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Mueller: Charging Trump Was "Not An Option" Due to DOJ Policy; Dem Congressman: Members Are "Growing More Restless" on Impeachment, At Least 38 Dems Support Proceedings. Aired on 7-8p ET

Aired May 29, 2019 - 19:00   ET


BRIAN TODD, CNN CORRESPONDENT: A U.S. attorney in Palm Beach was quoted as saying of the breach, "It wouldn't happen today." Wolf?

WOLF BLITZER, CNN ANCHOR: All right. Brian, thanks very much. Brian Todd reporting. To our viewers, thanks very much for watching. Erin Burnett OUTFRONT starts right now.

ERIN BURNETT, CNN ANCHOR: OUTFRONT next, Robert Mueller breaks his silence saying President Trump has not been cleared of committing a crime, the next move is up to Congress. Plus, Robert Mueller says he will not testify. So what will democrats do? And growing pressure on Nancy Pelosi to move forward toward impeachment. Can she stop the momentum? Let's go out.

And good evening. I'm Erin Burnett. Out front tonight, Mueller speaks out for the first time on his last day as Special Counsel. And here is what Bob Mueller wanted every single American to know.


ROBERT MUELLER: If we had had confidence that the President clearly did not commit a crime, we would have said so.


BURNETT: The power of the spoken word, that was the bottom line. If Mueller had confidence President Trump did not commit a crime he'd say so, but he couldn't say so. Hearing Mueller say that was a moment in history and it makes us wonder what President Trump and his administration heard. Because just listen to them.


SARAH SANDERS, WHITE HOUSE PRESS SECRETARY: We consider this very much to be case closed.



BURNETT: And the President tweeting those same words. The operative words of his tweet, the case is closed. Thank you. Case closed? Well, that's not what Mueller said, because Mueller was crystal clear that the ball is now in Congress' court.


MUELLER: The Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.


BURNETT: And that's it, a process other than the criminal justice system. That was Mueller. That process other than Mueller and charging sitting president is Congress. And as for why Mueller did not charge Trump with a crime when nearly 1,000 former DOJ prosecutors have said they would have based on what Mueller presented in his report, Mueller today was extremely clear.


MUELLER: Under long-standing department policy, a president cannot be charged with a federal crime while he is in office.

BURNETT: That's clear. He says policy can't do it. And those few words Mueller directly contradicted what his boss, the Attorney General Bill Barr, testified under oath earlier this month.


SEN. CHUCK GRASSLEY (R-IA): In your press conference you said that you asked the Special Counsel whether he would have made a charging decision or recommended charges on obstruction but for the Office of Legal Counsel's opinion on charging sitting presidents, and that the special counsel made clear that was not the case.

So, Mr. Barr, is that an accurate description of your conversation with the Special Counsel?

WILLIAM BARR, U.S. ATTORNEY GENERAL: Yes, he reiterated several times in a group meeting that he was not saying that but for the OLC opinion he would have found obstruction.


BURNETT: Mueller today was clear and Barr at best misled in his answer to Grassley under oath. Grassley asked whether Mueller would have made a charging decision if it weren't for the Office of Legal Counsel policy at the DOJ to not charge sitting presidents. Barr said Mueller told him, "No, the OLC was not the reason."

But today, Mueller proved what Barr said was false. proof of bar said was false. And then there's this claim from Barr, again it was under oath.


GRASSLEY: If the Special Counsel found facts sufficient to constitute obstruction of justice, would he have stated that finding?

BARR: If he had found that, then I think he would state it, yes.


BURNETT: So, Barr says that if Mueller found evidence that Trump committed a crime, he thinks Mueller would have said so. Perhaps he, I think it's not perhaps, it's pretty clear he put that word think in very, very purposefully. Because, again, remember Mueller said he could not charge a sitting president and today he added to that. He said that if he could not charge Trump, a sitting president, then he would not take the next step of publicly accusing him of a crime.


MUELLER: It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.


BURNETT: Directly refuting what Barr told Grassley. And as for Mueller's parting shot, he called out the president for his recent remarks.


MUELLER: Russian intelligence officers who are part of the Russian military launched a concerted attack on our political system zand that allegation deserves the attention of every American.


BURNETT: Of every American. Those were Mueller's last words today. Yet there is at least one American who is still in denial.


[19:05:04] DONALD TRUMP, PRESIDENT OF THE UNITED STATES: It's the greatest hoax probably in the history of our country.

The witch-hunt was a hoax.

It was a hoax. It was a witch-hunt.


BURNETT: Abby Phillip is out front live outside the White House tonight. Abby, so the White House tonight what is their thinking.

ABBY PHILLIP, CNN WHITE HOUSE CORRESPONDENT: Well, Erin, right now the White House they have their eyes on the I word as President Trump puts it, impeachment. And just in the minutes after Mueller gave his statement today, sources were telling us that the President was gearing up for a fight. That his message to Democrats who might be tempted to head to the impeachment side of this was basically bring it on.

The President views this as something that can be politically advantageous to him, something that can help him with his base. But as one source put it, the President believes that the American people will view an impeachment proceeding as a scam and another senior White House official told me earlier today that the White House's view is that this will all help them in 2020 in terms of retaking the House of Representatives.

Now, that could all very well be a very Pollyanna view of the situation, trying to spin this as a positive for President Trump. But the White House is also just trying to spin what Robert Mueller said. Sarah Huckabee Sanders, White House Press Secretary repeatedly said that Mueller should have said whether or not he would have charged President Trump with obstruction of justice and she said he had a moral obligation to do that.

But as you just pointed out, Mueller made it clear that he felt that he could not do that because of those DOJ guidelines. So the White House is both trying to spin this as a positive for them from a political perspective and also trying to suggest that Robert Mueller shirked his responsibilities by not making it clear how he felt about the obstruction part of this, and that by doing so essentially exonerated the President on obstruction.

We all know that that is not what Mueller did in this report, but this is the White House's view of the situation going forward and they're clearly spoiling for a fight with congressional Democrats, Erin.

BURNETT: All right. Certainly hoping for it. OK. Thank you very much, Abby. And now, Democratic Congressman Gerry Connolly, who sits on the House Oversight Committee. OK. The president tweeted today nothing changes from the Mueller report. There was insufficient evidence and therefore in our country, a person is innocent, the case is closed. Is the case closed?

REP. GERRY CONNOLLY (D-VA): No. Not by a long shot and I think your coverage just now really laid out well why that's not true. Clearly, the White House and the Attorney General have misstated the facts and have misstated what Mueller, in fact, found in his very extensive and thoroughly research report. Which may be why Mueller decided to break his silence for the first time in two years, and actually appear before the press and the public to issue his own statement today, which I thought was a bombshell, especially that line you highlighted, Erin, if we thought the President had not committed a crime, we would have said that.

BURNETT: So let me ask about that because he then continued to say, "The Constitution requires a process other than the criminal justice system to hold the president or the sitting president accountable." I'm curious on how you interpret that. I mean is there any other way to interpret that, Congressman, then you, Congress, have to open impeachment hearings?

CONNOLLY: Yes. I think he's inviting us to open impeachment. I think he said that in the report too. Remember he laid out clear evidence of not one violation of obstruction of justice, but 10. And he all but said the President did cross the line and commit a crime, but I can't charge him because the Department of Justice won't let me. With respect to saying that the only avenue is impeachment, I believe

that's false. I don't accept the fact that a sitting president cannot be indicted. There's nothing in the constitution that says that and the Department of Justice made it up in an illegal memo.

BURNETT: But nonetheless, he didn't indict and Barr has chosen not to, so you are where you are. I mean, it's Congress or nothing now at this point while he's still in office, right?


BURNETT: So what do you do about it?

CONNOLLY: Well, we have a number of investigations underway right now and we are in the courts, contesting the issuance of subpoenas for documents and witnesses. More subpoenas will undoubtedly be issued. I believe the appellate courts will uphold the district court rulings, which both of which were in complete agreement with the House and the inherent investigative powers of the legislative branch.

And I think then the administration risks contempt of court, not just contempt of Congress if it does not comply and I think absolutely triggering a constitutional crisis.

[19:09:57] BURNETT: Well, you heard what Abby was saying that the President, he's thinking, sources are telling CNN that, look, he says, "Do it." Let's do it on impeachment. The fight will end up on our side. American people will see this as a scam it is, that's the quote. So I guess the big question here is do you think he's right that this would motivate his base, that it will be good for him that you have a, maybe, a constitutional obligation but then you also have political considerations as impeachment is a political act and that the politics of this are bad and that's why you wait.

CONNOLLY: I think if Democrats define this solely as a matter of political judgment, we will not impeach Donald Trump, because politically it's not advantageous and it could hurt Democratic prospects next year. On the other hand, if you remember that you took an oath to defend and protect the Constitution and you define this as what's my duty, given the facts that are in front of me, including what Mr. Mueller said just today, I think that's a much closer call. And irrespective of the political fallout, one has an obligation to the Constitution.

So I think increasingly, Democrats are moving in that direction, and are willing to risk the political fallout if that's necessary. We're not there yet, but we're getting awfully close.

BURNETT: So I'm trying to understand what happens here next with Mueller. Now you have the DOJ and Special Counsel's Office coming out and saying, "Oh, there's actually no daylight here." I mean the confusion in the water, the blood in the water continues to swirl. Mueller said today though that this is it.

CONNOLLY: Yes. BURNETT: This is all he's going to say and go ahead and read my

report. So if he testifies, I guess the indication is see page 32, see page 33, see page 453. He says he's not going to answer anything else. Do you still want him to testify before Congress?

CONNOLLY: Absolutely, and it's not his call whether he has to testify or say anything else. His report does not just speak for itself. There are a lot of questions raised by the report itself that need the answering and there are interpretations of his report that he wrote that only he can answer.

The idea that a report this consequential that took two years by a special prosecutor of such prominence is not accountable to the public and has said all he's going to say and he's going to somehow zip it up is just not going to cut it. Mr. Mueller will testify. He will be compelled to testify and he will be accountable to the American people.

BURNETT: All right. Congressman Connolly, I appreciate your time. Thank you.

CONNOLLY: My pleasure, Erin. Thank you.

BURNETT: And next, Robert Mueller referring to evidence being used against coconspirators in the Russian investigation. So who is he talking about? Plus, he spent millions to push for Trump's impeachment. Does the Mueller statement help Tom Steyer make his push? Steyer is out front. And on the campaign trail, voters make it clear what they want from Washington when it comes to impeachment.


UNIDENTIFIED FEMALE: I think it's time to move. I mean it's just time to make a decision.


[19:16:40] BURNETT: Tonight, Robert Mueller refusing to testify before Congress. Here's Mueller speaking publicly for the first time in two years saying he's done talking publicly about the Russia investigation.


MUELLER: The work speaks for itself and the report is my testimony. So beyond what I've said here today and what is continued in our written work, I do not believe it is appropriate for me to speak further about the investigation.


BURNETT: A senior democratic strategist not buying that though, telling CNN Mueller should be subpoenaed the day he leaves the DOJ. And as you just heard Congressman Connolly, it is pretty clear they're going to do that, period, full stop. Mueller is no longer a DOJ employees, no longer the special counsel.

That's it. He's gone. He made that today and today was his last day. Out front now former Nixon White House Counsel, John Dean, Juliette Kayyem, the Assistant Secretary of the Department of Homeland Security under President Obama and David Gergen, who advised Four Presidents including two who were in a situation similar to this, Nixon and Clinton.

OK. So let me let me start with you, John Dean. Is it Mueller's call to decide whether or not he testifies? He's saying, "I just won't do it. I'm not going to do it, guys."

JOHN DEAN, FORMER NIXON WHITE HOUSE COUNSEL: It is not his choice. It's Congress' choice. If he is asked, he will probably do it voluntarily. But if he doesn't want to do it voluntarily, they can subpoena him and force the issue. Subpoenas are very awkward way to do it.

But his testimony also is hearsay. So you could also get a lot of what he would say from other witnesses where he could shine a bigger light and sort of an overview.

BURNETT: Yes. I mean, so David, here's the question, you just heard Congressman Connolly. He said, "He's coming. I don't care whether he wants to be here or not, he's coming." Nancy Pelosi said she wants him to come. However, House Judiciary Chairman Jerry Nadler had originally threatened to subpoena. Nadler seem to back away from that today. Here is Pelosi and Nadler.


REP. NANCY PELOSI (D-CA): Yes, I think it would be useful for him to testify before Congress.

UNIDENTIFIED MALE: Will you subpoena Mueller to testify then?

REP. JERRY NADLER (D-NY): Mr. Mueller, told us a lot of what we need to hear today.


DAVID GERGEN, FORMER ADVISER TO FOUR PRESIDENTS: Well, the emphases keep changing, don't they? Listen, I think they're eventually going to call him back but I think they want a little time to pass. Let's see how this settles out. I want to see how Mueller plays for the country and they don't want to be seen as harassing him.

BURNETT: Right. Right. They want him to come voluntarily.


BURNETT: They don't want it to be some obnoxious festive, see page 32, see page 453.

GERGEN: But they want him to come voluntarily, but they realize the drama if he comes is going to be high. And without him and without McGahn, it's hard to have hearings that are magnetic and draw a lot of Americans in which is what she wants to do before she moves to an impeachment inquiry.

BURNETT: Right. And, of course, when Mueller refers to there being an alternate process outside the criminal justice system, if he's referring to Congress, then you would need him and Don McGahn and others to speak for the American people to hear.

So Juliette, the White House, here's the comment today, here's their response to Mueller.


SANDERS: There was no real news there. He reiterated the points that he'd already made in the report and we agree with him. There was no collusion, there was no conspiracy and we consider this case closed.


[19:20:07] BURNETT: Just to belabor of the painful point, Juliette, collusion and conspiracy are two different things, saying there's no conspiracy is a legal term which Mueller did, collusion is a separate matter. Is this the beginning or the end, Juliette?

JULIETTE KAYYEM, FORMER ASSISTANT SECRETARY FOR THE DEPARTMENT OF HOMELAND SECURITY: I think it's still the middle and I think you know and some of it is going to depend on what Nancy Pelosi decides, some of it is going to depend on whether Mueller wants to be a hostile witness or voluntarily go before. But this idea that the White House, regardless of what happens, is all of a sudden going to have a eureka moment and say, "Oh, goodness. Yes, there was collusion and we did talk to the Russians over five dozen times and there are 10 points of obstruction of justice."

It's not going to happen and so at this stage Sarah Sanders is sort of background noise in this, but I think the sort of disconcerting part of what she said has to actually do with how Mueller ended the press conference. I want to remind everyone about volume one. I mean he did say there were multiple systemic efforts to interfere in our election and that allegation deserves the attention of every American.

That is how he chose to end that press statement and this White House acts like that's not even said, that this is not a National Security challenge not just for 2016 but, of course, for 2020.


GERGEN: The administration is also putting out word today that there's an alignment of views that Mueller and Barr are actually very close together. We need to deal with that issue, because it's very, very clear that Mueller broke from Barr today. And Barr said he cleared it, there was no obstruction, I've decided there's no obstruction. And along come Mueller and says, "No, we did not clear him and we are not clearing him."

So he's made it quite clear that they broke on that major issue. He also threw emphasis, made it clear he takes the Russian interference much more seriously than the White House does and that this White House is not paying attention to the sort of serious underlying issue.

BURNETT: And obviously, John, he also made it clear he can't charge a sitting president because of the opinion, that he put great weight in that. And then he said even more clearly and this was directly in opposition to Barr who told Chuck Grassley, "I think he absolutely would have said he had all of these information that was bad even if he didn't charge." Mueller said, "No way." Mueller said, "If I was going to accuse someone of a crime, I charge them. When I couldn't charge them, I wasn't going to accuse."

So this opens the door to what is next. Today, Mueller continued to say this when he talked about not indicting Trump.


MUELLER: The opinion explicitly permits the investigation of a sitting president because it is important to preserve evidence while memories are fresh and documents available. Among other things that evidence could be used if there were co-conspirators who could be charged now.


BURNETT: Every word, John, that he said today was carefully selected. So when Mueller throws open the door to if there were co-conspirators who could be charged now, he's using a legal term, conspirator, and he's talking about opening the door to the possibility of additional charges.

DEAN: He indeed has and that's a very good point, Erin. What he said is he wants to keep the evidence fresh and he wants to make sure he's got it all. We don't know what's in those twelve referrals. Those could be co-conspirators involved in there, but he also made it very clear I think that when Trump is no longer in the White House that he could be very much subject to charge by another prosecutor, say, in the Southern District or someplace like that, that he really had a case that was worth looking at here.

BURNETT: Final word, Juliette.

KAYYEM: I just think, I know there's going to be a lot of questions about Mueller and I sort of worry that we think he's going to give us some eureka moment. And I think what he tried to do today and you can criticize it or not is to say, look, there's a process issue next.

It's either criminal or political with impeachment. I'm not part of that process anymore. I'm the substance guy. I provided volume one, plenty of evidence about bad things Russians did, volume two, plenty of evidence about obstruction of justice. And so I just think the Democrats have to think carefully about how aggressive they want to get against Mueller, maybe he should be the substance guy and everyone else has to be the process people.

[19:24:34] BURNETT: All right. Thank you all very much. And next, the man who's made a name for himself calling for Trump's impeachment, putting hundreds of millions behind it. Tom Steyer with a new message for Nancy Pelosi. He's my guest. Plus, the Justice Department just now insisting there is no difference between what Bill Barr and Mueller have said about charging a sitting president, but hear their words for yourself. There is a stark contrast.


[19:28:54] BURNETT: Breaking tonight, a Democratic Congressman telling CNN members are growing more restless. House Speaker Nancy Pelosi refusing to move forward on impeachment. Democratic mega donor Tom Steyer who has spent tens of millions of his own money to call for Trump's impeachment is upping the pressure in a new video to Congress today.


TOM STEYER, FOUNDER, "NEED TO IMPEACH" CAMPAIGN: We just heard the summary of the Mueller report from Robert Mueller himself and he set the story straight. He also said, "There's nothing I can do about it under the Constitution. It's up to Congress to act." So let's be clear, Congress, do your job out.


BURNETT: Out front now, Tom Steyer, Founder of the Need to Impeach Super PAC. All right, Tom, good to have you with me. So you got the statement today, 10 minutes. Mueller came out. He said his piece. Do you think this will lead to a major shift in Democrats in Congress?

[19:29:45] STEYER: Well, I think that Mr. Mueller was unequivocal that if he could have said the president was innocent, he would have said it. He said he was unequivocal that he couldn't charge him and he was unequivocal that it is up to Congress to act. So do I believe under the circumstances after waiting for two years with people in Congress saying wait for the Mueller report when the Sphynx himself speaks I think Congress people need to listen.

ERIN BURNETT, CNN HOST: So, when he said, there is -- right, I cannot charge, at least he viewed the rules as cannot charge, at least he viewed the rules as he could not charge. And he was not going to accuse someone of a crime if he could not charge. And there is another process for dealing with a sitting president, right, he is talking about Congress. All of that fair, as you say.

Congressman Connolly was just on earlier this show and he did say, look, fair opens the door for impeachment, but he is not there yet because they are doing these other investigations, right? Subpoenas other ways, the more scattershot method as opposed to a full-on impeachment frontal.

Are you concerned when you hear them still going down the other path of multiple investigations?

STEYER: Well, certainly, Erin, I think there is a question about timing and urgency here. Because the president has said he will not respond to any subpoenas, that he is not going to offer anyone from the administration to testify. And then in fact, he won't deal with Congress about anything as long as they're attempting oversight of his administration.

So, sure, it sounds to me like a very protracted exercise, whereas impeachment gives Congress special powers, brings it into focus and let's the American people see on TV just the way we saw Mr. Mueller today what the truth is. And that's what we need, the American people to see the truth.

BURNETT: OK. So, the two people who are most important in Congress on this obviously the speaker, Nancy Pelosi, it's going to be her decision, and the chairman of the House Judiciary Committee, Jerry Nadler, who would initiate impeachment proceedings and hearing. They both have responded today to what Mueller had to say and here they are.


REP. NANCY PELOSI (D-CA): Getting the facts to the American people, getting the truth for the American people, where it will lead us, we shall see. Nothing is off the table.

REP. JERRY NADLER (D-NY): With respect to impeachment question at this point, all options are on the table, and nothing should be ruled out.


BURNETT: All right. They've got their story straight. But when you hear that all options are on the table, does that disappoint you or do you feel that's progress?

STEYER: I don't think that that is close to what's necessary honestly, Erin, because I think there is a timing question here. We have to get the show on the road. We have to have these investigations done on TV under the banner of an impeachment inquiry. I don't think there is any way around that.

I think delay serves the president very well, allows him to push -- kick the can down the road and get to the place where really impeachment is off the table after a while.

BURNETT: So, a senior White House official told CNN today that impeachment is a great way for us to win back the House, Tom. Are you concerned about that, that -- I understand you're making a moral imperative, a principled point. But what about the politics of this?

STEYER: Well, first of all, I do think it's a question of right and wrong and what Representative Connolly said about an oath to the Constitution. But, secondly, I believe the American people cross the board respond to the truth, respond to people's taking principled stands and doing the right thing. And I've never understood the idea of a politician like Mr. Trump saying being accused credibly of being a criminal of obstructing justice, of putting himself ahead of the American people somehow is good for his reputation. This is a guy who has told over 10,000 lies. I don't know why

suddenly we'd start believing him now.

BURNETT: So if the cost is political, say the cost is the House or say the cost is the White House, is it still worth it?

STEYER: Well, I just don't believe that's true. I think that's an unfair question, Erin, to be honest, because I believe that in fact the American people would respond incredibly positively to someone who steps up and tells the truth, takes a principled stand.

So, I don't believe for a second -- I believe the cost of not acting could be the White House for Democrats.


STEYER: I believe the cost of not acting could mean that Speaker Pelosi loses her speakership. I believe the American people are looking for people who will do the right thing and step up and tell the truth and put politics aside. That's what Americans in my mind respect and what they value.

BURNETT: All right. Tom Steyer, I appreciate your time. Thank you.

STEYER: Thank you, Erin.

BURNETT: And next, the Justice Department issuing a statement, saying, Bob Mueller did not contradict the Attorney General Bill Barr. But we have both of their words on tape. And you can hear for yourself. They are not on the same page.

Plus, impeachment proceedings on the minds of the 2020 candidates. But is that what voters want to hear about?


REPORTER: Do you want to hear the 2020 candidates talking about that?

UNIDENTIFIED MALE: I think that should be at the top of their list.



[19:38:31] BURNETT: Breaking news, the Department of Justice insisting that Bob Barr and Bob Mueller in lockstep. They do have the first -- same first name but that appears to be where it ends on the key issues today because the words of both men speak for themselves.

Listen to Mueller when he explained why he did not charge President Trump with a crime.


ROBERT MUELLER, SPECIAL COUNSEL: Under longstanding department policy, a president cannot be charged with a federal crime while he is in office.


BURNETT: But, this is what the attorney general has said about in very issue.


SEN. CHUCK GRASSLEY (R-IA): In your press conference, you said that you asked the special counsel whether it would have made a charging decision or recommended charges on obstruction. But for the Office of Legal Counsel's opinion on charging sitting presidents and that the special counsel made clear that was not the case.

So, Mr. Barr, is that an accurate description of your conversation with the special counsel?

WILLIAM BARR, ATTORNEY GENERAL: Yes, he reiterated several times in a group meeting that he was not saying that but for the OLC opinion, he would have found obstruction.


BURNETT: Grassley asked whether Mueller would have made a charging decision if it weren't for the OLC. Barr and Mueller are not on the same page here.

OUTFRONT now, Joe Lockhart, who served as press secretary for President Bill Clinton, and David Rivkin, who served as deputy director at the Justice Department under Presidents Reagan and George H.W. Bush and has known Barr for 30 years.

[19:40:01] OK. Joe, you're with me. Let me start with you.

Let's start with that one issue here of the OLC's importance in Mueller's decision whether or not to make a charging decision.

JOE LOCKHART, CNN POLITICAL COMMENTATOR: Right. Mueller couldn't have been clearer that at a point in the investigation, probably the very beginning, he was hamstrung by the -- by the policy that you could not indict. And if explains every decision that he made there.

People have been wondering out loud, why didn't he subpoena the president and force his testimony? Well, he knew he wasn't charging him from the beginning. Why did he need the testimony? What he laid out was volumes of evidence of where the president did obstruct justice. He laid out evidence of where there was collusion but did say there was insufficient evidence to prove a conspiracy.

He didn't say there was no collusion. He just said there was insufficient to make a charge there. And then he just tossed the whole thing into Congress's lap to figure out what to do with it.

BURNETT: What do you say, David, on this issue? At best, it appears Barr is misleading in his answer to Grassley who, of course, specifically asked whether Mueller would have made a charging decision if it weren't for the OLC.

DAVID RIVKIN, FORMER DEPUTY DIRECTOR, DEPARTMENT OF JUSTICE: Erin, nothing of a kind. First of all, the viewers need to understand that the statement you're referring to is not a statement by the DOJ. It's a joint statement by the special counsel's office and DOJ, number one.

Number two --

BURNETT: Well, the special counsel no longer works for the DOJ.

RIVKIN: And the special counsel's office is being shutdown but the statement is made in Mueller's name.

You got to appreciate one thing. Mr. Mueller did not reach a prosecutorial determination relative to obstruction. He did reach it relative to conspiracy, collusion, et cetera, et cetera. But if you were to take at face value that OLC opinion that prevents indictment of a sitting president somehow cabined him, why would he be able to reach any determination relative to conspiracy, coordination with Russian, et cetera, et cetera?

The fact the matter is very simple, the fact that the OLC has its opinion was a factor in his consideration but the factor. He no way contradicted Barr. The Attorney General Barr testified he had free conversations where he orally assured him not being the case. He passed the buck to Barr. Barr looked at over 10 episodes that are laid out relating potentially to obstruction --

BURNETT: David, he did make it very clear.


BURNETT: Under longstanding department policy, a present president cannot be charged with a federal crime while he is in office.

RIVKIN: That is a correct.

BURNETT: But it's a black and white statement that's clear he doesn't care whether he was guilty or not guilty he is not going to charge him.

RIVKIN: Under your logic then, he could have reached no prosecutorial determination for purposes of conspiracy or the Russians, because he couldn't charge the president with it either.

BURNETT: Actually, hold on, Joe, I could argue the on sit what you are saying the fact he was willing to say someone not was not able to be charged in one case, but he couldn't say in the other is actually more damning. He's basically I absolutely would have charged him, but I couldn't by the OLC. I could argue that, exactly as you just did.

RIVKIN: You cannot have it both ways. He just chose not to make a prosecutorial determination in one case. He had nothing to do with the OLC opinion, and he passed the buck to Barr.

He made another case. By the way I'm sick and tired of hearing this business about he could not affirmatively conclude that the president was innocent. That is never a function of any prosecutor. It's practically impossible, and constitutionally flawed.

Everybody is presumed to be innocent. The job of the prosecutor is to decide whether or not he or she amassed sufficient evidence to charge. Not whether or not he or she is --

BURNETT: Except for Joe what he said he could not definitively say the president did not commit a crime.


LOCKHART: And that is the point. I think the rest of us are sick and tired of this sort of nonsensical argument that -- and it's circular.

What he said was clear. Which was because it's unconstitutional to charge a sitting president with a crime, he could not do that. But what Mueller did was he went to great lengths to bend over backwards to be fair to the president.

He said which he didn't have to say. He said there wasn't enough -- there was insufficient evidence to prove a conspiracy to collude. He didn't say there wasn't collusion. But that was something that was fair to the president.

He second then today went out and side that it would have been unfair to the president for him to charge -- to lay out the case and said he committed -- to accuse because the president then didn't have assured forum to defend himself.

So the idea of him being fair is now being twisted back around that --

BURNETT: So, to your point, I want to play this exchange, David, as well for you, right. This is a claim starting again with Barr earlier this month again under oath. Here is the attorney general.


GRASSLEY: If the special counsel found facts sufficient to constitute obstruction of justice, would he have stated that finding?

BARR: If he had found that then, I think he would state it, yes.


[19:45:01] BURNETT: OK. He was under oath. The word think is really important there, because listen to Mueller today.


MUELLER: It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.


BURNETT: David, those two things are not consistent. RIVKIN: Those things entirely consistent. He is no way contravene

what the attorney general has said.

BURNETT: So Bill Barr --

RIVKIN: The attorney general is on the record three occasions he was told by Mr. Mueller that the OLC opinion was not the decisive --


BURNETT: But this is a separate point of the OLC, David, this is simply, if he found things that were really bad, he would have laid them out even if he didn't charge.

RIVKIN: He did.

BURNETT: Barr said he absolutely would have done that. Mueller today says it would be unfair to accuse someone of a crime if I'm not charging.

Those two things, you tell me how they're consistent.

RIVKIN: You are confusing two things. The second volume of report lays out 10 instances that potentially taken other Constitution uses of the table may be used as indicia of obstruction, and the report lays out interpretation A, interpretation B. He done it in 10 cases, that's what he's done, A.

B, he chose not to make a prosecutorial determination as to how to it up. He said it leading in his report. He said it again today. He passed the responsibility to Attorney General Barr --


RIVKIN: -- who did so with Deputy Rosenstein and obviously other officials.

There is absolutely no inconsistency. You just have to separate the assertions of factual findings and prosecutorial determinations. That's simple.

LOCKHART: I think you have to separate reality from fantasy. And that's fantasy talk.

RIVKIN: No, that's lawyer talk.

LOCKHART: Thank you --

RIVKIN: What you just said is totally false and incorrect.

LOCKHART: Let me finish. I think the reason that Mueller is bending over backwards now to protect Barr is that he -- he is an institutionalist and Barr has done serious damage to the Department of Justice but Mueller has no interest in that fight. What he has an interest in is what he started with today, which is today we are losing sight of the important thing, the Russians undermined our democracy and the president won't acknowledge it much less do something about it.

RIVKIN: We're not --

LOCKHART: And that is a central point that he wants but he was very clear on the second point. Which is he was not able to indict the did the most fair thing he could which was to lay out the obstruction without saying that -- that he was charging him

BURNETT: What it added up to him.

LOCKHART: What it added up to him.

RIVKIN: Let me make one simple point.

LOCKHART: He left --

RIVKIN: Choose --

LOCKHART: He left it for Congress to decide.

RIVKIN: Choose your poison. You make Mueller look like a saint, and yet this is the very same Mueller who said today that General Barr is acting in good faith.

Sir, are you really suggesting that Barr perjured himself as you all seem to be implying, that that's what Mueller would do, that he would give -- because he is an institutionallist, he would give Barr cover? You cannot have it both ways.

LOCKHART: I'm not -- sir, I'm not having it both ways. I'm having it -- I'm explaining why I think --

RIVKIN: You think what? That Mueller covered up for Barr, and yet we should respect him?

LOCKHART: No, I don't think he is covering up for Barr.


LOCKHART: He is choosing not to have that fight with Barr because he wants to focus on --

RIVKIN: Fight?

LOCKHART: -- the most important thing.

RIVKIN: Barr testified under oath, and in three occasions, Mueller told him and --

LOCKHART: And he misled the country, and he misled Congress and he abused the power of his office, very simple.

BURNETT: All right. We will leave it there. Thank you both very much.

And next, the calls for impeachment are getting louder on the campaign trail.


SEN. KAMALA HARRIS (D-CA), PRESIDENTIAL CANDIDATE: We need to begin impeachment proceedings.


BURNETT: Plus, Mueller breaking his silence.

And as Jeanne found out, the internet went wild.


[19:52:24] BURNETT: Tonight, two more 2020 candidates calling for impeachment proceedings to start. Senators Cory Booker and Kirsten Gillibrand both saying that special counsel Mueller's news conference convinced them that Congress must launch impeachment hearings.

Kyung Lah is OUTFRONT.


HARRIS: And we need to begin impeachment proceedings.


KYUNG LAH, CNN SENIOR NATIONAL CORRESPONDENT (voice-over): On the campaign trail, Senator Kamala Harris reacted to Robert Mueller, calling a congressional response a constitutional duty.

(on camera): What was the message that Mr. Mueller was sending to you, a sitting member of Congress?

HARRIS: I think what is clear is that I think it's a fair inference from what we heard in that press conference that Bob Mueller was essentially referring impeachment to the United States Congress.

LAH (voice-over): A steady stream of 2020 Democratic candidates rapidly jumped in with reaction. Senators Cory Booker and Kirsten Gillibrand both previously stopped short of calling for launching an impeachment inquiry. Today, Booker said Congress had a legal and moral obligation to begin proceedings. Gillibrand said in her statement, it's time.

Elizabeth Warren, among the first of the candidates to call for impeachment proceedings, reiterated that call.


REPORTER: Your reaction to Mueller today, sir?

LAH: Front-runner Joe Biden ignored questions from reporters about Mueller's news conference. In a statement, he stopped short of calling for impeachment proceedings to begin, saying, quote: No one would relish what would certainly be a divisive impeachment process, but it may be unavoidable if this administration continues on its path.

And Bernie Sanders, who has warned impeachment hearings could hurt Democrats and help Trump in 2020, also did not explicitly call for impeachment proceedings, but said he would support the decision of the House Judiciary Committee.

The Mueller news on the minds of South Carolina voters.

(on camera): At this point, you would like to see the country move forward on these proceedings?

JIM SPURLOCK, SOUTH CAROLINA VOTER: I think it's a matter of national honor, yes.

LAH: And did you want -- do you want to hear the 2020 candidates talking about that?

J. SPURLOCK: I think that should be at the top of their list.

PATRICIA SPURLOCK, SOUTH CAROLINA VOTER: I respect the time it's taking to make those decisions, but I think it's time to move, it's just time to make a decision.


LAH: Now, those were two voters at one of Kamala Harris' town halls here in South Carolina. But after weeks of seeing Harris interact with these voters in a number of these early states, weeks upon weeks and town hall after town hall, most voters simply ask her about health care. They ask about immigration, her position on abortion rights.

[19:55:03] Today, though, there was a slight shift. She did take a question and you heard her there, Erin, talk about the impeachment process needing to begin.

BURNETT: All right. Kyung, thank you.

And next, Jeanne on the moment the world waited two years for.


MUELLER: Good morning, everyone, and thank you for being here.



BURNETT: Tonight, the most silent man in Washington speaks.

Here's Jeanne.


JEANNE MOOS, CNN NATIONAL CORRESPONDENT (voice-over): This is a guy so tight-lipped that one network called it breaking news when he uttered the words, no comment.

REPORTER: Will you testify before Congress, sir?

MUELLER: No comment.

UNIDENTIFIED MALE: Would you know his voice if you ever heard it? Have you ever heard him speak?

MOOS: For two years, he's been the Greta Garbo of special prosecutors, always in silent films, never talkies.

(voice-over): Leading to the question --


MOOS: She could and did.

GRETA GARBO, ACTRESS: Give me a whisky.

MOOS: Some wondered in advance what Robert Mueller would sound like, thinking Barry White-esque, read one tweet. Someone else thought it'd be like Sam Elliott.

SAM ELLIOTT, ACTOR: Catch you later on down the trail.

MOOS: Or what if Robert Mueller has a higher voice than Jared Kushner, whose own voice was long a target of speculation.

UNIDENTIFIED MALE: What does his voice sound like?

UNIDENTIFIED MALE: My main business is real estate.

MOOS: Jared found his voice.

JARED KUSHNER, WHITE HOUSE SENIOR ADVISER: It's working and it's very exciting.

MOOS: But when Robert Mueller finally spoke, he spoke about not speaking again.

MUELLER: Now, I hope and expect this to be the only time that I will speak to you in this manner.

MOOS: Am I the only one who thought Robert Mueller's voice would sound like Ian McKellen?

IAN MCKELLEN, ACTOR: You shall not pass!

MOOS: Did anybody else expect Robert de Niro's voice to come out of Mueller's mouth?

ROBERT DE NIRO, ACTOR: Wait a second!

MOOS: After all, de Niro played Mueller.

ALEC BALDWIN, ACTOR: No collusion, no obstruction, so, don't -- (SINGING)

MOOS: Not since Monica Lewinsky has everyone been talking so much about someone who wouldn't talk.

UNIDENTIFIED FEMALE: Her voice, just heard it. We haven't heard her voice.

MOOS: But even though Mueller talked, he wouldn't answer.

MUELLER: No questions.

MOOS: Some people are never satisfied. I don't like hearing Mueller's voice. I like the mystery.

UNIDENTIFIED MALE: The greatest oz has spoken!


MOOS: The great Mueller then resumed his place behind the curtain.

Jeanne Moos, CNN, New York.


BURNETT: Thanks for watching.

Anderson starts now.