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Nearly Every Organization Trump Has Led is Under Investigation; Judge Finds Obamacare Individual Mandate Unconstitutional. Aired 7-7:30a ET

Aired December 17, 2018 - 07:00   ET

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


ALISYN CAMEROTA, CNN ANCHOR: That includes his White House, his campaign, his presidential transition, his inauguration, his charity, his business and his personal life.

So how is he tackling all of that? Well, he's tweeting a lot. He calls his former, lawyer, Michael Cohen, a quote, "rat," and he falsely accuses the FBI of breaking into Cohen's office.

The president's lawyer, Rudy Giuliani, is once again trying to move the goalposts of Mr. Trump's accountability. He now claims that collusion is not a crime, while he admits the president was involved in discussions about building that Trump Tower in Moscow further into the campaign than was previously revealed.

JOHN BERMAN, CNN ANCHOR: There's more. There always is. Two reports prepared for the Senate reveal Russia used every major social network to help Donald Trump get elected, and this vast media enterprise backed Donald Trump even after the campaign.

Also, a huge legal ruling that could up-end the entire healthcare system in this country. A federal judge in Texas struck down Obamacare. He struck down all of Obamacare.

Now in the short term, the ruling does not immediately change coverage, but if it is upheld, millions will lose their health insurance; and millions more with pre-existing conditions could be denied coverage or face skyrocketing premiums. President Trump calls the judge's ruling "great for our country."

CAMEROTA: All right. Joining us now, we have CNN chief legal analyst Jeffrey Toobin. We have CNN political analyst David Gregory, and host of CNN's "SMERCONISH," Michael Smerconish.

Happy Monday, everybody. So let's just talk about the landscape, Jeffrey. Because just to put a finer point on it, the Trump Organization, the Trump inaugural committee, the Trump campaign, the Trump transition, the Trump administration, the Trump charity, the foundation, all of those are under investigation.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: But not where he went to high school.

CAMEROTA: Yes.

TOOBIN: His high school record is beyond reproach, as far as I can tell.

No, I mean, it's an extraordinary tale. I mean -- and these are all legitimate investigations. And the key thing is, come January, a lot of these investigations are going to unfold in public.

You know, the Mueller investigation has come out in bits and pieces and only in very limited ways. Come the Democratic takeover of the House of Representatives, there are going to be public hearings.

Michael Cohen is going to testify in public. All of these stories are not only going to metastasize, but they are going to metastasize in public. And I think that's a very different scenario than we've seen.

DAVID GREGORY, CNN POLITICAL ANALYST: And we've seen what the president has done, at the prospect of all of this unfolding in public. He said it after Democrats took over the House. He said, "If they work with me we can achieve some things." If they just decide to investigate, he'll seek to use the Senate to block them, to investigate them.

So you can tell that the president will really go off the deep end as these Democratic-led investigations of his personal finances, which he's always found to be off-limits, as well as other aspects of his administrations or his business life or his past move forward, because with Mueller, if he's exercised any restraint, even though he's being investigated for obstruction of justice, he hasn't fired Mueller. As Jeffrey says, this has been playing out in private.

BERMAN: You know, it's interesting. David Gregory uses the future tense there: will go off the deep end, Michael Smerconish, because the president, some people say, took that leap, maybe a long time ago but certainly this weekend when he wrote about Michael Cohen in this way.

Let me read you what he said about Michael Cohen. He goes, "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 to be clear, the FBI got a warrant from a federal judge who would only give such a warrant if there was probable cause of illegality to go search Michael Cohen's office.

Let me read you what James Comey said about this, Michael. "This is from the president of our country, lying about the lawful execution of a search 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."

This is a micro-issue, what he's saying about Michael Cohen. But the bigger picture here is the president undermining the rule of law.

MICHAEL SMERCONISH, HOST, "SMERCONISH": Well, and the president continually putting himself at odds with law enforcement at all levels. Imagine what an incentive those words from the president

unintentionally are within the Mueller investigation, or within the Southern District of New York. I imagine he's just causing them to get to the office sooner and sooner and leave later and later.

There's another aspect of this that I think needs to be said, and that is, regardless of where all of these investigations might lead, it has to be having an impact on morale in the West Wing.

And it also has to be having an impact on his ability to attract talent for all these vacancies. I can't help but take a look at Chris Christie passing the opportunity, perhaps, to be White House chief of staff. And wonder, how many people are looking at this and saying, "I don't want to be a part of this blank show"?

[07:05:07] CAMEROTA: Jeffrey, I mean, I just think that we just need to dwell for one more minute on that tweet. He either doesn't understand about the Fourth Amendment or care about the Fourth Amendment about searches and seizures. I mean, the idea that he's going after the criminal justice system and saying that they did something illegal, it's -- it's jaw-dropping.

TOOBIN: And it's also indicative of his belief the Justice Department should be his lawyers. That's why he feels such a betrayal here. That's why he's so angry about this, is that he thinks that -- I mean, this is why he was fixated on Jeff Sessions, that why didn't Jeff Sessions protect him? He has no understanding of the difference between an obligation to the country, to the constitution, and to him.

Also, the thing I find fascinating about that tweet is the use of the word "rat," which indicates just sort of the mob mentality that he grew up with, you know, with close associations with the mafia and construction trades in New York. And, you know, that idea that somebody who betrays him is a rat.

I mean, you know, the rats are why the mafia in New York City almost doesn't exist anymore, because the federal prosecutors used informants, used cooperators.

CAMEROTA: Like Giuliani did.

TOOBIN: Like Giuliani did all the time very successfully. And they were known as rats but only by the bad guys, not the good guys.

BERMAN: And David, the other part of this that James Comey points out, is that what the president said in that tweet is a lie. It's a lie to say that the FBI broke into Michael Cohen's office. They did not break in.

And Comey -- and again, you can judge Comey for however you want, but the question he raises is where are Republicans this morning? Where are the people in the president's own party saying, "You are lying about this, and it's dangerous to be saying this type of thing"?

GREGORY: They're nowhere. I mean, Republican leadership is afraid. They would rather just let Trump be Trump, let him fulminate on Twitter and in other forums and focus on that which they want to get accomplished.

It could be federal judges. It could be other areas of legislation, even taking him on on Saudi Arabia, but not on this.

And this is another reminder of why any responsible Republican leader would say the president has a duty to stop misleading the country about this investigation, to stop taking on this special prosecutor and let this process play out. Even if they are not persuaded whatever the results may be, and even if they tend to agree with him that this stuff is overblown. Nobody knows.

And there's no one responsible who's still in power who's going to stay in power who will stand up and say, "The president is wrong and is misleading the country and is --" and is -- there's so much talk about how the president is undermining our Democratic institutions. And I always say, but what has he actually done?

The one thing he is doing, through his public statements in all their forms, is seeking to delegitimize law enforcement at the federal level in this country. That's a dangerous thing. And -- and he shouldn't be allowed to get away with it.

CAMEROTA: Well, add Rudy Giuliani's voice to that, Michael. Rudy Giuliani was out in force on a couple Sunday scores, and he made headlines, saying collusion is not a crime. He said if Roger Stone gave anybody a heads up about WikiLeaks, that's not a crime. And when asked why the president has so many shifting stories about the payments to Stormy Daniels, and McDougal, and why he lied and said that he didn't know anything about them, when on tape, he's proven to know something about them, Rudy Giuliani said the president is not under oath.

Is Rudy Giuliani helping the president, at this point, make his case?

SMERCONISH: Well, I wondered the same thing when he said something to George Stephanopoulos. If I heard him correctly, he seemed to expand the timeline during which the Trump administration -- pardon me, the Trump Organization was having conversations about building that tower in Moscow.

Rudy Giuliani seemed to say those conversations seemed to extend all the way through November of 2016. And I -- I listened to those words in tandem with Jeffrey Toobin's recent piece about his sit-down with Adam Schiff. And Schiff sort of wondering aloud, was the campaign all a branding exercise -- I'm paraphrasing -- for the benefit of the Trump Organization? You know, did Donald Trump, in his heart of hearts, think he wasn't going to win this race, but he'd say kind things about Russia, make a friend in Vladimir Putin, and when it was all said and done, be able to build that tower? That's how I interpreted the events of the weekend.

TOOBIN: Well, I mean, that is exactly what Adam Schiff was saying in my "New Yorker" piece. I mean, he was saying, look, this is an issue of compromise. You know, was the president compromised by his relationship with Russia?

Is he -- was he during the campaign and is he now acting in the interests of the country, or is he acting in his commercial interests?

It applies in Saudi Arabia, as well. Why is he so solicitous of MBS? Is it because that's in the national interest or because he has made so much money from Saudi Arabia, as he's acknowledged and wants to continue making money. That's what he want -- and that's what Schiff wants to hold hearings on, specifically to obtain the records of Deutsche Bank, which is a notorious money-laundering organization, as well as a German bank, and the place where Trump has done most of his business.

GREGORY: And it's possible.

BERMAN: -- redline, Jeffrey. The president has said this crosses a red line?

TOOBIN: Well, that's -- you know, the bottom line is, he can fire Robert Mueller. He can't fire Adam Schiff. And he can't fire Nancy Pelosi; and he can't fire the Democrats. And they're going to do this investigation whether Trump likes it or not.

CAMEROTA: Go ahead, David.

GREGORY: I was just going to say what's difficult about this is that, if you look at these issues, it's possible to conflate them. So when President Trump or candidate Trump says it's a good idea to have a better relationship with Russia, the Obama administration thought that, too. They tried, failed, reset.

When he says we have interests that sometimes trump our values when it comes to our relationship with Saudi Arabia, that's been true for 50 years. So he's not the first -- he did it in a particularly crass way.

So I think it's hard to thread the needle between these issues. And it's why I believe Jeffrey's reporting and this question of financial ties are so important, to find where the relationship may have been compromised, potentially, by that kind of relationship that would end up superseding the national interests as president.

And remember, when President Trump was interviewed by Leslie Stahl on "60 Minutes" in the transition period, talked about his business and whatnot and the kids were going to take it over, and he says, "None of that matters to me now. It's just nowhere near as important as what I'm going to be doing now." That's the proposition that's really being tested.

TOOBIN: And I think you're right about the question of motivation. It could be mixed motives. The first thing, though, you need to know before you deal with the question of motive are what are the facts?

GREGORY: Right.

TOOBIN: What is the financial relationship between Trump and Russia?

GREGORY: Right. TOOBIN: We don't know that. We've never seen his tax returns. I mean, these issues require facts, and that, presumably, is what we'll get.

CAMEROTA: All right, David Gregory, we only have 30 seconds, but you are our resident impersonator. You do a mean George W. Bush, among other things, and --

BERMAN: Tom Brokaw.

CAMEROTA: Tom Brokaw. You do it so well.

GREGORY: I'm not doing any of them here.

CAMEROTA: Yes, you are.

BERMAN: Because you could face a lawsuit. The president says you should be sued and thrown in jail if you do them.

CAMEROTA: If you're on "SNL."

GREGORY: And? What's your point?

CAMEROTA: That it's bad. That is a bad thing to say, because God bless "Saturday Night Live." For more than 40 years, they have been mercilessly making fun of our presidents.

GREGORY: Yes.

CAMEROTA: And we live in a great country where comedians are allowed to make fun of our presidents, and that's one of the things that makes America great.

GREGORY: Yes, and I mean, they've been giving it to both sides for -- for decades, as you know. And I think there's an expression that they probably use over at "SNL" that are two words, if they can't get the joke. And the president doesn't seem to get the joke anymore when it comes to "SNL."

CAMEROTA: All right. Well, we won't say those words, if they're what I'm imagining. Thank you, gentlemen, very much.

BERMAN: All right. Over the weekend a federal judge threw out Obamacare. He said Obamacare is illegal, all of it, and unconstitutional. So what happens now? We're going to ask one of the architects of the Affordable Care Act next.

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[07:17:46] BERMAN: The future of Obamacare is in doubt this morning. A federal judge ruled the law's individual mandate is unconstitutional and therefore, he said, the rest of the law cannot stand. An appeal is expected. It will happen. The question is what happens after the appeal? Will the Affordable Care Act, will Obamacare survive?

Joining us now is one of the architects of Obamacare, former White House health policy advisor and CNN contributor Dr. Ezekiel Emanuel; and senior correspondent for "New York" magazine and CNN contributor Irin Carmon.

Doc, I want to start with you here, and I want to try and explain to people exactly what this judge ruled, because I think it's important. He said, since Republicans with the tax bill they passed, took away the penalty for not having health care, it means that there can be no individual mandate. There can be, he says, no requirement that people buy insurance, the individual mandate which is in the original Obamacare law.

And he says without that individual mandate, then, the entire law crumbles and is unconstitutional. Do you believe that to be a fair ruling?

DR. EZEKIEL EMANUEL, CNN CONTRIBUTOR: No, that is a ridiculous ruling, and you don't have to rely on a doctor like me. Lots of conservative legal scholars think it's a silly ruling.

The main logic there is the mandate is so essential to the law that nothing in the law can stand without the mandate. And the reason you know it's a silly ruling is we haven't had a mandate with any enforceability since we passed the tax law, because there's no penalty anymore. And much of the law is going forward, laws like changing how doctors are being paid, improving the quality in hospitals, investing in better workforce for the health care system.

I like to say to my students that the Affordable Care Act is 906 pages long. The enrollment or coverage sections are only 225 pages, less than a quarter of that, and the part dealing with the mandate and the exchanges are even smaller. There's plenty of the bill that has nothing to do with the mandate, and that's why this ruling by this judge will not be upheld.

It's a very silly ruling and does not -- it sort of defies consequence constitutional logic.

BERMAN: Yes --

EMANUEL: I do not -- I don't lose any sleep over the fact that he made this ruling.

BERMAN: The bill also includes expanding Medicaid; obviously, protecting people with pre-existing conditions. You know, people who live with their parents can have insurance until they're 26 years.

EMANUEL: Right.

BERMAN: The list goes on and on. Essential benefits.

I will say this, though. When you wrote the law, when you guys crafted Obamacare, you did believe the individual mandate to be extremely important, correct?

EMANUEL: That's correct. We thought that the individual mandate was going to be very important to convincing people that they had to buy health insurance, and we did say it was essential.

On the other hand, one of the things we've learned over the last seven or eight years, since it's been in effect, is really how important the subsidies are to buy insurance.

The big barrier, it turns out, is money. People want health insurance, especially if they're older, and the big challenge has been that health care premiums have been unaffordable, providing people subsidies in the exchange allows them to buy insurance.

The mandate helps. Don't get me wrong. I'd like to have a mandate. I'd like to have a mandate with a real penalty. But it turns out the idea -- we sort of over blew how important it was getting people to purchase insurance.

BERMAN: All right. Irin --

EMANUEL: And I think the judge has misconstrued the ideas we had in 2010 for the situation of 2018.

BERMAN: The politics in this, Irin, are fascinating, and it changed so much over the last eight years or however long it's been since Obamacare was crafted.

Republicans, who faced withering criticism in this past midterm election over health care, so many of them ran on "We are going to protect your pre-existing conditions." And now, they are faced with this ruling throwing out Obamacare. Now they may have to step up to the plate and do it.

IRIN CARMON, CNN CONTRIBUTOR: I think this legal challenge has to be seen in the context of this very long continuing war with repeated losses by Republicans, seeking to undo the Affordable Care Act, whether to chip away at various provisions of it or get rid of the entire thing.

So let's stop here for a second and think about the fact that it's Republicans who are often the ones talking about how we can't have activist judges; and we need to defer to the legislative branches.

Congress had the opportunity to repeal the Affordable Care Act, and they didn't, precisely because politics have changed, precisely because they feared getting those kinds -- that kind of blowback that you actually saw in House of Representative races, right? It turns out that, perhaps related to Obama not being in office anymore, and not being scapegoated for changes in the healthcare law. It turns out that many provisions of the Affordable Care Act are really popular.

So what Republicans are doing are doing here is asking the courts to do the dirty work that they declined to do in Congress. Again, they camped in 2016 and before that on repealing the Affordable Care Act. But when push came to shove, despite the fact that they controlled both houses of Congress and the presidency, they did not repeal the Affordable Care Act.

Now we have a federal judge who has a completely novel, off-the-wall theory presented to him by Republican states' attorney generals -- attorneys general who are then now saying that the entire act has to go, despite the fact that Congress didn't do that. I think we're in totally unchartered territory that politically, they would not have done.

BERMAN: You know a little bit --

EMANUEL: Can I just amplify one thing --

BERMAN: Go ahead, Zeke.

EMANUEL: -- that I think is very, very important?

We've had two polls: one in August and one just recently in October, suggesting that over half of Republican voters are for Medicare for all.

We have gotten so polarized. Republican voters want health insurance. We now view health insurance as something everyone in the country

ought to have.

And the threats to Obamacare and to coverage and to pre-existing conditions posed by the Republicans are driving more than half of Republican voters to now support Medicare for all. That tells you that the Republican Party has gotten the politics of this totally wrong. And I think, as was said, you know, they now want judges to do things that politics will not permit.

BERMAN: One of the things that has happened is this judge had issued the ruling. We've heard a lot of legal analysts, and Dr. Emanuel say he doesn't think it will stand up on appeal; it may not pass an appeals court. But if it does get to the Supreme Court, Iran, you know a little something about Supreme Court. You wrote the book on Ruth Bader Ginsburg. The Supreme Court ruled Obamacare is constitutional. John Roberts cast the deciding vote, but it was based on the fact that the individual mandate penalty was a tax.

Now that that tax is gone, do you have 100 percent confidence that this court, as currently constituted with Brett Kavanaugh and Neil Gorsuch, would uphold the legality and constitutionality of Obamacare?

CARMON: So there have -- there's been division among legal scholars about this. There are some legal scholars who are going out there and saying, "Don't worry. What's going to happen here is this is such a crazy legal theory that the Fifth Circuit is going to overturn it, and then the Supreme Court will refuse to hear it, because John Roberts -- Chief Justice John Roberts has repeatedly said that the Affordable Care Act is constitutional.

And perhaps with an eye towards the Republican Party from which he came, he's not interested in creating the political problem -- perhaps, this is the speculation -- for Republicans that repealing the Affordable Care Act through Republican appointees would generate.

[07:25:14] But that said, there are other legal scholars who are cautioning, they are saying, "Wait a minute. It could take a while for this to move through the procedural hoops that it has to jump through."

And by it gets up to the Supreme Court, you need four courts votes to agree to hear a case, five votes to decide it. What if, you know, from my perspective, God forbid, what if the court's composition changes because somebody retires or is ill or passes away? At that point, I think you can't guarantee. If you have five on the Supreme Court that says up is down, there is very little that anyone can do. Even is today everybody is saying that this decision is so absurd and it cannot stand, who knows further down the road, as Trump transforms the judiciary, if that will continue to be the case?

BERMAN: Irin Carmon, Dr. Ezekiel Emanuel, thanks so much for being with us.

One thing I just want to say to make very clear, in case people didn't get it. Nothing changes now. You still get your Obamacare now. It's all in there until we hear from an appeals court on this.

Thanks very much -- Alisyn.

CAMEROTA: OK, John. A 7-year-old girl dies in Border Patrol custody. So what happened in her final hours? The dispute between her family and the government, next.

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