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Deadline For McGahn To Give Russia Probe Docs To Dems; House Judiciary Set To Vote To Hold Barr In Contempt Tomorrow; FBI Chief Distances Himself From Attorney General Barr's Use Of Term Spying To Describe Origins Of Investigation Into Trump Campaign; Trump's Approval Hits All-Time Gallup Poll High At 46 Percent; Dow Drops As U.S.-China Trade War Intensifies. Aired 10-10:30a ET

Aired May 7, 2019 - 10:00   ET




JIM SCIUTTO, CNN NEWSROOM: It is 10:00 A.M. in the East. I'm Jim Sciutto. Poppy is off today. And the hour has arrived for President Trump's former White House Counsel, Don McGahn, to give the House Judiciary Committee potential evidence that the President obstructed justice. If he complies, House Dems will get a look at notes and files related to several key episodes in the Mueller report. If he does not, it will set up yet another constitutional showdown that could lead to another contempt of Congress vote.

The first is set for tomorrow against the Attorney General himself for refusing to turn over the Mueller report without redactions, along with the underlying evidence. Staff for both sides will meet one last time sometime today in search of a possible compromise.

All of this brings me to CNN's Phil Mattingly on Capitol Hill. So how does it look for Barr avoiding a contempt vote tomorrow? Is there any chance that these negotiations get somewhere?

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Look, it's a heavy lift. And I think when you listen to what both sides have said, the Justice Department in their letter yesterday, House Judiciary Committee Democrats, they have made clear this will be a good-faith effort between the two staffs to try to figure out some type of compromise over the course of today. But the reality remains the contempt vote remains on the schedule for tomorrow.

And what House Democrats have requested, not just the unredacted Mueller report but also all of the underlying materials, including grand jury material, has been something that Attorney General Bill Barr and his team have said they're not willing to do, particularly on the grand jury issue, saying they don't believe they have the legal grounds to do it. House Democrats have said, you can go to court and get that information. That's what we expect you to do. That is kind of a pretty major divide.

And I think because of that fact, because of where the negotiations have been in fits and starts over the last couple weeks, there's no real expectation at this point they will reach an agreement. As I noted, the contempt vote still on the schedule for tomorrow. After that, if they do end up take thing vote and the House Democrats do have votes for it, it would go to the House floor.

Kind of the back and forth, Jim, that we've seen not just in judiciary, but several other committees as well seems to be escalating even as negotiations continue.

SCIUTTO: So beyond the documents from McGahn, the question is will McGahn himself come to testify later this month? They certainly want to speak to him. Will he?

MATTINGLY: Yes. Look, it's an open question. I think this is why the deadline that just passed a couple minutes ago, how Don McGahn and his legal team respond to the subpoena request for documents that were due today, a couple minutes ago, on about three dozen topics is going to be really interesting and indicative in terms of whether or not he plans on testifying.

Obviously, the President and his team have made clear they are considering executive privilege when he talked to House Democrats. They don't believe they have grounds on that because of the testimony that is now public from Don McGahn, because Don McGahn is no longer a White House official. But what this all seems to point to, depending on how Don McGahn's legal team responds, is this will likely also be headed to court.

It will be really interesting to see how this plays out throughout the course of the day. House Democrats clearly want Don McGahn to testify. The White House doesn't seem too keen on it. How this all ends up, well, it's probably going to be in the hands of a judge sooner rather than later, Jim.

SCIUTTO: A lot of judges, a lot of courtrooms. Phil Mattingly, thanks very much.

Let's speak now to a former federal prosecutor and a former assistant Watergate prosecutor, Jon Sale. Mr. Sale, great to have you on this morning.


SCIUTTO: I thought this issue of subpoenas was settled in Watergate. It went all the way to the Supreme Court, Nixon lost. Subpoenas need to be enforced. Why is this even a legal question at this point?

SALE: Well, subpoenas do need to be enforced. They're enforced by a court if they're resisted. And the Watergate case was very narrowly decided. It dealt with a trial subpoena for certain tapes. But the court did recognize that executive privilege is legitimate, and they said it's founded in the separation of powers. So it's an open question because here, there is a separation of powers, it's the legislative branch, and our system is going to work if it goes to court. It's not a constitutional crisis because there are not two branches of government. There's a third. And if the court decides it, then I presume the President will honor a subpoena.


SCIUTTO: So what is a court likely to decide in this case based on executive privilege? Because does executive privilege apply if there is evidence, for instance, the President obstructed justice?

SALE: The real issue is whether or not it's been waived by allowing, for example, McGahn to talk to --

SCIUTTO: To the Special Counsel.

SALE: -- the Special Counsel for 30 hours. The argument is it's already out there, he's waived it. On the other hand, the White House could argue that we shared it with the executive branch. That's not necessarily a waiver to the legislative branch. Once again, the judiciary will decide.

SCIUTTO: Understood. Okay. There are a lot of prosecutors. There are 600 of them, and I know you did not sign on to this letter, but these are prosecutors who served both republicans and democrats who take issue with the Special Counsel himself, Robert Mueller, for not making a decision, but also specifically rejecting Barr's opinion here, saying that there is no prosecutable obstruction of justice by the President. Do you agree with that criticism?

SALE: I didn't sign the letter because I agree with what part and I disagree with part.

SCIUTTO: So what do you agree with?

SALE: I agree that under the rules that Mueller followed, it didn't say he may decide. It said he shall. So he should have said one way or the other whether or not he would have prosecuted the President. And he could have said I would prosecute him, but I can't because of the OLC opinion or he could have said there's not sufficient evidence. So I think that there, Mueller didn't do what he was supposed to.

On the other hand, I wouldn't sign it because I don't think prosecutor decisions are made by vote. I think that I don't care how many people say what they would have done, the buck stopped with Attorney General Barr. Mueller didn't decide. A prosecutor decision is made by the executive branch, not by the Congress.

SCIUTTO: Well, tell me about your review of Barr's decision then, not to say that there is no -- there was was no crime by the President.

SALE: One of the interesting things is that, in the Mueller report, I have read it cover to cover, appendices, footnotes, as they point out that a lot of assertions in there, the ten instances of obstruction, were never really tested whether they're factually correct. I mean, a quick example, from my Watergate experience, so Don McGahn talks about he wanted to avoid and he did avoid a Saturday Night Massacre. Jim, I was there at the Saturday Night Massacre. I was fired on national television. Nobody got fired here. John Dean, he got out of dodge. He got out of the White House because he saw what was going on. Don McGahn remained for 18 months. Now, if he thought that this was a debt of corruption, why didn't he leave? So all I'm saying is --

SCIUTTO: But isn't the only difference is that those orders from the President were not carried out by the President's aides in this case? In other words, they thought he was issuing orders. The only reason these folks didn't get fired is because folks like Don McGahn said no.

SALE: Well, the President takes a different view. The President says -- and I'm not defending the President. The President says, I thought there was a conflict, and that's what should be explored. Now, maybe the President is not telling the truth, and maybe he is, but it hasn't been tested.

The one thing about the Mueller report that people are missing is I think they're a terrific group of lawyers, not a witch hunt, but they're prosecutors. Prosecutors give one side of something. They're not judge, jury, and executioner.

Let me say one quick thing. In the four-page summary, if you want to call it that, that the Attorney General wrote, that everyone is all over him for, he did throw in that, hey, on obstruction, the prosecutor is not -- the President is not exonerated.

SCIUTTO: Well, he quoted Mueller on that.

SALE: Let me tell you something. I have been a white-collar defense lawyer. I'm in Miami now for a long time. I have never gotten an exoneration for a client. Prosecutors don't exonerate. They absolutely don't. I'd love to get one on the long way (ph). They either prosecute or they don't prosecute.

SCIUTTO: Understood.

SALE: No exoneration.

SCIUTTO: Binary decision, as Barr has said. Jon Sale, thanks very much.

SALE: Thanks for having me.

SCIUTTO: We appreciate your time.

We have some news just in just moments ago. The FBI Director, Christopher Wray, pushing back on the use of the term spying when it comes to government surveillance during the Russia investigation. That, of course, is the word that the Attorney General, Bill Barr, used last month during a congressional hearing with the President picked up on.


CHRISTOPHER WRAY, DIRECTOR, FBI: Well, that's not the term I would use.

SEN. JEANNE SHAHEEN (D-NH): Thank you. So I would -- I would say that's a no to that question. WRAY: Well, I mean, look, lots of people have different colloquial phrases. I believe that the FBI is engaged in investigative activity and part of investigative activity includes surveillance activity of different shapes and sizes. And to me, the key question is making sure that it's done by the book.


SCIUTTO: Very different picture, Jessica Schneider, is it not from Bill Barr, who raised spying, says that he's investigating now the investigators, the opening of this investigation.


But wouldn't it be the FBI that would be investigating? And if the FBI Director says it wasn't illegal, where does that leave us?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Well, the FBI director, Christopher Wray, there dancing very carefully in this exact same committee hearing where it was William Barr just about a month ago who used that term spying that, of course, sort of raised some eyebrows when he used that term instead of the term surveillance. So the FBI Director this morning, just a few minutes ago, saying that that isn't a term he would use. And then going on to say that all of the warrants the FBI secured, they were all adhered to. They were all gotten legally. They went through the court process.

So let's take you back to a month ago when the Attorney General made that -- gave that phrase, used the word spying when talking about some of those surveillance efforts. Here it was.


WILLIAM BARR, U.S. ATTORNEY GENERAL: I think there was -- spying did occur. Yes, I think spying did occur.

SHAHEEN: Well, let me --

BARR: But the question is whether it was predicated, adequately predicated. And I'm not suggesting it wasn't adequately predicated, but I need to explore that. I think it's my obligation.


SCHNEIDER: So Senator Jeanne Shaheen from New Hampshire doing the questioning of William Barr there a month ago. And then today, getting to ask now the Director of the FBI that exact same question, whether or not he believed it was spying. And, Jim, the Director this morning just a few minutes ago saying that is not the term that he would use. And then he went even further, among additional questioning from the Senator Shaheen, she asked in general, do FBI agents secure warrants for any type of surveillance? To that, the Director answered, yes.

Then she went a step further and said for this particular surveillance, of course, we're talking about Carter Page, who had been part of the Trump campaign, but at the time the surveillance began was no longer part of the campaign. She said specifically for that surveillance, were there warrants issued. And the director said this is public knowledge, yes. We went through the warrant process.

And then, finally, do you have any evidence that any illegal surveillance by the FBI occurred? That was the question from the Senator. And Director Wray saying I don't have any personal knowledge or evidence of that, no. So --

SCIUTTO: But he also said, just to be clear, Jessica, Bill Barr raised the possibility that those warrants were not adequately predicated. In other words, they didn't have the justification to do it. Do I hear the FBI Director correctly there saying that all the warrants issued were issued correctly, therefore it was adequately predicated?

SCHNEIDER: Right. And the Senator Shaheen, she went very carefully point by point here to make sure that that point stood out. She said, in general, do FBI agents go through this warrant process? The answer was yes. And then specifically, for this surveillance of Carter Page that went through the FISA courts, did that go through the right process? And the FBI Director there saying, yes, it went through the exact process that it had to go through. So not only discrediting the use of the term spying, but then also saying no, we went through the proper channels here and got the proper checks to get this warrant.

SCIUTTO: That is quite a remarkable contradiction there. Jessica Schneider, thanks very much.

With me now is Democratic Congressman Ro Khanna of California. He serves on both the Oversight, Budget and Armed Services Committee, all three of them. Congressman, thanks for taking the time this morning.

REP. RO KHANNA (D-CA): Jim, good to be on.

SCIUTTO: So that's quite a moment there. You remember the consternation and outrage when the Attorney General said under questioning from the same Senator, Jeanne Shaheen, a month ago, there was spying and now I'm going to investigate whether that spying was justified on the Trump campaign. You have the FBI Director there saying, no, these warrants were issued and sought legally. It had the proper justification, et cetera. Does that mean that question of spying is closed or illegal spying, I should say, is closed?

KHANNA: It should be. It's another instance of one part of the administration contradicting another part. I mean, it's pretty remarkable that the FBI Director is basically contradicting the Attorney General. And what we all know is this was a counterintelligence operation. I mean, any American would want to make sure if there was foreign interference that the FBI would investigate that the campaign, the Trump campaign, wasn't a target. What they were concerned about is whether Russia was infiltrating American democracy.

SCIUTTO: Okay. I want to get to politics today, because I'm sure you noticed that Gallup has a new poll out about the President's arrival rating, and it's the highest by Gallup's terms of his presidency. This has been a pretty balanced poll throughout. It's up to 46 percent, up seven points up from March. And these numbers struck me as well, because when you go party by party, republicans supported approval for this president has been high, 90 percent to 91 percent. But look at democratic approval, doubling from a low base but still 6 percent to 12 percent. I wonder how concerned you are about those numbers as we head to 2020.


KHANNA: They are the highest they have been for President Trump, but I'm not concerned for three reasons. First, they're still well below 50 percent.

SCIUTTO: Four points below 50 percent. It's not far out of the margin of error.

KHANNA: But most presidents, to get re-elected, you have to be over 50 percent, especially for this president. He's going to have to win Pennsylvania, Michigan and Wisconsin. We won governors there, we won House seats there. I think the democrats are going to be looking very good heading into 2020 in those blue states.

Finally, and the most important thing, even though the President keeps touting macroeconomic statistics, most Americans haven't had an economic boom in their pocketbooks, their wages haven't kept up with the cost of living, particularly communities left behind.

SCIUTTO: All right. Listen, but you've got 3.8 percent unemployment at this point. You have a stock market way up. Folks are going to be looking at their retirement accounts. Those are going to look good. People have money to spend. I just wonder if you are concerned, as the democratic leadership is concerned. Nancy Pelosi has talked about this publicly, that focusing too much on investigations will turn voters away. And I wonder if you see a signal about that in the President's approval rating, even in the midst of all these investigation headlines over the last couple weeks.

KHANNA: Well, Jim, two points. First, most Americans get that the tax cuts were skewed to the wealthy and they haven't seen an increase in their pocketbooks. So while people who have a lot of stock invested, they may be doing well, ordinary working-class Americans aren't getting the pay raises they deserve.

The second --

SCIUTTO: The 401(k)s are doing pretty -- they're doing pretty good.

KHANNA: But not everyone has 401(k)s, I mean, 40 percent of Americans. But to your other point, I think Nancy Pelosi has proposed a $2 trillion infrastructure bill. Chuck Schumer proposed it, Donald Trump proposed it. We're ready to work on that. Here's what happened. Ask Mitch McConnell is he willing to support the President? Ask the President's own Chief of Staff whether Mick Mulvaney is willing to support the President. The problem is the democrats are willing to take action. It's the President who isn't able to get his own party on board with a $2 trillion infrastructure.

SCIUTTO: We had an interesting moment on this broadcast last week. Ted Lieu coming out of the Barr hearing said that even though the democratic leadership is not interested in pursuing impeachment proceedings, that many members of the democratic caucus are, and that he and others support going forward, would you agree with going forward with impeachment proceedings based on what you know today?

KHANNA: I'm not there yet. I'm where Nancy Pelosi is, that we have to first do our job. I mean, we have to have Bob Mueller testify. Let's hear from Bob Mueller what the evidence was, what his view is on the conclusions. Let's hear from Don McGahn. Let's have the committees do their work. So I don't think we should rush to judgment or open that kind of a proceeding before first doing our work.

And I think the majority of the democratic caucus is there. I have great respect for Ted Lieu. But I think Nancy Pelosi has her pulse on the democratic caucus.

SCIUTTO: Ro Khanna, always good to have you on. Thanks very much.

KHANNA: Thank you, Jim.

SCIUTTO: Still to come this hour, the Dow takes a hit as the trade war with China heats up. Look at that, down more than 300 points. We're on top of it.

Plus, Mayor Pete Buttigieg confronts his lack of African-American support head on. Does this tactic work?

And Secretary of State Mike Pompeo snubs a meeting with Germany's Angela Merkel. Why?



SCIUTTO: Trade tensions are ratcheting back up and Wall Street is, therefore, nervous. The Dow is down more than 300 points this morning, well, just under 300, as the Trump administration threatens more tariffs. And China's top negotiator is set to arrive in Washington this week.

Joining me now, Chief Business Correspondent, Christine Romans, and CNN International Correspondent, Matt Rivers.

So, Christine, it's a key week here. The sides are pretty far apart.

CHRISTINE ROMANS, CNN CHIEF BUSINESS CORRESPONDENT: Well -- and they're moving farther apart. What we heard from the American team is they thought that the Chinese were backsliding, that they had made some promises in these ten rounds of negotiations. And then suddenly those promises, they wouldn't put them on paper. That was a real problem for this administration and for the President.

Look, the President has already punted twice officially on this deadline to move tariffs from 10 percent to 25 percent on $200 billion worth of -- I mean, we're talking about everything, from food to bicycle helmets to shoes, and, I mean, the kinds of things that you go out and buy. And he was patient in January. He was patient in March. And now, he's not patient anymore. And he's given American businesses five days to realize that he wants to put more tariffs on.

SCIUTTO: Just very quickly, who pays for tariffs?

ROMANS: The American companies who import paper tariffs. The President always says he is taxing the Chinese government. He is not.

SCIUTTO: It's the American companies who may then pass those costs off to you and me (ph).

ROMANS: Or eat them (ph), right.

SCIUTTO: Matt Rivers, you have the top Chinese negotiator coming to the U.S. later this week. I mean, is this a last ditch effort to rescue these talks? Where do we stand?


MATT RIVERS, INTERNATIONAL CORRESPONDENT: I think it shows that the Chinese really want a deal to happen. After the President's Tweets, there was a lot of speculation the Chinese might just call off the talks for this week entirely. And we really weren't sure which way they were going to go.

But the fact that Liu He, the top Chinese economic negotiator, is still leading that delegation to D.C., I think, shows you a couple things. One, I think it shows that they're taking this tariff threat from the President extremely seriously. They don't want these tariffs enacted. And I think the other thing they're really doing here is showing they want a deal to happen. China wants to come to some sort of a deal. And they know unless they have their top guy there in D.C. who has led the negotiations from the beginning that no deal is actually going to happen. So Beijing is going to say they don't want to negotiate under threat, but at the same time, they didn't cancel these talks, and that means something.

SCIUTTO: Christine, China cheats in these trade talks. They steal U.S. secrets. I mean, that is agreed. But what the U.S. is essentially asking China to do is change its entire economic strategy.

ROMANS: Right, and that's a hard sell inside the Chinese power structure because China has risen to become a developed country essentially with a state-run economy, and its elements of that state- run economy that the Americans disagree with.

You know, they don't think that you should have to sign over your intellectual property rights when you want to do business in China. They think that you should be able to crack down on intellectual property theft and also just outright cyber theft of trade secrets. And these are things American businesses have complained about for so long. I think it's interesting, Jim. It's a contradiction for business, right? They hate tariffs, hate tariffs. They also don't like the way China plays on the global stage. So they have also profited from outsourcing so much of their manufacturing.

So business is in a funny position here.

SCIUTTO: Yes, and difficult to stick their heads above the ramparts because they don't want to get targeted by China as well. Christine Romans, Matt Rivers, thanks very much.

ROMANS: You're welcome.

SCIUTTO: Presidential candidate Pete Buttigieg is asking for help again for reaching African-American voters. So what does he need to do to gain support from this important voting bloc?