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Lawmakers Shaken as Mattis Quits, Government Shutdown Looms; Whitaker Refusing to Recuse from Russia Investigation Despite Justice Dept Advice. Aired 7-7:30a ET

Aired December 21, 2018 - 07:00   ET

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

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UNIDENTIFIED MALE: When a guy like Mattis says he's gone, there's something dysfunctional.

[07:00:21] STEPHEN MILLER, TRUMP POLICY ADVISOR: It's very normal at this point in the administration to have turnover.

SEN. CHUCK SCHUMER (D-NY), MINORITY LEADER: Everything that indicates knowledge is leaving this administration.

UNIDENTIFIED MALE: We have a White House in crisis.

REP. NANCY PELOSI (D-CA), MINORITY LEADER: The president is doing everything that he can to shut the government down.

UNIDENTIFIED MALE: I don't think that this is really a debate about the wall. I think it's about depriving the president of a win.

UNIDENTIFIED MALE: This isn't about the wall. It's about destroying our immigration system.

(END VIDEOTAPE)

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

ALISYN CAMEROTA, CNN ANCHOR: Good morning, everyone. Welcome to your NEW DAY. It is a busy Friday.

JOHN BERMAN, CNN ANCHOR: That's how you're going to call this?

CAMEROTA: That's what I'm calling it.

BERMAN: It's a busy Friday?

CAMEROTA: You know what? I like underestimates.

BERMAN: Yes, OK.

CAMEROTA: This morning lawmakers say they are shaken and stunned by the sudden resignation of Defense Secretary James Mattis. They're facing a government shutdown that is about 17 hours away now, and they're watching a stock market that has fallen 3 percent this week alone. Also, more than 10 percent since the start of this month.

So the headlines this morning speak volumes. "The New York Times" reads, "Upheaval in Washington." This is from "The Washington Post": "'A tailspin': Under siege, Trump propels the government and markets into crisis."

BERMAN: A busy Friday.

CAMEROTA: It is a busy Friday, because on the surface, it appears General Mattis quit over the president's decision to pull U.S. troops out of Syria and his sudden order to withdraw half of the U.S. forces from Afghanistan. But Mattis made his reasoning clear in his resignation letter, making the case that the president is too ungrateful to U.S. allies and too cozy with the U.S. adversaries.

BERMAN: Yes, so adding to that chaos or the busy Friday, the very real threat of a partial government shutdown at midnight. The president insists he will not sign any spending bill that does not include a funding for the border wall.

That sent the House scrambling. They passed a bill with border wall money, but that measure pretty much dead on arrival in the Senate. Majority Leader Mitch McConnell plans to schedule a vote today to begin debate on the House bill. Many senators, they're home already for the holidays. And unless someone decides to compromise quickly, more than 800,000 government workers will go without paychecks in the run-up to Christmas.

Joining us now is CNN political analyst and White House correspondent for "The New York Times," Maggie Haberman.

Maggie, we are so happy to see you. We want to know what the heck is going on this morning after everything we've seen. And look, James Mattis made clear, he quit, effective at the end of February, because he thinks the president is too disrespectful of U.S. allies and too solicitous of U.S. enemies. And the exact quote in his resignation letter, "Because you have the right to have a secretary of defense whose views are better aligned with yours on these and other subjects, I believe it is right for me to step down from my position."

You call this an astonishing rebuke of Trumpism.

MAGGIE HABERMAN, CNN POLITICAL ANALYST: Well, it is. I mean, he makes very clear that he does not agree with the key tenets that the president not only has espoused over the last two years, but let's remember: these are things that he ran on, he campaigned on. He made very clear that he was against extensive U.S. engagements in the Middle East. It should not surprise anyone.

And what's interesting about that letter is Mattis was -- he was a general through and through. He made very clear that there is one president, and it's President Trump. But that he himself does not feel that he can consider to serve this administration anymore, given the deep divisions between himself and the president.

He's the first person to do this. It's not just that Mattis is a person of stature. It's not just that James Mattis for a long very time had been the person who had been something of a binkie, for lack of better way of putting it, for Republicans and Democrats who were looking for some sense of calm or a guardrail within the administration.

I'm not actually sure that that was anything more than a mirage, because the president went ahead and did most of what he wanted to anyway. People have been able to delay the president but not totally dissuade him from what he wanted.

But Mattis is the first person to leave and not pretend that this was all just the right time or that, you know, he had family concerns or he had some other job opportunity he wanted to seek. He made a clear break, and I think that makes it harder for people who are increasingly, particularly in the Republican-held Senate, who have issues with the president's conduct. And we are going to hear a lot more about that in the last coming months as you have these House investigations. It's going to be harder to avert their gaze.

CAMEROTA: Maggie, you're so right. That is one of the astonishing things, is that Mattis spelled it out explicitly --

HABERMAN: Right.

CAMEROTA: -- for everyone. He wrote a letter. This wasn't a leak. This wasn't unnamed sources.

HABERMAN: No, he put his name to it.

CAMEROTA: He put his name to a letter in which he says, "While the U.S. remains the indispensable nation in the free world, we cannot protect our interests or serve that role effectively without maintaining strong alliances" --

HABERMAN: Right.

CAMEROTA: -- and showing respect to our allies. I mean, that's his version of sounding an alarm.

[07:05:09] HABERMAN: It is. Now look, again, I think it is important to keep stressing, the degree to which what has been striking about how the reporting that we have all done about this White House and about this president is how little so many of the people who work around the president actually respect him or believe in what he is doing.

Because you would not have these kinds of leaks if they did respect him or did believe in what he is doing. And Mattis, again, is the first person to actually put his name to where he has differences with the president, and to not make it personal. Right? I mean, to make it very clear that this is about how you see America's role in the world, how he sees America's role in the world.

The president did something that made people, many people, very unhappy with what he did about Syria. It certainly did not have a whole lot of planning or normal process. Officials at the State Department were stunned. Many in the Department of Defense, although not all, were stunned.

But this is consistent with what he has said he has wanted this whole time. And so anyone who is surprised probably shouldn't be. And anyone who is surprised that there was not a normal process followed also probably shouldn't be.

BERMAN: Maggie, is there anybody who thinks this is going well close to the president, the last 24 hours? I mean, and I'm not being glib here, other than Russia, who has come out and praised these various moves that led to the resignation of James Mattis. I haven't seen anyone come out and say, "This is going just like we thought it would."

HABERMAN: Look, I think that for people who took issue, who are critics of the president, when he was campaigning, including other Republicans, I think some of them privately will admit that it -- this is exactly how they thought it could go.

Within the White House, there is -- and this has always been the case, there is -- there's a bunker mentality. People watch the news coverage, and they feel as if we all get this wrong. They feel like we're not -- we're only focusing on you know, certain, what they would call negative aspects. This is just not a great fact set for the president. I don't know how this becomes a positive or a negative.

But they feel as if the world is sort of moving against them and they think that it is unfair. I think it's hard to keep working in a place if you tell yourself that the coverage you're seeing is accurate, but at the end of the day, most people in the extended government apparatus outside of the White House -- and by that I mean in the State Department, in the Department of Defense -- do not think that this is going well. They are deeply worried about what this means going forward. What this means for who is going to stand with the U.S. in the future? Who is going to be willing to fight on the U.S.'s behalf in the future. This has massive implications, his decision about Syria.

CAMEROTA: I mean, part of the chaos, Maggie, is that even when it is going well for the White House, they had a prison reform bill passed --

HABERMAN: Yes, that's right.

CAMEROTA: -- that hadn't been able to happen --

HABERMAN: That's right.

CAMEROTA: -- with Democrats, for decades --

HABERMAN: That's right.

CAMEROTA: -- and that was this week, I think. I mean, I really have lost track.

HABERMAN: Yes, it's actually -- I think it gets signed today. Yes. It's understandable that you would have -- we would have blinked and you thought it was gone.

CAMEROTA: Well, time has lost its relevance for me. Because so much is packed into 24 hours.

But the point is, is that it's the president that steps on the victory.

HABERMAN: Yes.

CAMEROTA: it's the president that then decides, capriciously, that he's going to pull troops that day out of Syria and out of Afghanistan without consulting with the Pentagon, and his defense secretary quits in protest. The media didn't do that.

HABERMAN: Right. He's also -- look, as you know, Alisyn, very well, this is a president who is -- he is a chain reaction president, except the reactions -- the things he's reacting to are usually his own behaviors. And then he reacts to other people's reactions to his behaviors.

And that's what happened during midterms for a year where you had Republican senators and House members incredibly frustrated that he would not just talk about the tax bill, and instead he'd go off on these tangents and fight these -- these Twitter wars with people instead of talking about the things he thought that he had accomplished in office.

You're seeing the same thing with the criminal justice reform bill. That is a serious piece of legislation. Even his harshest critics on the Democratic side have generally said this is a win. This is a substantive piece of policy, and it was done in bipartisan fashion. Which has been very hard to do any -- under any circumstances over the last several years prior to the president.

But this got much harder under President Trump, and it got done. And he can't just talk about that, because instead, he's having phone conversations with Rush Limbaugh to try to reassure him that he's going to defund the government if he doesn't get money for a border wall. That's the kind of thing that he is focused on.

BERMAN: Can I follow up on one thing before we get to shutdown, which I know you're eager to jump on?

Maggie, I just want to follow up on two things you said. Then I'm going to let it slide. No. 1, that you referred to James Mattis, General Mattis, as a binkie for many Republicans in the Senate.

CAMEROTA: I enjoyed that.

BERMAN: I enjoyed that a lot. So I want to note that --

HABERMAN: I never use that word. But yes.

BERMAN: I want to note that moment. But what it means, I think, is significant here. And another point you're making is that this could have a ripple affect into the president's survival, frankly, and overall into the Russia investigation. All of this stuff might be connected because Republican support may be wavering.

[07:10:02] HABERMAN: Correct. Look, we're in a critical moment. The number of conservatives who I have talked to in the last day who worked on the campaign, who supported the president, who now say, you know what? I regret doing that, and this was a mistake. This administration is -- is, you know, off the rails. All of these investigations that are coming to a head are going to be a huge problem. They are disgusted, for lack of a better word, with what they have seen, out of the details that came out of Michael Cohen's plea deal.

All of that is going to keep going. That's not abating. That's going to actually intensify as we get into the year. And it takes 20 senators to vote in favor of impeachment. Twenty Republican senators to vote in favor of impeachment.

This could be a critical moment. It also could not be. The president has been at the precipice before and has pulled back, but I think this one might be different.

CAMEROTA: Maggie, because the time space continuum means nothing to me anymore, I think it was yesterday morning that you were on. And it appeared --

HABERMAN: It was.

CAMEROTA: OK, thank you. And it appeared then -- correct me if I'm wrong -- President Trump had sort of acquiesced to what was going to happen. In order to avoid a government shutdown, he even tweeted, "Well, I'll get by border wall funding somewhere." He understood that Mitch McConnell, yes, had worked hard to put together this clean continuing resolution.

Then something happened and everything blew up; and now the government may shut down at midnight tonight. What happened after 9 a.m. yesterday morning?

HABERMAN: Well, what happened was actually just more fallout from what had happened about 14 hours earlier, which was Ann Coulter, the conservative commentator, saying that he will either not survive his term or get re-elected. He unfollowed her off of Twitter soon after that.

Mark Meadows, co-chair of the House Freedom Caucus, who has been a staunch ally of the president, made very clear publicly that the president was going to face blowback with his Republican base, the base that had stuck with him, the base that the president has referred to as the voters that would stick with him even if he shot somebody on Fifth Avenue.

They're running out of patience for his not delivering on what he has said is a bedrock promise and moving away from it. Whether his promise of a wall was realistic or not during a campaign, whether he even believed in it himself, he knew that his supporters did, and it became a big symbol. He started getting blowback, as I mentioned before, from people like

Rush Limbaugh. I was not being sarcastic. He had a conversation, according to Rush Limbaugh, with Limbaugh yesterday where he reassured him after Limbaugh had been really critical. So that's what happened.

This president is aware that if his base starts to lose him, that is when the impeachment issue that we talked about before, if you assume that House Democrats are potentially going to go ahead with that, and that the Senate will then have to vote on it, that if he loses his base, then he really doesn't have anything. And he has always been incredibly invested in preserving that base. More so now.

BERMAN: I have to say, the politics of what he did yesterday actually make some sense.

CAMEROTA: But not to Mitch McConnell they don't.

BERMAN: Well, I want to get to McConnell in a second. I will say the politics make sense, but remember, it's politics being played with 800,000 people who aren't going to get paychecks.

HABERMAN: Right. The politics -- right, and the -- I actually think that's a huge problem. And the politics also could make more sense if he hadn't said all these other things before.

BERMAN: Right.

HABERMAN: He tends to say these things as if no one's going to remember what was said five minutes ago or tweeted five minutes ago or five days ago or, you know, five months ago, and that's not how government works.

BERMAN: And I just want to read you, because this is the other aspect that's fascinating. Alisyn brings it up, which is that Mitch McConnell is not totally on his side here or -- right now, Mitch McConnell is really upset with the president --

HABERMAN: Yes, he is.

BERMAN: -- this morning. And the president is leaning on Mitch McConnell in a tweet just moments ago --

CAMEROTA: And rebranding.

BERMAN: Totally. He said.

CAMEROTA: A rebranding alert, listen to this.

BERMAN: Dramatic reading?

CAMEROTA: Go.

BERMAN: "Senator Mitch McConnell should fight for the wall and border security as hard as he fought for anything. He will need Democrat votes, but as shown in the House, good things happen. If enough Democrats don't vote, it will be a Democrat Shutdown!" CAMEROTA: Ding, ding, ding, ding, ding!"

BERMAN: "House Republicans were great yesterday!"

CAMEROTA: Remember when it was going to be the Trump shutdown?

HABERMAN: Right. I mean, this is -- this is what I mean about, you know, acting as if what you said before doesn't matter. He said during an Oval Office meeting that he would gladly own a shutdown. And I think his supporters took him at his word, which is why he had a problem earlier this week.

Look, McConnell is frustrated with the president. We know he's very unhappy about Mattis' resignation. McConnell has been unhappy before, and it hasn't necessarily moved the needle, so let's see what happens.

CAMEROTA: All right. Maggie, thank you.

HABERMAN: Thank you.

BERMAN: Binkie. James Mattis is their binkie.

CAMEROTA: I mean, I find that analogy really disturbing and telling.

BERMAN: Dead on. All right.

Ethics advisers told acting attorney general Matt Whitaker to step away from the Russia probe, but Whitaker is not recusing himself. So do his arguments own up? Our legal experts weigh in next.

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[07:18:57] BERMAN: The Justice Department is explaining why acting attorney general Matt Whitaker decided he should not recuse himself from the special counsel's Russia investigation. Now, an ethics official had advised otherwise, but in a letter to congressional leaders, DOJ leaders say it has been more than a year since Whitaker criticized the investigation, and Whitaker has a lot of respect for Robert Mueller.

Joining us now to discuss, author of "Contempt: A Memoir of the Clinton Investigation," Kenneth Starr. He, of course, was the independent counsel leading the investigation into President Clinton. And CNN chief legal analyst Jeffrey Toobin.

Jeffrey, I think we under explained exactly what happened here. Matthew Whitaker decided not to ask for an official ethics review because?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: He was going to get the review that said "recuse himself."

BERMAN: And if he did --

TOOBIN: Just like -- just like Jeff Session recused himself.

BERMAN: And if he had the official recommendation, he would have had to follow it.

Instead he asked for an opinion. The opinion tells him, you know, "There's no legal conflict here. You don't have a legal conflict, because you don't have a family member who works in the independent -- special prosecutor's investigation. You weren't part of the campaign, but there's an appearance of conflict, so we think you should step aside."

And then he still says, "Nah."

[07:20:01] TOOBIN: I don't think so. You know, I think it's important to remember. Both attorneys general we're talking about, Mr. Whitaker and Mr. Barr, who's been nominated, they were chosen by the president not because -- not in spite of their conflict of interest, but because of their conflict of interest.

The only reason that Donald Trump is even aware that Mr. Whitaker exists is because he was on CNN criticizing -- criticizing Mueller. He's an undistinguished attorney. Mr. Barr, a very different story. A very distinguished attorney.

But the only reason he is -- he is attorney general is because he criticized Mueller. He is a perfect example of why he should be recused, but he didn't do it. Because he knew that that's what Jeff Sessions got fired because of, because he recused himself.

BERMAN: So Judge Starr, among your many past jobs, one of them was in the Justice Department as solicitor general. You know what it is like to work in the Justice Department. Should Whitaker have asked for an official ethics review?

KENNETH STARR, AUTHOR, "CONTEMPT": Yes. I think the processes and procedures of the Justice Department are terribly important. Those procedures have integrity, and it's very wise to follow those procedures, turn square corners. We expect that of government officials.

But I really take a different view from Jeffrey with respect to Bill Barr. I served under Bill Barr under President Bush 41. He's been the attorney general of the United States. There are precious few of those, and moreover, he conducted himself with great honor and integrity. And we'll probably get to his memorandum --

BERMAN: Yes.

STARR: -- but to just think that somehow equate Attorney General Whitaker, for all of his exploits and adventures, with Bill Barr with his extraordinary record is unfair.

BERMAN: I'll get to Barr -- I promise I'll get to Barr in a second, Ken, but I do -- Judge Starr, I do want to emphasize the point you're making on Matt Whitaker. You do think there should have been an official review, and when the unofficial review, the advisor, ethics adviser said, "You know what? You should step aside," do you feel he should have? STARR: I think he should weigh seriously the process that resulted in

that advice. And then it's his judgment, and then he's accountable for that judgment.

Had I been in his place, and I'm not in his place, I would have said, "I want to know what the ethics experts at the Justice Department say. I'm going to weigh that carefully. And I would say those recommendations would have have a very heavy presumption of correctness."

Now, that's a longwinded way of saying, "You'd better follow the ethics advice just as Jeff Sessions did," but if he disagreed, then, you know, he's going to be accountable for that.

Now let me say this. There has not been a hint that I know of, there's been no public hint that there's been any interference with the orderliness or the independence of this investigation.

BERMAN: Not yet. The reason for that, we now know, is because up until yesterday, Whitaker wasn't overseeing the investigation. He wasn't exercising the oversight role. Rosenstein -- Rod Rosenstein, the deputy A.G. still was.

Now that this memo has been written by the Department of Justice, Matt Whitaker has made clear he will oversee the investigation, until you know, Bill Barr, William Barr, former attorney general, is confirmed, if that would happen, as the next attorney general.

Now, let me read you the statement from Bill Barr, the letter that he wrote, the recommendations that he had to say about the Mueller investigation, and we'll talk about that, that memo that Judge Starr was talking about.

Let me find it here. I'll read it off the screen. "It appears Mueller's team is investigating a possible case of obstruction by the president, predicated substantially on his expression of hope that the Comey could eventually -- could Comey eventually 'let go' of its investigation of Flynn and his action in firing Comey. Apart from whether Mueller is a strong enough factual basis for doing so, Mueller's obstruction theory is fatally misconceived."

Mueller's obstruction theory is fatally misconceived. That is the opinion of the person who might be the next attorney general, Jeffrey Toobin. So is it safe to assume, if he thinks that Mueller's theory. I don't know how he knows Mueller's theory, but if he does know Mueller's theory, it's fatally misconceived. That he might be likely to step in and stop that part of the investigation?

TOOBIN: Well, let me start by agreeing with Ken about one thing. You know, Bill Barr is a very distinguished attorney, a very different person, very different background than Mr. Whitaker. I mean, he did serve as attorney general. He served honorably, but that was then.

And here we have a situation that, as a private lawyer, he volunteered to send a 19-page memo denouncing Robert Mueller in the most important ethical issue that the new attorney general is going to face. That doesn't mean Bob Barr is a bad person. That doesn't mean he's

even wrong on the law, although I think he is. What -- what he did was he voluntarily injected himself into this highly-controversial issue. And that's what he's going to have to face as attorney general.

[07:25:13] He should not be doing that. That is inappropriate, even though Bill Barr is a very distinguished lawyer.

BERMAN: Judge Starr.

STARR: I love Jeffrey, but Jeffrey is so wrong. He is, first of all, wrong on the law.

What Bill Barr, that 19-page memorandum sets forth, with lots of citations to ancient and current cases, is traditional and orthodox legal doctrine. He is warning, and the American people should be warned, prosecutors -- I was accused of this -- stretch the law.

And when I read that memorandum, I'm saying, "Bill Barr, God bless you because what you're doing is you're sounding the alarm. You're saying here is a potential stretching of one provision of the law." He's not denouncing the investigation. He's not denouncing Bob Mueller.

But he is saying this prosecutorial theory of obstruction is dangerous to the presidency, not to President Trump. He's not putting it in personal terms.

But he also is making it very clear in that memorandum that the president does and should be held accountable if he truly violates the law of obstruction. This is where Jeffrey and I have disagreed previously. He uses examples such as witness tampering, destroying evidence; and he refers to the crimes of Nixon and Clinton. Those were real crimes, not the exercise of executive branch powers.

So I just respectfully disagree with Jeffrey's analysis. It's a lawyer expressing his view, and it sounds like an OL -- I'm sorry, Office of Legal Counsel opinion, which is also what Bill Barr did for a living at the Justice Department before he became a very distinguished attorney general.

TOOBIN: I mean, I agree about the scholarly nature of the letter, and it is certainly a grounds for disagreement between reasonable people about the basis for an obstruction of justice charge.

My point is, here you have a private lawyer, which is what Bill Barr was, voluntarily, out of the blue, injecting himself into this controversy, this very controversy that he would supervise as attorney general. That to me is a conflict of interest. You shouldn't be -- I mean, he was chosen, I have to assume, because of that letter, not in spite of it. And that is inappropriate.

BERMAN: Judge Starr, we have to go. But I just want to add one question. In the confirmation hearing, would it be a fair question to ask him, say, "Attorney General Barr, when you become attorney general, you said the obstruction investigation is fatally flawed. Will you shut that part of the investigation down?" Should he have to answer for that?

STARR: Oh, sure. Absolutely. The confirmation hearing is exactly that kind of give and take. What is it you're -- and here's the other point I would make.

Bill Barr would, in fact, go through the process, I have every confidence, in the Justice Department. He would get the expert advice, and I have a feeling that he would follow that advice. So that's yet to play out.

But I see this as a concerned citizen who sees the problem -- this is where Jeffrey and I really profoundly disagree -- a prosecutorial carrying out a view of a statute that is extravagant and unfounded and a peril to the orderly operations of the executive branch. Leave Donald Trump aside and just talking about first principles of our structural government.

TOOBIN: Ken and I agree -- Ken and I, I'm pleased to say in this holiday season, we agree on that. We agree that it's a good question at confirmation hearing.

BERMAN: I will say that Attorney General Barr did not leave Donald Trump aside. He wrote the letter to the Trump team, so they knew his legal opinion on that, which is interesting.

All right. Jeffrey Toobin, Judge Starr, thanks so much for being with us. Appreciate it.

Alisyn.

CAMEROTA: OK, John. The past 24 hours have been some of the most turbulent since President Trump took office. How does all this stack up to other crises? Well, historian Doris Kearns Goodwin joins us next.

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