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Trump Administration Wants Entire Affordable Care Act Struck Down; House Democrats Meeting as Party Debates Next Steps; Aired 9- 9:30a ET
Aired March 26, 2019 - 09:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[09:00:19] JIM SCIUTTO, CNN ANCHOR: A very good Tuesday morning to you. I'm Jim Sciutto in New York. Poppy has the week off.
On Capitol Hill this hour House Democrats are meeting for the first time since the special counsel handed the president a momentous win and forced a rethink of the Democrats' course and strategy. CNN reports that Nancy Pelosi is telling her caucus to focus now on their legislative agenda, while a half dozen Democratic House committee chairs are publicly demanding that the Mueller report in full no later than one week from today be shared with them.
Also this morning a major switch that could cost millions of Americans their health insurance. The Trump administration now wants a federal judge to throw out the Affordable Care Act, Obamacare, entirely.
CNN's Ariane de Vogue has more on that.
So, Ariane, this is a change in position for this administration. And one that if accepted by the court would have enormous national consequences.
ARIANE DE VOGUE, CNN SUPREME COURT CORRESPONDENT: Absolutely, Jim. This is a big and it's an unexpected shift on the part of the Department of Justice. Keep in mind, last year the DOJ said that it thought some provisions of the law were unconstitutional, couldn't be defended. But it never said that it thought that the whole law was unconstitutional.
Just to take a step back, remember this was the key legislative achievement of the Obama administration, Jim. It was twice upheld by the court behind me, the Supreme Court. But these legal challenges continued and last year Texas and other Republican-led states, it brought a fresh challenge. And it said we think that the whole law is unconstitutional.
At the time the Trump Department of Justice said, no, no, we don't think the law is unconstitutional. Just some key provisions. Those aimed at pre-existing conditions. But then that lower court judge, he struck down the whole thing and then the case moved to a federal appeals court.
Now late last night, the Trump administration said, you know what, we agree with that district court judge. We think that the whole thing is unconstitutional and that it can't be defended. So one thing that that does, Jim, besides the fact millions of Americans could potentially be affected by this, that tees up a battle that will bring it right back to the Supreme Court.
And we're not talking about the issues that have traditionally been challenged, things like the individual mandate. This is much broader. This is the entire law. So we're talking about Medicaid, Medicare. Even though it's labels on food products that are covered by the law, it would be a sweeping decision and it would impact millions of people if this federal appeals court were to agree with the Trump administration's position here -- Jim.
SCIUTTO: No question. Enormous legal implications, also political ones.
Ariane de Vogue, at the court, thanks very much.
Former federal prosecutor Elie Honig joins me now to help digest all this.
So, first of all, let's get at the surprise here. How rare is it for administration to change its position like this in such a major case?
ELIE HONIG, CNN LEGAL ANALYST: It's very rare given the stakes of the case. And we're not just talking about a slight adjustment or a tweak in the position. We're talking about a complete change from the prior position of yes, there are certain provisions, the individual mandate that are unconstitutional but the rest should stand to now it all should come tumbling down.
The only real change is that we've changed who the attorney general is within this administration from Sessions during the first one to William Barr now. But it puts the lawyers in a tough position of having to go back in front of the judge and saying we have changed our minds and all the cases we sent to you before.
HONIG: The other side is now going to be setting against us.
SCIUTTO: Remember what we said last night? Ignore all that.
SCIUTTO: This sets up -- listen, it sets up a couple of battles and I want to get to if possibly going to Supreme Court. But before you get there, you know, you have 21 states with Democratic governors that are stepping in to argue the other side of the case. I mean, do courts like being in the middle of what is such a partisan divide here?
HONIG: No. Courts want no part of politics. In fact, courts will sometimes not even hear a case if they decide this is a political question. But courts do understand positions change, circumstances change. And certainly when administrations change that happens. But this is unusual as we said before because you're within one administration. But I think the courts will -- the judges will still look at this on its merits and not sort of penalized anyone for political -- perceived political undermining.
SCIUTTO: OK. So the next step for this is the Court of Appeals. Of course one level below the Supreme Court. But as a betting man, chances that this goes to the Supreme Court are very high, I assume.
HONIG: Very high. Depending on what the -- where the intermediate Court of Appeals now, depending what they do. I think if the Court of Appeals keeps Obamacare in place and pulls out the one provision but says the rest can stand, I don't think the Supreme Court will touch it.
HONIG: But certainly, almost -- as certain as you can be in whether the Supreme Court will ever take a case, if the Court of Appeals strikes down the whole thing, it will go up to the Supreme Court.
[09:05:07] SCIUTTO: And is this circuit a left or right-leaning circuit?
HONIG: Yes. This is the Fifth Circuit, covers areas of Louisiana, down south. It's known as one of the most conservative leaning ideologically of the circuits.
SCIUTTO: Now John Roberts, chief justice famously when the ACA came before the court he surprised and disappointed many conservatives by being in effect the swing vote to uphold it.
SCIUTTO: And again, you're not inside his mind. But based on that decision of the chief justice, does that indicate how he might decide on this?
HONIG: He's going to be in an interesting position here before one of the bases that he voted for Obamacare, the ACA, was one of the provisions that now may get pulled out of it. So he may have to either find some other basis.
But look, I do agree with the idea that John -- Chief Justice Roberts wants to keep the court as non-ideological and sort of unpredictable as possible.
HONIG: So he's going to be in a really interesting position.
SCIUTTO: No question. And that's a good point you make there because he's aware of the political divide here, and he famously had this public disagreement with Trump just a number of months ago saying Trump had said there are Obama judges and Trump judges, and he said no, there aren't.
HONIG: A very unusual step, too, for the Supreme Court justice to say so.
HONIG: And I think Chief Justice Roberts does not want the Roberts court to be known historically as the court -- the era when the court just became a straight ideological divide.
SCIUTTO: Well, this has enormous implications.
SCIUTTO: If there's a case anybody at home wants to watch as it makes its way through there, this affects 52 some odd million Americans.
Elie Honig, thanks very much for walking through it.
Meanwhile, and there's lots of news today. Democrats are on Capitol Hill right now meeting to talk about next steps following what we know of the Mueller report.
Joining me now is CNN's Sunlen Serfaty who is live on Capitol Hill.
Republicans' message, Sunlen, clear, no collusion, time to move on. The Democrats, at least in private, many seem to be saying that as well. What do you hear coming out of these discussions today?
SUNLEN SERFATY, CNN CONGRESSIONAL CORRESPONDENT: That's right. And it's certainly an important moment, Jim, for House Democrats this morning. There are many behind closed doors just behind me and this is the first time that they will gather the entire House Democratic caucus in the wake of the Mueller report. And as you said, as they continue to grapple with the question of where do we go from here, how aggressive should we be in these probes on Capitol Hill, what investigations should keep up.
And it certainly comes at a time where Republicans are trying to capitalize on this moment, put pressure on Democrats, Democrats like Adam Schiff, the chairman of the House Intelligence Committee, who he's facing calls for him to step down from that position. My colleague Manu Raju caught up with him yesterday up here on Capitol Hill, and he says his investigation will go on.
(BEGIN VIDEO CLIP)
REP. ADAM SCHIFF (D), INTELLIGENCE COMMITTEE CHAIRMAN: The investigation has always focused on counterintelligence issues. That is, is the president or anyone around him compromised in some way? That work has to go on.
(END VIDEO CLIP)
SERFATY: And Schiff also said that he's willing to accept the conclusion from the Mueller report that could -- that did not charge Trump or his campaign officials with conspiracy with the Russians. But he emphasized at this point that his probe, his counterintelligence probe, he believes is different. And then he had this to say about the attorney general.
(BEGIN VIDEO CLIP)
SCHIFF: You have an attorney general who applied for the job by talking down any potential obstruction conviction or indictment. But he has now done the job he applied for which is attempt to exonerate Mr. Trump when Mr. Mueller said no exoneration was in order. That ought to deeply concern people that someone was handpicked for the purpose and executed that purpose.
(END VIDEO CLIP)
SERFATY: So as some of the probes do continue up here on Capitol Hill, Jim, it certainly is a big message that House Democratic leadership is facing. How much political capital in essence do they spend on these investigations, how much do they push forward on their policy proposals, and it seems like the message from House leadership is really clear.
In the wake of the Mueller report, Nancy Pelosi telling her leadership team up here on the Hill last night that they should essentially not focus on the Mueller probe. They should keep focusing on their legislative priorities. And I bet you that is the message that she will be delivering in this room in just a few minutes -- Jim.
SCIUTTO: Yes. A lot of patience, thinning even among Democratic voters.
Sunlen Serfaty, thanks very much.
Let's discuss now with Tiffany Cross. She's co-founder and managing editor of "The Beat D.C."
Tiffany, thanks so much for joining us today. Let's talk about the politics of this for a moment because Democrats are feeling the pressure here, to move on, some are, at least in privately some will that, say, listen, we've got to start talking about something else besides the Mueller investigation. Do you think that is undue pressure?
TIFFANY CROSS, CO-FOUNDER AND MANAGING EDITOR, THE BEAT D.C.: Look. I just don't look at this through the lens of partisan politics. I think we're talking about an attack on our democracy. And it's kind of baffling to me to hear people say we need to move on from people who claim to be such patriots yet paradoxically are saying but let's not investigate whether our country has been compromised by a foreign adversary.
[09:10:11] That doesn't make sense. And I just -- you know, what we have is the president's handpicked attorney general's summary of a report. I think Congress absolutely should press to see Barr's or Mueller's report. That makes the most sense.
Their job is to do the work on behalf of the American people. And his -- Barr's summary doesn't erase what we've seen with our own eyes.
CROSS: Look, we know that Vladimir Putin went after American e-mails to help elect this president. For some reason Donald Trump doesn't want to acknowledge that and lauds praise on Vladimir Putin every chance he gets. And you have to ask yourself why. Well, we know why. He has a multi-million dollar reason to do that. The Moscow Tower.
CROSS: We saw that in the Cohen plea deal.
SCIUTTO: The report --
CROSS: So I don't think that erases the facts and evidence that have been laid out before the American people.
SCIUTTO: Well, what we know of the Mueller report is very clear on that fact. It says Russia interfered in the election to help Donald Trump. That's not in question. But it was also clear saying that the president did not in the view of Mueller, at least he didn't find sufficient evidence to say that he cooperated or conspired or his aides conspired with Russia.
I just wonder from a political perspective, because you see -- and I'll just throw this up. When voters going into 2018 were talking about the issues that they cared about most, the Russian investigation way down. And that was before the Mueller report was out. Weeks before the Mueller report was out. I just wonder if politically Democrats look at that and say we better start to focus on something else. Infrastructure, prescription drug prices. You know, other issues that were truly voting issues in the midterms.
CROSS: Sure. Well, a couple of things. You're saying what the Mueller says and I haven't seen it. I don't think you have either but we certainly heard Barr's summary of it. And look, what you're saying suggests that Democrats can't walk and chew gum at the same time. We're coming up on another presidential election. We know that Russians attacked our democracy. If the suggestion is that Democrats should somehow forget about that and only focus on these issues that's ridiculous.
Look, the fact that there is a question that Democrats can't talk about policy and protect our democracy is just one that's not right. Senator Kamala Harris just unveiled a policy -- advocating for a teacher pay increase today. Elizabeth Warren has one of the most comprehensive policy packages I think in the Democratic field.
CROSS: Yet all of these people are perfectly capable of pursuing actions to make sure that our -- the very system that makes up America, our democracy, is not attacked again.
SCIUTTO: Yes, I get that.
CROSS: So yes, I think -- (CROSSTALK)
CROSS: I'm sorry, go ahead.
SCIUTTO: Listen, I get that argument. But these are lawmakers who've got to be reelected. And you also have more than a dozen candidates running for president in 2020. And they've noted that when they go out to town halls, et cetera, they're not even getting asked about the Russia investigation.
I wonder if there's a silver lining here speaking, you know, in purely political terms for Democrats that they can now, you know, in effect abandon the impeachment question and focus on the legislative priorities that you've talked about there.
CROSS: Why do they have to choose, Jim? I just -- I don't buy into that narrative. It just feels like a right-wing talking point that the media for some reason adopts. It doesn't mean --
SCIUTTO: This is coming from Democrats, too. They will say it very publicly. You heard Sunlen Serfaty up on the Hill say that Nancy Pelosi is talking about a focus on the agenda. So it's not a media talking point. It's something being spoken openly about among Democratic lawmakers.
CROSS: But even with Pelosi that's not to suggest that you cannot still pursue business on behalf of the American people because what the American people are asking about at town halls does not always dictate what happens in the halls of Congress.
You and I have spent time on Capitol Hill. We know there's a lot of minutia in government that happens that maybe your average person who's trying to pay their mortgage, worried about their health care, et cetera, they might not be thinking about.
Look, in 2016 we weren't talking about -- a lot about Russia attacking our democracy. Maybe we should have been. But I don't think it would be wise this time around to yet again ignore what has happened in the past.
CROSS: You know, three years with this attack just because we think that the American people don't care about it. That's simply not true. I think there are a lot of policy issues that Democrats are talking about. The aforementioned things that I brought up today. But that doesn't take away from protecting our democracy. I just don't understand --
SCIUTTO: I do.
CROSS: -- this agenda to say that they shouldn't focus on that.
SCIUTTO: Well, I'm not saying that. I didn't obviously --
CROSS: No, not you, I'm not saying you are but there are people who are saying that.
SCIUTTO: Yes. No, I hear you. You know, intelligence agencies do say that Russia may attack again in 2020.
Listen, Tiffany -- and may already be attacking again.
Tiffany Cross, it's always good to have you on. Thanks very much for joining us this morning.
CROSS: Thank you, Jim.
SCIUTTO: Well, Democratic backlash today after the Pentagon has now OK'd the transfer of $1 billion to start construction of a new wall that the president wants at the southern border. We will have the latest on this CNN reporting.
And he says he just didn't do it. But lawyer Michael Avenatti, first famous for representing the porn actress Stormy Daniels, is now facing charges that he himself tried to shake down Nike for millions of dollars. We have the latest on that case.
Plus the president repeatedly slammed the late Senator John McCain for handing the Russia dossier over to the FBI. Guess who told him to hand it over? Senator Lindsey Graham.
SCIUTTO: The Pentagon is now moving forward with President Trump's desired border wall, telling Congress late last night, it has already authorized $1 billion already for the wall's construction. The decision drawing immediate objections from Democratic lawmakers. CNN Pentagon correspondent Barbara Starr joins me now. Barbara, I believe you're the first to report this story. What are you learning?
BARBARA STARR, CNN PENTAGON CORRESPONDENT: Good morning, Jim. Well, it was last night when acting Defense Secretary Patrick Shanahan informed Capitol Hill that $1 billion essentially in unused military pay. Another personnel account would be transferred to this effort on the border that this part of the effort is specifically aimed at trying to control drug smuggling routes.
This will be 57 miles of border fencing, improvements, road improvements in Texas and Arizona. Under the plan between the Pentagon and the Department of Homeland Security.
[09:20:00] But already, it is drawing fire from Democrats since Shanahan will actually be on Capitol Hill testifying in just under an hour on the house side. So perhaps, we'll be seeing a few fireworks there. Democrats on Capitol Hill are objecting to this, they think that this is not the way to go.
They're concerned are that there will be even more money transferred from things like military construction projects, that readiness and training will be hurt and the things that they believe the military needs to have funded simply won't get funded because it will all be transferred to the border projects.
So we will see in a short time how the acting Defense Secretary plans to defend this program in the face of congressional opposition. Jim?
SCIUTTO: Barbara Starr, thank you as always for being on top of it. Joining me now is Republican Congressman Brian Fitzpatrick of Pennsylvania, he serves on the Foreign Affairs Committee. Congressman, thank you for taking the time this morning.
REP. BRIAN FITZPATRICK (R), PENNSYLVANIA: Good morning, Jim, how are you?
SCIUTTO: So let's start on Barbara Starr's reporting there, regarding wall funding now coming from the Pentagon. You broke ranks in February joining Democratic colleagues in opposing the president's emergency declaration decision -- declaration. Should the president be able to unilaterally move funds from the Pentagon including for things like unused military pay as Barbara said there to fund his border wall?
FITZPATRICK: I don't think so, Jim, and that's exactly what that resolution was about. Myself, I think there were 13 Republicans that joined in the resolution. We all agree with the need for border security. So I want to be clear on that. But we need to separate out the need for border security with how we get there.
And there are constitutional concerns here. And the message that I've shared with all my colleagues is be careful of the precedent you're setting here. Because if you take that position now on this issue, be prepared to be consistent on that same -- on the same issue of title 50 when a future administration takes its action on a different issue.
SCIUTTO: To put a final point on it, are you saying that the president in effect is breaking with the constitution here by overriding congressional authority to determine how money is spent.
FITZPATRICK: Well, the constitutional question is one that will be decided by the courts. What my view is that, this is a matter for the legislative branch to deal with. We tried to get this through our last Congress, I voted for a bill that included $25 billion border security funding. But that's the path it has to take, it has to go through the legislative branch, through regular order and not this usurpation of legislative authority by the executive branch.
SCIUTTO: This is not the first time that the president has gone to the Pentagon for help at the border. As you know, deployed thousands of active U.S. military forces along the border. And now we're hearing from General Robert Neller; he's the top commander -- commandant of the U.S. Marine Corps.
He warned Secretary Shanahan directly that the president's decision to send those troops to the border, and I'm quoting here, "pose an unacceptable risk to Marine Corps combat readiness and solvency." You yourself, a law enforcement veteran here, is the president making our country less safe by, in effect, using these troops down at the border? FITZPATRICK: I wouldn't say that, Jim. You know, the deployment of
the troops is a whole separate issue. Now, when it comes --
SCIUTTO: But the Marine -- the Marine commandant appears -- says it directly, it's an unacceptable risk to Marine Corps combat readiness and solvency.
FITZPATRICK: Right, no, and I -- listen, I personally would always defer to the military experts. I mean, I felt the same way about General Mattis. But the issue of border security funding is totally separate from the deployment of troops issue. And listen, I think any elected official, particularly on issues of military readiness ought to defer to the military experts. I do believe that.
SCIUTTO: Let me move if I can now to the results of the Mueller investigation or at least what we know so far based on Bill Barr's summary. As you know, a clear answer as far as we know on the collusion question are not so clear question on obstruction of justice. In fact, Barr quoting Mueller says that Mueller found evidence of possible obstruction of justice by the president, although he found evidence on the other side as well.
He did not make a decision himself. Does it concern you, and should it concern the American people that the special counsel found evidence, at least some of it, that the president of the United States attempted to hinder this investigation?
FITZPATRICK: Well, that's exactly why the report ought to be made public. I've made that clear. I was one of -- by the way, one of two Republicans to co-sponsor legislation to protect the special counsel. Bob Mueller was my boss while I worked at the FBI, he's incredibly competent.
I think he did a great job with the investigation. But that's why this report ought to be made public. Now that the investigation has been completed 22 months, 40 of my former colleagues at the FBI engaged in this investigation. But now it's time for Congress to exercise our oversight role, not to perpetuate this for a long period of time, but just to round out the edges of the investigation and answer any unanswered questions.
[09:25:00] SCIUTTO: Could one of those questions be because as you know, it's an open question as to whether Robert Mueller, the special counsel, really was asking Bill Barr; the president's appointed Attorney General to make this decision on whether obstruction of justice was committed or Congress has spoken to legal experts including veterans of previous independent counsel investigations who say they believe it really is Congress' decision there.
Do you believe Congress should look at the evidence itself and then make its own judgment as to whether the president obstructed justice, and would you be willing even as a Republican to make that judgment?
FITZPATRICK: Well, the decision on whether or not a crime was committed is made by the Department of Justice by special prosecutors and by law enforcement, not by elected officials. So what we have is an administrative oversight role. We have to be very clear on that that the special counsel and the DOJ are the ones that make prosecuted decisions. You don't want people down here --
SCIUTTO: But not -- but as you know as well as me with your experience in law enforcement, you know that the president is a special case and the special counsel law was written in such a way to take that decision out of the presidential chain of command in effect to allow an independent special counsel to look at it, but then to allow Congress as well to weigh this as it did for instance with Bill Clinton.
It's not entirely a prosecutorial decision. In fact, many argue it's a political decision by elected members of Congress.
FITZPATRICK: Well, Jim, you've got to separate out the special counsel from the independent prosecutor. I mean, there are two separate things. Special counsel is actually in the chain of command in the Attorney General's office for the Department of Justice. So it's important to separate those two.
But I believe we do have an oversight role to play, I don't think we should be making charging decisions here in Congress from a criminal standpoint for sure --
SCIUTTO: Right --
FITZPATRICK: We're not allowed to do that legally. But we have an oversight role to play, which is why I think this report ought to come out. I'm a big believer in the truth and transparency, but also finality. And I think that's what the American people want. They want the truth to come out --
SCIUTTO: Yes --
FITZPATRICK: They want the report to be released, but we also got to wrap things up at some point.
SCIUTTO: Yes, broad support publicly, and then of course in the house as well, 422-0 I think was the vote to make the report public. Congressman Fitzpatrick, enjoyed having you on this morning.
FITZPATRICK: Thank you, Jim.
SCIUTTO: Well, there is heavy fire overnight as Israel launched retaliatory strikes against Hamas targets and attempted a cease-fire apparently going nowhere. Just look at those pictures there. And we're just moments away from the opening bell on Wall Street.
Investors will be watching for a new check on the health of the U.S. economy. A key report on consumer confidence coming out in just minutes, we will bring it to you.