART: Women keep coming forward, and the train keeps running them over.

MCBRIDE: We have to do it together.

LOCKHART: Men have to take the lead on teaching our sons what's right and -- because otherwise, if the white male who Jeffrey is crying himself to sleep every night sits back and says, "This doesn't impact me," then women's voices will not make change. Men have to make the change.

MCBRIDE: Can I add just one thing? I think, you know, Judge Kavanaugh in his defense of raising two really terrific little girls and also has been a terrific mentor to women in the legal system, and the law clerks who have worked for him would tell you that. It's a good experience.

So, again, in the full measure and breadth of someone's life, let's look at all of it. And as a woman, I want to say that fairly in his defense in this case.

BERMAN: All right. Jeffrey, Anita, Joe, I will say this. If you keep coming on and having interesting conversations like this, you are doomed to come back.

MCBRIDE: This is earlier, though. Now we're earlier.

BERMAN: We'll move it earlier still. We have another hour on before this, Anita. So keep on trying here. And thank you all. I really do appreciate it.

MCBRIDE: Bye.

BERMAN: The White House says there is no limit to the FBI investigation into Brett Kavanaugh, but what are the limits? What will the FBI be allowed to ask? What can they find out about the drinking and the memory loss? We're going to speak to two former FBI agents next.

(COMMERCIAL BREAK)

[07:22:15] BERMAN: A White House official tells CNN the FBI has been told its agents are not limited in their expanded background check of Supreme Court nominee Brett Kavanaugh.

So far we know the FBI has interviewed these four people: Mark Judge, Leland Keyser, Patrick Smyth and Deborah Ramirez. So what's next in this investigation? Joining me now, former FBI senior intelligence advisor and CNN

counterterrorism analyst Phil Mudd; and former FBI supervisory special agent and CNN law enforcement analyst Josh Campbell.

And Josh, we talked about this with Alisyn last hour, and I think it bears repeating. It's a good question. Is there a document which actually spells out exactly what the FBI has been asked to do? The president was out there yesterday claiming they can go ask whatever they want. Our reporting is it's not quite that expansive.

So is there a definitive record?

JOSH CAMPBELL, CNN LAW ENFORCEMENT ANALYST: So there's some kind of directive, we don't know whether that was in the form of a letter or an e-mail, but there's been conversations, communications from the White House to the FBI essentially dictating what it is they can look at.

And we've described this as the White House being the client in this matter. So the FBI serves as the investigative arm. They do these background checks, hand the records over to the White House. They determine suitability.

But to your point it's an important one, because I think we've seen is a little bit of shift, a little bit of a spin cycle going on. Because over the weekend, our reporting talking to people very familiar with the investigation that what we were told is that there were strict parameters on what the FBI could investigate.

Yesterday the president in a press conference said, you know, we've heard through other reporting that now they're saying, no, the FBI can look at whatever they want. But there's an important caveat there.

The FBI still has to go back to the White House, request permission before they expand the aperture. So in my opinion and in judgment that doesn't really change anything at all.

Your point is an important one, because at the end of the day, whether the White House is spinning or there are people out there who are saying that, no, the FBI has free rein. We're going to find out. Because we will get ahold of that document, that communication. We will know what the directive was.

BERMAN: We may not know before Friday when the Senate votes on this, but we'll know eventually. And those three senators who may be on the fence may not know before Friday. But they're going to have to make a decision, based on what they do know.

Phil Mudd, to you. We know that the FBI has been asked to go look into these four witnesses and the specific allegations of sexual assault. We have been told that Brett Kavanaugh's drinking history is not a focus of the investigation.

Does that mean that these FBI agents who are doing the questioning won't ask at all about drinking when they talk to these witnesses and perhaps others? PHIL MUDD, CNN COUNTERTERRORISM: I could see them asking if it

relates to the investigation into sexual assault, but, look, this is not a full background investigation for good reason.

For example, issues that I saw come up when we were vetting employees at the CIA, things like spousal or child abuse. We had a lot of issues with people who were shoplifters, drug abuse, academic fraud. None of that is going to be the subject of this investigation. You're go in and say, "What do you remember about specific incidents that happened 35 years ago?"

[07:25:07] Now, on the drinking issue, I personally don't care, and I don't think the FBI is investigating whether the judge was a belligerent drunk in high school or college. I don't care.

But if someone says, "Look, I was at those parties, and a lot of people aren't going to be able to recollect what happened." Or the environment at those parties was sort of a free-for-all because of alcohol abuse, I could see alcohol coming in, but only as it relates to the investigation and sexual assault that the FBI is undertaking now.

BERMAN: Josh.

CAMPBELL: Well, there's also an important point, I would say. And that goes to the veracity and the truthfulness of the judge, you know, in his statements to the Senate.

So if he's saying that, no, I don't have a drinking problem. I'm -- you know, that's not me, and you have people that are saying, "No, actually he is, let us tell you about this person when he was young."

Again, that goes to that suitability and character. Which again, it's not a criminal investigation, but that's something that the White House, the Senate, the American people should look at and, you know, obviously take --

BERMAN: But it sounds like that that is not a target for the FBI as they ask these questions, but what Phil is saying is it could come up over the course of the conversation.

And Phil, truthfulness does matter or should matter, probably, to the American people in putting a Supreme Court justice on the bench. There is a question about Brett Kavanaugh's truthfulness when it comes to drinking. He admitted that at times he drank too much, but he denied he ever blacked out or had a memory loss.

I don't know what an FBI agent or to whom an FBI agent could ask a question to find out whether that's true or not.

MUDD: Timeout here. Let's be clear. The Senate is trying to shift the responsibility for determining suitability here.

The Senate -- the senators who were there when Brett Kavanaugh described his background, some of them are irritated or angry that Kavanaugh appeared to misrepresent who he was in high school and college. It's not for the FBI to determine whether senators should judge that Kavanaugh is suitable or not.

Let me cut to the chase. I would bet that the FBI is going to give the Senate a report and senators are going to say, "This is not conclusive." And then senators are going to try to shift the blame for whether Kavanaugh is suitable to the FBI.

Those senators Coons, Flake, et cetera, look in the mirror. If you don't like what he said, vote him down and go face your voters. It's not for the FBI to make the decision for the Senate.

BERMAN: Right.

MUDD: It's for the senators. They're going to buck it, John.

BERMAN: And that was -- that was my point there, Phil. And Josh, I don't think -- there's not a question. You can't go ask a witness, "Did Brett Kavanaugh forget this?" I mean, how can a witness get into Brett Kavanaugh's mind?

CAMPBELL: That's right. And it's going to come down to who you believe. This is the ultimate he said, he said, he said, she said.

I think Phil's point is a good one, and it shows, if we learned anything from 2016, it's that when politics and law enforcement collide, the ending is never good. If you look at what these senators are trying to do -- and I agree with my friend Phil Mudd completely on this as far as passing the buck -- what they're trying to do is, you know, whether you're Republican or Democrat, they seem to start with the conclusion, a place they want the investigation to end in, whether, you know, you want these charges to be true or whether you want him to be cleared no matter what. That's not how law enforcement, that's not how the intelligence business works. You don't start with the conclusion. You start collecting facts.

I think, you know, when folks are asking the FBI to put that good housekeeping stamp of approval on this case, I think they're basically do a setup. As evidenced by this arbitrary timeline that we've seen, they're trying to rush it through. That's not how you conduct a thorough investigation.

BERMAN: I will say, the fact that no one had gone and asked Mark Judge any questions about this, I do think that that is a valid thing. And if it's only a week, that is much more than existed already. So that alone makes this worthwhile. They may not find out anything new, but at least someone is asking the questions.

Phil, you think that the FBI, knowing that it might be being used here politically one way or another, they may try to frame this in a way to protect them. In other words, provide a cover letter when they're presenting this evidence. What do you mean?

MUDD: Look, Christopher Wray, the FBI director, is going to get grilled on this at some point. He has both his personal integrity and the reputation of the FBI at stake.

There is a fairly limited window in terms of time, obviously, and there's a limited number of questions they're going to ask. Again, they're not asking about things like academic fraud.

If I were Chris Wray -- it's a very smart guy -- you've got to go into the Senate with a -- what I'd saw a scope note. This was the scope of our investigation. This is what it included.

Because those senators are going to come back and try to attack the FBI for limiting the scope of the investigation. Tell them up front. Chris Wray is going to be asked about this, I would expect, in a Senate hearing at some point. And he ought to be able to say, "Look, we told you what this was and what it wasn't. It's up to you to determine whether you want to vote this guy in or not."

BERMAN: Phil Mudd, Josh Campbell, great discussion. Thanks for being here. I appreciate it, gentlemen.

CAMPBELL: Thanks.

CAMEROTA: OK, John. For more than a year, as you know, President Trump has attacked the FBI and the Justice Department. So what effect will that have when the FBI releases its report into Brett Kavanaugh? The former director of national intelligence, James Clapper, has a lot to say on that next.

(COMMERCIAL BREAK)