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CUOMO PRIME TIME
Mueller Report May Come as Early as Next Week; Republican Lieu Launches Probe Into Alleged NRA Ties to Russia; Trump: Mueller Report Release Timing Totally up to New A.G.; Jussie Smollett Charged With Disorderly Conduct For Allegedly Filing False Report on Attack. Aired 9-10p ET
Aired February 20, 2019 - 21:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[21:00:00] CHRIS CUOMO, CNN HOST, PRIME TIME: Thank you Anderson. I am Chris Cuomo and welcome to Prime Time. Well, it's coming. The long awaited Russia report might be done in days but will you ever get to see Mueller's final conclusion. That's the question. We have a lawmaker in the thick of the fight to get those answers to you, he's here and the Judiciary committee member has a Russia inquiry of his own to tell us about.
Also, will the President's new Attorney General forward the full findings to Congress? Bill Barr hasn't made any promises. The regulations, they leave him a lot latitude. One thing for sure, this is going to be an ugly battle, especially if you don't get this information, that's Cuomo's court.
And breaking news on 'Empire' star Jussie Smollett, what a turn of events unfolding tonight on our watch, no time to waste, let's get after it. All right, so we've seen Trump team members locked up, Russians indicted. We've been reading parts of the Mueller report in real time for nearly two years.
But the final findings are coming soon, they could be handed over to the DOJ as early as next week and the Attorney General is preparing to announce the completion but what will that mean? What are you going to get out of this? The only thing that is required is for Mueller to give a confidential report to the A.G.
What happens from there? It's kind of a question mark. You heard this last night.
(BEGIN VIDEO CLIP)
KELLYANNE CONWAY, COUNSELOR TO PRESIDENT TRUMP: Let's see if there's a report to even discuss.
CUOMO: Well, that's up to you guys.
CONWAY: Unless the investigations actually end and the American people want their elected officials to focus on issues and my boss is.
CUOMO: They want that report Kellyanne.
CONWAY: And let's see if the Democrats - CUOMO: That report should be made public and I hope you agree with that and I hope the President does as well. He should want it more than anyone.
CONWAY: That's up to - that's up to Mr. Mueller.
CUOMO: No it's not.
(END VIDEO CLIP)
CUOMO: Let's be very clear. What is in the report that is given to the A.G. by the Special Counsel, that's up to Mueller. But what happens with that has nothing to do with Mueller, that's all about the Attorney General. I suspect Kellyanne Conway knows that and it makes you wonder.
What is this a sign of is the White House going to push for disclosure or something less than that. How much is Congress going to get? What happens when they do? Judiciary member Ted Lieu is here. Welcome back to Prime Time Congressman, good to have you.
What do you expect about the findings from Mueller? What do you get? What do we get?
TED LIEU, U.S. REPRESENTATIVE, JUDICIARY COMMITTEE: I thank you Chris for your question. Taxpayers funded this investigation and we have a right, both Congress and American people to see the entirety of the investigation minus any classified information.
To have just a mere summary is completely not acceptable, especially if the Department of Justice takes the position that we can't indict a sitting President and therefore Congress is the only arm that can hold them accountable.
Well, we need to know all the facts and information so they can't just not give us information.
CUOMO: What if he gives you something but says, only you guys get it.
LIEU: I think if it's classified, I can see why that should not be shared but I don't see what their principle is that you give Congress information, that is potentially alarming and then we can't share that with American people. I don't think that would be tenable.
CUOMO: The regs are great. You know, and the irony of ironies, these were written by Clinton folks, 1999 in reaction to what happened during the Starr probe and once the independent counsel statute ran, they didn't renew it. They wrote these regs instead and one of the motivations was to keep the special counsel from being able to put out yards and yards of information.
So the only thing that's required is a confidential summary, or not a summary, a confidential report is the word of decisions to prosecute and not to prosecute.
LIEU: And the way you read that regulation could be very problematic for the American people in Congress because if the Department of Justice takes the position that they can't prosecute the President because of a separate memo that said they can't indict a sitting President then there's literally nothing we would get in that confidential summary because they can't talk about it because they can't indict a sitting President.
Now there are things that Congress can do to fix this. One is we do have subpoena powers, that Democrats now control the House, we could try to subpoena their entire report. We can also subpoena witnesses to come in and testify before the Judiciary Committee such as Robert Mueller or other prosecutors on his team.
CUOMO: All right, so let's see what happens next week, we'll take it one step at a time, no reason to get ahead of it till we have to. Another matter, Nancy Pelosi just tweeted a few moments ago, about news for next week. Michael Cohen, the President's former personal attorney is coming in.
Multiple days of testimony we believe. She says in the tweet that you guys have an independent duty to conduct oversight. Any efforts to intimidate family members or pressure witnesses will not be tolerated. What do you think she's talking about?
LIEU: Well, Donald Trump had tweeted earlier, essentially threatening Michael Cohen's father in law.
[21:05:00] Rudy Giuliani said something similar, if you read this witness tampering statutes, that comes very closely aligned and may have crossed the line so I think that's what Speaker Pelosi is referring to and on the House Judiciary Committee, we're going to investigate all these issues of social injustice, witness tampering, abuse of power and see whether it exonerates the President or not.
But the Congress has a different oversight responsibility than the special counsel, they're just interested in did someone commit a crime. We have much broader mission, all wrong doing, whether or not it's a crime and then to disclose that to American people and to make sure it doesn't happen again.
CUOMO: What can you do about the President tweeting that he thinks Cohen is a rat and that his father may be dirty. Or his father in law rather?
LIEU: So we could hold hearings in the Judiciary Committee and we could establish a record and show did the President cross the line, is this witness tampering. Now the fact that Michael Cohen's going to come and testify, I think is a good sign and hopefully he won't be too intimidated by what the President says.
But we can hold hearings, establish a record, have witnesses come in and testify and then show the American people look, the President of the United States tried to intimidate a witness.
President also did X. Y. and Z. bad things and then make a decision, what do you want Congress to do from there. CUOMO: I don't know where that would go but you have another idea for
something that you want to look into, I don't know if we have a copy or a letter for the audience. But you want Wayne LaPierre, the head of the NRA to answer some questions about meetings of former heads and members with Russia and Russians and campaign finance.
What dots are you thinking about there?
LIEU: So let's first take a step back and ask a general question, why is the NRA even meeting and talking with Russian operatives such as Maria Butina who by the way, pleaded guilty to conspiring as a foreign agent.
Vladimir Putin clearly doesn't want his own people to have guns so it's a very strange relationship to begin with and we also know the Russians try to infiltrate various organizations to influence the election. The NRA looks like it was one of them. We want to know what any of this interference from Russia, was it knowingly done with an NRA officials.
And then there was a whole bunch of money that NRA spent, historic amounts of money for the President as well as members of Congress and U.S. senators, we want to know if any of that money came from the Russians.
CUOMO: You have any proof that it did?
LIEU: We have proof that it looks like Russian people gave money to NRA, there is nothing wrong with that, it's legal for organizations such as the NRA to get foreign donors. What would be illegal is any of that money somehow ended up in a separate account that was used in political campaigns. So we're trying to figure that out.
CUOMO: So you haven't seen it yet but that's your concern and that's why you want to hold a hearing?
LIEU: Correct, well, we also know that based on poll reporting, there's been internal emails that show the NRA was much more involved than they have probably stated. The NRA actually had said that, the way LaPierre wasn't so much into this 2015 Moscow trip and then these internal emails show that actually the NRA helps set that trip up.
So we want to know why there's that discrepancy as well.
CUOMO: Impeachable offenses that's what this is going to come down to with the Mueller probe. I don't anticipate any last second huge prosecution moves from Mueller, especially if the reporting is right and this is going to wrap up, sooner than later.
Impeachable offenses would be the line of ultimate accountability, what do you - what do you see as impeachable potential behavior based on what you've seen so far?
LIEU: Well, let me first say this and it was a question I was asked a few months ago about what would be the best result of a Mueller probe and I had to think about that for a while and I concluded that the best possible result would be if Robert Mueller found Donald Trump completely innocent because I don't want our President to have engaged in collusion with a foreign power.
I just don't want that. Now if the report comes out and exonerates Donald Trump, we move on. If it doesn't, if it basically says, hey, we would've indicted Donald Trump for these offenses but for the fact that there's a policy memo saying we can't, then I think Congress has to really look at these issues and decide what to do with whatever offenses the Robert Mueller investigation reveals.
Separate from that house Judiciary Committee and other committees in Congress want to investigate other aspects of potential wrongdoing such as obstruction of justice, witness tampering, abuse of power and then one more layer in all of this.
CUOMO: What about obstruction?
LIEU: Well, it's pretty clear to me that if you just read the obstruction statute, it's very broad it says, you don't actually have to obstruct justice, you just have to endeavor to influence a federal investigation with corrupt intent.
CUOMO: Corrupt intent.
LIEU: When Donald Trump fired - correct - when Donald Trump fired James Comey and then went on national TV few days later and said he did it because of the Russia investigation, that looks like text book obstruction of justice.
[21:10:00] CUOMO: Well, except how can he obstruct by making a move on a legal proceeding that he has complete authority to make.
LIEU: Because what you'll be doing is trying to influence that federal investigation and that investigation wasn't just against Donald Trump as we have seen, that investigation has now ensnared a lot of individuals, several of which are going to present or have already pleaded guilty.
So clearly it's not just obstruction of justice to him, it would have been to other investigations as well of other people.
CUOMO: Well, it'll be interesting to - go head please, go head congressman.
LIEU: Yeah, there's one more layer to this, regardless of what Robert Mueller's report shows, there are investigations on the Southern District of New York, there are state attorney general investigations so this is going to keep on going to make sure that all the possible crimes that Donald Trump and associates may have been engaged in will be investigated.
CUOMO: And also you know, it doesn't have to be crimes if the mandate to Mueller was about contacts and coordination, you guys in oversight, it's not just criminal behavior, it's what was done, who lied, why, whether it rises to a crime or not is somewhat ancillary to that probe of the American people finding out who did what and why. Congressman Ted Lieu, thank you so much. Important days ahead.
LIEU: Thank you Chris.
CUOMO: All right, now we've learned a lot that Mueller has found already but there are still giant gaps that need to be filled. What we should be looking for? I've laid it out for your next.
CUOMO: The CNN reporting is that Mueller could turn in his report as early as next week and he must know a lot more than we've learned so far. How do we know that? Well, first, common sense, right?
He's got access to people and documents that we don't. The profit from that is evident from all the black bars. You know redactions, they refer to people and proceedings that haven't been disclosed. We know there are still several ongoing investigations and it could be the case that his report rumored again to come next week, may not include all that he has going on.
There's still at least one more unknown matter occurring before the grand jury, is that going to get wrapped up as well? Will it get passed back to the DOJ, we'll have to see. And what we heard was credible and reliable information about core Russia related issues from Trump's former lawyer.
What was that? We haven't heard about it yet. Look, I know we show you what I'm going to show you now a lot but it's so important to remember what Mueller's job is, namely to look into any links and or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.
Why do I say it that way? Not just crimes, yes crimes, yes crimes, but not only crimes and that's very important. Think of the Mueller report as filling in the gaps in a story, one that you deserve to hear in full. And arguably Mueller's been outlining that story piece by piece. We know Russia hacked the DNC, made a concerted effort to get President Trump elected as President.
[21:15:00] His oldest political ally was talking with the hackers and the distributor of the hacked emails while the man in charge of these campaign - of his campaign passed along inside information that could have helped hackers, Russians, trolls, target places and faces Trump needed to win.
Dozens of people on the campaign were open for business with people they shouldn't have been and so many people around this President made a habit of lying about matters being investigated. But still the political message from the top has always been the same.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT, UNITED STATES: It's a total witch hunt. I've been saying it for a long time. It's a witch hunt, that's all it is.
TRUMP: So far this thing's been a total witch hunt and it doesn't implicate me in any way.
(END VIDEO CLIP)
CUOMO: That's called a tautology where if you keep saying something, you repeat it and repeat it, hopefully that will make it true. Now the person is right, he has not been criminally implicated unless you talk about being a potential unindicted co-conspirator in crimes that were confessed to by his former lawyer Michael Cohen. But when it comes to Russia probe as I've been saying criminality is not my bar and it shouldn't be yours. There's still several other ways that Mueller's report could be instructive of wrong doing.
We need to know how high knowledge of contacts and attempts to coordinate go. We know Mueller says, "A senior campaign official pushed for the stolen emails." And we know Trump is showing up in court filings as individual one, we don't know how coordinated all the bad behavior was.
We've heard over and over POTUS was too busy with all the rallies, tweeting, Fox News drop-ins. He couldn't keep an eye on what people like Manafort and Stone were doing. Yet in his book Chris Christie tells us, there was never any doubt on the campaign who was in charge. Donald was.
And from the list of administration officials who've spoken to Mueller, everyone from Reince Priebus to Sarah Sanders, it's clear Mueller wants to know if the lies were to cover for the POTUS attacks on the probe or to cover for more troubling realities.
Then there's a third big card that Mueller has yet to show, the money. The lies that have reached the closest to the President, payments to the women, the Trump Moscow deal, they're directly connected to his bottom line. His insistence on hiding his tax returns, his bizarre affinity for Vladimir Putin, they make this central to our understanding.
The Mueller investigation's been busy, right? 199 criminal counts, 37 people and entities, it's not nothing but it's not the full picture and that's what we need here. Remember the two main questions, Mueller can answer these perhaps better than anyone outside the Trump orbit.
Why did so many lie about Russia related matters? Why does this President mess with the probe that he says he doesn't fear? That's why I hope for your sake and for the President's sake, the A.G. puts out an extensive report. If he doesn't, the President will never be clear of this and you will never have the clarity you deserve. So will the whole truth come out? Will any of it be concealed by the
Trump administration, should it? And what's going to happen to Roger Stone? He's going back to court tomorrow. Is going to go to jail? Let's put it to Cuomo's court next.
[21:20:00] (COMMERCIAL BREAK)
CUOMO: Asked about Mueller's report today, the President deferred to his newest cabinet member, take a listen.
(BEGIN VIDEO CLIP)
KAITLAN COLLINS, CNN CORRESPONDENT: Should the Mueller report be released while you're abroad next week?
TRUMP: That'll be totally up to the new Attorney General. He's a tremendous man, a tremendous person who really respects this country and respects the Justice Department so that'll be totally up to him to do it, the new Attorney General, yes.
UNIDENTIFIED FEMALE: Should the report become public?
TRUMP: That I guess from what I understand that will be totally up to the Attorney General. Okay?
(END VIDEO CLIP)
CUOMO: Now, he's not necessarily wrong but it would have been unsurprising and really self-serving for this President to say, I hope it does. I'm going to tell him it should. He would have been okay to say that. Disclosure matters. Transparency matters but he didn't say any of that.
So when he talks about the A.G., what exactly is within his power? What can he withhold? What can he give to Congress? What can he withhold from them? Asha Rangappa, Ken Cucinelli, Cuomo's court.
So Asha, what do you think should be able to come out?
Asha Rangappa, Former FBI special agent: So it's important to remember that there are two phases here. There's a report from the special counsel to the A.G. and then there's a report from the A.G. to Congress. The special counsel and by the way, that buffer is there in order to rein in what was perceived as the excesses of the Kenneth Starr investigation.
So when the independent counsel statute expired and they rewrote this, they wanted to prevent that direct conduit from the special counsel to Congress. So that's why that intermediary is there.
You know, I think the special counsel is going to lay out as you just pointed out earlier, the criminal charges that he has decided to pursue or has declined to pursue and I think the big gap there Chris, is that this is an unusual situation in that it is largely a counter intelligence investigation and that many of those findings may not have crossed over into the criminal division or become criminal pieces.
CUOMO: Right. Now that's where I want to bring in you Ken, because in the language here of the statue that I have in front of me there's discretion. There's discretion and what happens here in terms of what you release, there's something that we have to figure out how it's going to be interpreted and what Asha just said about counterintelligence versus regular criminal investigation could be a key distinction.
KEN CUCCINELLI, FORMER VIRGINIA ATTORNEY GENERAL: Oh absolutely.
CUOMO: Here is the language Ken, and I want your take on it, it's so small, I'm so old I can barely read it. So it says that what they put out from the special counsel ultimately shall be governed by the generally applicable departmental guidelines concerning public comment with respect to any criminal investigation and relevant law.
Now the FBI usually won't talk, period and when they do talk they won't talk about people and matters that they decided not to prosecute. And Bill Barr said, we don't like to put out derogatory information about people we don't indict.
Well, should that apply here?
CUCCINELLI: Well, that's going to be the balancing act Chris and I mean, let's step aside from this case and just talk about the department history. The department on a bipartisan basis has been very conservative and I don't mean that in a political sense. I mean, it more culturally to the organization, very conservative in what they've ever put out.
They read their guidelines to limit that so when you combine that with the fact that this begins heavily as a counterintelligence investigation, where they're even more restrictive than in the criminal context, this is going to be a difficult one for Bill Barr to satisfy Congress and satisfy the media while still doing the job as he views it.
[21:25:00] Remember, he's been Attorney General before. He loves this department, he respects the Department of Justice I actually thought you took a negative cast on the President's comments. I was very glad to hear him say, this is going to be up to the Attorney General.
CUOMO: No, I'm happy with that. I just feel like it would have been with all the things that this President has decided to elbow through and muscle up on, it would've been nice to hear him say you know, I hope he errs on the side of disclosure. The American people to get as much information as they can.
CUCCINELLI: Well, you've - and I've said on - I've said on your show before as you'll recall that I think transparency is beneficial. I mean the more people know, let me put it in reverse, anything not released -
CUCCINELLI: - everyone who wants to will take the worst possible implication from it.
CUOMO: Yes, that's for the President, that's for everybody.
CUCCINELLI: There is criminal ground, you talked about it with the congressman. Yeah, one comment.
CUCCINELLI: You talked to the congressman. There will be a middle ground of information that will go to Congress but won't be released publicly because there'll be some classification trust with Congress that won't exist with the general public.
CUOMO: Imagine what happens -
RANGAPPA: Chris, can I -
CUOMO: Yeah, go ahead Asha.
RANGAPPA: I just want to - I mean, I do agree with Ken that in normal circumstances the I - you know I do agree that DOJ is going to be conservative in how they approach these things. I mean one of the issues with James Comey in the months leading up to the election is that he released this information about Hillary Clinton even though they were not charging her and how that kind of violated departmental guidelines.
However I think here is the difference in this case. You know, this is not like say previous independent counsel investigations, this isn't about private sexual conduct of the President that you know, that will satisfy some period interest of the public.
This goes to the public's ability to exercise their right to vote in a Presidential election, whether it was distorted or influenced in any way, whether there was interference, whether through money or any kind of exchanges of promises or inducements?
You know and I think that this is the classic case of a national case in the public and national interest so I think that in order to make sure that the public has not only an understanding of what took place but confidence in future elections.
CUOMO: Right, that's the key. That's the key. The key is I get the regs, I get the concerns but we also heard a bunch of congressmen saying how all the FISA secrecy should be thrown out in the interest of transparency and the concern here is Ken, I'm not saying that was the right call by them.
But if you going to care about transparency on one sensitive matter, care about it across the board and if it doesn't come out to your own point, this isn't good for the President, it will haunt him, it will haunt him. CUCCINELLI: Well, certainly I don't expect 100% disclosure but every
bit that isn't disclosed will be lobbed at him as negatively as it can possibly be interpreted and the thing about it is though for the American public, is it the case and I'll just ask the question, is it the case that people who already hate the President read it as negatively possible and people who already strongly support the President read it as strongly as possible?
And the other people just think you know, this was counterintelligence. I expect some stuff not to come out so I'm not going to weigh any of this at all does. Does it all get digested based on where every American starts with respect to the President? I think a lot of it does.
I think a lot of it does and it is a unique situation because of the counterintelligence element and the effect on the elections and let's face it, a lot of us on both sides of the aisle complained that the Obama administration wasn't more forthcoming during the 2016 election with what they knew was going on.
CUOMO: Right and remember Mitch McConnell wasn't helpful to -
CUCCINELLI: I don't want to see that repeated.
CUOMO: So you saw both sides dragging their feet.
CUCCINELLI: I don't want to see that repeated.
CUOMO: So Asha, final word.
RANGAPPA: Yeah, I was going to say, the only other argument in favor of more disclosure of what's in the report is as it concerns the President specifically. You can't have it both ways. You can't say the Department of Justice will not indict a sitting President and then sit on information and not provide it to the body -
CUOMO: That is a strong point.
RANGAPPA: - that has the ability to potentially take action.
CUOMO: Strong point.
RANGAPPA: That then would it sheild the President from any accountability for his conduct so I think even derogatory information on the President all of those findings need to be not only public but passed on to Congress because since DOJ can't act, it's up to Congress to decide what to do with it.
CUOMO: Congress is an easier route on the basis of your speculation. Real quick, do either of you think that Roger Stone winds up in jail for what happened with the picture of the judge?
[21:30:00] CUCCINELLI: Not for that, no.
CUOMO: No, all right, we're all in agreement. Let's see what happens tomorrow. Asha, Ken, thank you very much. All right, now look, Mueller isn't the only probe hanging over the President's head and he's clearly bothered by this digging into his business and foundation here in New York.
What should worry him most and least? Let's pick it up with a former Southern District of New York prosecutor. Look at this guy, Robert Ray is back.
CUOMO: All right, so they tell us the end of the Mueller probe is near. This is according to sources who say that Attorney General Bill Barr is preparing to announce its completion as early as next week. That's the good news. The bad news, take a listen to this.
(BEGIN VIDEO CLIP)
SEN. RICHARD BLUMENTHAL, (D) CONNECTICUT: Will you commit that you will explain to us any changes or deletions that you make to the special counsel report that's submitted to you in whatever you present to us?
BILL BARR, ATTORNEY GENERAL, UNITED STATES OF AMERICA: I will commit to providing as much information as I can consistent with the regulations.
(END VIDEO CLIP)
CUOMO: As much information as he can consistent with the regulations which means, could mean anything, right?
[21:35:00] So let's talk about how this may play out and who better to ask than former Whitewater Independent counsel Robert Ray.
It's great to have you back. I'm not feeling great so I'm not going to shake your hand but let me -
ROBERT RAY, FORMER WHITEWATER INDEPENDENT COUNSEL: Nice to be with you.
CUOMO: Always, always appreciate having you here.
RAY: My pleasure.
CUOMO: Now just so people understand, you were with Whitewater, that was the independent counsel statute, it ended 1999.
CUOMO: Ironically the Clinton folks drew up these new regs because they didn't like what happened with Starr and one of the things that was changed is, there is a very curtailed discussion of what the special counsel has to hand over.
One of their beefs was Starr put out this huge volume of information, they didn't like it. RAY: I mean, I guess you could read it that way although I will say that one thing that is clear, that I don't think has been mentioned enough is that, this is really the first time that we've ever been through this trial.
CUOMO: Right, since then.
RAY: Since then.
CUOMO: With these regs.
RAY: With these regulations so the short answer is we're all writing on a you know, an unfinished and not having been previously used slate here to figure out exactly what should happen. I will say this, I expect that Bob Mueller in brief summary fashion will explain what is most relevant for a report to explain for somebody in this position.
And that is facts sufficient to explain the decision either to prosecute or not to prosecute.
CUOMO: But what about the part of his mandate that is actually the first line, that he's supposed to look for information about any contact or coordination between you know, the Russian and government individuals associated with the campaign.
That's not about prosecutor declined to prosecute, that's just information.
RAY: Well, but that's his job and you know, I think you know, Congress has a job and you've sufficiently explained that. I've watched the broadcast and I understand you know, Congress' mission is separate but the prosecutorial mission is very simple.
It takes in this case, 21 months to get there but it is to explain why you either chose to prosecute or not prosecute, period.
CUOMO: What about all the information?
RAY: You're not - you're not a fact gatherer. You're a fact gather for the purpose of making prosecutorial decision.
CUOMO: So that first part of the language is what?
RAY: Well, I'm just saying. I think just one of the lessons that was learned as a result of the impeachment referral in the Starr report. You know, a whole lot of other explanatory detail about all the things that were uncovered during the course of the investigation is not the purpose of the special counsel regulations, when it comes to what does Bob Mueller report back to the Department of Justice.
CUOMO: But a big part of what he's looking at is counterintelligence so it's not a typical criminal investigation and wouldn't that open a door to give you some more information.
RAY: No, you know, you act as if it were a typical investigation, that's how I acted in connection with the resolution of matters that included the travel office, FBI files Whitewater Lewinsky, all those things.
Now just because involves counterintelligence information and classified information or information about obstruction or anything else, all those things going to ultimately only one question. Do I have sufficient evidence to prosecute and I explain if I did and brought cases and I also explain why I made the decision not to prosecute, period.
CUOMO: So here's why I would, here's why wouldn't or here's why I did, here's why I didn't.
CUOMO: That's very unsatisfying.
RAY: Well, it may well be and if Congress is unsatisfied and if the public demands it, I mean, they have the recourse of issuing a subpoena to Bob Mueller, if they require further explanation but I think people are going to be sorely disappointed to think that this report is going to be a long exposition about all the things that were found or uncovered in the course of this investigation.
CUOMO: And you don't know -
RAY: No, the purpose of his mandate is to decide whether or not crimes have been committed and to prosecute them if they have within his mandate and then anything ancillary to that mandate, which includes false statements, perjury and obstruction of justice, that's it.
CUOMO: What do you think about those counts? You think the President has anything to worry about?
RAY: Well, I don't. I mean, for reasons that we've talked about previously, I don't think personnel decisions including the firing of the FBI director can constitute obstruction of justice.
I read with -
CUOMO: No matter why you do it?
RAY: I don't think you can separate that out from the fact that that's the President's prerogative any more than what the New York Times reports today that he - the President was trying to install a perceived loyalists on top of the Southern District of New York investigation.
You know, that's an executive function. Just because you know Maggie Habermann and -
CUOMO: Three others.
RAY: And other people in the article together with Julia Seldon, by the way, a friend of mine, I worked with in the Southern District of New York and later on in the Starr investigation. Just because they see you know, evidence of corrupt intent by virtue of these things, doesn't make it so and doesn't make it a case that could be proven in court and that's the standard.
CUOMO: How is the President not above the law if he is able to stop investigations into him or that he does not like?
RAY: The President is not above the law but the President is a unique. Feature of our constitutional system and he has the authority to make executive decisions which include who are those who are loyal to him who fill executive branch functions.
[21:40:00] And to try to then in every instance equate motivation to the President's decision to make an executive determination as somehow constituting evidence of obstruction of justice. I think is on very thin constitutionalised.
CUOMO: We held the Clintons for obstruction.
RAY: I think, it's on very thin statutory ice for reasons that Bill Barr explained with regard to the obstruction of justice statute and frankly, if you're going to make that the basis of an impeachment referral or impeachment consideration and proceedings in the House, you're going to have to have more of a tie to a common law violation of a criminal statute in order to really have an impeachment article that is going to be sustained in the House of Representatives if not the United States Senate.
CUOMO: But criminal law doesn't allow you to charge the President with obstruction. One, because you can't charge a sitting President and two, because of this special feature -
RAY: And by the way that's not just the office of legal counsel saying that. I mean, I understand people want to say the Department of Justice can't have it both ways. You know, there's a long constitutional history of authority about exactly how you treat the President of the United States.
There's a significant question about whether or not Morrison versus Olson was correctly decided and the benefit of history suggesting that Justice Scalia may well have been right in a unitary executive that the President really can't be indicted as a sitting President.
And not only that, it goes all the way back to just a story and the underpinnings of the constitution.
CUOMO: No, but that's the rule.
RAY: To deal with questions about whether you can legitimately investigate a President for pre-Presidential conduct which is something that you mentioned or gave a tease for regarding the Southern District of New York.
So you know, all that stuff, that's complicated stuff.
CUOMO: Right, but it doesn't have to be. Let's say, that's the rule, you don't indict him. Well, then the only recourse you have is impeachment. RAY: Right, which is what the founders apparently intended and if following impeachment or once the President leaves office, you want to pursue a criminal investigation of him, that maybe the place to do.
CUOMO: Right but why couldn't you impeach him for removing people from investigations to help himself?
RAY: Well, I think you -
CUOMO: As an abuse of power?
RAY: I am suggesting that that's a pretty high bar, you were right that the focus on impeachment should be only one thing, that the President violate the public trust and if Congress finds that in articles of impeachment that I think can be tied to the common law, which would be common law obstruction statutes, false statements, you know perjury, those sorts of things you know, that's an argument.
But you know, all this nonsense in near times about suggesting that because the President is attempting to install loyalists in positions of power in government that have the incidental impact of also looking at his conduct and that constitutes obstruction of justice, I think that that's a big reach.
CUOMO: Berman, let's say he's completely competent and he was rightly installed and he's there. He recused himself.
CUOMO: And if the President called up the A.G. and said, look, I know he recused himself but I need him there, I don't want to repeat what's going on with Mueller.
RAY: But also you know.
CUOMO: You got to help me. I need somebody from the home team.
RAY: Chris, that's not what he said. Did he order him to do that.
CUOMO: We don't know what he said.
CUOMO: He doesn't have to order him.
RAY: I think the article even concedes the fact that that did. Well, you know, what I -
CUOMO: No, DOJ said, no promises or commitments were made. They never said that he didn't talk to him about it.
RAY: Well, okay, so he talked to them about it, so what. So what. Is the President not entitled to ask, I want to know or I would like to inquire about the basis of the recusal, is it still in effect, who's running the Southern District of New York's investigation as it relates to you know, a matter that - CUOMO: Yes, if he said that. What if they report that he said, which is I want that guy back in, I need protection.
RAY: He didn't say that apparently and apparently, whatever -
CUOMO: How do you know?
RAY: Well, the article suggested that there's no evidence that Whitaker took any action.
CUOMO: Right but it doesn't mean the President didn't say it.
RAY: Say what though?
CUOMO: What I just said.
RAY: He didn't order anybody to do anything. He just simply asked the question.
CUOMO: We don't know that.
RAY: Well, okay, we don't know a lot of things. Was that - I mean, all right, so then there's an article about a whole lot of things we don't know.
CUOMO: But arguendo, if he's doing that, it may not be a crime. I agree with you in your analysis. But I think he'd have a hard time selling that politically to the people of America.
RAY: That's what we have elections for, that doesn't constitute the basis for impeachment.
CUOMO: Well, maybe, maybe not but I agree with you that -
RAY: It really doesn't.
CUOMO: - elections are the best way to show you're dissatisfied.
RAY: And so where are we going to go from here? Are we going to now after the results of let's say, we have a report that goes to the Attorney General, there's going to be a delay of a period of time before it makes its way to Congress. Congress is then going to proceed.
Are we not already in the election cycle? Are we seriously going to go through this process of impeachment proceedings leading up to the 2020 elections?
CUOMO: That's why the more he puts out, the better.
RAY: Well, I mean, I agree with you and I think you know your comfort in this should be that was the message that the Attorney General during the confirmation hearings seemed to be sending and I do agree that erring on the side of transparency is a good idea.
I don't think you should be in the business certainly of altering the Mueller report and then you got to be very careful even about redacting.
RAY: You may want to send you know, an executive summary under cover of the Attorney General with a copy of the report to Congress. How Congress receives that reporting, whether it's on a confidential basis or eyes only basis, I don't know.
RAY: Because I'm now speculating.
[21:45:00] I don't know what's in the report. Does it contain national security information? Don't know. Does it contain potential executive privileged information that the administration may want it's privilege over? Don't know.
CUOMO: No, you're right. Those are the right questions.
RAY: And the third thing, does it contain grand jury material?
CUOMO: Right. Which it can't release.
RAY: And which cannot be released unless the Attorney General then goes to a court and authorize - and gets an order to release it under the precedent set by Haldeman vs Sirica.
CUOMO: Okay, as long as he's trying to find a way to get the information out, they should be able to find.
RAY: And I think in good faith and I think the people the country should feel good about the fact that the person who's now occupying the chair of Attorney General and is now not even first week is someone who has been there before and who I think, most people on a bipartisan basis believe willie will try to do is level best to get this right.
CUOMO: Well, we'll see next week.
RAY: And I - you know, I hope so too I but I think the public should have confidence and I think, we should withhold judgment until you see what the decisions are.
CUOMO: And that's why I say, let's see what happens next week. I'll bring you back and you can help me understand what was done and why.
RAY: Will do, thanks Chris.
CUOMO: Robert Ray, appreciate it. All right so hate crime or hoax? It's been the question for nearly a month since 'Empire' star Jussie Smollett reported he was attacked in Chicago. We now know for sure what police think. It's breaking news and it's next.
CUOMO: Another stunning turn in the Jussie Smollett case. The 'Empire' actor charged tonight, disorderly conduct, a felony for allegedly filing a false police report. Chicago police believe Smollett paid two men to orchestrate an assault on him.
New surveillance video appears to show those two brothers who appeared before a grand jury today buying the very same supplies used in the incident. Ski masks, sunglasses, gloves, red hat and other stuff bought with cash just a day before Smollett reported he was a victim of a hate crime.
Investigators say the two men are no longer suspects and sources say, they're cooperating with law enforcement. Smollett's attorneys issued this statement. "Like any other citizen, Smollett enjoys a presumption of innocence. We intend to conduct a thorough investigation and to mount an aggressive defense."
D. Lemon, this is all kinds of bad.
DON LEMON, CNN HOST: It's bad all the way around as we say, innocent till proven guilty. But it's bad all the way around. If he - if he - you know if it turns out that he did do it and orchestrate it, it's terrible and if it turns out that he didn't, it's also terrible.
I'm not sure if you saw the correction that just came across the wires that it was not - he wasn't indicted by a grand jury but there was a prosecutor, right. But still, it's been you know, it's been interesting trying to report on this particular story and we've done several reports on this show just the facts straight.
[21:50:00] Here's what we know, here's what we don't know because you don't want to get into a place where you are - you're just sort of speculating about things.
LEMON: And we don't know what happened.
CUOMO: And a lot of media did that and in politics too.
LEMON: About the media, if you look at every single report on this show, it'll show you that it was just stray things and then you know, I also did a talk where I talked about having empathy for victims and having you know, I spoke to Jussie, no one - nothing about the veracity of this story because that's not my concern, that's something that he has to deal with.
But as human beings and if someone says that they are a victim, then you can have some sort of empathy for him. Doesn't mean that you know, what the outcome of the investigation is going to be.
CUOMO: Right, but the real problem is, is that the next time somebody says this, will they believe - they will be believed less.
CUOMO: And we already have a problem with victims not wanting to come forward especially when you get into sensitive communities like LGBTQ where people are worried about coming forward. You know does this have a chilling effect? Does this is make people less likely to want to come forward? That's the concern.
LEMON: Here is someone that we both know. Who you would be surprised of how you would think that they would think, the exact opposite of what you're saying. I'm not going to say who they are. I'll just share just a little bit of what I said that same thing to them.
And the person says, it does but in a weird way, it won't. There is something extremely you know what up in our society for him to feel compelled to do that if he did and so there's some sort of pathos and that's we need to - he says, we need to have the conversation in the way that only you can have it on your show.
And we need to work beyond those things. We need to have a conversation more openly like you did in that interview. I feel bad for him even though if he is wrong, he hurt a lot of people, if he did it with their actions.
So I think, there's maybe it's an opportunity to talk about these issues. I don't think it undercuts that there are real victims out there of homophobia, real victims of racism. But he didn't have to embellish because things were already bad. You understand what I'm saying?
CUOMO: And look, there's always a lesson in every one of these for all of us you know, there can be a temptation to go fast. It's almost always better to go slow.
LEMON: We've got a whole lot of people. We have some folks who know him. We've got some legal minds who are going to talk to us about what's in his future and then I'm going to give my take on it at the top of the show so I'll see you.
CUOMO: I'll look forward to that.
LEMON: Hey, I'm sorry, how are you feeling? How are you doing?
CUOMO: I need to show it in.
LEMON: Did you tell them - did you tell people you're not feeling well.
CUOMO: No, but thanks now I will.
LEMON: I got dressed early just in -
CUOMO: I think I ate something and it's going downhill fast. I was actually going to hand to show off to Don now but I can't do that to you. Talk out making somebody sick.
LEMON: Well, if you need to, just let me know. I'm ready - CUOMO: I'm talking about the audience. You know, they get two hours of you already.
LEMON: No, I got dressed early you. I've been dressed since 9:00.
CUOMO: You are a friend through and through.
LEMON: Feel better okay, I'll see you.
CUOMO: Thank you pal. All right, I really was. I was going to give him the show but you know, this stuff matters that we're talking about right now. So the Mueller report's coming, that's what they tell us. The President seemed all good today in the Oval office but listen, this is going to get ugly.
The more I learn about what won't be released and why, it's going to get ugly and I'm not saying that there's something sinister going on but you've got to be ready for what's coming and you have to remember what the focus should be, that's the argument next.
[21:55:00] (COMMERCIAL BREAK)
CUOMO: So next week could be the end of the Mueller probe or at least the end of the beginning. Why do I say that? Well, there are unknowns. What is and is not in it? What are you allowed to know about? What else might Mueller still be pursuing? What might Congress do after it learns of Mueller's decisions?
But here's what we know for sure. This is going to be an especially chaotic time. This President will be under pressure in all likelihood like he's never been before. Not because he's going to be removed in cuffs but because almost certainly he's not going to like things in the report.
And we know when he's under pressure, he lashes out. If past behavior is any indicator, the President has a number of go to tactics to obfuscate the facts or downplay the importance of the report. Here's one tactic, mislead.
(BEGIN VIDEO CLIP)
TRUMP: Everybody tells me, I'm not under investigation. Maybe Hillary is. I don't know but I'm not.
(END VIDEO CLIP)
CUOMO: All right, you know you hear that? Change of subject, make it about somebody else. Tactic two, move the goal posts. Remember what Trump was saying just two years ago.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: Can you say whether you are aware that anyone who advised your campaign had contacts with Russia during the course of the election?
TRUMP: Well, I told you. General Flynn obviously was dealing so that's one person but he was dealing as he should have been.
UNIDENTIFIED FEMALE: During the election?
TRUMP: No, nobody that I know of.
UNIDENTIFIED FEMALE: So you're not aware of any contacts during the course of the election?
TRUMP: Look, how many times do I have to answer this question?
UNIDENTIFIED FEMALE: Can you just say yes or no on it?
TRUMP: Russia is a ruse.
(END VIDEO CLIP)
CUOMO: All right and here's what the President's lawyer, Rudy Giuliani said just last month.
(BEGIN VIDEO CLIP)
RUDY GIULIANI, PRESIDENT TRUMP'S PERSONAL LAWYER: I never said there was no collusion between the campaign or between people in the campaign.
CUOMO: Yes, you have.
GIULIANI: I have no idea. I have not. I said, the President of United States.
(END VIDEO CLIP)
CUOMO: All right, distraction. Tactic number three, attacked the investigators and political rivals.
(BEGIN VIDEO CLIP)
TRUMP: It's a total witch hunt.
It's a Democrat hoax.
They have this witch hunt.
That was a Democrat hoax.
It's a witch hunt.
Phony witch hunts.
It was a hoax.
It's like a witch hunt, it's like a witch hunt.
This is a hoax.
The witch hunt continues. (END VIDEO CLIP)
CUOMO: And then there's the signature trait which is to abuse the truth and any who are trying to get it, namely the media.
(BEGIN VIDEO CLIP)
TRUMP: It's fake news, it's fake. I'm telling you, it's just fake news.
I read it this morning, it's a lot of fake news.
It's total fake news.
Fake news folks, fake news.
(END VIDEO CLIP)
CUOMO: So if the probe does end next week, if there's a surprisingly comprehensive report that the DOJ releases to the public, that's good but get ready. A storm is coming. Expect the President and his allies to throw everything they have at you to make as much noise as possible to distract and obfuscate.
And expect those who seek advantage in any negative information just spin it fast and hard as well. You're going to be have to be on guard for left and right and remain reasonable. All right, many involved have a desired outcome to keep your focus on facts. If you get a feel for what did and did not happen and why.
And I promise you, we will do our best to help you get any information that we can. In that case, any conclusions will be your own. Thank you for watching tonight's CNN tonight. With D. Lemon starts right now.
LEMON: You're still not feeling good, right?
LEMON: Nope so I shall let you go.
CUOMO: Thank you brother, appreciate it.
LEMON: And feel better, okay?
CUOMO: Thank you.
LEMON: See you tomorrow. Hopefully, I'll see you tomorrow, take care. This is CNN Tonight. I'm Don Lemon. Listen, I just want to talk about these stunning developments tonight in the Jussie Smollett story.
The story that everyone is talking about. And I know people have been wondering, what I had to say about it but here it is. So everybody gather around the television set. The 'Empire' star, that's who he is, Jussie Smollett who claimed that he was the victim of a racist homophobic attack in Chicago on January 29.