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Trump's Life Under a Legal Microscope; Washington Post: Russia Used Every Major Social Network to Aid Trump; Federal Judge in Texas Strikes Down Obamacare; Washington Braces for Shutdown at End of This Week. Aired 6-6:30a ET

Aired December 17, 2018 - 06:00   ET

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


(BEGIN VIDEOTAPE)

RUDY GIULIANI, ATTORNEY FOR DONALD TRUMP: Paying $130,000 to Stormy whatever and paying the other one is not a crime.

[05:59:15] UNIDENTIFIED FEMALE: The president has continued to weave these stories. He does not tell the truth.

UNIDENTIFIED MALE: The public needs to know exactly what happened.

SEN. CHUCK SCHUMER (D-NY), MINORITY LEADER: President Trump is not going to get the wall in any form.

UNIDENTIFIED MALE: We're going to do whatever is necessary to stop this ongoing crisis of illegal immigration.

UNIDENTIFIED FEMALE: We have to prevent a government shutdown.

(END VIDEOTAPE)

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

JOHN BERMAN, CNN ANCHOR: Welcome to our viewers in the United States and all around the world. This is NEW DAY. It's Monday, December 17, 6 a.m. here in New York. Are you ready for this?

ALISYN CAMEROTA, CNN ANCHOR: I am ready. I'm ready for a little ditty that you're about to share.

BERMAN: Here we go. 'Twas the week before Christmas and all through the House, everything was under investigation, including the mouse.

CAMEROTA: What?

BERMAN: So "mouse" was all I could rhyme with house. But that doesn't obscure the fact that the list of Trump-related entities under investigation is longer than his inexplicably long ties. His White House, his campaign, his presidential transition, his inauguration, his charity, his business, and, yes, his personal life.

So what's the president doing about all this? As exactly zero lawyers would advise, he's rage tweeting. Angry words that reveal either hostility or ignorance of the rule of law, perhaps both. He calls his former attorney, fixer and right-hand man, Michael Cohen, a rat. And despite the fact that FBI agents obtained a search warrant from a federal judge showing probable cause to look into his office, the president is inventing the notion that they broke in. That is made up.

The president's lawyer, Rudy Giuliani, he spent the weekend in an aggressive campaign to move the goalposts on the president's accountability, saying collusion said that it's possible the president was involved in discussions about building a Trump Tower in Moscow much, much deeper into the campaign than had been known.

CAMEROTA: There was "grouse" you could have gone with.

BERMAN: I could have gone "grouse," "spouse." Yes, but what does that do?

CAMEROTA: I don't know.

BERMAN: What does that do?

CAMEROTA: I don't know.

BERMAN: In this case, especially.

CAMEROTA: OK. That's not all. Two new reports prepared for the Senate revealed new ways that Russia tried to get Donald Trump elected. They used every single social media network. They did it for much longer than we'd known.

The Senate Intelligence Committee also learned that social media farms like Facebook and Twitter provided them with only, quote, "the bare minimum" amount of data for their investigation.

And in a decision that could impact nearly every American, a federal judge in Texas has struck down Obamacare. The ruling does not immediately impact coverage, but if it is upheld, millions of people will lose their health insurance, including millions with preexisting conditions. And they could be denied coverage or face skyrocketing premiums. President Trump called this ruling, quote, "great for our country."

BERMAN: All right. Joining us for a variety of political and legal analysts. Thanks you all for being with us.

Elie Honig, I want to start with you. You worked in the Southern District of New York. Law is your life.

So -- boy, the president's -- you have hobbies.

ELIE HONIG, CNN LEGAL ANALYST: There's other things, but, yes.

BERMAN: Woodworking and the law.

Look, the president is responding to the investigations, the vast array of investigations into him, everything connected to him. And what did he do about it? As we were noting before, he rage tweeted over the weekend.

And I want to read you the one that is the most glaring, because both of you, Jennifer and Elie, I think this gets under your skin. The president says, "Remember, Michael Cohen only became a rat after the FBI did something which was absolutely unthinkable and unheard of until the witch hunt was illegally started. They broke into an attorney's office. Why didn't they break into the DNC to get the server or Crooked's office?"

Now, I noted the fact that there was a search warrant there, and so he's factually, like, a million miles from the truth here. But your reaction?

HONIG: Yes. This is the language that mob bosses use, and I don't say that based off TV or movies. I said that because Jennifer and I both have prosecuted organized crime, real mafia families here in New York City. And we have heard the tapes. We've talked to the witnesses. This is the language they use.

And I'll tell you, people get killed because of that. I've done trials, Jennifer's done trials, where people have been murdered because someone said, "That guy is a rat." I'm not trying to say the president is trying to get Michael Cohen injured. I am saying it is an absolute derogation of duty for the president of the United States to use that language, to call someone a rat for providing information to his own United States Department of Justice. To run as a pro-law- enforcement, pro-law-and-order candidate, and then to use this term, which is so harmful to everything law enforcement tries to do, is complete hypocrisy.

CAMEROTA: All right. Bad things happen to cooperators in prison, as you guys know. So James Comey, who was fired, of course, from the FBI, just wanted, you know, Twitter and the rest of the world to know how bad he thinks this is.

So he tweeted yesterday, "This is from the president of our country, lying about the lawful execution of a warrant issued by a federal judge. Shame on Republicans who don't speak up at this moment -- for the FBI, the rule of law, and the truth."

I mean, just again, this is -- I think that we sometimes get used to President Trump's tweets, but this is about the Fourth Amendment, which he may or may not be aware of.

JENNIFER RODGERS, CNN LEGAL ANALYST: Yes, it's about all of it. Listen, he is the president. He's not acting presidential right now. He's attacking his own DOJ, his own FBI. I mean, it just goes far beyond what we would expect.

And, you know, when you think back to the chart that folks have been showing here and elsewhere about all of the different entities that are under investigation, you know, you realize, you have someone -- we've never seen this before. I mean, all of these different factual investigations into all of the pieces of the administration, the campaign, the inauguration, the foundation. It goes on and on and on. You know, he's not behaving like the president. He's just not. BERMAN: We can put up P-102 here, which shows you some of the things

that are being investigated and by whom. The U.S. Attorney's Office for the Southern District is looking into the Trump Organization and the Trump inauguration committee. Robert Mueller is looking into the Trump campaign, the Trump transition, the Trump administration. New York State is looking into Trump Foundation. In Maryland, there are lawsuits. I mean, really, this list goes on and on.

[06:05:09] And John, I think, perhaps, the president's legal team knows that there are blows that are landing, and knows that there are at there are others which will still come, which is why I think it was notable what Rudy Giuliani did over the weekend on the Sunday shows. He was trying to dumb down accountability for the president here.

I was looking at some of the things he said. Among other things, he said to George Stephanopoulos, collusion is not a crime. If Roger Stone gave anybody a heads up about WikiLeaks, that's not a crime.

He was talking about the fact that he repeatedly changed his stories about the payments to to Stormy Daniels. His explanation for that was, the president is not under oath.

So collusion is not a crime. Roger Stone, sure if he knew about WikiLeaks, that's not a crime. And the president can lie as much as he wants in public with impunity. That's the standard now that Rudy Giuliani set.

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: That's the standard they're trying to make. And you're right: he's trying to move the goal posts, and it's Rudy in his role as attack dog, trying to sort of beat the president's alter ego on there.

The thing is that Rudy doesn't believe the things he's saying if you judge by the things he has said and stood for his entire career.

Rudy the prosecutor and Rudy the president's defender are singing from totally different scripts. And I know -- I worked for Rudy Giuliani for years, and I had a lot of respect for Rudy Giuliani as mayor of New York and as a prosecutor. This is beneath the Rudy Giuliani who inspired the nation after 9/11 and was a tough-as-nails prosecutor. It's almost unrecognizable.

And presumably, he's doing it because he wants his client, that's what his client wants to hear. But it really is disappointing to see him diminish the law and try to confuse the facts in this.

CAMEROTA: Joe, here's the latest poll. This is an NBC/"Wall Street Journal" poll about whether or not the president is honest and truthful as it relates to Russia. Sixty two percent say no. Thirty- four percent say yes. That "no" number has gone up since August.

So something is -- just the amount of investigations are obviously getting the public's attention.

JOE LOCKHART, CNN POLITICAL COMMENTATOR: Yes, and the people that are moving are Republicans. Democrats didn't believe him from the beginning. Independents, you know, sort of fell off the believable train early. So the people who are moving are Republicans, and that spells big trouble for Trump.

I know you'll talk -- you'll probably talk to Harry and Tim later in the program about the Iowa poll. What was striking there was two- thirds of Iowa Republicans support Trump. Trump was at 87, 90 percent of Republican support when he came into office. That's what underpinned, you know, his power. Republicans are slowly, slowly drifting away. That's a big problem for him.

BERMAN: I'm not -- I'm not totally sure about that. Look, first of all, his approval rating in Iowa among Republicans still over 80 percent. And I think it's possible that there are Republicans who don't believe him on Russia, because frankly, some of the things that have been out loud are not believable. But that doesn't necessarily mean they're willing to do anything about it. So for them to do something about it is a totally different than believing him?

CAMEROTA: Or that they care about Russia. I mean, you know, you keep hearing him say it's -- "Russia, this witch hunt." All of that stuff, I think, still does go a long way with his supporters.

AVLON: I'd just say that our only prayer as a country is to cut through the situational ethics and to do the brief thought experiment about what those Republicans in Iowa's impression would be if Russia had tried to get Hillary Clinton elected and had been successful.

And that's the only way we're going to get back to some kind of common ground as a country, is to stop the situational ethics and the sort of partisan reality distortion field.

The fact that -- the James Comey point that he made, that Republicans who have always stood for the law -- you know, law and order, standing behind law enforcement, ironically, historically tough on Russia, in the context of the Cold War, for them to be consistently silent is a degree of complicity; it's something they're going to be deeply ashamed of in the future. It's one thing for the base to stick. It's another thing for senators to remain silent in the front of these kinds of attacks on just basic facts about the rule of law and Constitution.

BERMAN: Jen, just quickly, as a legal strategy, what we are seeing from the president to a larger extent, Rudy Giuliani, you know, lowering the bar so much, put that in context. It makes sense for them to do that if what? If they're expecting new charges, if they're expecting things to get worse?

RODGERS: I think they think that it makes sense for them to do that no matter what happens next. Right? They're just trying to confuse people. Right? This is all about public opinion to him.

If we end up in impeachment proceedings, then he wants to people to think he shouldn't be impeached, right? Put that pressure on Congress.

If we end up with criminal charges, he wants to confuse people so that, you know, his base sticks with him and other people think that this is the witch hunt that he keeps claiming that it is.

So I think regardless of what's coming, he thinks that that's his strategy here.

The problem is, you know, you would hope that people would see that these statements are just flat-out false, provably false, have already been demonstrated to be false. And yet some people, at least, are still sticking with him, and that's what's frustrating for us, to see people kind of refusing to accept the facts here.

CAMEROTA: We do. Do you have something to add, Elie?

HONIG: Yes. No, I think Rudy is playing a political game even more than a legal one. I think he's trying to appeal to that base and keep those poll numbers up.

[06:10:07] Because I think Rudy is confident in the belief that the president will not be directly indicted and, ultimately, this will play out in the House of Representatives and with the Senate, and with the House, I mean, you guys are the political experts, but from what I've been able to glean, there is a real reluctance to proceed in the House, because they perceive there will be a political cost unless there's an end game in the Senate.

AVLON: Yes, we're going to see what the Mueller report does before the House signs onto anything resembling impeachment, at least the leadership. The Senate, everybody gets the fact that those numbers are almost insurmountable unless there's a huge bombshell that we're not expecting.

So to some extent this is political process; it's court of public opinion.

But it's also about the degradation of the presidency. It's about, you know, and Rudy using language that is also beneath him, given his experience as a prosecutor and an elected leader. That we're diminishing the presidency by degradating it, by the president sort of attacking the institutions that have propped up our country historically.

BERMAN: He literally defended the fact the president's story has changed on the payments to Stormy Daniels.

AVLON: Yes.

BERMAN: The fact that he said stuff that wasn't true, by saying the president's not under oath. He wasn't under oath so it's OK that he lied.

AVLON: Yes.

BERMAN: That is the president's lawyer's defense.

CAMEROTA: So all of this against the backdrop, Joe, of -- that we now know even more information about how Russia interfered in the election, and how much they truly wanted Donald Trump to be elected. So this by way of "The Washington Post." "What's clear is that all of

the messaging clearly sought to benefit the Republican Party, and specifically Donald Trump. Trump is mentioned most in campaigns targeting conservatives and right-wing voters, where the messaging encouraged these groups to support his campaign. The main groups that could challenge Trump were then provided messaging that sought to confuse, distract and ultimately discourage members from voting."

And that it went longer. It went beyond the 2016 campaign. They're still attempting to do that.

LOCKHART: Yes, and I think that's a really significant thing, that it didn't stop at the end of the campaign. That the Russians, as a policy, sought to interfere not only with our election but also the governing of the U.S.

And it really does kind of change the ground here. You know, even if you can't prove collusion, you have a foreign adversary impacting the government, and then that goes to the legitimacy of this presidency. And I think that changes the dynamic.

I think they will be able to prove some sort of -- you know, given the number of contacts with the Russians. But if, given all of this in the report and another report that's coming out later this week, we now see a picture of our No. 1 adversary in the world playing in our election in a way -- and again, if it had been a landslide, no one would care. The fact of the matter was, this was a very tight election. It had an impact, and I think it's a very fair question now to say, if it hadn't happened or if we'd been able to stop it, the election could have gone a different way.

AVLON: Sure.

LOCKHART: That changes the political dynamic of what are you going to do with this president?

AVLON: You can't unring that bell, but what's significant is it's the Senate Intel Committee. It's the last bipartisan organization, really, we have in this investigation. And if they sign onto this -- these findings by the Oxford group, that is really significant for two reasons.

One, it undercuts the administration's argument they've been making to date that Russia was just trying to sow the seeds of confusion. They weren't trying to help Donald Trump or the Republicans, per se. They were just trying to inflame our divisions.

This report says that's demonstrably not so. This was a full-court press on behalf of Donald Trump.

And the second thing, of course, is that we need to pay attention that the Russians are deliberately trying to divide the country along identity politics lines, and that itself is, I think, a warning to the nation about how our vulnerabilities are perceived.

LOCKHART: Which, by the way, whether he's inspired by the Russians or not, is exactly what Donald Trump is trying to do.

AVLON: Correct.

CAMEROTA: OK. Panel, on that note, thank you all very much.

Now to this news: Obamacare faces another major challenge with a federal judge ruling that the health care law is unconstitutional. It's what conservatives have wanted for years, but of course, it may actually pose a big problem for Republicans. Also, we'll explain what it means for you. All of that is next.

(COMMERCIAL BREAK)

[06:17:52] CAMEROTA: The Affordable Care Act, a.k.a., Obamacare, facing another major hurdle after this federal judge in Texas ruled it unconstitutional.

So the law impacts millions of Americans, as you know. At the moment it prevents insurers from people able to turn away people with preexisting conditions. It allows children to stay on their parents' insurance until they're 26 years old. And it grants access to birth control, mammograms and cholesterol screenings with no out-of-pocket expense.

So what will happen now? We're back with John Avlon, Joe Lockhart, Elie Honig and Jennifer Rodgers.

Joe, what will happen now? Obviously, this is poised for appeal. It could make it all the way to the Supreme Court. So people at the moment still have their protections, but it's hanging in the balance.

LOCKHART: Well, it does add a little bit to the uncertainty. And I think the Trump administration has been trying to fuel this uncertainty to not get people to sign up. And the less people who sign up, the pool is smaller; it withers on the vine.

I think the -- you know, I'm not a lawyer, but the legal experts over the weekend think it will get knocked down. Politically, ironically, this is a huge problem for Republicans, because if you get rid of Obamacare, what do you replace it with? They don't have an idea. Twenty million Americans are thrown off the rolls.

You lose the -- Obamacare, oddly, has become popular. We saw this in the mid-term elections. So I think both Democrats and Republicans, from a political point of view, are praying that this is some sort of rogue ruling that will get knocked down.

AVLON: And so we're still through the looking glass here. Remember, during the campaign, not only health care, No. 1, but a number of Republicans running statewide, including state A.G.'s running for the Senate, said, "Oh, listen, we want to preserve pre-existing conditions. We -- we're all in agreement on this" while they were signed onto this case, which is now putting Obamacare at risk.

And the administration has been doing everything they can do to undermine it. That's been the Plan B. But the repeal and replace promise that they could have pursued for a decade now, Republicans haven't.

BERMAN: So this case that this judge rules on in Texas, this district judge, what he essentially said, is that since Congress and the tax bill took away the tax if you don't pay the individual mandate, it invalidates the whole law.

[06:20:04] Jennifer Rodgers, give us the explanation of what is severability. Teach us the law here.

RODGERS: All right, let's go. So what means if one small part of the statute is unconstitutional, but you can tell from Congress's intent when they passed the law that they would have intended for the rest of the law to remain in place, even though one piece is unconstitutional, then that's what the judge has to find.

And this judge did not do that. He said, "The individual mandate is unconstitutional and therefore, I am finding all of the Affordable Care Act to be unconstitutional. That's not the doctrine and it's not what the appellant judges will say, I believe. I believe this will be overturned, and most legal scholars seem to agree.

CAMEROTA: So how worried should people be right now that have pre- existing conditions or have children with pre-existing conditions? Is this absolutely going to be overturned on appeal?

HONIG: I think there's a very high likelihood it gets overturned. Look, severability is like Jenga, like, if you pull out one piece, does the whole thing collapse? Or does it stay? And as Jennifer said, the law generally is you presume that it stays. Right?

And that's why this opinion is kind of a hot mess. What the judge does is try to say, well, what was -- read Congress's mind: What was Congress thinking back in 2010 when they passed the ACA? And in 2017, when they gutted the penalty on the individual mandate? You don't need to guess.

And this is what staunch conservatives like Scalia and Kennedy and Kavanaugh and Gorsuch say. You do not read Congress's mind. You look at what they did. And if they wanted it to be non-severable, they would have said so in the statute, and the statute does not say that. So I think this -- I think this ruling is -- is doomed.

BERMAN: In the short term, well, there's two things that happen. No. 1, the signup for Obamacare for this year is actually -- what, today is the deadline or yesterday --

LOCKHART: It's over.

BERMAN: It's over. So the deadline came -- a few states, it a few more days.

LOCKHART: Yes.

BERMAN: But the problem is hopefully, it didn't keep people from signing up for health care, but it might have. We won't know that for a few days. But this won't go into effect, this ruling, for a long time.

CAMEROTA: Yes, pending appeal.

BERMAN: Pending appeal. And the politics will catch up with it. Eventually the politics will catch up with it, because it's awful politics for the Republicans, all of a sudden, who -- who promised in this campaign, John, as you noted, they promised, "We're going to protect your pre-existing conditions."

AVLON: Yes.

BERMAN: They're going to have to do something inside Congress to address this.

AVLON: One would think, and yet, you know, we've discussed, Congress basically set this up. I mean, there's been an attempt to undermine this law systematically. Almost sort of in the hopes that this kind of a decision would come down. And so you can't separate.

This was the problem during the campaign. Everyone swear on a stack of Bibles and (UNINTELLIGIBLE) that want to protect preexisting conditions after -- after demonizing the law, you know, for a decade, and trying to undermine it through legal channels and legislative channels. This is why there has to be an obligation to propose, not just oppose, in our politics. And that's what we've entirely gotten away from.

And part of the problem, of course, is that Obama picked a Heritage- Foundation-produced plan that was first enacted by Mitt Romney in Massachusetts. That normally would be the basis for some kind of bipartisan compromise, but not in the era we're living in. And that creates a real political and policy problem for Republicans, because they've got nowhere to go.

CAMEROTA: OK. Meanwhile, Joe, there could be a government -- partial government shutdown this Friday. There -- it seems to be inexorably leading to that. There's no end to the stalemate at the moment between, you know, what to do between Chuck Schumer and Nancy Pelosi and the president.

And the senior advisor, Stephen Miller, was on the Sunday shows talking about its possible inevitability. So listen to this.

(BEGIN VIDEO CLIP)

STEPHEN MILLER, TRUMP SENIOR ADVISOR: We're going to do whatever is necessary to build the border wall to stop this ongoing crisis of illegal immigration.

UNIDENTIFIED FEMALE: And that means a shutdown?

MILLER: This is a very -- if it comes to it, absolutely. This is a very fundamental issue. At stake is the question of whether or not the United States remains a sovereign country, whether or not we can establish and enforce rules for entrance into our country. The Democrat Party has a simple choice. They can either choose to fight for America's working class or to promote illegal immigration. You can't do both.

(END VIDEO CLIP)

CAMEROTA: Joe, your response?

LOCKHART: Well, if I was working in the White House, I'd keep him off the Sunday shows. But that's --

BERMAN: But can I tell you something? That tells you everything. Even forgetting what he said, the fact that they sent him out --

LOCKHART: Yes.

BERMAN: -- tells you exactly what their position is heading into the shutdown. They are pushing for a shutdown.

LOCKHART: They are pushing for a shutdown, and we'll find out in the next week or so whether Stephen Miller is at the head of the ideological Republican Party or the leaders in the House and the Senate.

The difference between this potential shutdown and the previous ones is Trump will be going it alone.

AVLON: Yes.

LOCKHART: He will be going it alone. He will not have Republican support, at least from the leadership, because they do not want to do this. They understand the dynamics here.

And the optics will be different, too. We're in the holiday season. He'll be in Mar-a-Lago playing golf every day. It's --

CAMEROTA: But does it matter that it's just a partial shutdown? I mean, yes, 400,000 people, I think, would be without paychecks, but it's not a complete shutdown.

LOCKHART: It matters in the sense that, once again, this idea that the public doesn't support building a wall, that people are being furloughed because of this; that people are playing politics with peoples' lives, contrasted with the president in an ornate situation --

[06:25:12] CAMEROTA: Golfing.

LOCKHART: You know, golfing, sitting around with his rich friends, and with no support, I think, from Republicans in Congress.

AVLON: But wait. I thought they were framing this as a fight for the American worker? You don't think the Mar-a-Lago optics are going to undercut that a little bit? The Christmas shutdown?

LOCKHART: Well --

AVLON: You think that's a problem?

LOCKHART: I think you're being sarcastic.

AVLON: I am sarcastic. Thank you for translating that.

BERMAN: I will tell you, Joe, you point out. This -- the pressure is all on Republicans in Congress. Democrats have zero incentive to do anything here since the president went on TV and said, "This is my shutdown" and since, starting January 2nd or 3rd, they're in power in the House. There's no reason for the Democrats to do anything on this other than wait for the --

LOCKHART: But the Democrats and the Republicans could get together and probably will get together and send him something. And then it's the president's decision whether he signs it, he holds his nose, he says, "We'll come back to this," or he vetoes it and sends it back. This is now -- it is not the Republicans against the Democrats. It's not a blame game that goes on and we see who wins. The president has already decided "I'll take the blame for this," and he's got no support on the Hill.

AVLON: But he does have Stephen Miller.

LOCKHART: But he does have Stephen Miller.

HONIG: And a quick note, the shutdown does not affect Robert Mueller. I have done it. Federal prosecutors will work through shutdowns.

CAMEROTA: Good context.

HONIG: He's going to keep going.

BERMAN: And I will note, I don't think the two -- severability. I would not sever the shutdown from what's happening in the Mueller investigation. The president might need the shutdown, might need the circus of it all to draw attention from what could happen over the course of the next five days. I did that just for you.

CAMEROTA: Thank you. OK. Are we wrapping?

BERMAN: Thank you all very much.

CAMEROTA: Thank you.

BERMAN: So the Merriam Webster dictionary has announced its word of the year. And if you're an avid news watcher, it's one you will know well. Find out what it is next.

CAMEROTA: Grouse?

BERMAN: Good morning?

(COMMERCIAL BREAK)