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White House Complained to Barr; Pelosi Accuses Barr of a Crime; Nadler Options after Barr's No-Show. Aired 1-1:30p ET

Aired May 2, 2019 - 13:00   ET



[13:00:02] ANNOUNCER: This is CNN breaking news.

BRIANNA KEILAR, CNN ANCHOR: I'm Brianna Keilar, live from CNN's Washington headquarters.

And we begin with new CNN reporting on a letter from the White House to Attorney General Bill Barr after the release of the Mueller report.

I want to go live now to CNN's senior White House correspondent Pamela Brown with this new reporting.

Tell us about it, Pamela.

PAMELA BROWN, CNN SENIOR WHITE HOUSE CORRESPONDENT: Well, Brianna, this five-page letter obtained by CNN was sent by White House Special Counsel Emmet Flood to Attorney General Barr the day after Mueller's report was released publically. This letter was to, quote, memorialize concerns about the special counsel team.

And in the report, in the format of the report, it lays out why the White House believes the special counsel team acted politically, veering widely from its stated mission rather than prosecutors strictly following the law, with this letter saying the special counsel team made political statements, such as saying that they couldn't exonerate the president and couldn't establish his innocence on obstruction.

The letter says, quote, in the American justice system, innocence is presumed, there is no need for prosecutors to conclusively to determine it -- determine it, saying, the special counsel and his staff failed in their duty to act as prosecutors and only as prosecutors.

It goes on to blast the special counsel team for not doing what the regulations required it to do, provide a confidential report, only explaining the prosecution or declination decisions because the team, as you know, Brianna, didn't reach a decision on obstruction. Instead it says that the special counsel intentionally and unapologetically refused to do so and called the obstruction section part truth commission -- part truth commission and part law school exam.

Now, the special counsel did address this issue in the report, why it didn't reach a decision, as you know, saying that one factor of not making a decision was that OLC memo at DOJ saying you cannot indict a sitting president.

This letter from Emmet Flood also addresses the idea that Mueller's report was intended as a road map for Congress, as we've heard Democrats say on Capitol Hill. The report says explicitly, it's not the -- the letter, I should say, says explicitly that it's not the business of inferior officials in the executive branch to provide road maps for other branches of government. So that is the argument here at the White House on that matter.

The letter also makes clear, Brianna, that just because the president didn't assert executive privilege before, that doesn't mean he won't moving forward. So certainly this is a strongly worded letter from the White House special counsel, Emmet Flood, speaking on behalf of the president and his concerns with the special counsel team. And it's the first we're hearing -- the legal argument in this letter.

We, of course, have heard the president's reaction to the Mueller report saying that he has been, quote, totally exonerated. But now we're actually hearing the thinking behind the scenes from the White House special counsel lawyer Emmet Flood and why there is a belief from them that Special Counsel Mueller's team acted politically and didn't act only as prosecutors.

Again, this is the White House point of view.


KEILAR: Can we revisit that part about executive privilege. That's so important because legal experts, a lot of them, have said the White House isn't on very good ground here. The president, they are not standing on very solid ground legally to exert executive privilege when it comes to some of the folks who have already talked to the special counsel. The cat's out of the bag, they'll say. So -- so what does this letter exactly say? It just says they -- they're reserving the right or they might -- what does it say?

BROWN: That's right. So the letter says that the president didn't waive it for the future, and it draws this distinction between the White House being fully cooperative in criminal investigations versus congressional investigations, saying this is a difference. And, of course, this is laying the groundwork for the ongoing battle, as we know, going on right now between the White House and House Democrats on oversight issues over current and former White House aides' testimony, including former White House Counsel Don McGahn. So this letter is making the case that, look, the president was transparent when it comes to the Mueller report. The redacted version, the president chose not to assert executive privilege.

But, basically, this was a different situation. This was having to do with a criminal investigation. The president thought it was best to not assert executive privilege in this case, but a congressional investigation, in a different part of government, a different branch of government is completely different, and the president has -- still has the right to assert executive privilege over matters pertaining to former and current White House officials speaking to congressional committees and handing over materials and so forth. That, of course, is the White House view. But as you pointed out, it's

not -- it's not a settled issue, and that is why the White House special counsel Emmet Flood wanted to put this on the record with the White House view on because there is this debate going on right now of whether the president can still do so since he didn't -- he didn't assert executive privilege on the Mueller report.

[13:05:05] But this is a brewing battle as we speak, Brianna, between the White House and House Democrats over this issue. Brianna.

KEILAR: It is, and we see the battle lines in this letter.

Pamela Brown, great reporting. Thank you so much.

I want to bring in our panel to discuss this.

We have Laura Coates, she's a former federal prosecutor, Julian Epstein is a former chief Democratic council to the House Judiciary Committee, Gloria Borger, of course, is our chief political analyst.

All right, so what's the objective of having a letter like this sent from Emmet Flood to Bill Barr? It's to memorialize something, but what's the objective here?

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, there's a political objective, and you guys can speak to the legal objective. What they are basically saying, what Emmet Flood is saying here is that the Mueller report was a completely political document that said things it did not need to say. They're saying that everybody -- that the -- that the -- all they were required to do was to send something to the attorney general which says, you know, we can't -- we're not going to prosecute. We think he's not guilty of obstruction, collusion, whatever and leave it at that. And, instead, they say that there was no need for prosecutors to -- to say that, you know, we can't exonerate him because they didn't charge him.

So they -- they're saying they went way beyond, and they're also saying -- and, by the way, while we cooperated with this -- this investigation, this legal investigation, we -- this doesn't mean we have to cooperate with a congressional investigation. They are two completely different things. So I think it's kind of putting, you know, putting their marker down saying, we think this was a farce basically. We're not happy about it. And we are not going to -- we're not going to work with those Democrats.

KEILAR: Julian, you chuckled when she said farce.

JULIAN EPSTEIN, FORMER CHIEF DEMOCRATIC COUNSEL TO HOUSE JUDICIARY COMMITTEE: Well, Gloria is absolutely right, there's a political dimension and a legal dimension.

On the legal dimension, I think they're on very, very weak ground in attacking the Mueller report and on taking a -- the position they're taking on executive privilege. On attacking the Mueller report, there is very, very well established

in the history of independent counsel, and in the regulations, that the independent counsel, the special counsel, should make clear if they decide not to prosecute or bring an indictment and why that is the case. And Mueller was very clear here that the reason that he did not bring indictments against -- on obstruction was because the president wouldn't have a day in court. There's nothing in the regulations that prohibit that. That's not a political statement. That's a legal statement.

The bigger picture here is that, you know, Trump was -- and the White House, I think, were on their way to winding this investigation down, and -- by the middle of summer, end of summer, but what they're doing now is digging in, and I think it's a very, very foolish political strategy because what they're insuring --

KEILAR: We've talked about this before, because it continues.

EPSTEIN: What they're ensuring is that this is going to continue. So what -- if Barr had simply come out and been candid about what was in the Mueller report and didn't try to hide the -- what Mueller was saying on obstruction and said, look, the underlying report here shows there was no conspiracy on the Russia interference question, Mueller and I disagree on the obstruction issue, I think you would have had a glide path for the White House to start winding this thing down by summertime. But the fact that Barr kind of hid, played hide the ball on that fact has reinvigorated the Democrats on The Hill right now, many of who are calling for impeachment.

KEILAR: He'll say he didn't because he had the quote about how it said it wasn't exonerating on the issue of --

EPSTEIN: The same thing with this -- the same thing with this Flood letter. They are digging their heels in --


EPSTEIN: And what they are ensuring is that this conflict is going to continue well into the fall and probably into election season. It's really, really -- it's bad on the law, but it's even worse on the politics.

LAURA COATES, CNN LEGAL ANALYST: Well, let's get this straight, they're arguing it's just too thorough, that they were too comprehension in what they had to say and they should have just kind of streamlined and cherry picked sound bites that made everyone look good. Notice who's writing this, the Office of the White House Counsel, not the personal attorney of the president of the United States, who was not enveloped in the actual conversation beforehand. Barr did not hand a copy in advance to them. Instead, it went to Rudy Giuliani and Jay Sekulow and company, the weekend everyone else received it in the redacted format. And so their concern is normally supposed to be for the tenure and longevity of the office, not the incumbent. So that's a little odd (INAUDIBLE) weighing in on this area. But having said that, of course, the delay tactics that were used by Barr, as you're talking about, kick the can down the road. It did not resolve the issue. It delayed it in a way that makes people focus on it all the more.

On the issue of executive privilege, I am kind of chuckling to myself to think that, well, we may have cooperated with who could have put somebody in prison, but we're not going to acknowledge the people who are part of a co-equal branch of government to say that you have oversight authority here. That's one of the fundamental problems here. The assumption everyone had was, once Mueller's work was done, Congress should have been done as well. But Congress played second fiddle because they had to make sure witnesses would come before them who would not risk being -- having perjury or going to jail or having other legal jeopardy in front of Robert Mueller. They're supposed to delay it, but now it seems as though they're saying, we're all done here because Mueller's book is closed. That's not the case.

[13:10:13] KEILAR: Why -- let -- let's just fact check this idea that it is political for Mueller to say that he could not exonerate the president. This is, you know, what the -- the White House is alleging.

BORGER: Right. Right.

KEILAR: And also in the Mueller report where Mueller makes it clear that Congress has an avenue in all of this, right? That Congress can look at the facts of the situation and come to Congress' conclusion, and that is what the road map as Democrats see it and Republicans see it as well. Are those political statements? Are those unusual things?

BORGER: They are unusual. They're absolutely unusual. I mean we -- I think we all acknowledge that because it's very clear from reading the Mueller report, as we've all done, that the attorneys could not reach a decision, a conclusion.

KEILAR: And build -- but building on that, Gloria, is it -- I wonder, was it possible for Robert Mueller to do anything that did not become political considering the atmosphere that was created around the report?

BORGER: Good question. Good question.

KEILAR: That's the question I have.

BORGER: Because if he had done what Emmet Flood wanted him to do, which is to say, we can't charge him on obstruction, we can't charge him on collusion, book closed, no 488-page report, that would have been controversial as well.

I think what they're complaining about is this road map that Mueller provided. I think they say this in the letter, that that's not your job, and it's also this controversial paragraph you just referred to where they say, if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction, we would so state.


BORGER: And so it's de facto. They can't state that.

EPSTEIN: In most -- in most cases, you wouldn't -- a prosecutor wouldn't say that. But in most cases, there wouldn't be a regulation that says this individual, the president, can't be indicted while he is still in office.

BORGER: Right. Right.

KEILAR: Usually it's not the president, right?

EPSTEIN: So this is different.

BORGER: Right.

EPSTEIN: So this is an unusual situation.

The independent counsel regulations are replacing the independent counsel statute, which are -- which elapsed in 1999. The purpose of the statute that -- of the regulation, which everyone will acknowledge, is not just to look at whether criminal laws were violated, but whether there were issues that relate to Congress' oversight, particularly high crimes and misdemeanors that Congress should be fully informed about on the investigation.

So that's exactly what Ken Starr did with us. Gloria will remember this. We spent a lot of time talking about this in 1988. It's exactly what Ken Starr did. He made a referral and the referral was intended to go to the House for the House to consider whether high crimes and misdemeanors had occurred.

So, again, I think that they are barking up the wrong tree if they are trying to make an argument that Mueller somehow overstepped. All they are going to do is antagonize Mueller and make things worse for them.

If they're trying to dig their heels in by having Barr not come up and testify on The Hill, all they're doing is dragging a process out and prolonging their agony. If they're going to try and dig their heels in on executive privilege, I think their legal case is weak.

The bigger picture here is that Bob Barr and Emmet Flood are supposed to be real pros. And there was a road map for them to get this Russia matter, I think, concluded before the end of the summer. And what they are doing is they are stealing defeat from the jaws of victory. They are making decisions. Barr's obfuscation of what the Mueller report really was, Flood's report, they are making decisions that are only going to put steel in the spine of the Democrats on The Hill, increase the narrative, buttress the narrative that this administration is corrupt and move the story line along that the Democrats need to continue investigating. And I think impeachment was a dead issue a week ago. I'm not sure that's the case right now.

KEILAR: I want -- Gloria, a final word to you, and then I need to stand you guys by.

BORGER: Look, I think what Emmet Flood did here is just provide his own road map for Republicans in Congress.


BORGER: Because each of these talking points, right, Laura, will be used by Republicans.

KEILAR: All right, you guys, stand by for me.

We have some other breaking news.

House Speaker Nancy Pelosi outright accusing the attorney general of committing a crime, lying to Congress, she says. And it comes after had does not show up today for a hearing on the House side.

This is CNN's special live coverage.


[13:18:53] KEILAR: The other big news today is a big allegation from House Speaker Nancy Pelosi questioning the motivations and the morals of the attorney general of the United States and outright accusing William Barr of committing a crime during his testimony to Congress.

Let's listen.


REP. NANCY PELOSI (D-CA): What is deadly serious about it is the attorney general of the United States of America was not telling the truth to the Congress of the United States. That's a crime.

He lied to Congress. He lied to Congress. If anybody else did that, it would be considered a crime. Nobody is above the law, not the president of the United States and not the attorney general.


KEILAR: Speaker Pelosi is reacting to two events, Barr's contentious appearance before the Senate Judiciary Committee yesterday and then today's disappearing act. Barr refusing to appear in front of the House Judiciary Committee because he didn't like the format and, in the end, he was replaced by an empty chair.

The attorney general putting a face on the defiance of the White House. But while Democrats on the committee didn't get to question Barr, they still had plenty to say.

[13:20:00] (BEGIN VIDEO CLIP)

REP. TED LIEU (D-CA): Attorney General Bill Barr is now one of the most dangerous men in Washington, D.C.

REP. JERROLD NADLER (D-NY): What we saw was fear.

REP. STEVE COHEN (D-TN): Chicken Barr should have shown up today and answered questions. UNIDENTIFIED MALE: Attorney general, what are you afraid of?

REP. VAL DEMINGS (D-FL): As a former police chief, it was painful and disgraceful.

REP. HAKEEM JEFFRIES (D-NY): The so-called attorney can run but he cannot hide.


KEILAR: Our Sunlen Serfaty is on Capitol Hill covering this.

And I want to read you the Department of Justice's response to this accusation from Speaker Pelosi.

Quote, the baseless attack on the attorney general is reckless, irresponsible and false. And Pelosi said that the committee would do what it had to do about Barr, his no-show and his previous testimony.

But what avenues are open to Chairman Nadler at this point?

SUNLEN SERFATY, CNN CONGRESSIONAL CORRESPONDENT: Well, Chairman Nadler, Brianna, has been very clear that he's not ruling out the possibility of potentially issuing a subpoena to get Bill Barr in front of his committee to answer questions, ultimately potentially holding him in contempt. But the chairman has also been very clear that his first priority, his priority right now, is getting the full un-redacted Mueller report and the underlying evidence. The DOJ, last night, they missed that deadline to comply with the subpoena request from the committee to turn that over. Nadler clearly very agitated by that missed deadline, saying that he's going to push forward on this. He's going to give them a few more days. He says he's going to work with them over the next few days, see if a deal can come together over this issue.

But if the attorney general does not hand over the full un-redacted report and the underlying evidence, he has threatened to hold him in contempt of Congress. Just this morning, Nadler saying I'll have no choice but to move quickly to hold the attorney general in contempt if he stalls or fails to negotiate in good faith. Nadler saying potentially he'll give him till Monday. We'll see how things work out over the next hours and days. But certainly that potentially sets up a very big week up here on Capitol Hill again next week, potentially the start of contempt proceedings.


KEILAR: All right, Sunlen Serfaty on The Hill, thank you.

Back with our folks here, our experts on politics and all things legal.

Gloria, explain to us, so is -- Speaker Pelosi says that Bill Barr lied to Congress. What is the lie that she is talking about here?

BORGER: Well, I think what she's talking about is the fact that the attorney general was asked whether he knew about the staff's concerns that his four-page letter did not accurately represent their report. And he answered that, no, he did not know, when, in fact, we know that he had gotten this letter, that you have in your hands --

KEILAR: Here it is.

BORGER: From the special counsel outlining their concerns.

KEILAR: Received March 28th.

BORGER: Right.

KEILAR: And that is a few days after -- what is that, four days after the Barr summery --

BORGER: Right.

KEILAR: Of the Mueller report. And the letter notes, we communicated, quote, that concern to the department on the morning of March 25th. Then this March 27th letter basically memorializes this in writing.

BORGER: That's right. So is he hairsplitting because, as he said, well, you know, I didn't know anything about the staff. Now, Mueller had sent him a letter, but he wasn't -- you know, he wouldn't have -- his point was, well, I didn't know about the staff, but he didn't come out and say --

EPSTEIN: In his defense, he also said he thought the major concern was from the Mueller team was that they wanted more information out there, which was what Robert Mueller had said to him.

BORGER: Well --

EPSTEIN: So I think you are getting into some parsing --

KEILAR: Which is what he said Robert Mueller said, right?


COATES: But that's (INAUDIBLE), of course, because their -- it's chicken versus the egg argument here, right? The reason that they wanted more information out there is because -- instead of actually providing the not one but two substantive summaries, they provide that were already scrubbed, he put out his own four-page letter that was not comprehensive, that pointed out just some misleading aspects of the nature of why Mueller could not reach a decision, and in so doing the report -- the media was reporting on what was out there. But that's not the same thing as saying, I only have a problem, Barr, with the way the media is reporting it. His issue was the crux of, I have a problem because the media reports on what you provided, as opposed to what I put out there.

EPSTEIN: I think it is a mistake to say that Barr lied on that question. I think they're getting into parsing --

KEILAR: You think he has more of a leg to stand on with his answer? EPSTEIN: I think -- I think you're parsing and I think that's --

BORGER: Splitting hairs.

EPSTEIN: I think you're splitting hairs. I think it's the wrong place to go.

I think the bigger place to go is that Barr clearly did mischaracterize, by omission, the Mueller report. That has miss served the president's interest. That has given -- added fuel to the fire, put spine in the back of the Democrats who, I think, were thinking this issue was going to go away, has renewed the interest, it has made things much, much, much worse for this White House.

KEILAR: But so then when Speaker Pelosi says this, then what is -- what is the effect? What's the effect of this?

BORGER: Well, it -- I don't know. I -- it's interesting that she -- well, she's effectively echoing her presidential candidates at this point, who have all said that Barr ought to resign.

I don't know what the effect. And I -- honestly, I don't know what the effect is of the empty chair at the Judiciary Committee. It's just kind of a circus.

[13:25:02] EPSTEIN: Performance art. But --

KEILAR: Performance art.

EPSTEIN: It's performance art, but it's the - it's --

BORGER: But -- but it -- let me finish, please. It doesn't help the Democrats, I don't think, to be engaging in performance art or any kind of a circus. If -- they ought to come to some agreement with Barr and have him up before the committee. And I think they've lost an opportunity.

COATES: They have. And, you know, the idea here that Congress actually has three mechanisms to try to comply -- get compliance here. One was the subpoena to try to get him there in the first place. They wanted to have a gentleman's agreement essentially and say, hey, let's figure out how we can be inflexible and not have anything served.

They also have civil and criminal contempt at their disposal. Criminal, probably not going to happen because you have to have it referred through a U.S. attorney, who guess who they work for, William Barr and the president of the United States. But civil courts will look at this in the past, including operation Fast and Furious to say, well, we may agree with legislators wanting to say, bring him in. Either way, though, there's a lot of gamesmanship and the American people aren't really served by what was promised by Barr, transparently.

EPSTEIN: There's a lot of stuff for the Democrats to work with. They have to be careful not to overstep, to Gloria's point.

I think calling -- I think saying what Barr said was a lie is an overstep. I wouldn't go there.

I think the big picture for the Democrats right now is to figure out where they want to enforce subpoenas. The underlying material, the un- redacted material in the -- in the Mueller report, and I think getting Mueller to actually come up and testify.

Barr, at this point, I think what he adds to the conversation before the House Judiciary Committee is probably marginal. I think he's going to dance around the four obstruction issues, which are really the crux of the debate right now. I think he can figure out how to dance around that. I don't think he's going to submit to staff questions.

So Democrats, right now, if they're smart, they have a big opening now with the mischaracterization of the Mueller report by Barr, but they have to play it smart. If they do exactly, I think, what Gloria is saying, which is they overstep, it's not going to serve them well. So they've got to figure it out.

Jerry Nadler, I worked with Jerry Nadler during the 1998 Clinton impeachment hearings. He's a very smart guy. He's got a very smart staff. He's got a very capable group, a Democratic caucus up there. I think they're going to get it right, but they've got to be careful.

KEILAR: We'll see if they do -- are able to focus, as you suggest they do.

All right, thank you to all of you.

The attorney general is also downplaying the Trump campaign's contacts with Russia. The former director of national intelligence, James Clapper, will be with us to react.

Also, they were once friends, but Barr took multiple jabs at Robert Mueller. We're going to listen to them.