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Comey Faces Off With Republicans; Judge Strikes Down Obamacare; Father Disputes DHS Claims; Trump Reviews Soldier's Case. Aired 9:30- 10a ET

Aired December 17, 2018 - 09:30   ET

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


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[09:32:52] POPPY HARLOW, CNN ANCHOR: Soon, as in under an hour, the former FBI director, James Comey, will arrive on Capitol Hill for what is sure to be another contentious day of questioning by Republicans on the House Judiciary and Oversight Committees. All of this will happen, once again, behind closed doors.

JIM SCIUTTO, CNN ANCHOR: CNN's senior congressional correspondent Manu Raju is on Capitol Hill, as always.

So it's round two. What do we expect Republican lawmakers to drill down on today?

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Well, this is, of course, the second day of questioning of James Comey as part of this Republican-led investigation into what the FBI did in 2016. Republicans believe that the Russia investigation, the Clinton investigations were improperly handled. In their last couple of weeks of power here, they're bringing back James Comey and they will bring Loretta Lynch, the Obama attorney general, later this week.

Now, Comey sat down for about six hours of questioning about a week and a half ago and Republicans believe there are more questions they want to ask. Since then there have been two news developments that will probably be part of the Republican questioning particularly going forward. There was part of court proceedings -- the summary of that two-page -- two-page summary of that dossier that the president was briefed on back in January 2017 about the Trump Russia -- or the connections that allegedly occurred during the campaign and before. That -- the redacted version of that summary came out in court proceedings. Expect Republicans to really hone in on that, ask questions about that today, as well as in a separate court proceeding Michael Flynn, his own investigation about how he was questioned by FBI agents that led him to lying to FBI agents about his interactions with the Russian ambassador, Sergey Kislyak. The Flint (ph) team believed that he was not prepared for this, it was not handled necessarily properly. Certainly the Mueller investigation, the prosecutors have pushed back on. Republicans have questioned how that interaction went down. Comey's probably going to get those questions --

HARLOW: Yes. RAJU: A bunch -- a well as a whole bunch of other issues that, of course, we've heard about over some time. The question is, what new information we'll learn. The first round of questioning did produce a lot of new information. We'll see if anything happens today, guys.

HARLOW: Yes. All right, we'll watch for that, see if he talks to reporters at all.

Manu, thanks very much.

[09:35:03] Over the weekend, in case you missed it, a judge, a federal judge, strikes down Obamacare. The president celebrates, but should he just yet? Next.

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SCIUTTO: Republican Senator Susan Collins says that a federal judge's ruling that struck down the Affordable Care Act, known as Obamacare, has gone too far. That from a Republican.

HARLOW: In a Texas -- in Texas on Friday night, rather, U.S. district Judge Reed O'Connor ruled the law's individual mandate is unconstitutional and that the rest of the ACA, therefore, cannot stand. Listen to Republican Senator Susan Collins just yesterday on CNN.

(BEGIN VIDEO CLIP)

SEN. SUSAN COLLINS (R), MAINE: I think this will be overturned on appeal.

JAKE TAPPER, CNN HOST, "STATE OF THE UNION": You do?

COLLINS: I do. There's no reason why the individual mandate provision can't be struck down and keep all of the good provisions of the Affordable Care Act.

(END VIDEO CLIP)

HARLOW: Let's discuss this with Harry Litman, he's former U.S. attorney, appointed by President Clinton. I should note, he is a Democrat, but one who has agreed with the president on some things, such as his pick for Attorney General William Barr.

[09:40:05] Let me read you part of Judge O'Connor's decision. Quote, individual mandate can no longer be fairly read as an exercise of Congress' tax power and is still impermissible under the interstate commerce clause, meaning the individual mandate is unconstitutional. He also held that the individual mandate is essential and inseverable from the ACA. That's really the key part here. He says, OK, if you don't have the individual mandate, the whole thing has to go.

You say?

HARRY LITMAN, FORMER U.S. ATTORNEY: Right. So it's that second part that's the rub. I say Senator Collins is right. And it's getting pretty -- criticized severely on all sides.

HARLOW: Yes.

LITMAN: Here's the wrong part, the misstep in the opinion. The judge -- Judge O'Connor did say the individual mandate falls. But then he said, Congress would care so much about the individual mandate it wouldn't want the rest of the statute to stand.

Well, what he was talking about, and all of the decisions and statements he cited, were from the 2010 Congress that passed it. But it's the 2017 Congress that got rid of the individual mandate and obviously wanted everything else to stand.

SCIUTTO: Right.

LITMAN: So this severability analysis, that's the legal term, was really done on the wrong Congress.

I think she's right. I think the Fifth Circuit will not let it stand and really it won't have much practical effect.

SCIUTTO: I mean the other pieces, of course, that are popular, the one coverage for pre-existing conditions that Democrats and Republican find popular.

LITMAN: All out the window under his ruling.

SCIUTTO: If I could -- just for a moment because this is the former director of the FBI arriving on The Hill now. We mentioned earlier this is his second day of testimony before House Republicans in the lame duck session, looking to ask him more hard questions, particularly about how he handled the Clinton e-mail investigation. We will be listening in to see afterwards if he speaks to reporters. A story we're certainly watching there.

Back to our featured guest, Harry Litman.

So if this were -- you're a knowledgeable court watcher. If this showed up in the Supreme Court today, what would happen to it?

LITMAN: I think it would be -- they would strike down, they would disagree with the opinion. I think no doubt Judge -- Chief Justice Roberts would, Justice Kavanaugh would. I think it would be maybe 7-2. And it's because of this severability point. They would say that's off the reservation.

SCIUTTO: You don't have to throw -- legally you don't have to throw the baby out with the bath water in effect here.

LITMAN: And it's the whole baby, right? It's pre-existing conditions. It's everything. So it's the rationale that won't stand. So, in some ways, this is not so cataclysmic. It's one district court judge. The system will proceed. It will be reversed.

HARLOW: But -- and the president -- president -- former president, President Obama, thought it was important enough, even knowing there was no injunction here or no stop to the ACA to write about it, to write a big FaceBook post over the weekend about it.

So then why does it matter? What happens now? Can this ruling be used as precedent in other arguments? Meaning, what's the impact of it? Why did the judge choose to write these 55 pages, make this decision, but not put an injunction in place?

LITMAN: So there are political undertones here, or overtones, that Obama is reacting to. The judge is a well-known, go-to judge for conservative causes and Obama probably put this in terms of the broader political debate. But, legally, is it precedent? Yes, for the next 20 minutes, until the Fifth Circuit enters a stay. Then it freezes the linebackers. It will go up to the Fifth Circuit. A The conservative court. But, again, because of this severability analysis, they will strike it down probably and it will be a nullity.

SCIUTTO: Just a quick question before we go. Is it possible that the state attorney generals who pursued this case went a bridge too far, right, to some degree? Like, you know, you took it so far that it's likely that this challenge gets struck down? You know, they bit off more than they could chew legally? Do you know what I'm saying?

LITMAN: Yes, it's a great question. And, in fact, they're divided. So it's going to be like California attorney general that's actually going to appeal to the Fifth Circuit. But some of the other attorneys general who took this, looks good now. Six months from now, they might think they went -- extended a little too much.

SCIUTTO: Lost that battle.

HARLOW: Interesting.

SCIUTTO: All right, Harry Litman, thanks very much.

LITMAN: Thanks for your time.

SCIUTTO: We'll keep following it.

The father of a seven-year-old girl -- here's the picture. Put a face to this name, this story you've seen. She died in custody. Her father's now speaking out. Custody of U.S. Border Patrol. He is now disputing, her father, a DHS claim about what led to his daughter's death. We're going to have new details about this little girl, her story. That's next.

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[09:48:57] HARLOW: All right, you'll remember we told you about this story first on Friday and now we know a lot more. A little girl who died in a Texas hospital after crossing the U.S./Mexico border. She was detained by Border Patrol. And now the father of the seven-year- old Guatemalan migrant, Jakelin Maquin, says she has -- that he, her father, says he has no problem with how Border Patrol agents treated his daughter.

SCIUTTO: Well, it makes all the difference in the world to see her little face there. HARLOW: Yes.

SCIUTTO: He does say he does take issue with Department of Homeland Security claims about the state of her health before she was taken in. Was she properly fed, hydrated, et cetera.

CNN correspondent Ed Lavandera, he has more on this story.

(BEGIN VIDEOTAPE)

ED LAVANDERA, CNN CORRESPONDENT (voice over): Department of Homeland Security officials initially reported seven-year-old Jakelin Caal Maquin spent days crossing desert terrain without food or water. When she showed up with her father and a large group of migrant refugees at a desolate New Mexico border checkpoint. The girl's father disputes that account. He says Jakelin was in good health when they surrendered to Border Patrol agents.

Ruben Garcia runs the El Paso shelter where the father has stayed since his daughter died.

[09:50:04] RUBEN GARCIA, DIRECTOR, ANNUNCIATION HOUSE: What is very important to us is to make it very clear that the father told us that, my daughter was eating, my daughter was receiving water and liquids, and that she was fine.

LAVANDERA: According to DHS officials and the father, the young girl first started showing signs of distress and vomiting during a 90- minute bus ride to a border patrol station in Lordsburg, New Mexico. The girl died about 27 hours after being taken into custody. The cause hasn't been determined.

The father has told officials he has no complaints about how Border Patrol agents treated him and his daughter and that he believes everyone around them did everything possible to save the girl's life.

The girl's death has sparked intense criticism of the Trump administration's immigration policy. Critics argue migrants are being kept from entering through legal checkpoints to request asylum and pushed into remote, dangerous areas.

SENAIDA NAVAR, EL PASO RESIDENT: What happened with this child really goes to show just how damaging these policies are for these families.

LAVANDERA: Trump administration officials have criticized the father for putting his daughter in such a dangerous situation. Immigrant rights activists say the blame is unfair.

GARCIA: Their lives are beyond impossible. None of us in the United States can imagine.

LAVANDERA: The news of the girl's death has left her family in this poor Guatemalan village devastated. Jakelin had turned seven just days before leaving with her father. The family says she was thrilled by the thought of seeing the United States. DOMINGO CAAL, JAKELIN'S GRANDFATHER (through translator): I'm not

going to speak that much because I can barely take it. It's difficult for us. This happened because are very much in need. The girl will jump in happiness that she would get to go to the United States. Very happy and content. But she didn't know. For us, it's very difficult.

(END VIDEOTAPE)

LAVANDERA: And, Jim and Poppy, on Tuesday, a congressional delegation will be traveling to these -- the checkpoint there in Antelope Wells along the New Mexico/Mexico border, as well as the border patrol station where young Jakelin was taken, was in the process of being bussed to. That congressional delegation will tour those facilities. And these are lawmakers, Jim and Poppy, who have been very critical of the Trump administration's immigration policy, describing it as chaotic and leading to the death of this young girl.

HARLOW: Her family deserves every answer that they can get.

Ed Lavandera, thank you for being with us on that story. We'll stay on it.

Ahead for us, a former green beret accused of murder while serving in Afghanistan. Now President Trump says he is looking into the case. We'll explain.

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[09:57:15] SCIUTTO: President Trump surprised a lot of people this weekend. He says that he will review an ongoing case of a special forces soldier charged by the military with murder. Army Major Matt Golsteyn is accused of killing a suspected bombmaker in 2010 while serving in Afghanistan. Golsteyn's attorney maintains that the killing happened during a mission ordered by his superiors.

HARLOW: Let's go to Ryan Browne, our colleague at the Pentagon, because there are a lot of questions about this case, about the president's potential involvement here, particularly do we know why Golsteyn's case eight years later, now he's being charged, right? This is something that happened in 2010.

RYAN BROWNE, CNN PENTAGON REPORTER: That' right. It's a bit of an interesting case in that the timeline, as you pointed out.

Now, this kind of reemerged, came to light -- this operation did happen in 2010 in Helmand, Afghanistan, but it kind of reemerged in 2016 during an interview that Golsteyn gave to Fox News where he talked about killing this bombmaker, and he also said that this was originally revealed when he was interviewing with the Central Intelligence Agency, the CIA, during a polygraph, during a background check. He talked about this incident, which raised questions, and his lawyer telling us that he was brought back on active service last week to be formally charged by the Army for this case that, as you said, did happen some time ago.

SCIUTTO: The question is here, why is this an issue? Is the argument, is the charge that he went without orders and did this kind of free- lanced himself to go out and kill this guy? Is that the idea?

BROWNE: Well, that's correct. I mean it's part of the law of armed conflict, killing a detainee, an unarmed detainee, even if they were a threat at one point, is not permitted under rules of engagement. But I guess the interesting case here is that President Trump stepping into this case is making it unique in that rarely do you see the commander in chief weigh in directly on a case like this. And it's something that there are concerns about command influence, whether or not he is going to alter the course of this case. But the Department of Defense saying it's a law enforcement matter and they're going to respect the integrity of this process.

SCIUTTO: Yes.

HARLOW: OK, Ryan Browne, please keep us posted. Appreciate the reporting.

SCIUTTO: Not the first time this president has weighed in on an ongoing case.

HARLOW: Yes.

SCIUTTO: Should note that.

Top officials in Saudi Arabia are, quote, categorically rejecting a bipartisan U.S. Senate resolution condemning Crown Prince Mohammad bin Salman for the murder -- the brutal murder of journalist Jamal Khashoggi. The bipartisan resolution passed last week after the CIA concluded that the prince personally ordered Khashoggi's killing. President Trump, we should note, has not condemned the prince.

[10:00:01] Top of the hour. Monday morning. I'm Jim Sciutto in New York.

HARLOW: And I'm Poppy Harlow. Hope you had a nice weekend. We're glad you're with us.