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White House May Claim Executive Privilege to Prevent Material in Mueller Report from being Released; U.S. Forces Capture ISIS Fighters Thought to be Involved in Suicide Attack that Killed Four Americans. Aired 8-8:30a ET

Aired March 19, 2019 - 8:00   ET

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

[08:00:00] ELIZABETH COHEN, CNN SENIOR MEDICAL CORRESPONDENT: -- to encourage people to get flu shots.

JILL PROMOLI, VICTIM OF ANTI-VACCINE HARASSMENT: I don't want anyone to ever lose their child again.

COHEN: So you're not giving up?

PROMOLI: Absolutely not.

COHEN: Elizabeth Cohen, Mississauga, Ontario, Canada.

(END VIDEOTAPE)

JOHN BERMAN, CNN ANCHOR: Imagine being a parent. Imagine being a parent harassed after your child dies.

ERICA HILL, CNN ANCHOR: It is just unthinkable and disgusting that someone would drop so low on that.

There are big developments in the Mueller investigation and breaking news out of Syria. NEW DAY continues right now.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: There is something unseemly that the very person who might be the subject of derogatory information is in the position to decide what becomes public.

UNIDENTIFIED FEMALE: This could be a flashpoint that sets up a political battle over this hotly anticipated document.

UNIDENTIFIED MALE: I will commit to providing as much information as I can consistent with the regulations.

UNIDENTIFIED FEMALE: He's begun obsessing over great men because he knows he will never be a great man.

UNIDENTIFIED MALE: George Conway raises a valid point. This is a very troubled man.

UNIDENTIFIED FEMALE: No, I don't share those concerns. UNIDENTIFIED MALE: Biden is all in. He is going to try and seize

command and control of the race.

SEN. ELIZABETH WARREN, (D) MASSACHUSETTS: Every vote matters. Get rid of the Electoral College.

UNIDENTIFIED MALE: She's ready on these issues. This is her wheelhouse.

(END VIDEO CLIP)

UNIDENTIFIED MALE: This is NEW DAY with Alisyn Camerota on John Berman.

BERMAN: Good morning and welcome to your NEW DAY. It is Tuesday, March 19th, 8:00 in the east. Alisyn is off. Erica Hill joins me once again. Great to have you here.

HILL: Nice to be back.

BERMAN: We have got some big new CNN reporting. The White House wants to get its hands on the Mueller report before you do. And not only that, the White House wants the chance to limit what you see from the report. Overnight, CNN learned that White House lawyers are expecting to review the report before attorney general Bill Barr hands it over to lawmakers. They want the change to claim executive privilege on information received from interviews and documents that have been provided by White House officials. This is sure to set up a political battle on Capitol Hill and potentially a legal battle that could go all the way to the Supreme Court.

HILL: We are following breaking news. U.S.-backed forces in Syria, we have learned, have captured ISIS fighters they believe are linked to the suicide bombing in January that killed four Americans. The attack coming weeks after President Trump announced he would pull 2,000 troops out of Syria. We have a live report for you with those breaking details in just moments.

BERMAN: Joining us now, Laura Coates, former federal prosecutor, David Gregory, CNN political analyst, and Jeffrey Toobin, CNN chief legal analyst. And Jeffrey, I want to start with this news of the CNN reporting on the Mueller report. The idea that the White House lawyers, the White House counsel's office in this case, want to get their hands on the version that Bill Barr edits already, and they want to get it and claim executive privilege on it before Congress gets their hands on it. It is their right to do so.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: That's right. And Rudolph Giuliani told me and others months ago that all the documents and interviews that were turned over to Mueller over the course of this investigation were done pursuant to reserving the right to object to the public disclosure of anything covered by executive privilege. And he said the president may do that. That decision is up to the White House counsel, not to the president's lawyer. But obviously there is a lot of coordination there. And it's worth remembering that Robert Mueller is part of the Justice

Department. So he has no choice but to abide by whatever the Justice Department, influenced by the White House, does in terms of public disclosure of his report.

DAVID GREGORY, CNN POLITICAL ANALYST: It occurs to me thinking through some of the reporting on this, remember how much time Don McGahn, former White House counsel, spent with the special counsel's team. So presumably one of the things we are looking at so closely is what were the deliberations like, what did the president say and to whom about why he was firing Jim Comey. They could argue, right, that that's all executive privilege.

BERMAN: All of it.

TOOBIN: Absolutely. And it is true that nothing involving the campaign and presumably the transition would be covered by executive privilege. You can only have executive privilege when you are actually president of the United States. But a big part of the Mueller investigation includes the early days of the presidency -- the firing of James Comey and whatnot. And much of that could be covered by executive privilege and thus censored by the White House before it becomes public.

HILL: And Laura, executive privilege is incredibly important for obvious reasons. The president needs to be able to have important conversations. That being said, if Congress gets this -- I think it was one of you said earlier this morning, ends up getting this version where there is more redacted than there is not, there is obviously going to be some pushback. But there is not a lot of ammunition there legally when it comes to pushback on executive privilege, Laura.

LAURA COATES, CNN LEGAL ANALYST: That's right. You do want to have the president of the United States be able to have very candid conversations with people who are in his cabinet, people who he relies on for advice as well. You want that as well as for separation of powers. You want that candor.

[08:05:02] But you cannot have executive privilege in a way to try to thwart the judicial process. Remember, the president is the head of the executive branch which is charged with actually enforcing the law. And so the Supreme Court has weighed different ways for Nixon and beyond about this issue. But the notion that the president could use privilege as some way to hide a crime or as some way to undermine justice would actually not be what the balancing test seems to be. It really is that executive privilege is the fulcrum balancing two different things, the president's right to have candor and those candid conversations, and the public's right to know and the fair administration of justice. When those two things are weighed against each other, the courts will have to look at it and say, hold on. Is there some basis to use that privilege to silence or suppress information, or is it being used as a pretext to hide something else?

And one more thing. Jeffrey is really right about the notion that this only covers things that took place once he was inaugurated. And remember that the mandate of Mueller is actually to look into the campaign aspects of it. So unless there was somebody talking to President Donald Trump about the actual campaign or about going forward, the privilege may not be as exhaustive as they believe.

BERMAN: Let me raise a scenario where this gets really complicated, OK. The president, we know, dictated a response that turned out to be false when the "New York Times" reported the details of the Trump Tower meeting where Don Jr. was promised dirt on Hillary Clinton from the Russians. So the president of the United States, while he was president, engaged in an action, potentially, Robert Mueller could say, to deceive the American people and maybe obstruct the investigation. But he did it while he was president. Is that something, Jeffrey, that they could try to claim some privilege over?

TOOBIN: Absolutely. Absolutely. The attitude of the White House towards the Mueller investigation has gone through a dramatic transformation over the year-plus of this investigation. When Ty Cobb was in charge of the response, the idea was we have nothing to hide. We will allow interviews. We will allow documents to be produced. Emmet Flood has come and taken over that role. He comes from Williams & Connolly which believes in never giving an inch on anything. You see it now in the White House response to the document requests from the congressional investigations. They are giving them nothing. That's going to be the approach. And I anticipate that to the extent the White House has a chance to object to disclosures, they will object to every disclosure possible.

GREGORY: And look how boxed in they could potentially be because of the Justice Department guidelines that you can't charge the president. Congress still has a role to play here if the president engaged in actions that they think amount to high crimes and misdemeanors. It's their obligation to provide that check and balance. So that will be something for the courts to work out. But no doubt there is a compelling interest to say we need that information even if it falls short of what the special counsel would consider a crime. And even if he does consider it a crime, it may not be something that he would recommend given the guidelines. So Congress is going to have to try to go through this narrow corridor.

HILL: If this does end up in the courts, right? If this is played out, David, who does that help more politically?

GREGORY: I don't know. I think the president and his team are going to get credit for fighting the fight, whether it's asserting executive privilege. I think they also have an interest to look for anything in the report that tends to exonerate or underplays expectations and just continue to make the argument that was a whole lot of to do for very little.

BERMAN: Laura, go ahead.

COATES: This will be litigated because the president can assert executive privilege, but it doesn't make it so. I can assert that I'm the queen of Sheba. It doesn't make it so. He will have to litigate these matters, precisely because, even though he was president at the time he may have had the conversations, number one, if it deals with matters that happened before he was president of the United States or matters that are outside the purview of why we actually have the candor based from discussion of privilege in terms of trying to fulfill your duties as the president, it can't just be to cover up crimes committed by potentially family members and other matters. It actually is very narrowly read and it should be for that reason. And if you don't believe me, you can ask Nixon about how it worked when he tried to assert it on shaky grounds. He ended up four days later having to resign.

TOOBIN: As usual, I agree with her highness, the queen.

(LAUGHTER)

COATES: Of Sheba, of Sheba.

TOOBIN: Just of Sheba, not of the whole world.

(LAUGHTER)

TOOBIN: But it is true that Nixon lost U.S. v Nixon, but that was a case against -- brought by it arose in the context of a criminal case. It was a trial subpoena. When Congress tried to subpoena the White House tapes during Watergate, the Congressional committees lost. So that's worth remembering. The Congressional committee has less of an interest, according to the courts, than a criminal trial has in getting access to material covered by executive privilege.

[08:10:08] BERMAN: We're also talking about a political world here and a world filled with humans, David. And I have to believe that if the Mueller team puts a report together to give to the attorney general, and they feel somehow by the time it goes through the Barr scrub-down and then the White House scrub-down, the part that's made public doesn't reflect the gist of what they found, do you think maybe Robert Mueller would try to find a way to get the message out, or maybe one of the lawyers on his team? There are a lot of enterprising reporters like Jeffrey Toobin over there who might try to get their hands on it.

GREGORY: There is no question. I think there's no question about that. This is Washington. There's a lot of people who are looking at this. The idea that what he found won't find its way in the public domain I think is impossible. Both contemporaneously and those like Jeffrey who will work on the definitive account afterward, I think there's no question about it. But we should bear in mind, because Jeffrey brings this up a lot about the political calculation on the part of the White House. That conventional wisdom of we don't want to look like you are hiding something -- they don't care. And the president has said from day one this is a witch hunt, and they will fight this on all levels and not worry about the consequences.

BERMAN: Laura, David, Jeffrey -- Jeffrey, we are counting on you. Thank you all very much.

(LAUGHTER)

HILL: We are following breaking news this morning. U.S.-backed forces in Syria, we're learning, have captured ISIS fighters, fighters they believe are linked to this suicide bombing in January that killed four Americans. That happened of course just weeks after President Trump announced he wanted to withdraw U.S. troops from Syria. The attack taking the lives of Green Beret Jonathan Farmer, former Navy Seal Scott Wirtz, and two language specialists, Navy cryptologist Shannon Kent and interpreter Ghadir Taher. CNN's Barbara Starr is live at the Pentagon with the breaking details for us. Barbara?

BARBARA STARR, CNN PENTAGON CORRESPONDENT: Good morning, Erica. A U.S. defense official confirming a short time ago that U.S.-backed fighters in northern Syria in this area of Manbij in February did capture up to five ISIS fighters. They are not saying exactly how many at this point. They are being held by the Syrian-backed democratic forces. The U.S. has had access to these fighters and has interrogated them. They do believe that these people were involved in the planning and execution of this suicide attack in January in Manbij that took the lives of four Americans and several Syrians. Very important news for all of those families who lost loved ones in this attack.

We don't yet know if there is any plan for the people to be transferred possibly back to the United States and face federal prosecution. That has happened in the past in previous terror attacks. We'll have to wait and see on that. But it does come at a time, of course, when the debate is very heavy about what will happen now in Syria, how many U.S. troops President Trump will allow to be left behind to help continue the fight against ISIS. There are about 2,500 U.S. forces in Syria. The president wants that number to draw down to a residual force of several hundred. That work is going on.

But this event now underscores how important it may be to keep a U.S. presence, if for no other reason than to continue to collect intelligence about what ISIS is up to and hopefully thwart future attacks. Erica, John?

BERMAN: Barbara Starr for us at the Pentagon. Barbara, thank you very much. I want to note we will have a live report from Syria on the ground in just a little bit.

The husband of a top trusted adviser to the president questioning the president's mental state. We'll discuss, next.

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[08:17:19] BERMAN: So, George Conway, the husband of one of the president's top advisers, Kellyanne Conway, is openly questioning the president's mental health, suggesting the commander-in-chief may suffer from anti-social personality disorder or narcissistic personality disorder.

Mr. Conway also warned, quote, his condition is getting worse and all Americans should be thinking seriously now about Trump's mental condition and psychological state.

Joining me now is former Republican senator and presidential candidate Rick Santorum, now a CNN senior political commentator.

Senator, do you think the president suffers from a personality disorder?

RICK SANTORUM, CNN SENIOR POLITICAL COMMENTATOR: I'm not a mental health professional. And so, I have no idea whether the president suffers or anybody suffers from anything.

All I can tell you is the president is doing things that I think are harmful to his ability to win re-election. I think they are harmful to his ability to get things done in Washington when he does these types things. You know, for two years, I have been pleading to stop the personal attacks on Twitter and focus on a great record of accomplishment that's been reflected in the fact that now 71 percent of the American public in your own poll suggests the country is moving in the right direction.

I think he's doing a lot of good things. He just continues to step on his own good news message.

BERMAN: What do you think he's doing? I want to get back to the personality disorder. What do you think he's doing to hurt his re- election chances?

SANTORUM: Any time he distracts I think from a lot of positive news out there on the economy and what he's doing on trade -- I mean, he's on the precipice of completing a very important trade deal with China. I mean, talking about that, talking obviously about the job numbers, the fact that wage growth particularly in the bottom part of the American workers, those low wage workers are seeing wages increase for the first time higher than high wage workers. Those are good things he should be talking about and focused on.

Any time, he does the personal attacks it gives the media -- here we are, gives the media the opportunity to not talk about those things and talk about these attacks.

BERMAN: And do you -- would one need to have a personality disorder to launch these kinds of attacks?

SANTORUM: Some people have a shorter fuse when it comes to taking personal criticism. I don't know if that personal disorder. If that's the case, I know a lot of people with personality disorders.

BERMAN: I don't know either, and that's why I was asking. I think it's perfectly plausible that someone or possible that someone could launch these attacks and be perfectly stable.

[08:20:01] I'm not sure you need to have a personality disorder.

SANTORUM: Yes, I think that was -- look, I don't know George Conway. I know Kellyanne Conway. She's a great person and she's been a friend for a long time.

I don't know her husband. I don't understand -- you know, you get a lot of attention when you tweet these things but I don't think it necessarily adds to the discourse.

BERMAN: Do you think they are important questions to ask? SANTORUM: No, I mean, we don't. I mean, not from someone like him.

He's a lawyer. If you have someone who's talked and dealt with the him from a therapeutic point of view, you know, that's one thing. But that's not the case here.

BERMAN: You know, it's funny, Senator, you, at one point it was rumored you were being considered for a possible White House chief of staff. I don't know how true that was. Did they contact you on that?

SANTORUM: Look, I have made it clear from talking to the president even before he was sworn in that I was not in a position to take anything on the administration. So, no, I haven't heard from them. I made pretty clear where I was -- where I am in my own family situation.

BERMAN: Were you in a different place in the family situation, and the answer would have been, OK, I will do it. What would you have told the president about his Twitter use?

SANTORUM: I wouldn't tell him anything different from what I'm saying on the air. One thing that's really important and my wife and I talked about it last night. I'm going to give the president what I think is the best advice for the interest of the country. And I'm not going to sugarcoat it because I happen to support what he's trying to do in his agenda.

I do support his agenda, but I'm not going to sugarcoat it when he does things that I think undermine his own effectiveness. And I think this does undermine his effectiveness.

BERMAN: Does it undermine the Republican cause?

SANTORUM: Look, if it undermines his effectiveness then by definition, in my opinion, it undermines the Republican cause. His popular and success is tied to the electability of Republicans across the country.

BERMAN: One of the things that he was criticized for and that happened during this whole time and he has complained about is the coverage post New Zealand. One of the things the president would not do is suggest he's seen a rise in white supremacy or white nationalism around the world. Yet he was very critical as many people have been that Democrats refuse to call out radical Islamic terrorism by name.

So, is he somehow being hypocritical here by refusing to say white supremacist, white nationalists are a threat around the world?

SANTORUM: As someone who called out radical Islamic terrorists for a long time and, in fact, criticized President Bush for not calling them out by the name --

BERMAN: Yes.

SANTORUM: And yet criticized President Obama for doing it, I give credit to President Trump for doing it. But at the same time, you're right. He has to be consistent. When you see people act in ways that are hate-motivated you need to call it out, no matter what it is and tell the truth.

BERMAN: Do you think he should do that? Do you think it's a mistake not to?

SANTORUM: I think it is a mistake. I think, you know, the president, his credibility is he's a truth-teller. I mean, he tells it -- truth teller in the sense he says things that are politically unpopular. He says things that are politically incorrect. And I think he needs to do that with respect to folks, you know, particularly in this movement of white supremacists.

BERMAN: Why don't you think he's willing to do so?

SANTORUM: Look, he does. I mean, you won't say he doesn't do it. He did. Does he do it to the extent and is vigor that I think he should? No. But he does it. He just doesn't do it in a way that he would when it came to other areas of hate.

BERMAN: Well, OK. But there's a why there. There must be a why.

SANTORUM: I agree. Look, I think the president is someone who doesn't want to be bullied into saying something. This is a really big part of the president. If he's being criticized for not saying something enough and he has been for a long time on the issue of white supremacists, then he feels like every time he does it, he feels like he's conceding to the bullies to do it.

BERMAN: Is he playing footsie with his element out there?

SANTORUM: I don't think so. This is all an internal psychological issue with him that he's not going to just concede to the bullies who are trying to force him to talk more about this.

BERMAN: I will only know we have gone full circle back to psychological things. I know you didn't mean that.

SANTORUM: I'm not an analyst. I'm just saying that, you know, we all have things that we are concerned about as how people paint our image.

BERMAN: I have been dying to ask about this since the "New Yorker" story came out talking about the relationship between Fox News and the president. One of the things, one of the revelations there inside this "New Yorker" report was the claim that then candidate Donald Trump was given some of the debate questions before the Fox News debate.

Let me read you the passage. A fair of Fox insiders and a source close to Trump believe that Ailes informed the Trump campaign about Megyn Kelly's question.

[08:25:06] In addition, a former Trump campaign aide says that a Fox contact give him advance notice of a different debate question which asked the candidates whether they would support the Republican nominee regardless of who won.

You were in the debate stage. Were you given a question beforehand, Senator?

SANTORUM: No, never been given debate questions. And -- look, I'm not sure it's that helpful. Most of the debate questions you get are not surprises.

BERMAN: But, Senator, doesn't it bother you if one of the candidates on stage was given the inside track? I would be furious if I were on the stage with Donald Trump.

SANTORUM: I guess -- you know, first up, where did it come from? If it came from someone from Fox or did it come from someone who happened to hear that from a Fox person? That would be different -- it's like, for example, the Donna Brazile thing.

(CROSSTALK)

BERMAN: So, I'm just saying, would that upset you knowing that one of the candidates may have been given information by Fox about what the questions were?

SANTORUM: If they were given information by people at Fox, yes. That's completely untoward and something that would, as another candidate, not make me happy. But again, it's not like these are big surprise gotcha questions. None of those things were surprising questions.

BERMAN: All right. Senator Santorum, great to have you on this morning. Appreciate it.

SANTORUM: You bet.

BERMAN: Erica?

ERICA HILL, CNN ANCHOR: A showdown looms over the Mueller report. Could White House counsel lawyers scrub it before lawmakers and public see the summary? What could be left of it? A top Democrat in the House joins us to discuss, next.

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