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Trump administration wants entire Affordable Care Act struck down, Pelosi tells Dems Barr's summary can't be trusted at face value, Pentagon authorizes $1 billion for wall construction; Democrats object, Now: Senate holds hearing on red flag laws, Chief Justice Roberts denies request to put bump stock rule on hold. Aired 10-10:30 ET

Aired March 26, 2019 - 10:00   ET



JIM SCIUTTO, CNN NEWSROOM: The Justice Department had previously argued that portions of President Obama's signature healthcare law should stand. But it now says, it agrees with a federal judge in Texas that it should be done away with entirely. This has an effect on lots of people in this country who could.

Let's discuss now with Renato Marriotti. He's a former federal prosecutor, current CNN Legal Analyst. So, first of all, this is a big change for this administration, which was arguing -- really, making another argument before and now it's saying, actually, forget about that. We want to go against the entire law. How unusual and how difficult is it to make that transition?

RENATO MARIOTTI, FORMER FEDERAL PROSECUTOR: Well, it's very unusual. Typically, federal laws are defended by the Justice Department. In other words, there is often challenges to the constitutionality of laws and the Justice Department spends a lot of time and resources defending the constitutionality of our laws. So it's already unusual when an administration doesn't defend the law.

Here, under Jeff Sessions, the Justice Department was defending the constitutionality of much of the law. In other words, the ruling by the federal judge in Texas was that because the individual mandate is no longer part of the Affordable Care Act that the entire rest of the statute is unconstitutional. What Jeff Sessions' Justice Department had said was that, well, there are a couple portions of it that would go down with the individual mandate, but the rest of the law would be okay. Now, under Attorney General Barr, the Justice Department is saying, no, the entire law must go.

SCIUTTO: Right. And we should be clear, it's 11 million people covered under Obamacare. 52 million would be affected under preexisting conditions allowances there. Let me ask you this. Is this a legal decision or a political decision? Because it's not like the Justice Department suddenly discovered a new law that said their past position was wrong or are they going to make that argument before the judge, because it's a pretty dramatic turn? MARIOTTI: Yes. Well, there is no question that this is -- there is no event. In other words, it's not like they discovered new evidence or something like that. This is -- the law is what it is. Nothing has changed. It's simply that under the leadership of Attorney General Barr, there is a different view at the Justice Department.

Now, the decision by the court below the federal district court has been wrongly criticized on both sides of the aisle. Many prominent scholars who previously challenged the Affordable Care Act have criticized that decision. At this point, if the composition of the Supreme Court remains the same, it seems unlikely that this challenge would succeed in the Supreme Court. But, of course, the composition of the Supreme Court could change at any minute.

SCIUTTO: Okay. First, it would go to the court of the 5th circuit, I believe, right, which is relatively rightly. But if it does get to the Supreme Court -- let's talk about John Roberts because he was the famous swing vote, even as a conservative, that, in effect, rescued the Affordable Care Act during the Obama administration to the chagrin of many conservatives. Based on the law -- and I'm not asking you to get inside of his head, but based on the law of that decision and what we know of the Justice Department's current standing, can you get a sense of how the Supreme Court Chief Justice might decide on this in?

MARIOTTI: Well, let me -- I think the principle is easy for everyone to understand why I think it is likely that this going to be upheld by the Supreme Court. Essentially, the reasoning is that because one portion of the law is gone that the rest of the law goes away or should go away or it is unconstitutional. Previously, the Supreme Court with an opinion authored by John Roberts held that the law was constitutional and specifically a portion of the law that is now gone which has been removed by Congress. Congress made a decision to remove that portion of the law, the individual mandate, but chose explicitly to keep the rest of the law in place.

Generally, the Supreme Court does not want to overturn a statute that has been passed by Congress, signed into law by the President. So they are going to try to be deferential to that. It would have to be a clear situation for the Supreme Court to overturn a statute. Here, the severability issue, this issue of whether or not the rest of the statute can survive, I think, it's unlikely to survive at the Supreme Court particularly given the prior ruling.

SCIUTTO: But you do make a good point, unless the composition changes. For instance, President Trump gets to appoint another conservative justice, that could swing ultimate the result. Renato Mariotti, thanks very much.

President Trump is headed to Capitol Hill today. He will have lunch with Senate Republicans while democrats in the House chart a delicate course in the wake of the Mueller report and what we know of it so far moving on without letting go of their own separate investigation.

CNN's Phil Mattingly joins me with that. So you have this call today, I believe, beginning about an hour ago with some concern, I believe, even from Nancy Pelosi about dangers for democrats going forward if there is too much focus on the Russia investigation and not enough on their agenda.


What are you hearing is coming out of the decision making there?

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes, Jim, that's exactly right. And I think what's really instructive in terms of how democrats are going to operate going forward now that the Mueller report is filed, Attorney General Bill Barr has sent a letter summarizing that report is actually what just happened behind closed doors, House Democrats' meeting behind closed doors for their weekly caucus meeting.

And I'm told from one person in the room that Speaker Nancy Pelosi made clear a couple things, first and foremost, that they need the actual report, the actual Mueller report, not the letter from the Attorney General, the four-page summary of that report. That will be one of the major pushes. You saw the letter come out last night from six democratic committee chairs asking for that report to be submitted to Congress by April 2nd. The underlying materials and basis of that report will also be submitted to Congress. That will be a primary push at this moment. If they don't meet that deadline, then there is talk about trying to compel them to meet that deadline.

But there's also a focus on other things as well. Keep in mind, there are multiple house investigations that are central to the House, not necessarily the Mueller report including the House Intelligence Committee. And this is what that Chairman, Adam Schiff, had to say about his investigations.


REP. ADAM SCHIFF (D), C.A.: Our 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.


MATTINGLY: And that work will go on with the Intelligence Committee, the Judiciary Committee, other committees as well looking into things. But I think that's probably more important when you take away at least what I have been told was discussed behind closed doors today is a shift in focus. And that shift in focus is to healthcare, exactly what you and Renato were talking about.

I asked a democrat, right, where do you guys go from here? He simply sent me the link to the 5th circuit filing from the Justice Department about invalidating Obamacare. That is what democrats want to talk about on the policy front. That's what they campaigned on in 2018. And that more than anything else, Jim, at least according to people inside this closed door meeting is where you're going to hear a lot about from democrats going forward, not necessarily the Mueller report or the Attorney General's letter but healthcare and the Obamacare repeal or invalidation effort, if you will. Jim?

SCIUTTO: Yes. And healthcare was a big driving issue in the midterms. We know that that helped turned -- flip a lot of districts from red to blue. Phil Mattingly, thanks very much, on the Hill.

Joining me now is Republican Congressman Mike Johnson of Louisiana, who serves on the Judiciary Committee. Congressman, we appreciate you taking the time this morning.

REP. MIKE JOHNSON (R), L.A.: Hey, Jim. Great to be with you.

SCIUTTO: First, I wonder if I can get your reaction to the President's or the Justice Department's decision rather to seek to invalidate all of Obamacare while I know that politically most republicans don't like it. Many republican voters like the provisions of it, preexisting conditions, Medicaid expansion, is this a mistake by the Trump administration?

JOHNSON: I don't think it's a mistake. I think we've all seen that Obamacare is failing the American people. It was a big campaign issue in 2016 and, again, last year for everyone on both sides of the aisle because our healthcare system is broken. I think when the individual mandate is invalidated, I think that is the under pinning of the whole law, but there is a good reason for comfort, I think, among the American people. There are some smart people around the table working on real solutions to sure up our healthcare system and to make it much better. And we look forward to try and implement those changes.

SCIUTTO: I mean, that's a nice answer. But you know as well as me that if this is repealed, 11 million Americans will suddenly have no health insurance. Is that something you would support including in your state?

JOHNSON: No, we won't support that at all. But I can tell you that, virtually, every republican on the Hill as well as the democrats are in favor of supporting those with preexisting conditions and making sure that no one falls through the cracks. I don't think we're going to have a major crisis on that. I think everyone will get together here in a bipartisan fashion and make sure that the American people are taken care of. We are committed to that and we look forward to the opportunity to bring those ideas to the table.

SCIUTTO: Well, I'd be impressed if there was a bipartisan approach to this knowing this. But I appreciate your hope that that's possible going forward.

JOHNSON: There is reason to hope.

SCIUTTO: Okay, good. Everybody wants the hope [ph]. Let's talk about Mueller for a moment here and the report. As you know, and, again, this is based on Barr's reading of it, but it seems the answer was fairly definitive on the question of collusion quoting direct language from the report. But on the question of obstruction of justice, Robert Mueller said he did find evidence on both sides, which means he found evidence that the President, on one side, did obstruct justice. Barr made the decision, not going to prosecute. Should that be the Attorney General's decision or Congress's decision?

JOHNSON: No. I think it is fully appropriate for the Attorney General to make that decision. And I'm not sure that's a fair characterization of what Mueller found. I think he left it open ended and for all of the reasons, whatever reasons he had, he punted that decision to the top man, the top of the totem pole. I think that's fine.

Look, Mueller is someone --

SCIUTTO: It was pretty language though. You must admit. He said, specifically, it does not exonerate the President on obstruction of justice. And that is not language the Special Counsel had to put into that report.

JOHNSON: Well, that's true. But he is using the common parlance of federal investigators and prosecutors. That's the world he came out of. But let's make this important point. Rod Rosenstein, the Assistant Attorney General, also assisted the A.G. in that decision and he is one that the democrats have been saying for two years is an American hero.


He served under the Obama administration for eight years. These are men who have sound judgment. William Barr has been the Attorney General before. He is no spring chicken. He knows what he is doing. And I think that the American people have a lot of confidence in the decisions that have been made and that's why so many people are saying it's time to move on and get to the big issues that are facing the country.

SCIUTTO: Will the American people have more confidence if they could see the full report and would you support the release of the full report?

JOHNSON: I do. Look, we voted 420 to 0 to release the full report but we have to do it within the bounds of the law. And I think everyone can appreciate that there are certain pieces of information that have to be redacted. You can't have anything that's confidential, classified, something that deals grand jury proceedings, those are all prevented from public disclosure by law. So we'll get to it. And I think the American people deserve that.

SCIUTTO: And that's what they are getting to now. They scrubbing it from grand jury information, for instance. But let me ask you this. Before that public release to be meaningful, it would seem to me Congress would have to keep an open mind to make its own judgment. Is it not possible that William Barr made a judgment that elected members of Congress disagree with on this? If you see evidence in there, evidence that leads you to a different conclusion, might you vote differently? Might you say that, well, there is evidence here of something that a U.S. President should not have been doing with regards to the investigation?

JOHNSON: I think it's silly for anyone to suggest that any congressional committee here, my House Judiciary Committee, the Intel Committee, anyone else could find something that Robert Mueller did not. In 22 months of investigation, with $25 million, 500 witnesses -- SCIUTTO: But Robert Mueller did not make a decision on obstruction of justice, as you know. And you know that special counsels are designed really so that you take investigations like this out of in effect the political arena, right, so they can present the evidence. But many legal scholars argue that the ultimate judgment is up to Congress because it's a political judgment you cannot indict a sitting president.

JOHNSON: Well, sure, but Congress has to rely upon the expertise of the people who are not political. That's what the Attorney General's Office is. That's what the Department of Justice is. Robert Mueller is beyond re-approach and everyone has said.

SCIUTTO: Attorney Generals are not political? They're appointed by the President.

JOHNSON: They're appointed by the President. But that has always been the case. In these are people who understand that the rule of law is what should govern and not politics. The democrats here have politicized all of this. And that's why peoples' patience is wearing thin. We spent too many American taxpayer dollars, we spent too much time. There is no way that any congressional committee can find differently than what these experts did with all those resources and unlimited discretion, unlimited time, we are wasting the American people's time if we go forward with this. It's time to move on. We have major challenges facing the country, and that's what the Republican Party here is trying to push. And I hope our democrat friends will do the same.

SCIUTTO: And to be fair, you're hearing that same point from democrats as well, at least on some democrats. Congressman Mike Johnson, we do appreciate having you on the show.

JOHNSON: Thanks, Jim. I appreciate it.

SCIUTTO: Right now, as we speak, lawmakers are on the Hill holding a rare hearing on gun control as three apparent suicides have devastated two communities already touched by the tragedy of mass shootings.

Plus, 1 billion for the border wall, the Pentagon notifying Congress that it authorized the transfer of funds to begin new construction along the southern border to meet the President's demands, democratic lawmakers not happy about it, we're going to discuss.

And just 40 seconds, that is how long pilots may have had to diagnose the problem and initiate a system override in at least one of the Boeing 737 Max plane crashes, not enough time. We'll have more.


[10:18:01] SCIUTTO: The Pentagon is now putting $1 billion of its own funding toward the President's desired border wall. It notified Congress just last night that it has authorized the transfer to go towards some 57 miles of fencing and other measures on the southern border. Democratic lawmakers, not happy. They say the Pentagon never got permission from Congress to divert those funds. CNN Pentagon Correspondent Barbara Starr joins me now. Barbara, this, of course, is the second time the Pentagon has ponied up, you might say, deploying those active U.S. military forces along the border, and now, transferring this money. Tell us how it happened.

BARBARA STARR, CNN PENTAGON CORRESPONDENT: Well, this came from acting Defense Secretary Patrick Shanahan late last night. And right now at this hour, he is testifying on Capitol Hill in front of the House Armed Services Committee getting a lot of questions coming his way about this. Republicans and democrats alike, expressing some concern that military funding is being shifted towards all of this.

Shanahan making clear that he has approved a plan for $1 billion in essentially unused funds for military personnel, unused money for pay and pension type accounts that that will be transferred to building the 57-mile segment through parts of Texas and Arizona, wall protection, improving roads, $1 billion there, and perhaps more to come potentially in the coming weeks in canceling some military construction in order to fund additional parts of the border.

Senate Democrats especially are very concerned about this. Look, you know as well as I do, Jim, the congressional members always concerned about projects being cancelled in their district. But they are raising the broader issue now, does this begin to impact military readiness as you take this money away? Should it be used somehow in another way to keep the military ready, trained, able to deploy? It's one of many questions being raised about all of this.



SCIUTTO: Yes. And it comes as a top marine commander saying it is affecting readiness today. Barbara Starr, thanks very much. Good to have you.

STARR: Sure.

SCIUTTO: The grief over the Parkland and Sandy Hook shootings compounded, as if they needed it, by recent apparent suicides. Why is this happening and what can we do to help? I'll speak to a father whose son survived the Parkland attack. That's next.



[10:25:07] SCIUTTO: Right now, the Senate Judiciary Committee is holding a hearing on so-called red flag laws. These are laws that allow families and law enforcement to ask accord to temporarily suspend a person's access to guns when the person poses a serious threat to themselves or to others. The hearing comes after three people in a span of just seven days committed suicide. And the one thing connecting all of those suicides is tragedy. The latest was Jeremy Richman. He's the father of six-year-old Avielle. She was among 20 children and six adults killed in the Sandy Hook shooting back in 2012.

I want to speak to Jeff Kasky. His son, Cameron, survived the Parkland shooting. He has since become an active campaigner against gun violence. Jeff is now the president of Families Versus Assault Rifles. Mr. Kasky, we appreciate you coming on today.


SCIUTTO: First, let me begin because this is such a polarizing issue. And just note for our viewers' sake, you in addition to being the father of two survivors, I should say, at Parkland, you are also a police officer, you're a gun owner and you're supporter of the second amendment.

KASKY: Well, I'm also no party affiliation. They try to paint the folks who are on the gun safety side of the argument as liberal, snowflake, democrat, hippy, whatever you want to call it. But that's not the case. Gun safety shouldn't be a political issue. Gun safety is for the whole country. It's for all of us. Bullets are not red or blue. And it's enough already with the lies and the obfuscation by the NRA and the other enthusiasts who just want people to buy more and more and more guns. It's enough.

SCIUTTO: So let's talk about pending action. For instance, just in the last few minutes, we have the Supreme Court, Chief Justice Roberts, denying a request to put a hold on a Trump administration rule that bans bump stocks. This is what was used, of course, in the Las Vegas shooting, to turn a semi-automatic rifle, in effect, into a machine gun. Your reaction to the Supreme Court's decision to allow that ban to go into action.

KASKY: You know, bump stocks, it's an interesting red herring, bump stocks, because I feel like Congress wants to say that they did something and the President wants to say that he did something. But something like 0.0001 assault rifle owners actually own bump stocks. I certainly agree that they should be banned. They very simply take what's an extraordinarily dangerous and unnecessary weapon and make it even more so. But please don't get confused and think that banning bump stocks really solves anything more than just a very, very small band aid on a gaping wound.

SCIUTTO: I hear you. Let's talk about other measures, because you have this hearing going on, as we speak right now on the so-called extreme risk and red flag laws, which to some degree you would expect it already to be the case that if someone poses a threat to themselves or others that you can confiscate their weapon. But in your view, does a law like this, would it make a difference to not end gun violence but lessen gun violence?

KASKY: Well, I guess, technically, it would. I mean, I don't love the law, particularly with the background that I have in law enforcement, to get that phone call that says, hey, officer, go to this such and such residence and take the guns away from Mr. Smith because he's been threatening people with them and he's got a mental health issue. So you're going to need to knock on his door and tell him you're going to take his guns away. That's going to be a bad day for somebody at some point.

I have much better idea. How about keep them out of his hands in the first place? How about there should be some qualifications for actually having to purchase a gun, particularly the assault weapons. My organization of Families Versus Assault Rifles, we just want reasonable safety controls on who is walking around with these weapons of war. That's all we are asking for.

SCIUTTO: And I often spent a lot of time with U.S. military. They are the one often at the forefront saying these are weapons of war and have no place being on the streets.

I want to ask you this, I mean, because this is -- you have been a campaigner since your family went through this tragedy of Parkland. And there was a feeling following Parkland that this was a moment of change, right, that all of these young students in particular being -- going so public here would make a difference. But, of course, since then, you've seen much of the same resistance we have seen for years in this country. And I wonder if you are concerned that that moment has passed.

KASKY: No, that moment hasn't passed. I think if you look at the NRA's messaging, they came at it originally with their playbook. By the way, their playbook was was released yesterday in an undercover report by Al Jazeera. And I encourage everybody to look for it. It's very interesting what the NRA tells others to do in order to avoid liability or responsibility for these tragedies.