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ANDERSON COOPER 360 DEGREES

President Trump to Declare National Emergency at Signing of Government Spending Bill; Interview with Congressman Adam Schiff of California; Pres. Trump To Declare National Emergency At Signing Of Government Spending Bill; Former Acting FBI Director Confirms Talks Inside Justice Department About Invoking 25th Amendment To Remove Pres. Trump From Office; Pres. Trump: McCabe A "Disgrace" To FBI, Country. Aired on 8-9p ET

Aired February 14, 2019 - 20:00   ET

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


[20:00:18] ANDERSON COOPER, CNN HOST: Good evening.

We begin keeping them honest on a busy and consequential night with a tweet in the president and a passage from the Constitution. First a tweet, and note the fact this is from Donald Trump back in 2014. And I'm quoting, Repubs must not allow Pres Obama to divert the Constitution for his own benefit and because he is unable to negotiate with Congress.

And now from the Constitution, Article 1, Section 9. It reads: No money shall will be drawn from the Treasury but in consequence of appropriations made by law.

Now, whichever you consider more important, the Framers' words in 1787 or Donald Trump from 2014, the president today turned his back on both. And whether you want to call it his inability to fulfill a campaign promise that Mexico would pay for the wall or to negotiate with Congress or merely dissatisfaction with the outcome, he has made his only difficulties over the border and the budget into a national emergency.

He's chosen a course that CNN polling shows two-thirds of the country is against and that senior members of his own party begged him not to take before ultimately giving in to him. He is start do you think a path that could lead to a showdown with Democrats and some Republicans in Congress and a fight in the courts over what those words in the Constitution really mean, all over his decision to inflate what is certainly a serious and chronic problem into an acute crisis that only immediate emergency action can address.

Now for perspective, there are 31 active items right now under the National Emergencies Act, some dating back to the Carter administration. There is sanctions during the Iran/Contra deal. There is a whole range of measures immediately after the 9/11 attacks, as well as other responses to a string of lesser international conflicts over the years.

The question will be, does what's happening on the border qualify, and if it does, why didn't he declare an emergency instead of shutting down the government and making 800,000 Americans go without pay? Why not last December or the year before? Why not the moment he took office?

After all, the number of arrests on the border while fluctuating somewhat is roughly the same then as it is now. What makes it a crisis today but not two years ago?

You can argue the president is only doing what he promised his voters he would do. You can say he has been calling for a wall for years. But keeping him honest, even what seems to be a bedrock belief for him, even that may not be all it seems.

Here is a passage in Josh Green's book, on the rise of Trump and Steve Bannon, quoting former campaign official Sam Nunberg on the origins of the wall, the whole idea of the wall. In reading from the book, quote, Roger Stone and I came up with the idea of the wall, and he we talked to Steve Bannon about it, according to Nunberg. It was to make sure he, meaning Donald Trump, talked about immigration -- meaning he talked about it during speeches. So they came up with the idea of the wall.

Nothing more than a memory aid, according to him. Now it's a national emergency, or will be tomorrow when the president signs the budget bill that's making its way through Congress tonight right now.

CNN's Jim Acosta joins us from the White House.

What you hearing from your sources tonight, Jim, on all this?

JIM ACOSTA, CNN CHIEF WHITE HOUSE CORRESPONDENT: Anderson, this is shaping up to be a campaign promise emergency for the president, and I think we're going see some of this play out tomorrow. I talked to a White House official earlier this evening who said that the plan is now set for the president to either declare a national emergency tomorrow or announce some sort of executive action that he's taking that would essentially try to redirect funds that have already been appropriated to the executive branch through the Trump administration to fund this wall down on the border.

And the question is whether or not -- obviously, whether he can legally do that. According to this White House official, just about every lawyer in the administration has reviewed this, and they are anticipating legal challenges.

So, the House Speaker Nancy Pelosi said earlier today that she's looking at this. The Senate minority leader Chuck Schumer has also said this. And there have been a number of Republican senators up on Capitol Hill who have warned the White House that this could get tied up in courts for some time.

So, Anderson, the president is running out of cards. Originally, he said Mexico was going to pay for it. Then it was the trade deal. Then he shut down the government to force Congress to pay for it.

And now, he is essentially down to his last option, which is to try the take some kind of executive action to try to make this happen.

COOPER: Do we know there is going to be any kind of ceremony tomorrow when the president signs the bill, declares a national emergency, if that's in fact what he does?

ACOSTA: I think the details of how they're going to announce it are still being worked out. We do think that he is going to sign -- we do know he is going to sign the bill because Mitch McConnell said that earlier today, whether he signs that bill in front of everybody remains to be seen. But we do expect to have some kind of announcement tomorrow, whether it's in front of the cameras or just via paper. But I suspect it will be in front of the cameras where the president is going to set out what he is planning to do.

[20:05:03] That is according to the current planning at this point.

But, Anderson, as soon as he does that, and if he does declare a national emergency, this is almost a sure thing that this is headed towards the courts. And then it becomes sort of an academic discussion as to whether or not there is enough time between now and the 2020 election for the president to fulfill this campaign promise, because he may be facing months, if not years of legal challenges as to whether or not, as you were just pointing out a few moments ago, whether or not he can go around the Constitution, go around the Congress and do this.

It's something that Republicans went after Barack Obama for trying to do back in 2014 when he tried to do an executive action on immigration. And now the president is essentially doing the same thing. And some of those Republican critics are now on his side.

COOPER: Yes. Jim Acosta, appreciate it.

Democratic Congressman Adam Schiff chairs the House Intelligence Committee. He's got some thoughts on this. He joins us now.

Chairman Schiff, you say the president's emergency declaration is plainly unconstitutional. What about rises to that level, in your opinion?

REP. ADAM SCHIFF (D), CALIFORNIA: Well, it's hard to imagine a worse case for national emergency than a problem that has been diminishing over the years, that the intelligence heads didn't even recognize when they're outlining the threats to the country, and most significantly, that the Congress has deliberated about, reached a resolution on in terms of what the Congress believes is appropriate border security, and the president didn't get what he wanted from the Congress and has decided that's some kind of emergency.

If it was an emergency every time the president of the United States couldn't get what they wanted from Congress, we would be in a constant state of emergency. So it's the worst possible case, and it will fail.

But I have to say this. What has had our democracy on such shaky ground for the past two years has not just been the unconstitutional acts of the president, but the fact that Congress has not been willing to stand up to him, that in particular the president's party has not been willing to stand up to him. And the fact that Mitch McConnell would warn him privately, but then do a complete 180 and publicly embrace this shows you just the kind of capitulation that is endangering the rule of law in our system of checks and balances.

COOPER: I mean, you've called on your Republican colleagues to expose the move. We've already heard some of them expressing their reservations about it. But do you expect actually any condemnation to go beyond simply some statements of disapproval?

SCHIFF: Well, look, if pass is prologue, we can't expect very much. There is a complete and I think it's a groupthink lack of political courage in the GOP right now. There is not a single member I think of either body that thinks this is a good idea, except maybe politically and even then I think they think it's a poor idea. But they lack the courage of their convictions.

I'm not particularly interested in private reservations or even public murmurings. We do need them to vote their oath of the Constitution, and, again, there is not a lot of reason for optimism. But they will be put to the test. There should be a resolution of disapproval, and they will be forced to go on the record of whether they're going to defend the Constitution or they're going to merely do the president's will.

COOPER: Speaker Pelosi today said the Democrats are reviewing their options to challenge it. How should that happen do you think? In the courts? Legislatively? Both?

SCHIFF: It will certainly be challenged in the courts and it will be stopped in the courts. I think it is likely, although speaking just for myself and not as a representative of the leadership that we will have an opportunity to vote and disapprove of what the president is doing. You know, while that may pass in the House, I would hope would pass in the House, the Senate would be a closer call. But I do think people should be put on record. And for all of those members that have criticized presidents in the past for overreach, none of them have done anything like what this president is attempting to do that not only to not only worry them, but it ought to prompt them to action.

COOPER: Do you think the president actually cares whether or not it passes in the courts as long as he seen as having attempted it? He can then say in 2020, look, I tried my best. It's the Democrats and all these people just took us to court, and, you know, they killed news the courts, but I tried.

SCHIFF: I don't think he cares at all whether this passes constitutional muster. Certainly doesn't care whether it's constitutional. But he also doesn't care what happens when it gets challenged in the courts.

All he really wants to do is present some fig leaf. He is getting less funding today than he would have if he hadn't shut down the government. He is getting criticized by the same conservatives that caused him to shut down the government to begin with. So this is a political maneuver, and really not more than that in terms of the president, but in terms of the congress, we ought to care much more about it than that, because the precedent that it sets is just terrible. COOPER: Yes, as you mention, Mitch McConnell had advised reportedly

the president not to declare the national emergency, then today we saw him take to the Senate floor, endorse this move.

[20:10:04] Are you clear at all how he got from point A to point B?

SCHIFF: Well, the same way he has so many times in the past, and that is, you know, the obligation to our institutions is very secondary. What is primary for him is keeping control of the majority in the Senate. And if that means that he's going to go along with the president on a plainly unconstitutional act, apparently he is willing to do that.

I think that's a terrible disservice. But look, for someone who kept the Supreme Court seat vacant for over a year, with the same object of energizing his base, keeping his position as majority leader, it can't be all that surprising.

COOPER: Congressman Schiff, I appreciate your time. Thank you.

SCHIFF: Thank you.

COOPER: Steve Cortes served on the Trump campaign. He joins us now along with Obama solicitor general Neal Katyal, and CNN chief political correspondent Dana Bash.

Are you hearing any more about Mitch McConnell's decision on this?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: It's pretty clear that he felt that he had to say that he was going to say that publicly, and actually follow through with saying publicly that he's OK with the national emergency in order to get the president to agree to sign this compromise.

McConnell was up against a wall. He was hearing from his rank and file that they were OK with supporting it by and large, but they weren't going to do it again, because, remember, the Senate passed a bill to fund the government back in December. The president had said he was going to sign it and pulled the rug out from under them.

They weren't going to do it until they got a real confirmation affirmation from the president that he was going to do it. And that's what that was about. It was McConnell doing whatever it took to convince the president to sign this.

COOPER: Neal, you've argued 15 national emergency cases I think in front of the sport. And as we said, this declaration is likely going to be challenged in the court. Can you explain who is likely to file suit and how this plays out?

NEAL KATYAL, PARTNER, HOGAN LOVELLS: Yes, so I think the most important thing about today's action is it really just shows the president is getting his legal advice from that renowned scholar Sean Hannity, because this does play out, Anderson, pretty fast in courts. It can be challenged by the governors of Puerto Rico or Colorado -- excuse me, of California, places that were going to get the funds or other folks that would have received the fund. It can be challenged by Congress. There is a lot of people who are going to be able to challenge this because it's such a dramatically unconstitutional action.

And the idea that the president is declaring a national emergency just because he didn't get the votes in Congress, that's not an emergency. It's also not an emergency if the president fails on his promise to have Mexico pay for the wall. That's a Trump emergency. It's not a national emergency. And if we go down this path, then a future Democratic president could say oh, gun violence is a national emergency and redirect all funds to that, or even health care.

So, you know, this is something presidents don't do for really good reason.

COOPER: Steve, do you support this? Do you believe this is actually constitutional? Because there is a lot of people who have been talking about the Constitution for a long time on the Republican side who now seem to be just falling in line on this.

STEVE CORTES, CNN POLITICAL COMMENTATOR: Right. I certainly think it's constitutional, and the reason is the statute is pretty clear. Now I don't happen to love the statute. I think it gives a lot of power to the executive, but the statute is clear. The National Emergencies Act from the 1970s.

And it is so expansive in terms of the executive authority that President Obama declared a national emergency for the United States over unrest in Burundi, a country that few Americans could probably even find on a map. Now we have a crisis not in Burundi, but in Brownsville, in Texas.

So if that's a national emergency, something happening in Africa that's relatively inconsequential to our country, then the crisis at our border, and it is a crisis, is at a clear and present threat to the United States and meets the actual definition of a national emergency.

And also to Neal's point about precedent, I think this is very important because I keep hearing this. A liberal president can take away guns from law-abiding citizens by national emergency. Well, no, he can't. Not constitutionally, because these national emergencies deal with external threats. They deal with terrorism. Many of them are specific to Iran, for example.

This is an external threat at the border. It does not give the president power to act extra constitutionally against Americans in peacetime internally.

COOPER: Steve, if a Democrat becomes president and decides that climate change is a national emergency, you're going to be supportive of the president's power to do that and to direct funds to fight --

CORTES: Right.

COOPER: -- climate change? CORTES: Listen, it's a great question. Of course, I wouldn't be in

support of it, but what I would advocate then is one of two things. Either overturn this law, because I think it's a bad law. I do, the National Emergencies Act.

Or within the law you can override it by veto. So, you know, Congressman Schiff was talking a big game about nonbinding resolutions. Well, if you mean it, then either rescind the law or pass a majority this isn't correct for the president. There is a remedy there.

Our system has these checks and balances. When president tried to do that on climate change, my strong hope and belief would be that he or she would be rejected by the Congress.

COOPER: We're going to take a quick break. We're going to continue this conversation right after.

Also, Andrew McCabe ran the FBI when James Comey was fired. He is talking about efforts during these tumultuous days to remove the president from office. That's right, remove the president from office.

Reaction to that and other new revelations tonight from former Director of National Intelligence James clapper. He joins me ahead.

(COMMERCIAL BREAK)

COOPER: Returning to our breaking news. President Trump planning to declare a national emergency to get funding for his border wall that he couldn't get from Congress.

[20:20:02] It is, of course, a long, long way from his promise originally.

(BEGIN VIDEO CLIP)

TRUMP: I promise we will build the wall.

And who's going to pay for the wall?

AUDIENCE: Mexico.

TRUMP: Who's going to pay for the wall?

AUDIENCE: Mexico!

TRUMP: Who?

AUDIENCE: Mexico.

TRUMP: It will be a great wall. Mexico is going to pay for the wall.

Mexico is going to pay for the wall.

Mexico will pay for the wall. (END VIDEO CLIP)

COOPER: Back now with Steve Cortes, Neal Katyal and Dana Bash.

Neal, just from a constitutional standpoint, can you make an argument that is not hypocritical that support what's the president is doing and yet criticizes it when Obama did it, or when Obama tried to do something?

Neal? Can you make that argument?

KATYAL: Oh, is that to me?

COOPER: Yes, because it seems like there is a lot of --

KATYAL: Look, you can make any arguments you can. Right. Yes. So it's totally hypocritical and totally different as well.

So, Steve is right. There's a statute that's clear. It's called the National Emergencies Act, and lo and behold, that requires a national emergency. So he has to point, Trump has to point to something that is a national emergency.

And here we have really good indicia that there isn't one. All 31 prior times, including Burundi, the statute was implemented not in defiance of what Congress wanted, but because there was an emergency gap and not time or attention by Congress to a specific situation.

Here you really have the paradigmatic opposite. The wall was an issue in the 2018 election. Trump lost. The wall is why Trump tried to shut down the government in Congress. He lost.

And now he's claiming as a loser the national emergency card when that's exactly the thing that was rejected before. And by the way, it's not the way he's behaved for two years. If this was an emergency, he should have done something about it two years ago.

The real danger here is that if you give President Trump this power, it's going to ultimately shackle future presidents, because nobody wants a president to have this kind of emergency power in defiance of Congress. It defies everything about the Federalist Papers and everything about our constitutional structure.

COOPER: Dana, this has also gone from Mexico is going to pay for the wall to I'm declaring a national emergency to divert American taxpayer dollars from one thing to this.

BASH: Precisely. And, again, as you were mentioning at the beginning of the show, it went from a rhetorical device in campaigns and rallies, which he loved because it was an exercise in engagement with his audience, to something that became -- talk to people who have been with him and part of this for three years, almost an extension of himself. He can't let go of it. He can't quit the wall, whatever he calls it, he just can't, which is why he is continuing down this road.

What is going to be interesting is even if it's just nonbinding, even if it's just a vote of potential defiance to see whether or not if the house run by Democrats puts a resolution down saying this is not going to happen. The Senate has to take it up if it happens.

All of those Republicans who are complaining to cameras and even behind the scenes that this is a terrible precedent, they're going to have to put their money where their vote is. And they're going to potentially, for the first time, have to choose their conscience over the president and maybe even their own bases if this happens. I don't know if it will be consequential with regard to the law, but it will be a moment that we've all been looking for and waiting for to see how much and whether Republicans will defy this president on something that is so important to him and to his base.

COOPER: Steve, how much or how little do you think the president's supporters care that it's actually them that's going to be paying for the wall?

CORTES: Look, I think the wall is a foundational promise, and it's not just a symbol. That's what has been lost in all of this in Washington. The Democrats regard this as just a symbol that if he gets it, it's a victory for Trump. If he doesn't, it's a defeat for Trump.

The reality is, it's a tool that the American people need, not the only tool, but a tool the American people need to get control of immigration. And again, that was the foundational issue writ large, not just the wall, controlling illegal immigration in this country to his victory in 2016.

The wall, while we may have to pay for it near term, there are many ways to have Mexico pay for it long-term, particularly through taxing of remittances. So, I view that as a down payment, a very sensible one, for American president.

As happy as I am that the president is doing this, I implore the president that he cannot sign this bill for the same reasons, by the way, because within this bill not only is there paltry funding for border barricades, something Nancy Pelosi claims is immoral but she is going to fund, but in addition to that is there a lot of code in this bill which would totally hamstring ICE and which would create de facto amnesties for hundreds of thousands if not millions of illegal immigrants in the United States.

BASH: Steve, that would be a shutdown. You would be OK with another shutdown?

CORTES: Not necessarily -- he can ask -- no, I don't want to play shutdown brinksmanship. That's a good question. I think he has to ask for continuing resolution.

BASH: Not going to happen.

CORTES: For two or three weeks and he has to lead the negotiations. Unfortunately, we can't rely on the Senate Republicans to do this, because the things they put in there, particularly related to UACs, to unaccompanied alien children, right now this bill says that if you even just live in the same house with an unaccompanied alien child, live in the same house and you're illegal, you are nondeportable. That is just a total non-starter for those of us who believe in the Trump revolution, in the 2016 themes of getting control of immigration.

So, my hope and belief is he is going to come to his senses by tomorrow, say yes to the emergency, say no to the bill and go back to the drawing board and keep the government running without something like that which I think the Democrats very slyly snuck in and very duplicitously so, and something that has to be rectified.

COOPER: Neal, the president has not shown any real desire to lead negotiations over this. In fact, time and time again, he's had meetings in which he has said to both Democrats and Republicans, I'll sign whatever you come up with. I mean, he said that to Dianne Feinstein. He talked about comprehensive immigration reform before the Republican sitting next to him explained actually, that's not what we like.

KATYAL: Exactly. And to Steve's point, to say that the wall is necessary for border security and stuff, I think as Thomas Jefferson might say, you don't have the votes. You tried this. You've tried this for years. You haven't been able to persuade people in the Congress.

And the last thing our Founders would have wanted is for the president to be able to do on his own what the Congress of the United States says you can't do. And it is a really dangerous precedent, Anderson. Presidents and members of Congress take an oath to uphold the Constitution. And what's going on if it happens tomorrow and I share Steve's hope in the reverse, that it's actually he says no to the emergency and yes to avoiding the shutdown, because it is a betrayal of his constitutional oath, the way dictators behave.

COOPER: If this was truly an emergency, Steve, wouldn't this be appropriate before the shutdown? What's changed at the border since then and what's changed since the president took office? Why wasn't a national emergency then when Republicans control both Houses?

CORTES: That's a great point. I will concede that. The shutdown was a mistake. He should have never gone down that road.

We did. But that's over now. Water over the bridge.

I agree. As soon as Paul Ryan and the Republicans who controlled the House, as soon as they prove they'd were feckless and unable to do this the right way through legislation --

COOPER: Why is it an emergency now and it wasn't an emergency two years ago?

CORTES: I believe it was.

COOPER: You believe for the last two years the president of the United States has been ignoring an emergency happening on our borders, a national emergency? CORTES: No. Not at all ignoring it. He has been trying to figure

out the best way to address the emergency.

I believe this emergency, by the way, has been going on for decades, and that's not just my opinion. Sheriff Napier from Pima County, Arizona, says in his 30-year career, there has been a crisis at the border all 30 years that he's been in law enforcement there. I think that's accurate. I think basically since the Reagan amnesty in 1986, we've had a crisis at the border and a crisis generally of illegal immigration.

And to answer your question, yes. The president should have --

KATYAL: A 30-year emergency, Steve?

BASH: Except there is one thing that --

CORTES: Well, first of all, many of these emergencies, many of these specific emergencies have existed for that long, these statutory quote/unquote emergencies have existed for decades. So there is certainly statutory precedent for that, particularly the ones related to Iran.

KATYAL: Yes, but not made-up presidential proclamations. No way.

BASH: The one thing that we would not have that we would not have if the president declared an emergency two years ago is the political fight for the past two years that he feels is helpful for him in raising money, especially small donor dollars, and that matters a lot more as he is heading into the campaign. And also, an issue that is going to keep him energized and his base energized.

And that's a big, big thing in terms of keeping this fight going. And it's going to continue obviously as we're talking about to the courts.

COOPER: Dana Bash, Steve Cortes, Neal Katyal, thanks very much. Good discussion.

There's another threat to all this. President Trump initially didn't like the border funding deal. Neither did his allies at Fox News. They first criticized the deal and did a 180. So, what changed? Well, we'll show you ahead.

(COMMERCIAL BREAK)

[20:33:13] ANDERSON COOPER, CNN ANCHOR: Again, on breaking news, President Trump is expected to sign a funding bill to avert another shutdown, but also will declare national emergency to secure the money he wants for a border wall.

White House sources say over the past couple days the President's complained that Republican negotiators were outplayed by Democrats, securing border funding far less than what he demanded, and the President wondered why he wasn't consulted more. Those sources also say that President was initially distressed watching Fox News hosts on Monday night criticize the deal, including this from Sean Hannity. (BEGIN VIDEO CLIP)

SEAN HANNITY, FOX NEWS HOST: $1.3 billion? That's not even a wall, a barrier. Any Republican that supports this garbage compromise, you will have to explain.

(END VIDEO CLIP)

COOPER: A Fox News hosts also took to Twitter to sound off. Here is Lou Dobbs, "Build the wall. Radical Dimms refuse to protect America. Their deal is an insult to POTUS and the America people." Laura Ingraham tweeted this, "Pathetic. Lawmakers reach agreement in principle in border security talks with $1.3 B for barrier, no love there." But that didn't last long. The tone changed just 24 hours later and even into Wednesday. Take a look.

(BEGIN VIDEO CLIP)

HANNITY: I'm not as concerned as some other conservatives if the President signs the bill.

LAURA INGRAHAM, FOX NEWS HOST: As much as we wish things were different, the fact of the matter is Trump is vowing to continue this fight.

HANNITY: $1.375 billion, not enough, but it will keep the ball and the project moving along.

INGRAHAM: And another shutdown would have probably ended up hurting the President.

HANNITY: Well, that prevents a government shutdown. That's a good thing.

INGRAHAM: Democrats are also breaking Pelosi's pledge.

HANNITY: The President is going to find the way to get the money.

INGRAHAM: What people are hearing I think is, "Oh, well, Trump wants to build a wall from sea to shining sea." Of course, he has never said that. He wants to build a wall where a wall makes sense.

(END VIDEO CLIP)

[20:35:05] COOPER: So, what led to this more optimistic feedback in just 24 hours? Sources say White House advisers wanted to spin this to look like a win. They made a slew of phone calls to media allies, including Sean Hannity to make that happen, all as Dana Bash mentioned earlier to dissuade the President from rejecting the deal and triggering another shutdown. Tonight on Twitter, Sean Hannity claims that never happened.

Joining me now is CNN Political Analyst Kirsten Powers and "Washington Post" columnist Max Boot. He is the author of "The Corrosion of Conservatism: Why I Left the Right."

Max, I mean, this -- what appears to be this feedback loop between Fox and White House is pretty incredible in the true sense of the word.

MAX BOOT, CNN GLOBAL AFFAIRS ANALYST: Yes, it's very pernicious, Anderson. This is the inmates running the asylum. I mean, the President of the United States is governing to please Fox News, which is the far right and not in terms of what's good for the country or what the constitution says. And so he is trumped up, so to speak, this nonexistent national emergency.

Now, he has trapped himself into doing something that appears to be extra constitutional to address this emergency because he's terrified of the blowback if he steps back from this crazy rhetoric that he -- the blowback he's going to get from the likes of Hannity and Rush Limbaugh and so forth.

COOPER: He also could have gotten a better deal previously --

BOOT: Right.

COOPER: -- except that he was criticized and at the last minute pulled out.

BOOT: Right. This is the art of the deal Trump style where he was -- he could have potentially had as much as $25 billion for the wall last year if he made a deal with Democrats to grant a path to citizenship for Dreamers, he refused that. Then it was -- he was offered $1.6 billion, he refused that. He said $1.3 billion was inadequate. Now he says he'll take the $1.3 billion because he doesn't want to risk another catastrophic shutdown.

And so, to make, you know, to make the medicine go down, he has to add this sweetener about this state of emergency, which these conservative hypocrites are applauding when they would have been, you know, having a heart attack if President Obama had done this. They are already calling President Obama a king who was misusing executive authority and it never occurred to him to do anything remotely this high-handed.

COOPER: Well, also -- I mean, Kirsten, you know, Donald Trump as a citizen was attacking President Obama for too many executive orders, for ruling by fiat.

KIRSTEN POWERS, CNN POLITICAL ANALYST: Right.

COOPER: It is, you know, the art of hypocrisy, the number of Republicans who are now, you know, ignoring the deficit, which they seemed to care about a lot before when it was under Obama, and also now ignoring this.

POWERS: Oh, yes. I mean, there's just no question if there had ever been a national emergency declared over a Democratic campaign promise, broken campaign promise, they would have lost their minds. This is something that he said Mexico was going to pay for. Mexico is not paying for it. He didn't get what he wanted, and so now it's a national emergency.

And as you were talking about in the previous panel, if it's an emergency, usually you need to do something about it right away, right? It's not -- this doesn't meet the criteria of emergencies.

But I think just in what you showed earlier about what happened between Fox News and the White House, if I was Donald Trump, I would watch that and realize that actually they're not going to come after him nonstop, right? I mean, they fairly quickly self-corrected after hearing, you know, from the White House.

And if you go back and, you know, during the campaign a long, long time ago when Donald Trump used to hate Fox News because they weren't giving him the coverage that he wanted, he ended up bending them to his will. And I think he should call them on their bluff, personally.

That's what I would do if I was him, because I know for a fact that they would absolutely freak out if Donald Trump started going after them the way he did before because it really showed Fox that they weren't in control of their viewers, that Donald Trump was.

And so I don't understand why he is so convinced that Laura Ingraham and Sean Hannity have more power than he does. It's bizarre to me because if nothing else you can say, Donald Trump really does have control over the Republican Party.

COOPER: I mean, what's so interesting about this, you know, Kirsten, I mean, if Fox were to turn on President Trump, could he survive that do you think politically or do you think that you he could?

POWERS: Well, that's sort of what I'm saying.

COOPER: That he would basically -- they would be able to do that.

POWERS: Yes. And so my sense, and I'd be interested to know what Max thinks. I mean, my sense is actually the base is more with Donald Trump than it is with Fox News. And that Fox News has hitched their wagon to Donald Trump. But like I said, when he was running originally, he was not the Fox News candidate.

COOPER: Yes.

POWERS: And that's why he attacked them relentlessly. And eventually people who used to be on Fox are no longer there.

COOPER: Right.

POWERS: Or if they're still working there, you hardly ever see them. This, you know, the whole entire network sort of became the Trump network because of Donald Trump. So, why does he now feel like they're in charge of him? I really can't follow the reasoning.

[20:40:03] COOPER: Max, do you agree with that?

BOOT: Well, I think this would be a fascinating experiment of what it points to is the power that Rupert Murdoch potentially has, because we don't know what would happen. What if Fox News actually turned on Donald Trump? This would be like, you know, King Kong versus Godzilla. We don't know who would win that fight. And I think Kirsten may be right, that in fact Trump would win, but it's far from certain because Trump -- you know, Fox News has a very devoted base of their own. And so if they turned against them, that could actually imperil his presidency. And clearly he thinks that Fox News has leverage because he is very, very eager to propitiate Fox News. And so that would be fascinating.

What would happen if Murdoch were actually to turn on him, which I don't think is necessarily going to happen? But if it did, fascinating thought experiment. What would the fallout be?

COOPER: Max Boot, thank you, Kirsten Powers as well.

I want to check in with Chris to see what he's working on for "Cuomo Prime Time" at the top of the hour. Chris?

CHRIS CUOMO, CNN ANCHOR: All right, so we're taking a look at this national emergency declaration from the political perspective and the legal perspective. We're going to have a member from each side, a Democrat who wants to stop it and a Republican who thinks it's a good idea.

Now, that isn't the sum total of the Republican Party. We know there's a rebellion going on. We know there's resistance. How real is it? We'll take that on. We're going to have both sides and see if there's any part of it that they agree on, because this is something we haven't seen before.

So, we're going take that on and then legally, we've taken the time today on the team to go through what the options are and what the realities are. But one thing we know for sure, the minute he does this, Anderson, the Democrats will have a precedent that some president will bring back to haunt the Republicans. When and where does the President care, who knows?

COOPER: Yes. Climate change or something else.

CUOMO: That's right.

COOPER: Yes. Chris, thanks. That's about 18 minutes from now at the top of the hour.

Just ahead on this program, what on just about any other night would probably be the lead of the program. The former acting FBI director confirming there were high level discussions at the Justice Department about whether to invoke the 25th Amendment to remove Donald Trump from office.

(COMMERCIAL BREAK)

COOPER: Welcome back. Andrew McCabe, the former acting director of the FBI confirms that there were high level discussions at the Justice Department on whether to invoke the 25th Amendment to remove President Trump from office in the wake of the firing of former FBI Director James Comey. Now, just saying those words out loud, it's pretty remarkable. But McCabe, who was fired from the FBI last March, says head counts were being taken among Cabinet members to gauge support for this extreme proposal. He also told Scott Pelley of "60 Minutes" he triggered an obstruction of justice investigation into the President.

(BEGIN VIDEO CLIP)

ANDREW MCCABE, FORMER ACTING FBI DIRECTOR: I was speaking to the man who had just run for the presidency and won the election for the presidency and who might have done so with the aid of the government of Russia, our most formidable adversary on the world stage, and that was something that troubled me greatly.

SCOTT PELLEY, HOST, "60 MINUTES: How long was it after that that you decided to start the obstruction of justice and counterintelligence investigations involving the President?

[20:45:02] MCCABE: I think the next day I met with the team investigating the Russia cases and I asked the team to go back and conduct an assessment to determine where are we with these efforts and what steps do we need to take going forward.

(END VIDEO CLIP)

COOPER: Now, the White House said that McCabe, who is promoting a new book had, "no credibility." While on Twitter, President Trump called him a disgrace to the FBI and the country.

Joining me now is former Director of National Intelligence General James Clapper, author of the book, "Facts and Fears: Hard Truths from a Life in Intelligence." Director Clapper, does it make sense to you that Comey's firing in and of itself would prompt discussions about removing the President from office, or do you think there have to be other pieces here that we don't know about?

LT. GEN. JAMES CLAPPER (RET.), FORMER DIRECTOR OF NATIONAL INTELLIGENCE: Well, I don't think there is other piece that we don't know about at this point, you know, two years out. But I do think the totality of what was going on may have prompted some discussion. I don't know what the definition of that is.

The 25th Amendment, though, and I think appropriately so, has a very high bar to invoke. And, of course, the spirit of it, the underlying reason for it was, you know, if a President is incapacitated either physically or mentally or both, and this to me is a little different -- a little different situation.

COOPER: The notion that the President and his allies have been pushing now for two years that there is some kind of a deep state within the government conspiring against him, it's certainly easy to see how this will only fan the flames of that narrative, some secret cabal within the DOJ trying to oust the President.

CLAPPER: Exactly, Anderson. I think, you know, Andy and his book, you know, is another piece of the history that will ultimately, you know, the ultimate history for this I think would be is some years off. And so this is another piece of that. Jim Comey's book was a piece of it.

I would say that a couple things here. One, Andy was very much involved in the intelligence community assessment that we prepared and delivered in January of '17. And so when Jim Comey was fired, and particularly the manner in which he was fired, that had to -- had to have been a huge trauma in the FBI.

But I would argue that, you know, if the FBI didn't at least think about, you know, the connection of the Trump campaign or the President himself with the Russians, you know, they'd almost be -- they could be open to criticism for not looking at the obvious. So I don't think that was inappropriate. You know, I don't know what discussing the 20 -- invoking the 25th Amendment. I'm not sure exactly what that meant.

COOPER: That -- what it actually meant -- you're not sure what it actually meant in terms of how it actually happened, what they actually discussed?

CLAPPER: Exactly. And the extent to which one Cabinet department, the Department of Justice, which is obviously would be critical in this, but it takes -- it would take other Cabinet members in the vice president's involvement to actually invoke the 25th Amendment.

COOPER: The timing of the book and the book tour for McCabe, do you think that Mueller's team wishes he'd waited until after the report came out? Because, I mean, this probably doesn't make their already difficult job any easier.

CLAPPER: Well, I suppose, but I kind of doubt. I mean, I think what Mueller and his team have shown so far in the -- during the existence of the special counsel is they've kind of been pretty impervious to outside external stimuli.

COOPER: Right.

CLAPPER: And this is yet another case I think of something that is maybe stunning, but not really surprising.

COOPER: Director Clapper, I appreciate your time. Thank you very much.

CLAPPER: Thanks, Anderson.

COOPER: Coming up, we have more on McCabe disclosure. I'll talk to Carl Bernstein who's reporting he'll bring down Richard Nixon and get his take on all of this ahead.

(COMMERCIAL BREAK)

[20:52:43] COOPER: There's no question of the disclosure from former acting FBI Director Andrew McCabe, the "60 Minutes" and in his new book about high level discussions at the Department of Justice and whether to remove President Trump from office were explosive to say the lease. Joining me now is CNN's Chief Legal Analyst Jeffrey Toobin and legendary Watergate report, Carl Bernstein.

I mean, Jeff, so McCabe says, yes, these discussions with the others in the Department of Justice, including Rod Rosenstein. Other than Rosenstein, we don't know who the other officials were, though.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: We don't. And Rosenstein issued a statement today that was very careful that made it seem like he was denying what was written, but not really.

COOPER: But not really.

TOOBIN: Not really. I mean, he certainly didn't deny that these discussions took place. And I think just, you know, the magnitude of the fact that people in the Justice Department, and I don't care what the President says, these were not political people, these were professional law enforcement people, were having serious discussions about whether the President had to be removed from office immediately before even impeachment was a possibility, you know, it's just amazing to me.

COOPER: But, I mean, plenty of people are going to look at that and say, "Well, look, that's the definition of the deep state."

TOOBIN: I'm sure people are going to say that but, you know, it's just not true. And, you know, I think people who are rational and know how the FBI works and know the backgrounds of these people that they are professional law enforcement people, they are not political, it's just -- that is not true and you can say whatever you want.

And the fact that they didn't, you know, wear a wire and the fact that they didn't try to organize the 25th Amendment removal, you know, suggests that they, you know, tried to do this in a modulated way, but just the magnitude of it is incredible.

COOPER: Carl, I mean, even with President Nixon there was never any discussions about invoking the 25th Amendment, were there?

CARL BERNSTEIN, CNN POLITICAL ANALYST: No, there wasn't, nor was there any question, whatsoever, involving whether or not the President of the United States might be aiding a foreign hostile power and that's the element of this story that's so extraordinary.

What caused McCabe and the FBI and the counter intelligence community to be so upset and rattled by what the President of the United States was doing, including firing Comey and what appeared to be perhaps an obstruction of justice is the underlying fact that no President of the United States in our history had ever been suspected or thought to have any kind of relationship with a foreign power.

[20:55:10] And here we have a counterintelligence investigation going on in which the President's response is to ignore, undermine, demean, the investigation itself and then do what happened in the Saturday night massacre in Watergate, which is to fire the person who is in charge of the investigation. So, this goes to the question of the fitness of the president. That's what was apparently under discussion. It is the same kinds of questions interestingly enough that Mr. Mattis, and Mr. Tillerson, and Mr. McMaster and those who had left the Trump's orbit, so dismayed by the President's actions goes to his fitness and what he says and does.

COOPER: Yes.

TOOBIN: And remember, when McCabe and Rosenstein were thinking about this, they didn't even know about the negotiations for Trump Tower Moscow that were going on throughout the campaign at the time that he was -- that candidate Trump was praising Putin over and over again.

They didn't know the direct financial incentive he had during the campaign to cultivate Vladimir Putin. I mean -- so, I mean, it would have been even more -- it would have been worse if they had known.

COOPER: Carl, I mean, in the case of President Trump, do you think there are other things we don't know -- we don't know yet that would have prompted a dramatic thing like considering to remove a president?

BERNSTEIN: Well, I think there are a lot of things that we don't know and that's why we have the Mueller investigation, that's why it's so important that Mueller's report layout for the Congress and the American people whether it's condemnatory of the President of the United States or exculpatory.

We need to know everything that happened in this 2.5-year-period since the President's campaign, or three years, and up to this minute about his relationship with Russians, ethno-Russians, his businesses in Russia and his transition period in which Flynn and others were acting in concert with Russians for God knows what, we don't know what yet. There's a lot --

COOPER: Yes.

BERNSTEIN: -- that we don't know. But what we do know is that everybody involved, including the President of the United States has lied and lied and lied about virtually everything that we know having to do with this question of the administration, the campaign and the presidency in their relationship with Russia and ethno-Russians.

COOPER: Yes.

BERNSTEIN: And that too figures in what happened when they called on the possibility of the 25th Amendment. If you read the excerpt from McCabe's book, and one of the things that we have here is whether you like or hate McCabe, he's got notes. He's got contemporaneous notes and there are others to whom he briefed and told the same story.

COOPER: Yes.

BERNSTEIN: And also Rosenstein is going to come out with some kind of an account.

COOPER: Although, I mean, Jeff, McCabe was sanctioned by the FBI for lack of candor, literally not being truthful.

TOOBIN: And fired.

COOPER: Yes.

TOOBIN: And fired.

COOPER: One does have to take that into account.

TOOBIN: Absolutely. And, you know, he has this credibility problem and he may yet be indicted. He is under criminal investigation at the moment by the U.S. attorney's office in connection with the statements that the inspector general of the FBI said were false.

Now, they didn't relate to this directly but, you know, this is a part of the story as well and I think, you know, everyone has to figure that in, in assessing his credibility.

COOPER: You also had McCabe saying just like Comey, echoing Comey that he felt like he was dealing with the mob, kind of.

TOOBIN: Absolutely. Except, it's funny, Comey says the Italian mob, McCabe said the Russian mob, but the gist was the same.

COOPER: Yes. Carl, I want to say a very happy birthday to you and we very much appreciate you spending the night with us.

BERNSTEIN: Thank you.

COOPER: There you are.

BERNSTEIN: Yes.

COOPER: I'm not sure if you can see that picture, but it's great. There it is. Happy birthday.

BERNSTEIN: Well, thank you.

TOOBIN: Carl Bernstein is a great hero of mine. He's one of the reasons I became a journalist and it's really an honor always to appear with him.

COOPER: He's a hero for all of us.

BERNSTEIN: Thank you.

COOPER: Carl, happy birthday. I wish you the best. And Jeff?

BERNSTEIN: Thank you.

TOOBIN: It's not my birthday. I'm all right. Yes. Thanks.

COOPER: Yes. All right. Do you think -- what -- sorry, go ahead, Carl. Were you saying something?

BERNSTEIN: No, I was saying happy Valentine's Day to Jeff there. But there is one more aspect of this that we need to --

TOOBIN: You're still working, Carl. All right, go ahead.

COOPER: We got 10 seconds.

BERNSTEIN: I'm still working why -- the context of this is that it is impossible for -- in this country today to have a real bipartisan fact finding investigation by the Congress of the United States such as what happened in Watergate.

COOPER: Yes.

BERNSTEIN: And one of the reasons that everybody is down in the trenches in this instead of trying to find out the best obtainable version of the truth --

[21:00:00]