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House Republican Lawmakers Protest Committee Hearings Concerning Impeachment Inquiry; President Trump's Attorney Argues Presidents Cannot be Investigated by Any Federal, State, or Local Authority While in Office; Rep. Eric Swalwell (D-CA) is Interviewed About the Impeachment Inquiry. Aired 8-8:30a ET

Aired October 24, 2019 - 08:00   ET



JOHN BERMAN, CNN ANCHOR: A U.S. diplomat in Ukraine has directly implicated the president in an alleged quid pro quo, and CNN has learned that even before he was sworn in last May, Ukraine's president knew his relationship with the Trump administration hinged on whether he agreed to launch an investigation into the Bidens in the 2016 election. This refutes President Trump's new defense that there could not be a quid pro quo if the Ukrainians didn't know what was going on.

So let's welcome back Jeffrey Toobin, CNN chief legal analyst. Also joining us Jim Baker, former FBI general counsel and CNN legal analyst. Jeffrey Toobin is both a great guy and legal analyst, and so is Jim Baker. Also with us -- we have commas and periods problems here.


BERMAN: Also with us, Bianna Golodyrga, CNN senior global affairs analyst. Jeffrey, I want to start with you, just to put a button on what we saw yesterday with the Republicans stopping that hearing and the significance, you think, of what it says overall.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: I think this whack-a-doodle act of just sort of storming a hearing to which many of them were entitled to go in the first place was an act of frustration about what's really going on, which is that damaging testimony is coming out about the president. They are trying to protest about the process. The process is perfectly routine for congressional hearings. There are often private, nonpublic depositions before there are public hearings. The Republicans did it when they were in charge.

But it is a way of throwing things up in the air that gets us to talk about the protests rather than the substance of the hearings, which have proven to be, I think, even more damaging substantively to the president than many of us had expected.

CAMEROTA: Bianna, I think there's something more than frustration that we saw there. And that is that a couple of days ago, President Trump said that he felt the Republicans were not fighting hard enough for him. And so I don't know. I think the timing is more than a coincidence, because, again, we've had so many guests on today from Jeffrey to Kurt Bardella, who was a senior adviser to the House Oversight Committee, Republicans, when during the Benghazi hearings who said that all of those investigations and interviews were done behind closed doors. Obviously, Republicans know that. Some of the very same Republicans who did Benghazi were the ones who tried to get in yesterday.

BIANNA GOLODRYGA, CNN SENIOR GLOBAL AFFAIRS ANALYST: It was almost as if they were cueing Trump saying where's my Roy Cohn. So here they come in two days after he said the Republicans need to be tougher, and praising Democrats about how tough and united they are, and they defend each other but Republicans aren't doing the same, and attacking those who are anti-Trumpers. And clearly Republicans can't attack what's coming out of it, the content that they're hearing, right, the damning testimony that they're hearing over the past week-and-a-half. So they're going after the process.

And as we've said earlier, I'm not sure how any of what we've heard in any of the testimony over the past week and a half, if aired publicly, would have helped the president at all. It was terrible, especially given what we heard from Bill Taylor.

BERMAN: How do you see it?

JIM BAKER, CNN LEGAL ANALYST: It's a bit of a flashback for me. I was interviewed for eight hours by the Republican majority when they held the House. And there were leaks with respect to what I testified about.


BAKER: In connection with the Russia investigation, right, when they were investigating what the FBI did with respect to Russia. And so everything that I was asked was behind closed doors, and there was no public hearing. I stand ready to appear in any public hearing on Russia that anybody wants to have me at, for sure. And it was the exact same thing that they're complaining about now. And so it just doesn't make sense.

What I find also frustrating with this sort of purported civil disobedience, these are the lawmakers. This is the body that makes the laws for the United States. These are the people that voted on the laws that run the House of Representatives. And it was decided in a lawful way what the rules are, and they just don't like it right now because it's against them because the facts in the past week or so, past couple of weeks, are devastating for the president.

GOLODRYGA: And can I just jump onto this? Because I think if we get public hearings, a lot of these Republicans should be careful what they're wishing for, because as we saw yesterday and the day before and all last week, those that were not in those hearings, that were not storming them, when asked, did you read the testimony? Did you read the opening statements? I didn't have time. I've got go. I've got go. They were not responding. They would have no choice but to respond if all of this were public. So they gave themselves at least a little bit of cover by this being held behind closed doors. That all changes once it's out in the open.

BERMAN: So let me just ask you, Jim, as someone who worked in national security for years, what does it do to your sensibilities when you see the Republicans in there with cell phones and recording devices in a SCIF, which is supposed to be a secure, scrubbed area?

BAKER: So clearly it's a violation of the rules. They should not have done that. They should have known better, and normal people in intelligence agencies who did that kind of thing would get written up. I don't want to overdo it either in terms of like some of the statements I've heard I think are a bit over the top in terms of the devastating impact on the national security. If nothing classified was being discussed in there at the time, then the damage is not as bad as one would make it out to be.


But nevertheless, it is a violation, and there are worries these devices get left behind. And so just you don't do it. They're not following the rules. It's not what you're supposed to do.

TOOBIN: And it's not like these Republicans made a big deal, say, for example, of Hillary Clinton's email techniques. They're not interested in these issues.

CAMEROTA: Unsecure.

TOOBIN: Right, yes.

CAMEROTA: Let's move on to something else interesting that happened yesterday, and that was prosecutors are trying to get their hands on the president's financial records as it relates to the hush money payments to Stormy Daniels. And so in a courtroom yesterday, the president's own personal lawyer, not Rudy Giuliani, William --

TOOBIN: Consovoy.

CAMEROTA: -- Consovoy, made the argument to a judge that basically the president is above the law. You can't charge him while he's president and you can't even investigate him. So listen to what he said to the judge and the judge's reaction.


JUDGE DENNY CHIN: What's your view on the Fifth Avenue example? Local authorities couldn't investigate? They couldn't do anything about it?

WILLIAM CONSOVOY, ATTORNEY FOR PRESIDENT TRUMP: I think once a president is removed from office, any local authority -- this is not a permanent immunity.

CHIN: I'm talking about while in office.


CHIN: That's the hypo. Nothing could be done, that's your position?

CONSOVOY: That is correct. That is correct.


CAMEROTA: If the president shot someone on Fifth Avenue, the judge asked, he could not be investigated or charged? True or false?

TOOBIN: What's interesting about this exchange is that I think many of us remember the Department of Justice policy that says under Department of Justice policy, not a law, but the Department of Justice believes that a sitting president cannot be indicted.

CAMEROTA: That Robert Mueller followed.

TOOBIN: Robert Mueller followed, exactly. However, that has not been put into law. It has never been reflected in the Constitution, and it's been never thought to bind state authorities like the New York City D.A., New York County D.A. who was investigating the president. What the president's lawyer was arguing is that not only is that policy binding, legally, on federal prosecutors, but it's binding on state prosecutors as well.

CAMEROTA: They can't investigate.

TOOBIN: They can't even investigate, which would be a shocking expansion of presidential immunity that no court has ever done before. So we'll see what the --

BAKER: That's the part that's just so obviously wrong. It's just obviously wrong. Even in the Mueller Report citing the OLC opinion, it's clear that you can investigate a president while he's in office. That's just absolutely clear.

TOOBIN: Think about what that would mean if that was the law of the land, that the president of the United States couldn't even be investigated. You couldn't issue subpoenas. You couldn't interview witnesses. That would be an expansion of authoritarian power so contrary to our American system going back well before Watergate.

GOLODRYGA: And it's as if we're having a case law debate in an authoritarian country, right, as if we are in Russia or any of these other -- Egypt, what have you. But I think where this benefits the president is when he goes on his rallies and he's standing in front of these huge audiences, and just goes off script and starts talking about things like this. I'm not saying that I would shoot somebody on Fifth Avenue, but look how powerful I am. There's a debate as to whether I would even be prosecuted for it.

BAKER: The only way he could do this and have it be lawful is if he was acting as commander in chief and leading the troops down Fifth Avenue to defend us against a foreign invasion.

GOLODRYGA: Don't give him any ideas.

TOOBIN: He likes parades. (LAUGHTER)

BAKER: It's just crazy.

BERMAN: I want to read something that Rudy Giuliani, I guess formerly the president's attorney, I don't know if he's currently working as the president's attorney, wrote last night. Rudy is looking for a defense lawyer. That's CNN's reporting overnight, because, as Jeffrey and Jim have pointed out to us, he probably needs one. And he wrote on Twitter last night "With all the fake news, let me make it clear that everything I did was to discover evidence to evidence to defend my client against false charges." Well, this whole issue, Bianna, or one of the whole issues here is he was running a foreign policy, a shadow foreign policy, not for the benefit of the American people. And he just told us that in so many words. He goes everything I did was really just to benefit my client personally.

GOLODRYGA: He's admitted it all. And when the president says there's no quid pro quo because the Ukrainians had no idea what was being discussed and that this was about withholding money for 2016 investigations or Joe Biden, now we know that that's been debunked as well because the Ukrainians knew from reporting yesterday as early as August that they were being denied this money and that they needed to talk to Mick Mulvaney to find out why this money is being withheld. And also back to May 7th, right after Zelensky was elected, he was having private conversations with some of his closest advisers, knowing that they were getting pressure from Rudy Giuliani being driven directly from President Trump about investigating Joe Biden's son and the origins of the 2016 election. So that theory is debunked as well.

CAMEROTA: All right, Bianna, Jim, Jeffrey, thank you all very much.


BERMAN: Democrats getting ready to make the impeachment inquiry more public. So how will that work? We are going to ask one of the key Democrats on the Intelligence Committee who has been part of the depositions next.


BERMAN: Democrats are preparing to begin impeachment hearings in public in just weeks. This comes after the spectacle yesterday where some two dozen Republican lawmakers stormed a closed-door deposition of a Pentagon official. Of course, some of them were invited. Some of them were protesting the fact they weren't allowed to be there even though, in fact, they were.

Joining us is Democratic Congressman Eric Swalwell. He serves on the House Intelligence and Judiciary Committees, and he was there when Republicans barged into that hearing room. I want to start by looking ahead, Congressman, if I can. These public hearings, which we now understand could begin within a couple of weeks, what should we expect to see there? REP. ERIC SWALWELL, (D) CALIFORNIA: Good morning, John. There will

be public hearings, and I'll leave it to the chairman to put that timeline out there.


But you will hear from the relevant witnesses who lay out the shake- down scheme very -- from the very top of the president asking the Ukrainians to investigate the 2016 election, essentially exonerating Russia but also to look forward and investigate his potential 2020 opponent in Joe Biden, leveraging your taxpayer dollars to do so.

Now, what we're doing right now is a first pass. We are interviewing the witnesses that we know may have been involved and actually pairing down that information so that you can pull out what's relevant for the public. But also, I want to say this because it's a fair question that you and others have asked which is, why we are not doing it publicly right now?

There was no preliminary investigation done by a special prosecutor or special counsel like Watergate or in the Clinton impeachment trial. We know, however, we have evidence, very recently, that there are witnesses in our case who are talking to each other. That's exactly what we don't want to happen until we have that preliminary investigation. We don't want them to tailor the testimony to each other. We don't want them to manufacture. So, we're trying to protect the information as much as we can before we bring it forward to the public.

JOHN BERMAN, CNN ANCHOR: You have witnesses talking to each other?

SWALWELL: Yes, yes we do. And that will become clearer in the next few weeks, I believe.

BERMAN: Witnesses you've already heard from?

SWALWELL: I'm not going to go into that detail but we have direct evidence that very key witnesses in this case have talked to each other about their testimony.

BERMAN: Have they aligned their stories in those discussions?

SWALWELL: I'll wait for that to come out, but the reason we don't want that to happen is because we want the unvarnished truth, not the truth that protects you, shields you from culpability. That's why we're doing this in a closed fashion. Closed to the public, not to the 120 members of Congress, Republicans and Democrats, who have access to the room.

BERMAN: I want you to explain to people who aren't in the room, and that includes me and all of us, what goes on behind closed doors? How do these closed door depositions work? Who gets to ask questions?

SWALWELL: Yes. So it's a long conference table. At the end of the table is the witness and a few lawyers. There's a stenographer taking every single word down. That's a court reporter essentially. On one side of the table are the Democratic members. On the other

side are the Republican members. And, of course, staff for both sides.

We start with an hour of questioning by the Democrats. Then an hour of questioning by the Republicans. Members or staff may ask questions and in many cases, both do.

And then we go 45 minutes Democrats, 45 minutes over to the Republicans until both sides say they're done. It's not Democrats say we're done and we're out. It's when both sides say they have no further questions.

BERMAN: So Republicans have been asking questions behind closed doors?

SWALWELL: Yes. Yes, absolutely.

BERMAN: What kind of questions have they been asking? Have they been focused -- what have they been focused on in the investigation?

SWALWELL: Well, unfortunately, not relevant questions. They're looking back at this 2016 conspiracy theory that Ukraine actually was involved in interfering in our elections. There's no evidence to that. That's our intelligence community said it was entirely Russia, and so they are continuing to spin that theory.

But there are Republicans who I have seen visibly concerned about the testimony that they've heard. I wish more of those Republicans would ask questions because I think they are concerned, and they're in an environment, though, where the president at his behest is asking these members to fight harder so it may be hard for them to speak up and ask questions that would go to their concerns.

BERMAN: But even if you consider what they're asking to be conspiracy theories, they are being allowed to ask those questions, correct?

SWALWELL: It's their right. They can -- you're right. They can spend their 60 minutes any way they like. They can do it in, you know, Russian if they want to ask the questions that way.

But they have equal opportunity to ask the questions. There's no limitations on the questions that they ask. And there's no limitations on the number of members that can be in the room who are on the three committees.

BERMAN: One of the things the president suggested yesterday and one of the things the former Congressman Sean Duffy who was on the show yesterday suggested is while there can't be a quid pro quo because they asserted somehow the Ukrainians did not know that military aid was being withheld or that the meetings were being held up. CNN's reporting that President Zelensky knew within a few weeks of being elected that the United States was pressuring or conditioning cooperation with them on investigations. "The New York Times" goes further and suggests they knew about the military aid being withheld as a condition there and Bill Taylor's testimony, public testimony or the part that was released describes they knew in early September at least based on "Politico" reporting.

Is it the testimony that you have heard or what have you heard in the testimony that you can tell us that indicates the Ukrainians were aware of this quid pro quo?

SWALWELL: That defense, John, erodes every single day.


And I want to start where the aid was approved, which was in Congress in 2018, and then signed by the president in 2019. So the very second that the president signs into law the aid, the Ukrainians know that aid is on the way. They don't know the exact date they'll get it but every second that goes by that they don't have the aid is a second they know that the United States has leverage until that aid is delivered.

So the exact date that they knew there was a freeze is really irrelevant because back in 2018, Congress passed the aid.

Now setting aside that, the dates also seem to be shifting when you look at the public recording as to when they knew. But it wasn't just the aid that the Ukrainians wanted. They also wanted a White House visit. And when Ambassador Sondland told Ambassador Taylor what the conditions were, he said everything is dependent on them investigating the Bidens and looking at 2016. Everything being -- not just the aid but also the White House visit. That's the testimony we have.

BERMAN: That is what we saw in the opening statement from Ambassador Bill Taylor.

Eric Swalwell, thanks for coming on and telling us what has been going on behind closed doors.

SWALWELL: My pleasure.

Hey, John, real quick. Can I make a quick plug? It's my daughter's birthday today. I want to say happy birthday to my daughter Cricket.

BERMAN: Cricket?

SWALWELL: One year old.

BERMAN: Happy Birthday.

SWALWELL: One year old today, yes.

BERMAN: Happy Birthday. Congratulations to you and the whole family, Congressman.

ALISYN CAMEROTA, CNN ANCHOR: That's great, Congressman, but we need a picture next time. So give use send us a picture of cricket's birthday party. OK, thank you.

Meanwhile, Republicans complain that impeachment depositions are being done in secret behind closed doors. Is that a fair complaint? Well, a key Watergate witness is going to give us his perspective, next.



CAMEROTA: House Republicans stormed a closed door deposition in the impeachment inquiry yesterday. They barged into a secure room known as a SCIF on Capitol Hill. Here is some of that experience. They say they were protesting these depositions being done in private.

Joining us is John Dean. He is the former White House counsel under President Nixon who testified during the Watergate investigation. That ever happen when you were testifying there?

JOHN DEAN, CNN CONTRIBUTOR: Never. First, we didn't have SCIFs in that era. But we never had those sort of blatant violation of the rules either.

CAMEROTA: But let's talk about this. When you were interviewed, was it in public or in private?

DEAN: A lot of it was in private. I spent several months actually with the chief counsel of the Senate Watergate committee in the very early phases when I testified before the senate.

First of all, it was an executive session. Same with the House and the impeachment inquiry. That was a closed session, too.

BERMAN: The timeline is so radically different than Watergate. I mean, the Watergate break-in was, what, it was June of '72?

DEAN: June of '72.

BERMAN: And Nixon resigned in August of '74. So you have two years plus two months where this all played out.

DEAN: February of '74 is when the House really starts.

BERMAN: So two years.

DEAN: Yes.

BERMAN: Almost two years after the break-in they actually start. We're 2 1/2 months from the phone call. If the phone call between Trump and Zelensky is the Watergate break-in, this has all developed so incredibly fast.

DEAN: Faster times.

BERMAN: But how does that factor in to the comparisons here when you hear Republicans complaining about the process here saying, well, with Nixon it was all wide out in the open here, we all saw it. It wasn't. Not initially.

DEAN: Not at all. In fact, so much of the material that related to Nixon was taken before a grand jury. And then later turned over to the House, the so-called road map. Nixon had nothing to say about that.

So there are huge differences. And while it was begrudging by the Democrats -- excuse me, by the Republicans, they did play by the rules.

CAMEROTA: And having lived through it, do you see the merit in having all of this be private? Obviously, Republicans are complaining that they want transparency. They want more information. So why should it be done?

DEAN: The investigative stage, you know, had the -- had the Department of Justice taking the referral and investigated this. It would be standard procedure in front of a grand jury. Barr turned it down and said, I don't see anything there, ho, ho, ho.

And so that's why we have this aberration right now where the House is having to do its own investigation. And it's doing it as it should. And that is you don't tip off witnesses by having public witnesses. You let them come in and say their share and then you put it all together and they'll eventually go public, I'm sure.

BERMAN: It is interesting. Eric Swalwell told us he's seen evidence and we'll see evidence soon, he suggests, that some of the witnesses have been coordinating their stories beforehand. So, we'll have to wait and see.

Ambassador Bill Taylor, you've had a chance to read through his opening statement now. I'm wondering what you think of it as a legal document and also as an historical moment with your unique perspective. The question you probably get asked more than any other is, who is going to be the John Dean here?

DEAN: It was a little reminiscent in that what he did is he relied on detail. I'm sure he, unlike I, I feel I had some notes. I understand he takes a lot of notes, and I think that was reflected in some of his testimony. Others he used the detail of the circumstance to sort of self corroborate which happens, which is perfectly proper and appropriate.

So he was a very strong witness. And we'll hear more of him.

CAMEROTA: Is he John Dean?