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ANDERSON COOPER 360 DEGREES

Dems Roll Out Impeachment Bill On Day One Of House Control Under Pres. Trump; Lawyer: American Formally Charged With Spying On Russia. Aired 8-9p ET

Aired January 3, 2019 - 20:00   ET

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


[20:00:24] ANDERSON COOPER, CNN HOST: Good evening.

The world changed today for President Trump and it could change even more tonight if and when Democrats, who now control the House, push through legislation to reopen the government. The White House has already threatened to veto it. We'll bring you that as it happens.

For now, we'll focus on the longer term and potentially more serious consequence of Democrats in power. For the first time since taking office, President Trump is facing the prospect of real, extensive scrutiny from the opposition party led by a highly disciplined adversary.

(BEGIN VIDEO CLIP)

REP. KEVIN MCCARTHY (R-CA), HOUSE MINORITY LEADER: To the speaker of the House, Nancy Pelosi, I extend to you this gavel. Thank you.

(CHEERS)

(END VIDEO CLIP)

COOPER: That happened at about 2:30 Eastern Time. About 90 minutes later, markets closed with the Dow Industrials nearly 700 points lower on the day. On top of that, the government shutdown entered its 13th day.

All in all, a very sobering day. So what did the president do in the wake of it all?

Well, he made a surprise appearance in the White House briefing room with leaders of the border patrol office union who praised him on his wall. It was billed as a press conference, but neither he nor Press Secretary Sarah Sanders took any questions, making it something of a stunt. He also put up another one of those weird "Game of Throne" movie type posters of himself on Instagram, this one saying "The wall is coming," which is a subject of "Ridicu-list" a little bit later tonight.

We'll also talk later about whether movie posters and briefing cameos are just shiny objects to distract from more serious matters like the not-so shiny, very real bottom line the president now faces, a whole new world for him, one in which the speaker of the house is a member of the opposition party, and she's not ruling out impeachment.

(BEGIN VIDEO CLIP)

REP. NANCY PELOSI (D-CA), SPEAKER OF THE HOUSE: We shouldn't be impeaching for a political reason, and we shouldn't avoid impeachment for a political reason. We just have to see how it comes.

(END VIDEO CLIP)

COOPER: She says she wants to go slow, but the Democratic chairman of the House Armed Services Committee, Adam Smith, says it's not too soon to be talking about it. His colleague today, Congressman Brad Sherman, actually took the step of introducing articles of impeachment, which makes him an outlier for now, but it does underscore how potentially serious this could get for the president who, as you know, is being investigated along with his company and his now defunct charity by Robert Mueller's team, by the Southern District of New York, by the New York attorney general and now, you can add Congressman Elijah Cummings and the House Oversight Committee to that mix.

And the House Judiciary Committee now chaired by Jerry Nadler, who's long been calling for more investigation.

(BEGIN VIDEO CLIP)

REP. JERRY NADLER (D-NY), JUDICIARY COMMITTEE CHAIRMAN: We have to find out exactly what was going on. We have to look at the Russian interference of the campaign and what did the president know about that, and to what extent did he cooperate with that, if he did. We have to look at his business dealings and his lying about that. We have to look at the fact that he surrounded himself with crooks, and we have to get to the bottom of this.

(END VIDEO CLIP)

COOPER: Well, today, he took a step in that direction, introducing legislation to protect special counsel Mueller. He told our Manu Raju he wants to hear from Acting Attorney General Matt Whitaker, whether he's willing or not.

(BEGIN VIDEO CLIP)

NADLER: We're trying to get a date and we'll see what happens.

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: We want to send a subpoena to him if he doesn't --

NADLER: We will if we have to.

(END VIDEO CLIP)

COOPER: And now for the first time in the Trump presidency, the opposition party has subpoena party. Whatever you think of the acting attorney general or the president for that matter, it's a far cry from the days when a chairman of the House Intelligence Committee, who is friendly to the White House, can go to the White House, get talking points from someone there, and then later pretend to have just briefed the president on the very same White House talking points.

(BEGIN VIDEO CLIP)

REP. DEVIN NUNES (R-CA), INTELLIGENCE COMMITTEE: Today, I briefed the president on the concerns that I had about incidental collection and how it relates to President-elect Trump and his transition team, and the concerns that I have. What I've read bothers me, and I think it should bother the president himself and his team.

(END VIDEO CLIP)

COOPER: The White House friendly Devin Nunes no longer runs the Intelligence Committee, Adam Schiff does. And just about an hour ago, he made news saying he's preparing for a committee vote to send the unredacted transcripts from all their interviews to special counsel Mueller. You can see the change of power as a good thing or bad thing, but one thing is beyond debate, it is now a different world politically for the president and this administration.

We'll, of course, bring you the House Budget vote tonight when it happens. But first, some perspective from California Democratic Congressman Eric Swalwell who serves on the Intelligence and Judiciary Committees. I spoke to him just a short time ago.

(BEGIN VIDEOTAPE)

[20:05:01] COOPER: Congresswoman, today, Speaker Pelosi said the incoming house will be, quote, for the people. Do you think people will view multiple investigations into the president as for the people?

REP. ERIC SWALWELL (D), CALIFORNIA: Well, it will be for a balance of power on many abuses of power we've seen in the past. But we can't miss the opportunity to do what they sent us here, which is to collaborate on infrastructure, passing the Dream Act, having background checks, and reforming prescription drugs. Those are all things that Donald Trump said he wanted to do, including even at last year's State of the Union by a Republican Congress never brought forward.

So, we're going to put that forward, but we're also not going to shirk our oversight responsibilities.

COOPER: Some of your fellow Democrats on the House Judiciary Committee introduced legislation to protect the Mueller investigation. Even if that bill were to pass in the full house, McConnell made it clear he doesn't see a need for it, won't bring it to the Senate floor for a vote. So is a House vote anything more than symbolic as a matter?

SWALWELL: Well, we also hope it will build momentum on the Senate side, that vulnerable senators will see that the will of the American people, that they want this investigation protected and it's already passed in a bipartisan vote on the Senate Judiciary Committee and will hopefully come to a full vote. Mitch McConnell, by not allow thing to come forward, is suppressing the will of the majority of his members.

And so, I think it's going to take outside voices. You saw today, Cory Gardner is already coming forward, talking about ending the shutdown by not having wall approval. And he's in a tight seat. There's other Republican senators in a similar fashion. So, I think you're going to see pressure build.

COOPER: Do you think this is what we'll see a lot of over the next two years, bills that passed the Democratic-led House and yet really have no chance at all of passing a Republican-led Senate?

SWALWELL: Well, I think a lot of what we're going to do is purely protect. Protect health care from being cut even further, the protections that were put in place by Affordable Care Act. Protect paychecks from seeing tax cuts go only to the top and to working families and protect against corruption. And yes, advance on transportation, prescription drugs, background checks where we can.

But also, it's going to be the 2020 field that's going to really put forth what the Democratic priorities will be if we have the House and Senate in 2021.

COOPER: As mentioned earlier, fellow House Democrat took the step today of introducing articles of impeachment against the president. Is that a smart move in your opinion or do you think it's counterproductive at this point?

SWALWELL: It's not a move that I support. This president, Anderson, may be impeached. But we're certainly not there with the evidence.

We're going to look where Republicans were unwilling to look before, and build an airtight case, if that's what's necessary, seek bipartisan buy in and make sure if we go that way, the American people understand why. But we should not be as reckless with the facts as Trump is and we should give him probably a fair investigation that he deserves.

COOPER: Well, lastly, the upcoming vote in the Intelligence Committee to send Mueller its unredacted interview transcripts, what do you expect Mueller to learn from them that he doesn't already know?

SWALWELL: Well, he'll see in the basement of the House Intelligence Committee are boxes of transcripts that have lies of witnesses who came before us, were not straightforward. Some of them like Roger Stone had to amend their testimony over and over because of free press reporting that showed he wasn't straightforward. So, I hope those witnesses are held accountable and it helps Bob Mueller's investigation.

COOPER: Congressman Swalwell, appreciate your time. Thanks.

SWALWELL: My pleasure.

(END VIDEOTAPE)

COOPER: So we're seeing divided government play out tonight and challenges to the president have been coming all day. I want to talk about it with CNN chief legal analyst and former federal prosecutor Jeffrey Toobin joins me. Also, "USA Today" columnist and CNN political analyst Kirsten Powers. And former Republican senator and presidential candidate, Rick Santorum.

Jeff, you heard Congressman Swalwell talk about the very real consequences when the Intelligence Committee turns over those unredacted witness testimony. Do you buy that?

JEFFREY TOOBIN, FORMER FEDERAL PROSECUTOR: Yes, I think it is significant. I don't know if any of those statements will be proven to be false, but you could not bring a criminal case without the actual transcripts. So, it is an indispensable -- it is a necessary but not sufficient step for Mueller to bring these cases. And it's only logical, it's only fair for him to have these, to do a complete investigation.

COOPER: Senator Santorum, how worried would you be if you're the president and you don't have an ally like Devin Nunes running the House Intelligence Committee anymore?

RICK SANTORUM (R), FORMER U.S. SENATOR, PENNSYLVANIA: Look, for the president, this comes down to two things -- number one, impeachment. And the House is going to do what the House is going to do. The Senate will never, at least given the current state of play right now, is not going to come anywhere close to impeaching the president.

The second is simply things that they can do to harass the president. This is one of those harassment things. I mean, it's not going to touch the president. There are people that may have said things that, under oath, that turned out to be wrong.

Again, that doesn't really do anything other than create more smoke, but no real fire for the president.

[20:10:02] COOPER: Kirsten, do you think the Democrats in the House should be cautious on how they approach the prospect of impeachment? We talked about this before, in the next hour, we'll speak with the Congressman Jerry Connelly, who's now in majority of the House Oversight Committee and he says he's already seen enough, just with the president being an unindicted co-conspirator in the Cohen file.

KIRSTEN POWERS, CNN POLITICAL ANALYST: Look, I mean, Donald Trump is obviously extremely unpopular with the base of the Democratic Party. And so, it's understandable there are people who want him out of office any way possible, and, you know, are letting their passion probably get a little ahead of themselves and not considering the kind of blowback that can come from these kinds of actions. And we've seen this in history when there has been overreach.

So I think the position that Nancy Pelosi has staked out, which is the position of the Democratic Party at this point, is you need to wait for the investigation. And if we get to a point where you have a president who has been indicted, for example, then yes, you should start looking at possibly impeaching him. But I don't think based on what they have in front of them at this point, that there are any impeachable offenses that, at least as far as I think the average American will look at it would feel it would be appropriate to be doing.

TOOBIN: And Nancy Pelosi and Jerry Nadler, chairman of the Judiciary Committee, they are so aware of the precedent of 1998, when the House Republicans rushed ahead with impeachment, knowing there would never be 67 votes in the Senate to remove President Clinton. They're not going to do that again. They're not going to make that mistake.

So, you know, we can --

COOPER: A lot of Republicans will say, though, the drumbeat, the pressure is just going to build. And whether or not they right now think they're going to do it, they're going to get led into it.

TOOBIN: That's not true.

SANTORUM: Anderson, the timing is really important here. I was there in 1997 and '98. Bill Clinton had just gotten re-elected, and these things came out, and the drumbeat started.

We were looking at four more years or 3 1/2 more years of Bill Clinton. Here, you're in the middle of a presidential race right now, or the last two years of his first term. So the timing is just very different.

The chance to beat Donald Trump is not going to be through impeachment. We're not going to beat Bill Clinton. He was elected for his last four years, and the only way to get rid of him is through impeachment.

That's not the case here. The case before you is really making a political case for 2020. That's why I think impeachment is not going to happen, because it's not good politics for the Democrats.

TOOBIN: God, for the first time ever, I just could not agree more with Rick Santorum. I think every word you just said was perfect.

COOPER: But it's interesting, because, Rick, I thought you were going to say the opposite, because a lot of Republicans we have talked to who have been arguing with Jeff about this, say you can say all you want right now that they're not going to go for impeachment, but it's going to be irresistible to them.

SANTORUM: I just don't think -- look, what they're interested in is beating Donald Trump, getting rid of Donald Trump, and gaining more political power. It's going to be obvious that the best way to do that is to do all the harassment, maybe even -- there may be some smoke of impeachment or even some discussion, but the idea of actually trying to force an impeachment resolution in the United States Senate I think is just very bad politics in the midst of an election.

(CROSSTALK)

POWERS: The other thing you have to remember I think, Anderson, the reason a lot of these people are saying that, I mean, some of them may believe it, but they're mostly doing it to gin up the president's base, this idea that the president -- and they were doing it leading up to the midterms, this idea that, you know, this is what is going to happen if the Democrats get control of Congress, they're going to impeach the president, so you need to vote for Republicans and to continue to make it seem like the president is under this sort of imminent threat of the crazy progressives coming for him. But I think that people who think that this could happen just don't understand Nancy Pelosi.

SANTORUM: Kirsten, they'll be coming for him. There's lots of ways to come after Donald Trump.

POWERS: I'm talking about through impeachment.

SANTORUM: There are better ways to skin this cat.

TOOBIN: I remain on team Santorum, but I would not call it harassment. I would say oversight. This is what Congress is supposed to do. But I think your analysis of the motivations of the Democrats is exactly right.

COOPER: But, Jeff, look, I mean, Nadler, who's obviously the new chairman of the judiciary, has said that in the past, a crime should not necessarily equal impeachment, he didn't say the president should automatically get a pass.

TOOBIN: It would take an extreme step, and look, obviously it depends on what information comes out. But certainly the universe of evidence that we are all aware of, or what is likely to come out, certainly doesn't suggest to me there is anything out there that might garner 67 votes in the Senate, and Nancy Pelosi knows that, Jerry Nadler knows that, and they're just not going to go on that fool's errand.

[20:15:05] COOPER: If -- you know, Senator Santorum, I mean, if Democrats in the House take it slow and decide it is damning enough to proceed to impeachment, they would be basing that conclusion on the report of a Republican former FBI director, Republican recipient of the Purple Heart and Bronze Star. I mean, the president has tried to paint Mueller as some partisan hack. In -- I guess in an election year, that's an argument you can make, but it's not really true.

SANTORUM: Well, look, the bottom line is that Bob Mueller surrounded himself with a bunch of Democrats on his team, who have rather -- in some cases, scurrilous backgrounds when it comes to who they go after. So, I don't think Mueller is going to be the issue here. The issue is, does the American public and are a significant number of Republicans going to read this report as see this as a Nixon-esque type of situation? A former senator from Pennsylvania, Hugh Scott (ph), you know, looked at all the evidence as a Republican and went to the president and said we don't do this. We're not going to stand by you. If it reaches that point, we'll know.

The Democrats won't have to push it. But as Jeffrey said, I don't see anything in the Mueller leaks and other information that's been out there that rises to this level at this point.

COOPER: Are you still in team Santorum?

TOOBIN: He's on team Toobin. It's a beautiful thing, Rick. I mean, you know, it's a whole new year. It's going to be great.

SANTORUM: How about that?

COOPER: Let's take a break on that.

Coming up -- let's just bask in that thought. We're going to talk about the president's news conference in name only, took no questions of course, but did say he knows more about drones than anybody. So, there's always that.

And later, we'll keep digging into something Speaker Pelosi said when she asked if a sitting president could be indicted. Her answer got the legal and political types buzzing. We'll take a look ahead.

(COMMERCIAL BREAK)

[20:21:11] COOPER: We're waiting for the House, now in Democratic hands, to vote on a series of funding bills to reopen the government. The White House has already threatened to veto the legislation, making it more of a negotiation tactic than anything else, which in a different way, and perhaps with very different degrees, so is the president's non-conference press conference like today.

CNN's Kaitlan Collins at the White House with more on that.

So, what was -- I mean, explain what happened in the briefing room today, because it certainly wasn't a briefing.

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: It certainly wasn't a briefing, because a press briefing reporters get to ask questions and that didn't happen today. But the White House came over the loud speaker in the briefing room said there was going to be a press briefing with the press secretary in about five minutes, and you saw the reporters scramble to get into the room.

You can't really tell in that video there, but there were a lot of empty seats toward the back of the room because some reporters weren't here because this had been nothing on the president's schedule today. Then the president came in with these members of the Border Patrol Union, he spoke briefly and invited them up to make brief remarks. But then the president, press secretary and White House communications director all left the room, Anderson, without taking any questions from the reporters who were sitting there. Now, as this was going on, there was supposed to be a briefing with

the Customs and Border Patrol commissioner today on the record, on camera briefing where he was going to take questions from reporters about the state of what's going on at the border, but they bumped that briefing because they were told that the White House was doing a briefing instead. So instead, that briefing didn't happen. They had the president of the union come out, but he didn't answer questions either, and none of those questions were answered today.

COOPER: So while we're waiting for the House to vote on a bill to reopen the government, the White House, they've already responded.

COLLINS: Yes, and we knew this was going to happen, but they officially put out a statement saying that if somehow those bills do get to the president's desk, he's not going to sign them. In fact, he's going veto them. That's what our reporting from this weekend showed. In this statement today, the White House said, quote, they can't accept bills that have unnecessary spending while ignoring, quote, urgent border security needs.

That's exactly what we expected to come from the White House and that continues as we are very much in this deadlock between the White House and Democrats, something that only seems to be getting further and further by the day now, even though there were now 13 days into this. And, Anderson, this comes as our reporting here at CNN shows that even the president's own senior aides are not encouraging him to accept those Democratic proposals and reopen the government.

COOPER: All right. Kaitlan Collins, thanks very much.

Back now with our team.

Jeff, what was that today? Was that simply the president not liking the attention on Nancy Pelosi and wanting to retake the stage?

TOOBIN: Well, that was, I think, a big part of it. And it was just another opportunity to talk about border security. I have to say, throughout the day, I was so struck by these various tableaus of these pictures of the Democratic and Republican Parties. They look so different.

I mean, this is a party almost exclusively, at least at this level, of white men, the Republican Party. The Democratic Party is a much more diverse party. You just look at the members of the House of Representatives. You look at the people at that briefing. I mean, this is a picture of the differences between the parties that is just profound.

COOPER: Kirsten, did that strike you, too?

POWERS: Yes, absolutely. This is something I think even as we were on election night looking at the -- all the different types of people that had been elected, primarily in the Democratic Party, from, you know, all sorts of diverse groups of people, there is something very noteworthy that the Republican Party is very much, it feels to me, stuck in the past, in the sense that it's very much the way it used to be, which is mostly white men, and the Democratic Party is very much the party of the future, which is the direction that the country is moving.

[20:25:01] I mean, we are a country that has become vastly more diverse than they used to be. And I think that's reflected in the Democratic Caucus.

COOPER: Senator Santorum, do you have the same view of the Republican Party and the future of it?

SANTORUM: I think the demographics for Republicans are a challenge, and I think the approach that Donald Trump has taken is really the solution to this problem, and that is to appeal to blue collar working people of all races, colors, creeds. And, you know, Trump has problems doing that from a personal standpoint, but from a policy standpoint, and if you look at the lives of people who -- of color who are wage earners in America, they're doing much better, much, much better. And poverty levels are lower.

There's a lot to be said of the policies that the president is communicating, that are -- look what happened in Florida with the school choice issue and in the governor's race. There's opportunities for Republicans from a policy point of view to begin to reach voters that are more diverse.

The president steps on his message too much for him to be able to do that effectively. But I think in the long-term, there's actually a path forward.

TOOBIN: Is that because he's a racist?

SANTORUM: It's because he says things that are incendiary. I mean, we all know that.

TOOBIN: He says racist things.

SANTORUM: No, look, I don't think the president is a racist. I don't think he's any "ist" if you will, sexist, whatever. But the president does say things that are controversial, and that can offend people. And that gets in the way of his message.

TOOBIN: But isn't that the message?

SANTORUM: No, the message is the policy. Look, people don't really -- people are going to see a president as, you know, for what they are, you know, with all their faults. It's what the president is doing. I think the president's policies have been very, very favorable to -- across demographic groups and he just hasn't effectively communicated that.

POWERS: I'm not even sure that's accurate. A lot of what's happening in the economy was happening before Donald Trump came into office. I mean, the economy just doesn't turn around that quickly. So I'm not sure that he gets all the credit. And obviously, we're having a lot of problems with the stock market, but that's a separate issue. But the fact of the matter is, the way people vote, it's not just

about how you affect them economically, but speaking to the issues that are important to them, the cultural issues that are really important to them. It doesn't matter how good Bill Clinton was on the economy, if somebody felt like he had the wrong position on abortion, they weren't going to vote for him. It's the same thing with people of color and I think a lot of women when they look at the rhetoric of this president, you know, him attacking NFL players, the constant drumbeat of the Republican Party against Black Lives Matter, calling them a terrorist organization, not speaking out against the violence against African-Americans by police officers and on and on.

These are the issues that matter to people, and I don't think the Republican Party has really come to terms with that.

SANTORUM: I couldn't disagree with you more. I think that the organizations you mentioned, the Black Lives Matter does promote a lot of very hateful things. So look, the bottom line is, Republicans have an obligation to go out there --

POWERS: What hateful things? I'm sorry.

SANTORUM: I don't think we need to spend a --

POWERS: I don't think you can come up with an example.

SANTORUM: There are all sorts of clips and posters of folks in these marches that are as racist on the other way as the white racists to blacks.

POWERS: There are posters in all groups that doesn't make the group itself hateful. Basically Black Lives Matter is the basic idea that black lives matter and we need to treat black lives with the same reverence we treat white lives.

SANTORUM: But you just can't wipe away all of the things that are said and written and done at these marches as, you know, as a fringe element. Any more than you would wipe those away from a group of whites doing the same thing.

Look, the reality is, setting aside that issue, that Republicans have an obligation and work to do, when it comes to communicating -- you're right -- not just the policy, but the fact that we're concerned about these things and we talk about these things and we want to bring people and engage in those discussions. So, you're exactly right on that front.

COOPER: Do you think that President Trump should bend on the wall in these shutdown negotiations? Because some senators like Lindsey Graham are advising him not to abandon them, because if he did, it would be the beginning of the end of his presidency.

SANTORUM: Look, if there was a substantive reason why Democrats didn't want to support this wall, there might be a reason to bend. But it's not substantive.

Look, I think 650 miles of border wall that have been put up. The law says 700. Chuck Schumer voted for that.

[20:30:00] So, even though the wall that he voted for hasn't been built yet. So the idea that there is some principled objection to a wall, would they like to tear down the wall in Tijuana because it doesn't work? Of course it works. I've been to that wall. It works. Walls do work. So the idea that this is a policy discussion, it's not. This is purely political. I think the president in that regard has to stand firm.

ANDERSON COOPER, CNN ANCHOR: All right.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Our honeymoon was good while it lasted, but it was brief, Rick.

COOPER: Jeff Toobin, Kirsten Powers, Rick Santorum. Thank you very much.

The Democrats running the House, an impeachment might not be the worst case scenario for President Trump ahead Speaker Pelosi on whether the president could be indicted while on office. Plus, breaking news of the American accused of spying by Russia, amid talk he could become part of a prisoner swap, next.

(COMMERCIAL BREAK)

COOPER: Well, that didn't take long. Just after the 116th Congress got sworn in, two Democratic House members reintroduced a bill calling for the impeachment of President Trump. It's not the only possible option that could threaten the Trump presidency, depending on what Robert Mueller's team finds. In an interview this morning, Nancy Pelosi wouldn't rule out the idea of an indictment against the president.

(BEGIN VIDEO CLIP)

[20:35:05] SAVANNAH GUTHRIE, "TODAY" CO-HOST: There is long standing justice department guidance that says a sitting president should not be indicted. But it is not the law.

NANCY PELOSI, SPEAKER OF THE UNITED STATES HOUSE OF REPRESENTATIVES: Is that is not the law. Everything indicates that a president can be indicted after he's no longer president of the United States.

GUTHRIE: What about a sitting president?

PELOSI: Well, sitting president when he's no longer president of the United States.

GUTHRIE: A president who is in office.

PELOSI: Right.

GUTHRIE: Can Robert Mueller come back and say I am seeking an indictment?

PELOSI: I think that is an open discussion in terms of the law. (END VIDEO CLIP)

COOPER: Tonight, a new controversy for the president's acting Attorney General Matthew Whitaker. A source confirms to CNN that just yesterday Whitaker told former Reagan Attorney General Ed Meese that the Department of Justice is continuing to investigate the FBI over the surveillance a former Trump campaign adviser, Carter Page, and it's Clinton Foundation probe. Now, that's important. Because Meese is now a private citizen, gaining knowledge about a probe the justice department has kept silent about publicly for nearly a year.

Neal Katyal, acting solicitor general under President Obama. He joins us now. Neal, is Nancy Pelosi, right? I mean whether or not a sitting president can be indicted, an open discussion?

NEAL KATYAL, FORMER U.S. ACTING SOLICITOR GENERAL, OBAMA ADMINISTRATION: It is an open discussion. But, you know, I think the president's team has been saying, a sitting president can't be indicted. And at least in this context, that's pretty -- it's a very Trumpy claim. I mean, you know, Donald Trump is not exactly cared about the constitution over the last two years, and now all the sudden he suddenly discovers that the constitution he claims protects him. It's particularly hard for him, though, to make this claim, because he is a self-described strict constructionist, someone who looks the text of the constitution and interprets the document and there is no clause in the constitution that prevents a sitting president from being indicted.

COOPER: By the way, do you think he spent a lot of time looking at the text of the constitution and setting the document?

KATYAL: One wishes he would, but yes, exactly, that's part of the problem.

COOPER: You actually helped draft the special counsel regulations that Mueller is operating under. They do require him to abide by established DOJ policy, is that right?

KATYAL: That's correct. So the justice department has written two opinions in 1973 and in 1999 that say in general a sitting president can't be indicted. However, I don't think they apply to this situation. They say in general, so they're dealing with crimes that occur while the President is in office or something like that.

But this -- these crimes go to how he won the presidency in the first place. And the opinions don't encompass that. So imagine this, Anderson, imagine we had a race of 1,000 meters, and the winner of that 1,000 meter race would win a get out of jail free card. And everyone knows that's what the prize is.

I don't think we would say that you get to apply the get out of jail card to those who are accused of cheating in the race in the first place, because if you did, you would be incentivizing people to, you know, take, you know, illegal dope or something like that, to secretly trip people who are opponents in the race and the like. And, you know, low and behold, that's exactly what these allegations are, that the Southern District of New York, career prosecutors have said Donald Trump directed the commission of serious campaign finance felonies, and then covered it up afterwards. You know, and that may have swung the election. So I don't think that those opinions apply.

COOPER: At the end of the day, is this going to be, at least in terms, you know, of the law, out of Mueller's hands and in the hands of what's now a democratically led House of Representatives?

KATYAL: Well, it's -- I think there's two different actors. The House of Representatives and the acting attorney general. Right now, Matthew Whitaker. Because the Department of Justice Special Counsel regulations say at least be up to Whitaker in the first instance to decide whether or not a president could be indicted.

COOPER: Right.

KATYAL: And Whitaker has given us really no basis for confidence in his judgment. I mean, as we saw yesterday, imagine, Anderson, if I started your show today with this, Mr. Cooper, I'll start by highlighting the fact that you stayed in New York over the holidays, gave up Christmas and new year's with your family. You demonstrated your dedication to delivering.

If I said all that to you, I think your readers would be aghast and think I'm a suck-up artist. And that is what the acting attorney general said yesterday in a televised meeting to the president.

This is not someone who should be in charge of our law enforcement apparatus at all, and certainly not someone who is deciding this ultimate question of whether a sitting president could be indicted by Mueller or the Southern District of New York.

COOPER: I would like all my guests to praise me for working New Year's Eve, actually. Just lastly, I want to get your take on Whitaker briefing former Attorney General Ed Meese about an ongoing DOJ investigation while it might, I mean, the ethically problematic, is it also problematic in a legal standpoint?

KATYAL: Well, it certainly could be. But, you know, we don't know what was said. Obviously, you can't get grand jury information or things like that to anyone outside of the circle of law enforcement officials.

[20:40:02] But it's not clear to me that that's what happened. So I think we really have to learn more about the facts there. But, look, the public record of Whitaker demonstrates day and day out, this is someone who should not be our nation's chief law enforcement officer.

COOPER: Neal Katyal, appreciate it. Thanks very much.

Tonight, breaking news about the American businessman arrested by Russia for allegedly spying. The lawyer for Paul Whelan of Michigan confirms he now faces formal espionage charges. We're just learning about what might have led to his arrest. Our Matthew Chance has more from Moscow.

So, Matthew, while Secretary of State Pompeo said he couldn't offer much additional information about Whelan, the Russian news site seems to be providing an explanation. What are you learned?

MATTHEW CHANCE, CNN SENIOR INTERNATIONAL CORRESPONDENT: Yes, RosBalt is the name of this privately owned Russian news agency. They interviewed what they say is an intelligence source who has sort of talked through the actual steps, the situation in which Paul Whelan, this U.S. Marine who are arrested for espionage, was actually detained

He was in a five-star hotel in the center of Moscow, the Metropol Hotel. He was in his room, apparently five minutes it says, after he received a -- you know, a flash drive, a USB flash drive with the names of the employees of a top security agency in Russia. He was then arrested. That was the basis for his arrest.

Also, it talks about his Russian social media platform. It's been well known that Paul Whelan, for several years now, has engaged on Russian social media, like the VKontakte, VK, which is the Russian version of Facebook. Many of the people on that -- on that site that were his friends, basically were former or current members of the Russian security forces.

What the RosBalt article says is that those people were prepicked by U.S. intelligence for him to befriend and extract whatever information he could. As of now, we can't independently verify that report or its content. And of course, the intelligence source may have actually had sort of a reason, a narrative to build around the arrest. But it's an interesting idea.

COOPER: You spoke to Whelan's lawyer yesterday. What was he able to tell you about the charges or reports about the flash drive. Did he say anything?

CHANCE: No. He wouldn't be drawn on that. He would only talk about the actual condition of Paul Whelan in this Lefortovo prison in the superb of Moscow. He said he was pretty cheerful. He said he wasn't depressed in any way. Lacked of sanitary items like razors and clean underwear, and things like that. That was being sorted out. He paints (INAUDIBLE) very positive picture of Paul Whelan's incarceration.

And he's applied for bail, as well. But he also warned that the Russian legal system can be very slow and said it could be six months before this espionage case gets to trial. So he could be in for a long wait.

COOPER: Matthew, stay with us. I want to bring in our national security analyst, Steve Hall. He's a retired CIA Chief of Russia Operations. Steve, what do you make of this, about this person, about what is going on?

STEVE HALL, CNN NATIONAL SECURITY ANALYST: Well, Anderson, I hate to be smug, but you heard it here first. It took the Russians only a couple of days to come up with some really, really good propaganda and some really convincing and compelling stories to Westerner's ears, to American ears. That all sounds really reasonable, right? You know, you had this American, you know, who is somehow tasked by U.S. intelligence and he's in a hotel room and somebody shows up with a flash drive. And the Russians had made all of this up.

There is no rule of law in Russia. There is no, you know, free press. The whole idea that the Russian lawyer, by the way, who works for the government, for Putin one way or the other, because he lives in Russia is therefore susceptible to any pressure that the government puts on him. So he's not representing this American, says that the whole thing might take six months. Well, you know, there have been other conditions when Vladamir Putin has wanted to do something within 24, 48 hours and it simply happens on a let front, because again, he can overrule anything.

So, this is all one big show for Vladamir Putin. And he's just figured out a way to kick America around, and it's by taking essentially hostages. This guy is a hostage opposed to anything else. That's the best way to think of it.

COOPER: You actually think he's -- you think of him as a hostage?

HALL: I do. Because he's certainly not an intelligence officer. There's no way that he would have done any of this. I mean that's simply not how American intelligence works in Moscow or other places. Although they will paint a compelling picture, because the Russians are excellent at doing that. So they've just arrested this guy. It could be anybody. It could be you, it could be me. I would not advise any of my friends or family to go to Russia at this point, because it doesn't matter whether you're delivering papers for a living or whether you work for a company, you could be snatched up and used in whatever political ploy that Vladamir Putin wants to do. And that's what has happened here.

[20:45:11] COOPER: I mean it's such a scary idea that, you know, you hire a Russian attorney and you say, because he lives in Russia, you know, he's not really representing his client. Matthew, now that Whelan has been formally charged, I mean is there any idea when his case might go to court or to Steve's point, could this be handled in some other way, you know, based on higher levels of government intervention?

CHANCE: Well, I think it's absolutely right to say that if Putin wants a guilty verdict in Russia, he's going to get one. I mean there's not the sort of separation of powers, the independence of the judiciary in this country that you have in the United States or any other sort of democratic country.

And I think what Putin's angling for, and this has been speculated about a lot, is some kind of prisoner swap. We have Maria Butina in the United States, who's going to be sentenced shortly and she's cooperating with the authorities at the moment, but she faces a prison sentence. The Russians want her back.

There's a number of prominent sort of Russians that are being held in U.S. prisons that I'm sure the Russians would absolutely love to get back and may use Paul Whelan as some kind of negotiating chip in order to do that. The person that springs to mind for me is Viktor Bout. He's one of the world's most notorious arms traffickers. And he's serving a 25-year prison sentence in a U.S. jail at the moment. He's been dubbed the Merchant of Death.

The Russians sorely want that individual back, and they have called his detention by the United States a hostage situation, as well. And so I'm absolutely sure that some kind of prisoner exchange or swap in the future is what the Kremlin may be thinking about.

COOPER: Steve, do you agree with that?

HALL: Yes, absolutely. And the Viktor Bout example is a very good one. It could be somebody that Putin is looking at. You know, look, this guy's lawyer, Whelan's lawyer was the one who said himself that he's really intent on getting Butina back. So, you know, there's no doubt as to what's going on here.

The bottom line, Anderson, until the United States of America, and until the rest of the west and the alliance that we have, you know, not just NATO but all of our western relationships, decide they're going to push back hard on Vladamir Putin and they're not going to put up with this stuff anymore, that they're not going to put up with hostage taking with arresting random Americans and then holding out for somebody like, you know, Viktor Bout or anybody else, Butina or whoever it might be, he's going to keep doing this.

And based on this administration's relationship, comments, thoughts about Vladamir Putin and Russia, I am not sanguine as to the likelihood this is going to end well for the United States, or perhaps for this American citizen who is being held by the way in a horrible prison, the Lefortovo is not a nice place, regardless of what this lawyer says.

COOPER: Steve Hall, appreciate your expertise. Matthew Chance as well, thanks.

Coming up, remember that fake movie poster that was explicitly sitting on the table in front of the president at his cabinet meeting? Kellyanne Conway was asked what it meant today. Her answer just ahead. By that, I mean the "Ridiculist" is next.

(COMMERCIAL BREAK

[20:52:09] COOPER: Time now for the Ridiculist. And tonight we have enigma wrapped in a mystery inside of Ridiculist. Last night we told you about the curious case of the fake movie poster on the table in front of the president at his cabinet meeting. It was a blownup version of a tweet he sent out in November with Sanctions are Coming in the Game of Thrones Font.

Now, at the time it referred to sanctions against Iran. The question was, why did someone now print out a poster sized version of that, and why did they now set it on the desk yesterday directly in front of the president? Now, luckily Fox and Friends was ready to get to the bottom of it with Kellyanne Conway today. (BEGIN VIDEO CLIP)

BRIAN KILMEADE, FOX AND FRIENDS CO-HOST: Hey, Kellyanne, what was with the poster yesterday on the table?

KELLYANNE CONWAY, COUNSELOR TO PRESIDENT TRUMP: That's just the president, sanctions are coming November 4th. I think the President speaking for 95 minutes and holding forth on any number of issues shows his transparency, and shows that he is always willing to have the press in the room. I talked to him last night after the Situation Room meeting and wants to invite them back, and perhaps even let the cameras in. They call decide that.

(END VIDEO CLIP)

COOPER: OK. Well, that didn't really clear it up. Kellyanne Conway continued to speak for 1:04 talking about transparency and how much time the president spends in the cabinet room and Mitt Romney, welcoming solutions. Everything but the poster. We're going to pick up the stream of consciousness at the point where the Fox and Friends friends tried to get an answer.

(BEGIN VIDEO CLIP)

CONWAY: They need border security, they need more people at the border, steel slats, they need a wall. They need any number of measures to help us.

KILMEADE: But the poster just happened to be there, was it a message? I mean --

UNDENTIFIED MALE: It was a message.

KILMEADE: Are sanctions coming November 4th? What are they?

CONWAY: I'll let it speak for itself. And the president will maybe be asked about that later on?

KILMEADE: OK.

(END VIDEO CLIP)

COOPER: November 4th was -- it could be November 4th next year, I guess. I'll let that speak for itself.

What could possibly speak more for itself than an enlargement of a Game of Thrones ripoff dated two months ago, I'm referring to sanctions suddenly showing up at a cabinet meeting and ever being referred to. And when you think about it it's clear as covfefe. Remember that tweet? Despite the negative press covfefe. The White House explained that one with just as much a palm. This is a true blast from the past. We have to go way back deep into the bushes, the Arab audio only press briefings by the one and only Sean Spicer.

UNIDENTIFIED MALE: Do you think the people should be concerned that the president posted somewhat of an incoherent tweet last night and that it then stayed up for hours?

SEAN SPICER, FORMER WHITE HOUSE PRESS SECRETARY: No.

UNIDENTIFIED MALE: Why did it stay up for so long? Is no one watching this?

SPICER: The president and a small group of people know exactly what he meant. Blake?

UNIDENTIFIED MALE: What does covfefe mean?

UNIDENTIFIED MALE: What does it mean?

UNIDENTIFIED FEMALE: What does the President mean?

UNIDENTIFIED FEMALE: What is covfefe?

(END VIDEO CLIP)

COOPER: What is covfefe? Obviously there wasn't any small group of people who knew what covfefe meant. Just as that poster doesn't speak for itself.

[20:55:02] But today something showed up on the president's Instagram. The same knockoff with a new slogan "The Wall is Coming". So is this the poster that should have been on the table yesterday and some intern or the acting chief of staff printed the wrong one. If it was the right one, is Trump one of the white walkers or one of the night's watch guarding the wall that hasn't been built.

It couldn't be. Because Jon Snow allowed Wylings (ph) to come through said wall. I guess we're just going to have to hold our dragons and wait and see what happens on the next installment of the Ridiculist. Speaks for itself.

Still to come, the blue wave officially washing into the House and President Trump desperately trying to change the message, for being hold in Washington today than he was just yesterday. Now inclusion course for Congress. We're live at the White House and Capitol Hill, next. D.

(COMMERCIAL BREAK)

COOPER: Chris Cuomo is off tonight. In this hour, 360, there's breaking news. Right now, the newly Democratic controlled House of Representatives is getting ready to vote on legislation to end the government shutdown.