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Trump Firing Back At Former Acting FBI Director McCabe; Trump Has Been Lashing Out At McCabe On Twitter; Thirty-two National Emergencies Are Currently In Effect In This Country; Trump's Declaration Has Set Of A Constitutional Tug Of War. Aired 9-9:30a ET

Aired February 18, 2019 - 09:00   ET



POPPY HARLOW, CNN HOST: All right, top of the hour. Good morning, everyone. I'm Poppy Harlow and welcome to a special holiday edition of Newsroom. I'm glad you're with us. Jim Sciutto has a well deserved off. And on this President's Day, President Trump is firing back this morning at one of his favorite targets, former acting FBI Director Andrew McCabe.

In his 60 Minutes interview, McCabe says it was no joke when Rod Rosenstein, the deputy attorney general, offered to wear a wire into the White House just days after FBI Director James Comey was fired by President Trump. Listen to This.


ANDREW MCCABE, FORMER ACTING FBI DEPUTY DIRECTOR: We talked about why the President had insisted on firing the director, and whether or not he was thinking about the Russia investigation, and did that impact his decision? And in the context of that conversation, the deputy attorney general offered to wear a wire into the White House.

He said I never get searched when I go into the White House. I could easily wear a recording device. They wouldn't know it was there. Now, he was not joking. He was absolutely serious. And in fact, he brought it up in the next meeting we had.


HARLOW: All right. That is significant, to say the least. McCabe also went into more detail about Rosenstein allegedly floating the idea, as you just heard, of - of using the 25th Amendment possibly as a way to try to remove President Trump.

That has the President's Twitter fingers typing posthaste this morning, calling the alleged wire talk, and conversations about using the 25th Amendment to possibly remove him, quote, illegal and treasonous. Just a moment, though. Here's what the Constitution says about treason; establishing it as, quote, waging war against the U.S., or aiding its enemies.

So let's go straight to Sarah Westwood. She joins us from West Palm Beach, Florida. Of course, that's where the President is this morning. So we see what he says on Twitter. What's the thinking of the White House this morning, post that Andy McCabe interview?

SARAH WESTWOOD, CNN CORRESPONDENT: That's right, Poppy. President Trump is clearly frustrated with former FBI - acting FBI Director Andrew McCabe. He's been lashing out at him on Twitter following his appearance on 60 Minutes, tweeting here from Mar-a-Lago, not just about McCabe, but also about Deputy Attorney General Rod Rosenstein, also even mentioned former Attorney General Jeff Sessions, who he fired the day after the midterms.

And McCabe has been speaking out about these previously reported, high-level discussions at the Justice Department about invoking the 25th Amendment, about recruiting cabinet members to possibly remove President Trump.

And that's what Trump has been most focused on. He's been writing this morning on Twitter, there are so many lies by now disgraced acting FBI Director Andrew McCabe. He went on to claim that Rosenstein and McCabe looked like they were planning a very illegal act and got caught.

And he said they have a lot of explaining to do to his voters. Now, Senator Lindsey Graham, he's the Republican Chairman of the Senate Judiciary Committee, he's very close to President Trump, has said he plans to hold hearings about these apparent discussions about using the 25th Amendment.

So potentially we could see some congressional investigations of this. And it, of course, comes against the backdrop of newly confirmed Attorney General Bill Barr starting his first full week at the Justice Department, and as Special Counsel Robert Mueller is said to be winding down the Russia investigation, Poppy.

HARLOW: OK, Sarah Westwood. Thank you very much for that. Let's talk about this. Mike Rogers is here, former Republican Chairman of the House Intel Committee, and Shanlan Wu joins us, defense attorney, and former federal prosecutor. Good morning to you both. Chairman Rogers, what do you - what do you make of this? I mean, we - obviously the President is upset about this, but to go as far as to call it treason? What's your read?

MIKE ROGERS (R), FORMER HOUSE INTELLIGENCE CHAIRMAN: Well, I mean I'm - I'm going to look at this from a former FBI agent, as well as the former chairman of the Intel Committee. I - I have to say, I'm a little concerned by this. The way McCabe laid out the - what he determined was the rationale for opening a - an obstruction of justice into the investigation of the - the President of the United States was a very thin rule.

It certainly wouldn't work on an average citizen, let alone somebody who was just elected as President of the United States. This concerns me. I think we're going to have to spend - or Congress should spend a little time trying to understand exactly if there were more to this or not.

And the very fact that someone who was the deputy of the Department of Justice had the conversation, of which McCabe now says, was serious about trying to recruit other members. That's also very - very concerning. This - this is - you - you - it's not that you have to like the President ...


ROGERS: ... that you don't even have to agree with what he's doing. But this is very serious, I think, to - to the protection of - of, you know, 60 million people's votes for a President of the United States. Again, you don't have to like him. That should not ...

HARLOW: But - but let me ...

ROGERS: ... be part of the equation.

HARLOW: ... let me just ask you a little bit more on that, Chairman Rogers, because McCabe's rationale, which he explained to Scott Pelley last night on 60 Minutes. Was he - he was concerned that - you know, that all of this would just, sort of, disappear, go into ether, any concerns about Russia, et cetera. And so, that's why he opened this counterintelligence investigation. You're saying you don't think that's legitimate enough of a concern. Is that right?

ROGERS: Let me - let me tell you, as an FBI guy who worked organized crime in Chicago, we were still following leads in - in the late 80s, early 90s, on the Jimmy Hoffa case because it never got closed.


Some notion that this thing was just going to go away overnight is absolutely ridiculous. And so, this notion that I was the only guy in America to do that really concerns me about the judgment of that particular FBI official in taking these actions because the bureau is bigger than that.

And so, again, that's what worried me when I saw his attitude about - and the things that he listed. He listed conclusions in that interview. He never really listed facts. Having a president say something on - in public, on the news, is not a fact of which you would open up an investigation.

That was shocking to me. And I - again, I - I - they're going to have to look into this, like it or not. And the thing we have to remember, this is a guy who is under criminal investigation for lying in an investigation.

HARLOW: Right.

ROGERS: So you have to take all of that into consideration when ...


ROGERS: ... you look at what he was saying on T.V. last night

HARLOW: And that's exactly what I was going to bring up to you, Shanlan. I mean, you know, it's not just that he's accused of lying once. When you look at the - the entirety of the Department of Justice's I.G. report, they - the conclusion there is the McCabe lied to investigators three times, under oath, when asked if he was the source of a story given to the media.

Now, Scott Pelley asked him about that, and he said - you know, the answer was that he was - he was confused about it. But does Chairman Rogers have an important and salient point here, in terms of the credibility that should be given to McCabe?

SHANLAN WU, FORMER FEDERAL PROSECUTOR: Well, I think the Chairman has an important point about how to assess McCabe's credibility. I mean, he's got this criminal investigation hanging over him, and the I.G. report's finding. But I where I would disagree with Mike is that this was a very unprecedented situation, not only for a high FBI official, regardless of who he ways, but also for the deputy attorney general.

I mean, assuming that these are truthful remarks that Rosenstein made, it's an extraordinary situation. And it's not like a regular investigation. They're already, I believe - this is a little bit fuzzy to us. But there already had been the counterintelligence investigation going on, with regard to the Russian interference.

And now they've had this very unprecedented firing of the FBI director. And the question arises, you know, what should officials do in that situation if they have actual worry? What if the President himself is under suspicion?

And I think, you know, with regard to opening the investigation, with regard to the 25th Amendment - I mean, it's fine to have hearings. I have something to say about that, as to who really wants the hearings. But of course they have to be able to discuss these issues. I mean, that's part of their duty to the Constitution to think about these scenarios, and to talk about it.

I think, you know, the hearings may come back to haunt Trump and Graham. I mean, if I am Trump's lawyers, I don't want hearings with two ex-employees testifying about, you know, what their concerns were. That's the last thing I would want. I'd want them to go away quietly.

HARLOW: I - I'd like for you both to listen to this - this segment of the interview that certainly really struck us. And it's Andy McCabe describing the President believing Vladimir Putin about North Korea's capability with nuclear weapons over, seemingly, the U.S. intelligence assessment. Let's play it.


MCCABE: Essentially, the President said he did not believe that the North Koreans had the capability to hit us here with ballistic in the United States. And he did not believe that because President Putin had told him they did not. 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.


HARLOW: Chairman Rogers, if that is the case - again, this is one man's readout of the meeting, how concerning is that to you?

ROGERS: Well, listen, I think this has been a concern of mine, and many of the folks in the national security space on both sides of the aisle, that the President has both, publically attacked our intelligence services ...


ROGERS: ... and publically - basically said I don't believe them, overseas, in front of Vladimir Putin, and in this case, if that were one more extension of that. So it's very - very concerning. Listen, they - they have to fix this. The best place you can go to get that kind of information is - remember, intelligence isn't a perfect picture. Sometimes they don't get it right.

But they have all kinds of sources of collection that they call together, and then analyze to give policymakers, like the President of the United States, the best understanding of what the security threat, or capability of our adversary is at the time. That information is based on lots and lots of work by lots and lots of people.


ROGERS: You can ask questions. You can try to poke holes in it. You don't get to do any of that with Vladimir Putin. And so, this notion that - that he would trust the - the - the Russian president over our intelligence services - by the way, the Russian president is a trained KGB officer ...

HARLOW: Right.


ROGERS: ... who are trained in the arts of manipulation, is - is ...

HARLOW: And not to ...

ROGERS: ... a little concerning to me.

HARLOW: ... and not to question what the incentive would be for Vladimir Putin to make that ...

ROGERS: Exactly.

HARLOW: ... statement, right, to the U.S. president? Shanlan, quickly before we go. You know, it's that ending of the 60 Minutes piece where Andy McCabe says the memos - those contemporaneous memos of those conversations with the president are with Mueller's team right now, significant?

WU: I think this is very significant because the contemporaneous aspect of them makes them much more credible, whatever other baggage McCabe may have. And I think ultimately - again, I think that's why if I'm Trump's council, I don't want some testimonies now coming out for those memos are going to be floated (ph). We can play 2020 hindsight and debate if McCabe's judgment was correct. But the problem is, all of the information that was confronting them, all of the worries that they had, that's all going to come out. And if you're Trump's people, you don't want that coming out now. It just adds to the firestorm.

HARLOW: Shanlan Wu, thank you, Chairman Rogers, nice to have you both. Appreciate it.

ROGERS: Thank you.

WU: Thank you.

HARLOW: Still to come, the White House says it's ready for any potential legal challenges to the President's national emergency declaration to fund the wall. But who would win in court? It's a big outlying question this morning.

Also, Democratic presidential candidates out in full force across those early primary states meeting with supporters on this President's Day. We'll take you live to New Hampshire. And was it all a hoax, a stunning new allegation in the alleged assault on Empire actor Jussie Smollett. Police say they need to talk to him again. 01.44



HARLOW: All right, welcome back. So this morning, 32 national emergencies are currently in effect in this country. That's a fact. But only one is threatening to setoff a constitutional crisis. Already, President Trump's declaration of a national emergency to fund his border wall has setoff a constitutional tug of war that is sure to be fought in the courts, and very likely on the floor of the House and the Senate.

A top White House advisor says it is, quote, guaranteed the President will do something he's never done before, veto legislation if Congress does something it has never done before, and that is repeal a presidential emergency.


CHRIS WALLACE, FOX HOST: If they pass a resolution of disapproval, will the president veto that, which would be the first veto of his presidency.

STEPHEN MILLER, WHITE HOUSE POLICY ADVISOR: Well, obviously the president is going to protect his national emergency declaration, Chris.

WALLACE: So yes he will veto?

MILLER: He's going to protect his national emergency declaration, guaranteed.


HARLOW: That was everything, but a yes there. Susan Hennessey is with me, former national - former attorney for the National Security Agency, and now our national security and legal analyst. Good morning to you, Susan. And look, you note that the courts generally give a lot of deference to the president when it comes to these issues, right; a lot of latitude on such declarations.

However, your note that I think is so important is that the legal fight here is not really going to be over whether the president can do this. It's going to be over something else, what?

SUSAN HENNESSEY, FORMER NSA ATTORNEY: Yes, so the president is really going to have to fight to defend this national emergency declaration, kind of on two fronts. The courts do tend to be quite deferential about the fact that the president has declared a national emergency.

A president, pretty clearly, has the power to do that. But a national emergency declaration is not a magic wand where the president can then use any appropriated funding for any purpose he wants. He was to point to a specific statute. And those statutes say he can only use the emergency funding for particular purposes.

And so, he's going to have to go to court. The emergency that they've pointed to - the statutory authority allows him to do - to use these funds on the cases of military - of military necessity.


HENNESSEY: Whenever the use of the troops are - are - are relevant here. Now, the acting secretary of defense has said he hasn't made that determination yet. He hasn't even ...


HENNESSEY: ... spoken - spoken to the President. So, sort of, in court, he's going to have to fight it that way. Then, of course, Congress does have the ability to pass a resolution here. They'll have to do it by veto to (ph) prove majority. But Congress itself could say no, you know, we gave you this - this statutory authority, but we also passed the National Emergencies Act. That allows us to, by resolution, end the national emergency.

HARLOW: It's important that you point out what the acting Defense Secretary Patrick Shanahan said over the weekend, right? Because he was asked a few times in a row, you know, is a wall necessary here for national security? And he didn't answer it. And you're right, he has - he has said he has not talked to the president about it yet.

I wonder, Susan, if legally it matters that we're seeing a first here? And that is a declaration of a national emergency by the president after he went to Congress to ask for what he wanted, didn't get what he wants, and then he does this. Yes, politically, that's significant. But legally, does it matter?

HENNESSEY: Well - so I think it does - the - the question - it does certainly go to, sort of, the larger constitutional question about whether or not the president should be doing this. So Congress has allowed the president to declare a national emergency.

Lots of prior presidents have done that. Even in cases in which maybe there isn't a very - very strict, or - or - or clear case of a national emergency. That said prior presidents have attempted to observe the form. They've attempted to make the case that, hey, this really is an emergency.

And so, that's what courts defer to. What we have in this case is a president who has said - literally, said the words, I didn't need to do this. I only did this because I wanted things to go faster. And so, we have a president who is being so incredibly upfront about the pretext that it is - it is pretty astounding.

What he essentially is doing is saying I'm - I'm right in front of your faces offering this pretext in order to exceed my executive authority, reach into the - into the legislative power, right? What - what the Constitution commits to the legislative branches, trying to take that power for myself.

And so, you know, it is pretty astounding to - to - to see Congress not being really - really offended by this. And it is ...

HARLOW: Right.

HENNESSEY: ... an open question about whether or not Congress - or whether or not courts will be willing to defer in the case of such obvious statements from the president.

HARLOW: Right - right. I mean, he just laid it all out there in the Rose Garden, quote, I didn't need to do this, but I'd rather do it much faster. Which is why Adam Schiff, the Democrat who leads the House intel committee says this is going to be a test for his Republican colleagues on how far they will go.


Let's talk about the politics. Susan, thank you. Back with me is Mike Rogers, also with us, National Reporter for the Washington Post, Wesley Lowery. Good morning to you both. Chairman Rogers, to you, you state - say that statement by the president in the Rose Garden. That he didn't need to do this, but did anyways - will hurt him politically. But here's how his advisor - senior advisor, and a - he's a staunch conservative, hard right on immigration, Stephen Miller tried to explain it just yesterday. (BEGIN VIDEO CLIP)

MILLER: What the president was saying is, is that like past presidents, he could choose to ignore this crisis, choose to ignore this emergency, as others have. But that's not what he's going to do.


HARLOW: Does that pass your smell test ...

ROGERS: No (ph).

HARLOW: ... as the why question?

ROGERS: Well - I mean, I - I - clearly, I think something needed to be done on border security and comprehensive immigration reform. We've been needing this for decades, candidly. But the - to pick this political food fight, I would just ask why?

I mean, you've got a little piece of what you wanted. I think there were 55 miles of wall. You get - you get more effort in the reprogramming, work with Congress in the fall kind of operation. I f you really want to accomplish what you're saying, you're going to have to work with them eventually.

And so, I - I just find, politically - you know, again, it may sell in the short-term, but in the long-term I think he's just going to pay a price for this, politically, with his colleague - with his - you know, both, the folks in the House, and the Senate.

HARLOW: I mean, that was Stephen Miller trying to explain why the president said I don't need this, but why he went and did it anyways. Something that will be - will be challenged in the courts. Wesley, when it comes to what Congress is going to do, take a listen to Adam Schiff - Congressman Adam Schiff yesterday to Dana Bash on State of the Union.


REP. ADAM SCHIFF (D), CALIFORNIA: It is going to be a real test for my GOP colleagues in Congress, and their devotion to the institution. If we give away - if we surrender the power of the purse, which is our most important power, there will be little check and no balance left. It'll not be a separation of powers anymore, just a separation of parties. So this is going to be a moment of truth for my GOP colleagues.


HARLOW: Wesley, it's one thing to speak out against inaction of the president, it's another thing for Republican lawmakers in the House and Senate to actually vote against a president on this, right? And to try - try to do something we haven't seen before on a national emergency declaration. What kind of political pickle does this put the Republicans in?

WESLEY LOWERY, NATIONAL REPORTER, THE WASHINGTON POST: Well, especially for any Republican who may might be in the cycle coming up, who themselves might be coming up in a race in 2020.

There is a fear among some Republicans in Congress about going up against the president, who remains a very popular figure among Republicans, if not among anyone else. And we have seen, time and time again, many Republican members of Congress who you can only imagine the things they would be saying if, say, President Obama had declared a national emergency to handle gun legislation, or climate change. And - and we saw many of these same arguments being made, whether it be figures like Ted Cruz, or Rand Paul, around issues like the Affordable Care Act, and how this was an unacceptable expansion of - of presidential power. And yet, here, it's something that does really begin to call into question, the separation of our branches of government.

It's going to be very interesting to see to what extent Republicans are willing to cross the aisle and condemn this the way Democrats are. Now, in the House the Democrats have the votes to initially pass this resolution. In the Senate they need at least ...

HARLOW: Right.

LOWERY: ... four Republican senators to come over it. That seems ...


LOWERY: ... unlikely, but you never know.

HARLOW: Well, Wes, let me just ask you on that point. You - you mention the difference (ph) between the House and the Senate here. So - so the likelihood it makes it through the House, much more likely.

But it's unlikely, isn't it, that - that when it comes to the Senate, Mitch McConnell could actually prevent a termination effort from coming to the floor? That's pretty unlikely, right?

LOWERY: Unlikely that he would - that he would even bring it to the floor. I mean, I think that there - I mean, there's a question about whether or not this is something that would even come up for a vote. And - and so - and again, I think that's something that remains really interesting.

You know, the Senate Majority Leader Mitch McConnell has protected the president very often. He's said I don't want show votes. I don't want to bring things to the floor that aren't going to pass. He has, very often, not brought things that might pass, had the come up for a vote. And that's been his political strategy since he's run the Senate.

But going back to the earlier conversation, just really briefly, even beyond the political ramifications of what the president said, because I understand Stephen Miller's attempt to explain the president's words that I think we've all spent time on cable news trying to decipher the president's words on a number of topics.

What I think is interesting, beyond he political ramifications, is you remember the travel ban. Initially, one of the things that got the Trump administration in trouble in court were comments from Rudy Giuliani and tweets from the president himself saying Muslim ban. Ban the Muslims, Muslim ban. And then, they had to make a legal argument that no, this isn't a Muslim ban.

If this goes to court, which is very likely will, and perhaps in very different venues, right, states suing over it, Democrat - House and Senate Democrats suing over it, interest groups at the ACLU suing over it. The Trump administration is going to have to argue that yes, this is a legitimate national emergency.


HARLOW: Yes, but ...

LOWERY: And here, the President of the United States is saying, I mean, I didn't have to do it, but I am. Well, that's going to ...

HARLOW: ...but ultimately ...

LOWERY: ...that could be legally difficult.

HARLOW: ...yes, the president's comments came back to haunt the administration in the first go around on the travel ban. But ultimately, in the third iteration it - it - it made - it passed - it passed.

So Chairman Rogers, just on the politically side before we go. Looking at the new CNN SSR poll numbers, 64 percent of Republicans support a national emergency to get a wall. Fifty-seven percent of Conservative GOPers (ph) back it. It's not an overwhelming majority, but he still seems to have the numbers here that help him a bit, politically. What do you think?

ROGERS: Yes. I mean I think, politically, people are looking at this as hey, we've been talking about this for 10 years. When are we going to do something? They see the president trying to do something, even if it's inartful. I think you'll find people who are out there saying, yes, we should do it. Here's the one thing I wanted to bring up though, Poppy ...


ROGERS: ... before we leave.


ROGERS: If Congress is really concerned about the institutional protection of the separation of powers - and I am, and I think it's important. Then they should come together in a bipartisan way and review the 1976 emergency act that allow the president to do this. To say that ...


ROGERS: ... to act like the president is being completely outside the bounds of the Constitution is not really accurate. Congress gave, in 1976, the president the authority to do this. And they gave so few parameters on it that presidents have used it some 70 times over the history of the law.

So my argument is, listen, if you're really concerned, both Democrats and Republicans, versus the political theater, and the politically food fight everyone so enjoys on Capital Hill, then come together, and then reform that bill.

I think, legally, the president is probably - I think the courts are probably going to be on his side ...


ROGERS: ... because of the way the law was written. Do your job, Congress. Fix the law if you think this is a constitutional problem. And then we can move forward. All of the rest of this is all about thumping your chest, and trying to get your own base, either Republican or Democrat, to be on your side. And I think it's really detrimental to the real policy issues that have to be met ...


ROGERS: ... here.

HARLOW: ... I hear you on - on that. But this is a first, in terms of the president going to Congress asking for something, not getting it, and then declaring a national emergency. We'll continue the conversation because it doesn't end today, that I can promise you. Chairman Rogers, thank you. Wesley Lowery ...

ROGERS: Thanks.

HARLOW: ... we appreciate it. It is President's Day today, but Democrats hope to take on President Trump. They hope to take on President Trump in 2020. They are not taking a day off. We're live in the key battleground state of New Hampshire next.