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ANDERSON COOPER 360 DEGREES

Sixteen States File Lawsuit Against Trump's Emergency Declaration; Interview with California Attorney General Xavier Becerra; Roger Stone Apologizes For Instagram Post Showing Judge In His Upcoming Trial With Cross Hairs In Background; McCabe Claims President Trump Rejected U.S. Intel On North Korea And Deferred To Putin, Trump Calls McCabe And Rosenstein "Treasonous;" Former VP Biden Says A Decision Is Coming Soon; Sources: Police Believe Smollett Orchestrated Attack. Aired on 8-9p ET

Aired February 18, 2019 - 20:00   ET

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


[20:00:16] ANDERSON COOPER, CNN HOST: Good evening.

Sixteen states have just taken legal action to challenge President Trump's national border emergency. We'll have details in just a moment.

We begin, though, with a mystery and a question. Three days into this, amid that breaking news and other action, why have we heard so little from the man at the center of it, the president? Because with an emergency, there's usually at least some sense of urgency, and there's not a lot of that coming from the White House -- or more to the point, from Mar-a-Lago where the president spent the weekend and had an omelet or two.

Now, there's no denying a lot has been happening since he signed the order on Friday diverting military money for wall construction. What's missing, though, is much of anything from the president himself. He said nothing about it at a rally today in South Florida before heading back to Washington. In fact, he's had little to say on the subject all weekend from Mar-a-Lago and we've seen no evidence he's done anything, either.

Now, in fairness, there may be little to do until the Pentagon determines how the money can be moved around. But apart from a briefing he got on this on Friday, there's no indication from the White House that he's had any substantive briefings, meetings, or calls on this so-called emergency since then, which is odd, given the picture that he painted on Friday.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We're talking about an invasion of our country, with drugs, with human traffickers, with all types of criminals and gangs. I said, listen, we have tremendous amounts of fentanyl coming into our country, kills tens of thousands of people. I think far more than anybody registers.

You can't take human traffic, women, and girls. You can't take them through ports of entry. You can't have them tide up in the backseat of a car or a truck or a van. They open the door. They look. They can't see three women with tape on their mouth or three women whose hands are tied.

(END VIDEO CLIP)

COOPER: A dire situation demanding emergency action, he said, before heading to Florida. Still, an all-caps crisis the following night. Building the wall, he tweeted Saturday evening. But by Sunday morning, he seemed to lose interest, reserving his caps locks key for other things.

The rigged and corrupt media is the enemy of the people, he shouted on Twitter. Also this, nothing funny about tired "Saturday Night Live" on fake news NBC, question is, how do the news get away with these total Republican hit jobs without retribution? Likewise from many other shows? Very unfair and should be looked into. This is the real collusion.

By this morning, he was tweeting out praise for Fox News. Great analysis by "Fox & Friends."

He also tweeted or re-tweeted about Andrew McCabe's allegations on "60 Minutes," California's high-speed rail project, his new attorney general, poll numbers, nothing about this emergency. He did, however, go and play golf, and as you can see, he enjoyed an omelet from his club.

Now, sure, presidents deserve a little R&R and omelets and, sure, presidents can do many things at once that goes with the job, but the thing is, this president seems to be doing little or nothing about something that he himself made an emergency priority worth a constitutional showdown over just days before. Perhaps it shouldn't be surprising when you take how little he spent focusing on this emergency. He spent five minutes boasting of other accomplishments before actually making the emergency declaration.

And he quickly moved on from there to other subjects, mainly dealing with himself, including, the Nobel Prize that he thinks he deserves.

(BEGIN VIDEO CLIP)

TRUMP: So, Prime Minister Abe gave me, I mean, it's the most beautiful five-letter -- five-page letter. Nobel Prize, he sent it to them. You know why? Because he had rocket ships and he had missiles flying over Japan. And they had alarms going off. You know that. Now, all of a sudden, they feel good. They feel safe. I did that.

(END VIDEO CLIP)

COOPER: Again, as I mentioned, we have heard little from the White House about what, if anything, the president has been doing with respect to this national emergency that he has called, not for lack of trying.

Abby Phillip joins us now with what he's been hearing from her sources. Abby, what has the president been doing with respect to the national

emergency? Because you would think the last thing he would do right after declaring a national emergency is go to Mar-a-Lago to play golf.

ABBY PHILLIP, CNN WHITE HOUSE CORRESPONDENT: That's right, Anderson. The sense of urgency that seemed to be there leading up to Friday's announcement has somehow disappeared. We've gotten no updates from the White House about what President Trump has been doing to respond to this national emergency that he declared on Friday. It is, of course, a holiday weekend, and many White House aides were with the president over the weekend, but there's no indication that there has been an effort to kind of keep this drumbeat going.

And that's kind of interesting, considering how often President Trump tweeted and commented at nearly every public event in the last several weeks about those situations at the border.

[20:05:06] Instead, he's been preoccupied by what's been going on, or what had been going on over at his Justice Department. And, of course, with the Mueller probe. Now, one of the problems for the White House is that there's still a lot of real work to be done to identify where all of this money is coming from. And that work could be very tricky.

Some of these projects at the White House has to take money from could be very popular among members of Congress or controversial. Already, the Pentagon has said that they are not touching certain pots of money, for example, the money that might have been devoted to military family housing. But as for other details, there has been radio silence from the White House.

And, of course, as you mentioned, there is the real prospect of lawsuits, the latest coming just today. So the White House is facing not only a potential political problem as they try to identify these sources of money, but some very serious legal issues, as well. And what we have heard over the weekend, however, is that the White House is not ruling out President Trump using his very first veto of his presidency to defend his executive order. Whether it will come to that, we don't exactly know yet.

But so far, president Trump has been uncharacteristically quiet about this national emergency. We'll see if that changes once he gets back to Washington tonight.

COOPER: Do we know what he plans to do with respect to the emergency, say, tomorrow or the next day? Is there anything on the schedule?

PHILLIP: Nothing that we know of, Anderson. And this is clearly something that has president has said is an urgent, urgent priority, but we've seen this before in the past. When President Trump is beating the drum beat of a crisis at the border, he does it usually leading up to some major event like the midterm elections, and shortly after that event occurs, there was nothing. So I wouldn't be surprised to see the president really laying low on this until we have some more details about where exactly this money is coming from, Anderson. COOPER: All right. Abby Phillip, thanks very much.

Just moments ago, the legal challenge grew. Fifteen states have joined with California to stop to sue the national emergency, that's in addition to legal action Friday night and over the weekend from a number of public advocacy groups.

Joining us now is Xavier Becerra, California's attorney general.

Attorney General, thanks so much for being with us.

You just filed your suit. What happens now?

XAVIER BECERRA (D), CALIFORNIA ATTORNEY GENERAL: Well, hopefully Congress acts and preempts the need for a lawsuit, but if it doesn't, we're ready to go.

COOPER: Can you explain on what grounds you're challenging the president's emergency declaration?

BECERRA: Well, it's pretty clear that the president is trying to usurp Congress' authority. The president doesn't have the power of the purse. The president can't decide to shuffle money around once Congress has allocated. That's only for Congress to do. Otherwise, presidents for the last 240 years would have been doing the same things when they don't like where Congress puts the money.

Simply because Donald Trump fabricated a crisis and called it a national emergency doesn't mean that he can violate the separation of powers under the Constitution.

COOPER: As we said earlier, 15 states have now joined California in this suit. Do you expect more states to join, as well?

BECERRA: I suspect so. And I wouldn't be surprised if some states file on their own, because I think everyone is concerned, when you hear that $8 billion of money that you were expecting to come for other important programs is now going to be raided by the president to pay for a border wall, which Congress specifically decided not to fund at the level the president wants, I think every state should be worried.

COOPER: I want to play something that Senator Lindsey Graham said yesterday about where the president could get some of the money for the wall. Let's listen.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: Let's just say for a moment that he took some money out of the military construction budget. I would say it's better for the middle school kids in Kentucky to have a secure border. We'll get them the school they need. But right now, we've got a national emergency on our hands.

(END VIDEO CLIP)

COOPER: I'm wondering, do you agree with senator graham's justification there?

BECERRA: I don't think I understand what Senator Graham is talking about. The kids in Kentucky who aren't getting as good an education as they might otherwise are going to suffer for a long time because Donald Trump's going to spend years and tens of billions of dollars, not just $8 billion dollars, trying to build a border wall.

And so, I'm not sure I could not only not agree with Senator Graham, but I don't think I understand what Senator Graham's talking about.

COOPER: Just last time, there is a likelihood this will end up in front of the Supreme Court, given the court's current makeup, five conservative justices, two of which President Trump appointed. How confident are you that you would prevail in the end, because this kind of -- you know, this is not a conservative argument that the president is necessarily making.

BECERRA: Yes. And, Anderson, if you think about it, if you play this out, you would think the five conservative justices on the Supreme Court would want to prevent any president, not just Donald Trump, but any president from trying to violate the Constitution.

[20:10:03] If you're a strict constructionist and you believe the words of the Constitution should be read literally, and if Article I of the Constitution says the power of the purse, the ability to appropriate money belongs to Congress, not to the executive, how can any conservative justice side with Donald Trump?

BECERRA: Mr. Attorney General, I appreciate your time. We'll continue to follow it.

I just want to put up on the screen, the 16 states that have filed suit today, there they all are. Let's dig deeper.

Joining us is CNN Chief Legal Analyst, Jeffrey Toobin, and former Virginia Attorney General, Ken Cuccinelli.

You heard what the attorney general of California was saying. Do you think that -- what do you think the timeline on these suits is?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, I suspect that they will be asking for an immediate injunction to try stop any expenditures of funds on this national emergency. So that could happen in the next few weeks, if the plaintiffs, if the states win. Now, the judge may decide to put it on a slower track, but either way, that initial decision about whether to issue essentially an injunction stopping the national emergency, that could be appealed.

So this could all move at a pretty quick rate, I think. In the next weeks, we should know who's winning and who's losing, in a pretty clear way.

COOPER: And how long would it take to get to the Supreme Court?

TOOBIN: Again, it depends on how quickly the lower courts act. But, you know, in -- if everybody acts really fast, it could be a month or two to the Supreme Court, but it could be six months, as well.

COOPER: Ken, I mean, the states that are filing against the president, how strong or weak of a case do you think they have?

KEN CUCCINELLI, FORMER VIRGINIA ATTORNEY GENERAL: You know, I was listening to the attorney general and I have to say, as a former attorney general, that was pretty pathetic. The only reason he gave is a reason that the House Democrats can use and that is that the president is exercising an appropriation power and he didn't seem to -- he didn't seem to understand, this is being done based on a law, not the inherent power of the president under Article II of the Constitution. He kept talking about constitutional violations.

For people who read these, quote, emergency laws, the breadth and vagueness of them is striking. It is phenomenal. And the smarter folks attacking this, I believe, have taken aim at not the emergency finding, because the president has been given by Congress so much discretion in that area, I don't think they win on that.

Where the real fight is going to take place, and I agree with Jeffrey about the timeline, this will be all the way up to the Supreme Court, is going to be over whether the types of dollars and the types of projects they do are objectionable somehow based on the statutes they're using. Not based on the president's constitutional authority.

So, I think you're going to see the states, unless they've got some better plaintiffs than states, they're going to get knocked out quickly. And I think it's pretty pathetic case they've made, at least publicly, so far. Maybe there's more there that I can't think of --

COOPER: Jeffrey?

CUCCINELLI: -- and the logic of simply because you're a border state doesn't get it, either.

TOOBIN: Well, I think Ken is right that this case is really about this federal law, the National Emergencies Act. It's not about -- sorry. It's not about the Constitution, particularly. The question is, does this expenditure, does this shift of money qualify as an emergency?

I disagree with Ken to a certain extent. I do think courts are going to look at whether this is an actual emergency, given how the president has, you know, not acted for two years and said at his press conference that there was no particular rush. I do think that is going to be relevant.

But it is true that this law is very peculiar. I mean, I was just looking at some of the applications of the National Emergencies Act. There's one that says, you know, prohibiting the importation of rough diamonds from Sierra Leone. Now, I don't know if that's an emergency, or not.

The issue here is that there is not -- in any of these applications before, Congress has never said, we don't want to spend the money. I think that's a very big difference from all of these previous applications.

COOPER: And, Ken, I want to play something that Stephen Miller, senior adviser to President Trump said yesterday when pressed on which statistics actually prove this is a national emergency. Let's listen.

(BEGIN VIDEO CLIP)

STEPHEN MILLER, SENIOR ADVISER TO PRESIDENT TRUMP: You don't know what you don't know and you don't catch what you don't catch. But as a matter of national security, you cannot have uncontrolled, unsecured areas of the border where people can pour in undetected.

(END VIDEO CLIP)

COOPER: I mean, it is true that you don't know what you don't know and don't catch what you don't catch. Is that an argument that's going to win in court?

[20:15:00] CUCCINELLI: Well, coupled with statistics -- I mean, look, I talk to lawyers about two burdens of proof. One is the actual legal burden of proof and the other is the burden of persuasion, persuading a human judge that you are right.

And there are a lot of statistics about the change in various borders areas from when a barrier was not present to after building one. And they can point to areas of the border where there are very serious problems, where the border patrol has said there are serious problems.

Whether that carries enough to get by the emergency tag, I think it will. I don't actually think that's where this case is going to be decided, as I said a moment ago. And I do think, though, that the kind of rhetoric you heard from Stephen Miller, who is the president's point person within the White House on immigration issues, is not what you will hear in courtrooms.

But when I sued on Obamacare, you'll recall the president banging his chair, this is not a tax, this is not a tax, this is not a tax, in interviews. And we tried to use that quote from the president. And we had judges ask, you know, counsel, for the government, what do I do with this?

And when it was all said and done, the courts did nothing with it. Now, this is not the first time that this president's statements are being used as a basis or I'll say, an excuse in this case, for one particular attack in a lawsuit. But historically, those out-of-court statements don't matter as much as the statistics they're going to have to bring in to demonstrate there is a real emergency. And the four corners of the law, as Jeffrey said, which is where this battle is going to be fought.

TOOBIN: And also, another fact that the president has going for him is that he will bring arguments, factual arguments. Now, they may be good arguments, they may be bad arguments.

But a judge may say, look, I don't have resources to test these arguments. I don't have, you know, a border security. One of the, you know, tremendous advantages a president has here is that he is usually the arbitrator of what's in the national security interest, what's an emergency. And there will be many judges, not all of them, but there will be many judges who will say, I'm not second-guessing the president of the United States what's a national security emergency.

COOPER: Jeff Toobin --

CUCCINELLI: Anderson, can I get in real quick?

COOPER: Yes, sure. And the courts have -- to drive Jeffrey's point home, the courts defer more to the executive branch in national security areas, in exercise of emergency powers, where Congress has given them those powers on confidentiality of elements of secret -- government secrecy, than in other areas, than in environmental regulations or even food safety and so forth. This is the area or among the areas where the executive branch gets the most deference from the courts of anything that gets litigated in front of them.

COOPER: Interesting.

Ken Cuccinelli, great to have you. Jeff Toobin, as well.

Friday night, we spoke with a woman who's part of the first lawsuit to be filed against the president's action. She lives on the border, runs through her backyard. She's eliciting some remarks about her experience over the last four decades living there, it only seemed natural to pay her a visit.

Our Gary Tuchman tonight reports.

(BEGIN VIDEOTAPE)

NAYDA ALVAREZ, LIVES ALONG THE RIO GRANDE: I've never seen anyone here cross.

GARY TUCHMAN, CNN CORRESPONDENT: Never in 40 years?

ALVAREZ: Not at all.

TUCHMAN: Zero people?

ALVAREZ: No.

TUCHMAN (voice-over): Nayda Alvarez has lived on this land along the Rio Grande in Texas since she was in second grade. But even though she never saw anyone crossing on to her land, it didn't stop government officials from approaching her a few months ago.

ALVAREZ: They said they wanted to build the wall.

TUCHMAN (on camera): On your property?

ALVAREZ: On my property.

TUCHMAN (voice-over): Alvarez has now received three letters from U.S. Customs and Border Protection asking permission to survey her property, which she has said no to. But it's all leading to the government offering her a price for her eight acres, and if she turns it down, declaring eminent domain and taking it away from her for a so-called fair market value.

ALVAREZ: The Army Corps of Engineers people came over and said based on the map, the wall is going to be about right here.

TUCHMAN (on camera): So, this is about one, two, three, four, five, six, six yards, maybe about 20 feet from your house, and they want to build a maintenance road front of the wall.

ALVAREZ: Yes, that they didn't mention the maintenance road.

TUCHMAN: But that's what you heard about?

ALVAREZ: I heard about the maintenance road.

TUCHMAN: So your home would not be able to survive a border wall?

ALVAREZ: No.

TUCHMAN (voice-over): Alvarez is one of the plaintiffs in a private lawsuit against the president that's been filed by the Public Citizen Consumer Group. She says she's despondent. On top of possibly living the house she's lived in since a child, her mother who lives on a property in a separate home is receiving hospice cares for advanced cancer.

ALVAREZ: I feel infuriated. I'm mad. I feel frustrated because all of this is out of my hands.

TUCHMAN (on camera): Nayda Alvarez plans on continuing to speak out.

[20:20:00] In addition to volunteering to be a plaintiff for the lawsuit, she's shouting from the rooftops. She painted this message, hoping President Trump on a recent visit would fly over. He didn't, but the message remains.

FRED CAVAZOS, LIVES ALONG THE RIO GRANDE: This is our house. We were raised here.

TUCHMAN (voice-over): Fred Cavazos and his family also own land on the Rio Grande.

CAVAZOS: Are you hungry?

TUCHMAN: To make a living, they sell cattle and rent out parts of their 70 acres, mostly for people with RVs and mobile homes. Cavasos who has been in a wheelchair since suffering an illness two decades ago, says his family earns just enough to make ends meet.

(on camera): What they've said to you is that the wall, the barrier, whatever you want to call it, will be built right here on top of this levy.

CAVAZOS: Yes.

TUCHMAN: And the Rio Grande is about a third of a mile, a quarter mile down the road here.

CAVAZOS: Yes.

TUCHMAN: So, this is all your land back here, where you rent your properties. And all these people who rent your properties would be behind the wall, a no man's land.

CAVAZOS: Yes, a no man's land, right.

TUCHMAN: Cavazos says their livelihood will be ruined if the barrier goes up because who want a vacation behind the border wall? He says his grandmother used to tell him, never sell the property, that it will always provide for them.

CAVAZOS: My dad fought for this property. During the World War II, he was a tank commander, under General Patton, who he spent four years during the whole war, went through hell for him. And I wonder right now what he would say what they're trying to do.

TUCHMAN: Fred Cavazos says he will do all he can to try to keep his land. The same with Nayda Alvarez.

ALVAREZ: I'm going to fight it all the way, even if I have to tie myself up to that big mesquite tree in the front, but I'm not giving up my land without a fight.

(END VIDEOTAPE)

COOPER: Gary joins us now.

Have property owners been told anything about when construction could actually begin?

TUCHMAN: Well, Anderson, Nayda and Fred both told us that they've been told it could begin soon on their property, but that's very unlikely because private land owners filing suits could be a huge headache for President Donald Trump as he tries to erect more barrier in Texas. And there's precedent for that, that's because in 2006 when President George W. Bush signed the Secure Fence Act, which authorized hundreds of miles of physical barrier, hundreds of Texas residents who lived on the border filed suits and many of those suits are still in courts today, almost 13 years later -- Anderson.

COOPER: Gary Tuchman, appreciate you going there. Thank you.

Coming up next, breaking news in the Russia investigation, namely Roger Stone and a photo on his Instagram feed that some have called a threat to the judge in the case. We'll update you on his latest explanation.

And later, the acting FBI director who President Trump delighted in firing now accuses of being part of a cabal against him. What Andrew McCabe says about the president's distrust of the intelligence community and his trust in Vladimir Putin.

Also, will he or won't he? And what happens if Joe Biden does jump into the 2020 campaign?

(COMMERCIAL BREAK)

[20:27:04] COOPER: There's breaking news tonight.

A new explanation and apology from an accused felon in the Russia probe of how a photo of the judge in his case turned up on his Instagram feed with a set of crosshairs over her shoulder. A short time ago, Roger Stone formally apologized for his post about Judge Amy Berman Jackson. He blurred her face out for a concern over her safety.

Stone writes: Please inform the court that the photo and comment today was improper and should not have been posted. I had no intention of disrespecting the court and humbly apologize to the court for the transgression.

Stone had earlier said that the photo was misinterpreted and that any inference was meant to somehow threaten the judge or disrespect the court is categorically false. He blamed the posting on one of his assistants.

Joining us today is "USA Today" columnist and CNN Political Analyst, Kirsten Powers, former Trump Campaign Aide, Michael Caputo, and former Obama Acting Attorney General, Neal Katyal.

Neal, is what Stone posted on Instagram legal? I mean, isn't it a crime to threaten a judge? Does that post meet the standard?

NEAL KATYAL, FORMER OBAMA ACTING ATTORNEY GENERAL: Yes, there are two issues, one is about Stone, the other is about Trump. With respect to Stone, it's undoubtedly a crime, 18 USC 115 says that it is a crime to threaten a federal judge. Now, he has tried to walk it back, saying, oh, I didn't mean it and so on. The crosshairs were some logo or something like that.

But let's be honest here. You know, this is a photo that he tweets, attacking a federal judge with a big photo of her and a crosshairs on top of it. You know, that, you know, for the federal judiciary which works so hard to try to safeguard all of us, this is a real problem.

And then the other problem is Trump. You haven't heard a word from him about this. I mean, he talks all about the NFL protests and this and that whenever that happens. And here you've got one of his own closest confidants doing this and you hear deafening silence.

And, you know, we've put up with a lot in the past, Anderson, but the idea that the president has silenced when it comes to something like this, on something that is such a core democratic value, protection of our federal judges, particularly at a time when some have been assassinated, is, I think, just an unforgivable thing.

COOPER: Neal, could that apology spare stone from having his bail revoked?

KATYAL: He can try. I mean, I think, you know, Judge Jackson is a phenomenal judge, respected by conservatives and liberals alike. I think she's not going to view this personally. I think she'll view it by the law.

But I think by the law, this kind of stuff does constitute a threat, so there's potentially new criminal activity and criminal charges that could be brought. But at a minimum, I think it really does suggest this guy shouldn't be anywhere near bail or having the ability to communicate like this again.

COOPER: Michael, potential legal fallout aside, is what Stone posted in any way defensible?

MICHAEL CAPUTO, FORMER TRUMP CAMPAIGN AIDE: It's hard to defend something that's stupid, really. I mean, I've known Roger for 35 years. I haven't spoken to him since he was arrested, out of an abundance of caution and on advice of our attorneys.

[20:30:00] But I understand his frustration with the way that things have gone down for him, since his arrest. You know, there's some kind of an explanation that it's a Neopagan symbol of some sort, not a crosshairs, but this kind of thing can be misinterpreted pretty quickly.

And I want to, for a moment, step back and say that, you know -- and commend Kerstin for what she posted today on her Twitter. She was talking about how she's been reflecting on the way things have gone down for all of us in recent months and talked about, you know, showing more grace in this mess of life and life has gotten so really messy.

Roger Stone's life has gotten really messy recently. This affidavit of apology to the court I think is a step in the right direction. He shouldn't have done this, he knows this now. I think it's -- he thinks it would be remarkable if Judge Jackson were able to give him a fair trial. I think it would be remarkable --

COOPER: Do you think the President should condemn this?

CAPUTO: -- if the judge were able to forgive him for this. I'm sorry?

COOPER: Do you think the President should condemn what Stone did?

CAPUTO: I don't think that it really is in the President's, you know, purview to do this. I mean, you could say that Roger made a mistake. You could say that this is somewhat indefensible. People call it crosshairs. People call it a Neopagan symbol. The fact of the matter is, Roger shouldn't have done it. He regrets it. He pulled it down. And I'm hoping that the judge sees this as another, you know, happen stance in the mess of life.

COOPER: Yes.

KIRSTEN POWERS, CNN POLITICAL ANALYST: But what about --

KATYAL: I'm sorry, how do you think that it couldn't be part of the President's obligation to do something? And this is the President who tweets about "SNL" and NFL and everything else. This is the core thing a president does, stand up for the rule of law. He takes an oath that the law should be faithfully executed. How could you say that isn't something the President should be condemning?

CAPUTO: Well, Neal, I know you don't like the President's tweets. I've heard you complain about them for a while. Maybe the President will tweet about this, so I'm not sure.

KATYAL: No, I want a tweet from the President. I'm asking for one.

CAPUTO: Maybe he will, Neal. Maybe he will.

COOPER: Kirsten, where do you stand on this?

POWERS: Yes. Well, I mean, I think in a normal world, the President probably would condemn something like this. You would think that the President would want to be standing up for the judiciary. But I think we all know we don't really live in a normal world. And I think even if you were to give Michael Cohen the benefit of the doubt on the crosshairs, he wrote a bunch of crazy stuff about the judge.

COOPER: Roger Stone.

POWERS: I'm sorry, what did I say?

COOPER: Michael Cohen.

POWERS: Oh, OK. And, you know, even if we were to give him the benefit of the doubt, then you have to look at everything he was saying. It's a show trial. It's the deep state. It's like this judge is part of some sort of a cabal and out to get him. I mean, I don't understand in what scenario this is normal behavior or acceptable behavior or why it would even be a good idea.

COOPER: Neal, I want to ask you --

CAPUTO: I think Roger Stone's attorneys agree with you.

COOPER: Yes. Neal, I want to ask you about the ongoing questions around President Trump's relationship with Vladimir Putin, particularly some that former FBI Acting Director Andrew McCabe said on "60 Minutes". I just want to play it for our viewers.

(BEGIN VIDEO CLIP)

ANDREW MCCABE, FORMER DEPUTY FBI DIRECTOR: The President launched into several unrelated diatribes. One of those was commenting on the recent missile launches by the government of North Korea. And essentially the President said he did not believe that the North Koreans had the capability to hit us here with ballistic missiles in the United States. And he did not believe that, because President Putin had told him they did not. President Putin had told him that the North Koreans don't actually have those missiles.

SCOTT PELLEY, "60 MINUTES" HOST: And U.S. intelligence was telling the President what?

MCCABE: Intelligence officials in the briefing responded that that was not consistent with any of the intelligence our government possesses, to which the President replied, "I don't care. I believe Putin."

(END VIDEO CLIP)

COOPER: Now, if you're Robert -- Neal, if you're Robert Mueller, are you hearing this on "60 Minutes" for the first time, or is this already part and parcel of your investigation?

KATYAL: I suspect he probably knows some of this because, you know, I think there have been a number of interviews. But, I mean, to hear it in that way, "I don't care," the President said about the intelligence community assessments, "I believe Putin," that is an amazing thing.

I mean, our intelligence community works so hard day in and out to try and, you know, get it right. And, you know, I understand that there's a lot of people who have suspicion about the intelligence community.

When I was 27 in my first tour of the Justice Department, I was a lefty and thought, "Oh, these people are nightmares and so on." Within a week, you learn the truth about the intelligence community.

I mean, these people work incredibly hard on a non-political basis. If anything, they might skew a little conservative, but they just work hard to get it right. And here you've got the President saying, "I don't believe them. I believe our mortal enemy, Putin." Yes, I think Mueller and the Congress are going to look into that.

COOPER: Kirsten, it shouldn't be surprising, though. I mean, he -- the President said essentially the same thing in front of the entire world in Helsinki when he said that, you know, Dan Coats had said one thing, but that Putin had given a very strong, you know, manly --

[20:35:12] POWERS: Yes.

COOPER: -- powerful response that he believed.

POWERS: Right. Yes, right. So I think had that not happened, maybe you could say, well, possibly, you know, this doesn't ring true or sound rite. But of course we've -- as you pointed out, we've seen this movie before. And so it's not -- it's shocking, still, to think that the President would think this, the President of the United States would possibly believe somebody like Putin over his own intelligence community, but we have seen it before.

And I think, you know, there's been a lot of talk about how inappropriate all of this was about, you know, the alleged talk of 25th Amendment and so on and these concerns about the President. But I think, you know, you have to kind of step back and ask why would they be having these concerns and why would they be behaving in the way they're behaving if there wasn't something really unusual going on.

And that's basically the story that's being told, which is that this was so alarming, what they were seeing, and so unusual. So it's not just a bunch of people sitting around like, "Hey, let's maybe do the 25th Amendment." There was something really behind it. I don't think that probably -- I don't think they ever really were going to invoke it, but they were seriously concerned.

COOPER: Yes. Kirsten Powers, Michael Caputo, Neal Katyal, thank you so much.

A quick reminder, be sure to tune in tomorrow when Andrew McCabe joins us live right here on the broadcast.

The field of Democratic presidential contenders is not complete by any means. Coming up, the biggest name not yet in the race, former Vice President Biden. Will he or won't he, ahead.

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[20:40:07] COOPER: No question, the former Vice President Joe Biden is by far the biggest Democratic name not yet announced for his party's presidential nomination. He certainly has the name recognition, and even without a formal declaration, he sits atop most polls for next year's primaries. Over the weekend, he said a decision would be coming soon.

(BEGIN VIDEO CLIP)

JOE BIDEN (D), FORMER VICE PRESIDENT: No, I haven't reached a decision. I am in the process of doing that and I will, in the near term, let everyone know what that decision is. I think there is -- there's sufficient amount of time to do that.

(END VIDEO CLIP)

COOPER: Joining me now from the site of CNN's Town Hall of presidential candidate, Senator Amy Klobuchar, Senior White House Correspondent, Jeff Zeleny. He's there along with former senior adviser to President Obama, David Axelrod.

So, David, what exactly does a sufficient amount of time mean for Vice President Biden in a primarily field that's already this big?

DAVID AXELROD, CNN SENIOR POLITICAL COMMENTATOR: Look, I think if I were he, I would want to shorten the race as much as possible. He has a lot of assets that he can count on. He's well known, some of the candidates are not. So, you know, I think he is going through the steps that one does to check themselves, as well as whether the support is there and -- but I don't think he can wait forever. I think, you know, probably by the end of March, if he hasn't made a decision, the decision will have been made.

COOPER: Jeff, are a lot of Democratic voters saying that they want to wait to see what Biden decides before backing another candidate? He obviously, you know, has goodwill among New Hampshire Democrats. JEFF ZELENY, CNN SENIOR WHITE HOUSE CORRESPONDENT: He does. I mean, voters clearly want to know what he's going to do. But I think the ones I talked to, at least, are giving him some space, for now, as David said. But it is the big question mark that's hanging over this race.

I think the real, you know, sense of anxiousness is from other people who aren't in yet because if the vice president, the former vice president jumps in, that is going to have an effect on others who aren't in the race and perhaps some who are in the race.

But right now, I get the sense that it's some donors who want to pick sides or some other candidates to position themselves, much more than voters. Voters, actually, are pretty patient now.

Very few people are actually signing on the dotted line at this point. They're shopping around for candidates. Many I talked to want to see him, but I think they will allow him to do it on his own time.

COOPER: And, David, if Vice President Biden enters the race, how do Democratic members of Congress who supported the Obama administration run against Joe Biden? Does it become much more about a generational shift?

AXELROD: Yes, I think so. I mean, I think if I were -- look, he is a very experienced guy. He was at the Munich Security Conference. He was brandishing that in the last 24 hours in a way that makes clear what his strengths are as a candidate, but the flip side of all of that experience is age.

And, you know, if I were running against him, I would probably give him the gold watch and thank him for 45 years of great service to the country and then say, "But what we need to do is look to the future." And, you know, I don't think you'll see, at least in the outset, the outset, overt attacks.

Now, he has some vulnerabilities because of votes that he's cast that are not pleasing to progressives in the party that may come to the fore later. But in the initial offering, I think people will not go right at him.

COOPER: Is that why you said earlier the idea of, you know, shortening the time he's exposed to the full race?

AXELROD: Yes, I think so. Look, he will -- whether it is illusory or not, he is a front-runner right now. And so, you know, I think that shortening the race is in his favor. He doesn't -- the minute you become a candidate, you are a target of some sort of the media and others and so he may want to shorten that period a bit.

But as Jeff said, you know, there are a lot -- there's a lot of anxiousness among activists, among donors, and among people who want to work in these campaigns. And what you don't want to do is lose your ability to sign those people up, because they have gone elsewhere. So, that's why I think he has, you know, maybe six weeks left and then he has to give us a decision one way or another. COOPER: Jeff, just briefly, you're in Manchester. There's -- we're having the Amy Klobuchar Town Hall at 10:00 tonight. She's talked about working with Republicans. Is there much of an appetite at this point within the Democratic Party for that kind of message?

ZELENY: Well, we'll find out if there is or not. I mean, there's definitely a movement to the left in this party. It's been happening really over the last ten years or so, but certainly during the Trump administration, all the talk of Medicare for all, the Green New Deal. But I'm struck by what Senator Klobuchar is saying that she's talking about how she's worked with Republicans, about common ground. So, there is at least a slice of the electorate that wants that.

[20:45:09] But, boy, there's also a slice that wants some red meat here, so she has to do both things. But the Democrats I talked to want to do one thing, overall, to win back the White House. There's not a clear consensus on how to do that.

COOPER: Yes. Jeff Zeleny, David Axelrod, thanks very much. We look forward to that Town Hall. That's the CNN Presidential Town Hall in New Hampshire with Senator Amy Klobuchar. Don Lemon is moderating tonight. It starts at 10:00 tonight here on CNN.

We have breaking news tonight on a vacant post at the top of the Trump administration. We're now hearing that the President may be considering nominating former Michigan GOP Senate candidate, John James for U.N. Ambassador after Heather Nauert withdrew her name, Saturday.

According to a source close to the White House, he sounded out the idea with trusted advisers at Mar-a-Lago over the weekend, saying he's been very impressed by the Iraq war vet and sees him as a rising star.

President Trump never sent Nauert's formal nomination to the Senate after choosing her in December. The State Department's spokeswoman, a former Fox News anchor has faced questions about lack of experience for the job.

She says the last two months have been grueling for her family. She's also facing complications over a foreign-born nanny who didn't have a proper work visa. Much more on this breaking news in our next hour.

Still to come, even more twists tonight in the evolving case of "Empire" star Jussie Smollett. What we're now learning from the brothers first arrested in connection with the alleged incident, they are talking not only to police, to the media today. Did they help stage a hoax? The mystery deepens, ahead.

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[20:50:16] COOPER: It's been nearly three weeks since "Empire" actor Jussie Smollett reported he'd been attacked in what sounded at the time like a possible hate crime. The story exploded all over the news. The internet still dominating headlines now that it's taken a very different turn. The question is, was it all a hoax? That's what investigators are strongly considering. Smollett is no longer talking to police who wanted to question him again today. The brothers arrested in connection with his case have more to say tonight. Randi Kaye has the latest.

(BEGIN VIDEOTAPE)

JUSSIE SMOLLETT, ACTOR: We started tussling. You know, it was very icy and we ended up tussling by the stairs, fighting, fighting, fighting. There was a second person involved who was kicking me in my back and then it just stopped and they ran off.

RANDI KAYE, CNN CORRESPONDENT (voice-over): "Empire" star Jussie Smollett sharing details of the alleged attack. He told Chicago police that he was heading home around 2:00 a.m. when two men approached him yelling racial and homophobic slurs.

As Smollett tells it, the men beat him, poured an unknown chemical on him and put a rope around his neck. Later, he went further telling police that the attackers told him, "This is MAGA country," referring to President Trump's slogan, "Make America Great Again."

The actor's colleagues along with some celebrities and politicians rushed to Smollett's defense rallying around him considering it an example of what's wrong in America in 2019. Chicago police, however, struggle to find any images of the attack on surveillance video, though they did release this image of two men they wanted to question.

SMOLLETT: I don't have any doubt in my mind that that's them. Never did.

KAYE: By February 13th, police get a break in the case, or so they think. They arrest two brothers of Nigerian descent, the men seen in the photo from the surveillance video.

(on camera) Police reportedly raid their home and find an "Empire" script and two hats. According to two law enforcement sources familiar with the investigation, records show that the two brothers purchased the rope found around Smollett's neck at a hardware store in Chicago. Police revealed that one of the men appeared on "Empire" as an extra.

(voice-over) Still, doubt about Smollett's case begins to grow.

SMOLLETT: It feels like if I had said it was a Muslim or a Mexican or someone black, I feel like the doubters would have supported me a lot much more.

KAYE: Within 48 hours of their arrest, the men are released, Chicago police citing the discovery of new evidence. In a joint statement issued to WBBM, the men said, "We are not racist. We are not homophobic, and we are not anti-Trump. We were born and raised in Chicago and are American citizens."

And now in another bizarre twist, CNN learned that the same two men told investigators they were paid to take part in a hoax. SMOLLETT: Who the (INAUDIBLE) would make something like this up or add something to it or whatever it may be? I can't even -- I'm an advocate.

KAYE: A police spokesman confirming that information received from the individuals questioned by police earlier has shifted the trajectory of the investigation. In response, Smollett's attorney pointing out that one of the men questioned was the actor's personal trainer saying the actor is being further victimized by claims he played a role in his own attack.

For a case that may have appeared cut and dry at the start, there are now more questions than answers with Chicago police wondering if the actor will ever agree to their request for another meeting.

(END VIDEOTAPE)

COOPER: Randy joins us now. And this is such a bizarre case. For him to go on GMA --

KAYE: Big interview.

COOPER: -- and, you know, cry and, you know, double down and triple down, there were a lot of politicians who weighed in very early on in this. Are they backtracking now?

KAYE: Yes. Certainly the Democratic politicians, the Democratic candidates, you know, looking at 2020 are getting a lot of attention because Smollett has said that he thinks he was targeted because of things that he has said about Donald Trump. So, when news of the alleged attack broke, you have California Senator Kamala Harris coming out.

COOPER: By the way, is the world really hanging on the words of Jussie Smollett's commentary on the Trump administration?

KAYE: Apparently --

(CROSSTALK)

COOPER: -- that well known?

KAYE: Apparently he's putting it out there and that's why he thinks he was targeted.

[20:55:02] COOPER: He goes targeted, yes.

KAYE: He does. That's exactly what he said. He goes hard against 45. Those are his exact words.

COOPER: Yes. 45 spends nights awake worried about Jussie Smollett.

KAYE: He's probably watching the latest right now, you know it. But Kamala Harris said that, you know, in the very early days of this said that -- she described him as kind and gentle and said that we must confront hate. But, now, today being in New Hampshire, she was asked about that tweet and she said something in a very different tone. She actually told reporters, "I think the facts are still unfolding." So she is sort of backing this -- walking this back a little bit.

She's very concerned about the initial allegation that he made about what might have happened. She said we should all take this seriously. She's now saying there should be an investigation. And she also said that she would only comment on this again after the investigation is complete.

COOPER: Well, that's probably a good idea.

KAYE: Yes.

COOPER: Randi Kaye, thanks very much. On this President's day, President Trump has been stewing about former Acting FBI Director Andrew McCabe, who will be on this program tomorrow night. McCabe is dropping all kinds of, well, explosive nuggets ahead of his tell all book. What caught our attention tonight is coming up.

And in a little more than an hour, the CNN Presidential Town Hall with Senator Amy Klobuchar taking questions from New Hampshire voter, Don Lemon moderates right here on CNN.

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