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Navy Secretary is Out; Judge Decides on McGahn Testimony; Rep. Adam Smith (D-WA) is Interviewed about Devin Nunes and Navy Secretary. Aired 7-7:30a ET

Aired November 25, 2019 - 07:00   ET



KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: Shows an extensive effort by the White House to justify President Trump's decision to block Ukraine aid.

UNIDENTIFIED MALE: The Office of Management and Budget is denying that anything improper took place.

KELLYANNE CONWAY: Defense will go on offense. If there is a Senate trial, we'll be able to call witnesses, we'll be able to challenge their witnesses.

UNIDENTIFIED MALE: There's not a Democrat who watched the last two weeks and said, gosh, this is a weaker case than I thought it was.


ANNOUNCER: This is NEW DAY with Alisyn Camerota and John Berman.

JOHN BERMAN, CNN ANCHOR: Welcome to our viewers in the United States and all around the world. This is NEW DAY. Alisyn is away. Bianna Golodryga joins me this morning.

BIANNA GOLODRYGA, CNN ANCHOR: Great to be with you this morning.

BERMAN: A busy Monday morning.

GOLODRYGA: Very busy.

BERMAN: A lot of complicated stories.

Up first, the secretary of the Navy has been fired. And as Richard Spencer exits his post, he's accusing President Trump of undermining military discipline. This is what Spencer wrote, quote, I no longer share the same understanding with the commander in chief who appointed me in regards to the key principle of good order and discipline. I cannot, in good conscience, obey an order that I believe violates the sacred oath I took.

All of this is linked to the case of Navy SEAL Eddie Gallagher. Gallagher was demoted for posing with the corpse of an ISIS fighter. That demotion President Trump overruled. That's all clear. But here's where it all gets murky. A senior defense official tells

CNN that Secretary Spencer is losing his job for going outside the chain of command and trying to work out some kind of a secret agreement with the White House for Gallagher to keep his status as a Navy SEAL.

GOLODRYGA: And if that's not enough, that's not the only breaking news story we have for you this morning.

We're going to talk about the impeachment inquiry as well because there's new information there. "The Washington Post" reporting that a White House review of President Trump's decision to freeze military aid to Ukraine found an extensive effort to justify the move after the fact, as well as a debate about whether it was even legal. Documents from the White House review include emails from acting Chief of Staff Mick Mulvaney to White House budget officials in early August asking why the president was blocking aid already approved by Congress.

BERMAN: All right, joining us now is CNN political analyst Maggie Haberman, White House correspondent for "The New York Times," who has been a big part of this story on Eddie Gallagher and on the Navy secretary over the last few days.

And, Maggie, if we can, I want to start at the end here before we get into the details of the story because I think the big picture here is what's most important. The Navy secretary is out. And on his way out the door, he writes a letter saying the president of the United States is undermining military discipline. That's a big deal.

MAGGIE HABERMAN, CNN POLITICAL ANALYST: It's a huge deal. And Spencer's resignation letter looks -- makes the one from James Mattis that we saw almost a year ago look like -- like a nice, you know, note to the president, like a love note on his way out.

This is a make no mistake, he is not happy about what is happening with the Gallagher case. He is not happy with how the president has handled this. He's not questioning that the president has the right to do it. The president is the commander in chief, right.

BERMAN: No one is questioning it.


HABERMAN: But he is making clear that this is not normal procedure and that this undermines -- and several senior military officials, several Pentagon officials have said this, this undermines how they do things there, how they keep soldiers from committing war crimes, how they keep soldiers from going outside of the chain of command.

The problem for Spencer is he was, to your point about the details, accused of doing exactly that himself.

BERMAN: So let's talk about the details if we can now. Walk us through exactly what happened here. Eddie Gallagher --

HABERMAN: I'd love to. It's still very unclear. BERMAN: I know. And, of course, we don't have the nine hours it would take.

GOLODRYGA: We have two minutes, right.

BERMAN: But the broad brush strokes. Eddie Gallagher, chief petty officer for the Navy SEALs, was accused of, you know, stabbing to death an ISIS prisoner, also shooting some innocent civilians reported by 12 Navy SEALs at the beginning. He was acquitted of that. He was acquitted but still the SEALs demoted him and the question is does he get to keep his SEAL trident.

HABERMAN: Right. I mean and he was -- he was -- I think he was found guilty on one of the charges, but it was -- it was not the one related to that acts themselves. And then the question became, the Navy started this internal review process, and the question out of that was whether he was going to be able to keep his trident pin, which is seen as a sign of honor for the SEALs in terms of what they do. Gallagher -- excuse me, Spencer was supported talking to White House officials. We don't know exactly who, we don't know that it reached the president, but we don't have any indication that it did -- about essentially fixing the outcome of that review, which is problematic. He should not be involved in that. It's not clear exactly when Secretary Esper, the defense secretary, learned that this was happening, but it became yesterday the justification for firing Spencer after we had reported that Spencer was making a threat about resigning if the president continued getting involved in this case.

People close to Spencer think that this is just, you know, a whitewash and that essentially he was being fired for having raised questions about this publicly, and publicly disagreeing with the president. On Friday he made very clear he wanted this case to proceed without the president's interference.

GOLODRYGA: And though you had broken the news that he was threatening to resign, Spencer himself denied that fact.

HABERMAN: Right. Right.

GOLODRYGA: But, of course, we know where we are this morning.

HABERMAN: Right. Read his letter and then you can actually decide for yourself whether he was --


GOLODRYGA: Right, it's pretty clear from his letter that you were right all along.


GOLODRYGA: Kaitlan Collins, I want to bring you in, because, once again, and this is an important point John has been making all morning, the end result is that Eddie Gallagher gets to keep his trident, right? He gets to go on to "Fox and Friends" and trash and bad mouth his superiors. And we have the Navy secretary who's just resigned. So, once again, the president seems to have come out victorious.

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: The Navy secretary, who was actually really well liked at the Pentagon too, even by the president. And essentially people at the Pentagon thought he was going to resign in protest this week. His letter seemed like he could have written it as if he was resigning in protest this week. But, instead, it was more of an acknowledgment that he was being terminated.

And, of course, it is exactly what the president wanted in the end. That's the end result. And that's what I think's so striking to military officials is that not only is the president getting his way here, but he was still trying to intervene in this case even though they said on Friday that he wasn't going to.

And essentially that was their big problem with this and that was Spencer's problem with this is that the president was getting involved when they said it should have been left up to the military to make a decision by this. Because, let's not forget that the jury for Gallagher was his peers in the military. It wasn't this, you know, unbiased essentially thing. And now they're going to move forward and not to review (ph) because they don't think they can get an unbiased jury anymore essentially.

HABERMAN: It's not clear why it is that they couldn't get an unbiased jury now over the last two days as opposed to all of the other things that had happened, including the president's tweet, right? I mean if we're talking about the events of the last few days, which is how senior DOD officials have put it vaguely without saying what events they're talking about, it's hard not to think that includes the president's tweet.


BERMAN: I want to bring -- I want to bring David Gregory into this discussion, who's been waiting patiently here.

And, David, as we talk about this, this is yet another example of the norm shattering that has gone on during the trump administration. And as Maggie pointed out, the question isn't whether the president, as commander in chief, has the power to do this, it's whether or not he should do this. In undermining military discipline, where does that rank on the scale of, you know, ordering an investigation or asking for an investigation into a domestic political opponent?

DAVID GREGORY, CNN POLITICAL ANALYST: Right, or firing your FBI director because you don't like the tenor of the investigation that's being done into you and your administration, your former campaign. I think that's what's important about what Maggie said. This isn't a question about whether he has the right as commander in chief to do it, it's the context in which it's ultimately done. And to run rough shod over military justice, over people who are responsible for that. And the ultimate point of military justice here, which is, as the president has said derisively about the military, we train our war fighters to kill and then we get upset when they kill, which really does seem like somebody who's watched a bad war film instead of understanding that there is military justice for a reason so that our war fighters are doing their jobs in accordance with the values of the country. The president seems to forget about that.

And by intervening in the process of military justice, he does such a disservice to what the military is trying to accomplish. And, in the end, may ultimately make the very process unachievable because it's his intervention which has created a kind of (INAUDIBLE) over this making it difficult to reach a final determination.

GOLODRYGA: And, Maggie, this has been a crusade the president's been pursuing for months now. I begin -- I think it started back in March earlier this year.

What does this say about Esper's role as defense secretary and, a, trying to protect his own, but, b, having an opinion of his own to where he can go to the president and differ with him if need be?

HABERMAN: It raises a lot of questions as we have seen with other secretaries in this cabinet over the last three years of where they're able to go in terms of being sort of team of rivals disagreeing both with each other and with the president. We have seen this president turn his administration much closer resembling Trump organization than we have seen the Trump organization, meaning his private business, than we had seen at any other point throughout his tenure. This is another example of it. I think it does -- it create -- it shows the conditions under which folks like Esper are operating, which is that you have basic routine processes that have existed before -- prior to this president. You have powers of the presidency that are there but haven't been invoked for a reason. And then you have Esper trying to balance all of that. And basically trying to move past this. You saw that very clearly. I think the statement yesterday was meant to say, let's move on because this is harming the military.

BERMAN: David, if I could bring you in very quickly on the other major story of the weekend. "The Washington Post" reporting that within the administration there was this effort to justify after the fact the president's decision to withhold military aid to Ukraine and they're uncovering internal emails. Maggie and "The New York Times" has confirmed this as well, that they -- you know, they've uncovered internal emails with discussions with Mick Mulvaney which talks about all this.

What's the implication here?

GREGORY: Well, look at the comparison with the Gallagher story we're talking about, which is, you have people who are working in this organization in the White House who see the president's conduct, think it's not appropriate, or see top administration officials conduct as well and I think it's not appropriate, whether they're putting call logs into separate servers, or in this case they're delaying the aid and not being forthcoming about why it's happening or asking if it's possible to hold it and still be lawful.


This is -- this is the -- what he set in motion by running the White House the way he does and by acting as president that fails to recognizes that the presidency is larger than him and that there are norms, that there are precedents that you're setting in doing all of this. So this is problematic.

You know, Adam Schiff said the investigation piece will continue even if the Intelligence Committee is going to write a report. If this ultimately goes to a Senate trial, a lot of this evidence may ultimately come out.

GOLODRYGA: I do have to say as we wrap up here, to be fair to Mick Mulvaney, this only just confirms what he said in the press conference, right, there was quid pro quo and they did withhold the money, right?


GOLODRYGA: So, here we are.

BERMAN: All right, David, Maggie, and first time "EARLY START" anchor this morning Kaitlan Collins.

GOLODRYGA: Great job.

She got up at one this morning.

COLLINS: Thank you.

BERMAN: Thanks for being here. Appreciate it.


Well, a big ruling expected today on whether former White House top lawyer Don McGahn could be compelled to testify. Jeffrey Toobin tells us why it matters. That's coming up next.



GOLODRYGA: A federal judge in Washington will decide today if former White House Council Don McGahn must testify in the House impeachment inquiry.

Joining us now is CNN's chief legal analyst Jeffrey Toobin.

Jeffrey, good morning.


GOLODRYGA: So many things we could talk to you about this morning, but let's start with this judge's decision. How significant is it if the judge in fact does decide that he can testify?

TOOBIN: Well, you know, you two, you're old enough to remember the Mueller report. Remember?


GOLODRYGA: I think so, right, yes. TOOBIN: Remember way, way back in March, the Mueller report?

BERMAN: I was in college.


Don McGahn is the principle witness against Donald Trump in the Mueller report. Don McGahn testifies and it's spelled out in great detail in the report that on at least two occasions, the president went to him and said fire Robert Mueller, make sure it happens. Now, McGahn saved the president from himself, but it's one of the principle accusations of obstruction of justice that's in the Mueller report that comes from McGahn's testimony. So if he were to give that in public, that could very well be part of an article of impeachment based on obstruction of justice.

BERMAN: But if the judge decides today that McGahn does have to testify, it doesn't mean tomorrow that McGahn shows up. It could be appealed.

The other reason people are looking at this, Jeffrey, is if John Bolton was looking for a reason to testify and the judge says McGahn needs to, maybe Bolton could take that decision and says, you know what, a judge has said that this type of testimony is valid. I want to talk.

TOOBIN: You know, this whole chapter of court cases about testimony is a great example of sort of the difference between the law on the books and the law in the real world. I mean there are good arguments that all of these witnesses should have to testify. But once they go to court, they start a process that takes so long that in effect that decides that they will not testify. And the White House has been counting on that, that, you know, whether it's McGahn, or Bolton, or Bolton's deputy, Kuperman (ph), they are all important witnesses, but the fact that they are in court means the process is going to last so long that the Democratic House will probably never get their testimony.

GOLODRYGA: We do know that Bolton got his Twitter account back though, so that was breaking news for him over the weekend.

BERMAN: Thank God. Thank God. He can tweet. He doesn't need to, you know, help understand what happened.

GOLODRYGA: He's very active tweeting over the weekend. Yes.

But on the note, because the White House's strategy has been to just kick the can down the road and turn this over to the courts, right? If we're talking about a Senate trial, we're having John Roberts overlook that, right? And it won't be something that's going to take months. We know that he's already tussled with the president before and there's a theory that Democrats are pushing for that because maybe we're going to get something unexpected from John Roberts.

TOOBIN: You know, one of the great mysteries is what would a Senate trial look like? Because the rules -- it's not like a courtroom. And the rules, including even the power of the chief justice, are up for grabs. You know, in 1998, when there was an impeachment trial of Bill Clinton, William Rehnquist presided as chief justice and literally made no decisions the entire time. I mean he talked about playing solitaire off on his own during breaks because he had so little to do. Whether that's also true in the more contentious environment of today, we don't know. The structure of the Senate trial and the power of the chief justice is one of the many things the Senate's going to have to sort out before that trial takes place.

BERMAN: And in 1998, it was a decision between Tom Daschle and Trent Lott to work out an agreement beforehand, which is what both sides you get the sense want this time too. Chuck Schumer and Mitch McConnell could very well work this all out beforehand so it would be John Roberts, his decision to decide much of this.

Finally, Jeffrey, Ruth Bader Ginsburg. Justice Ginsburg back in the hospital this weekend. She's out, back at home now. Eighty-six years old. Just more questions about her health.

TOOBIN: I -- you know, look, she -- she is about this tall. I doubt she weighs a hundred pounds. And she's obviously as tough as any NFL linebacker. I mean this woman has had, you know, every disease known to humanity. She's trying to hang in there. She's an icon. She's very popular among liberals in the United States.

But, you know, 86 is not the new anything. And she is not in great health, to say -- to put it mildly. And, look, she's trying to hang on until the next president or the president inaugurated in January 2021 can pick her successor.


I don't even play a doctor on TV, so I can't say what the prognosis is.

GOLODRYGA: Well, we -- we do know that she's working from home and that she's feeling better, so that's always good news.

TOOBIN: And, you know, she's -- she's tough. And she's -- and she's got all her marbles. No one disputes that. But, you know, she's got a lot of health problems.

GOLODRYGA: Jeffrey, thank you.

BERMAN: Thank you.

TOOBIN: All right.

BERMAN: So one of the president's biggest supporters in Congress now facing a potential ethics investigation. The response to Devin Nunes to an exclusive CNN report, ahead.


BERMAN: This morning, the top Republican on the House Intelligence Committee, Congressman Devin Nunes, now finds himself facing some of the same types of allegations at the center of the impeachment inquiry.


Allegations that he met with a former Ukrainian prosecutor in Europe to dig up dirt on Joe and Hunter Biden. Now, Nunes won't even say if he traveled to Vienna for that meeting, though he broadly denies parts of the story.

Joining me now is Democratic Congressman Adam Smith. He is the chair of the House Armed Services Committee.

Mr. Chairman, thanks so much for being with us here in studio.

REP. ADAM SMITH (D-WA): Thank you for the chance.

BERMAN: You've suggested that Devin Nunes, Congressman Nunes, perhaps should face a House ethics investigation.

SMITH: Actually, I haven't said -- they asked me about that and I said we should look into whether the possibility is there. I -- it is concerning that apparently he took a trip on taxpayers dollars and potentially was engaged in campaign activity. But that's all we know. It should be looked into. I'm not suggesting an ethics investigation.

BERMAN: And that would be the ethics question at this point, that it was a trip --


BERMAN: Paid by -- and we've seen the receipts of a trip to Europe.

SMITH: Right.

BERMAN: And if that trip -- if that congressionally paid, taxpayer paid trip to Europe was used to investigate the Bidens, that might be an ethics issue?

SMITH: Sure, But unlike the president's situation, there's still too much we don't know. So I -- we -- it needs to be looked into, but there's too much we do not know to make definitive conclusions on that.

BERMAN: As chairman of the House Armed Services Committee, I'm sure you have a great deal of interest in what has transpired over the last 24 to 48 hours having to do with the secretary of the Navy, Richard Spencer, who was basically fired and wrote a letter after the fact saying that he no longer agrees with the president on issues of military discipline.

Now, the defense secretary says he's being fired because he went around the defense secretary's back to try to make some kind of a deal on Eddie Gallagher, the Navy SEAL, on whether or not he could keep his trident.

What's your take on all of this and how involved have you been? SMITH: Well, I think both of those things are true. I did speak to the

secretary of defense yesterday about it. I think it's quite clear that Secretary Spencer was troubled by the president inserting himself that far down the chain of command, undermining the chain of command to insert himself into the disciplinary action. So Secretary Spencer's been troubled by that for a long time, but it does seem like he also tried to, you know, work his way around that without going through proper channels with Secretary Esper. So I think both of those things are actually true.

BERMAN: What's your take on the overall result here, which is the Navy secretary is out and Eddie Gallagher is keeping his trident?

SMITH: Right. Well, it's terrible. It's terrible that the president of the United States has inserted himself in this situation because, yes, he is in the chain of command. He can do what he wants to do. But when you go that far down, you don't know what you're doing. I mean I've had a number of cases, as a member of the Armed Services Committee, where people have come to me and said, look, this is unfair. And the thing that's always troubled me is, I don't know. I'm not the person's commander. I wasn't there in the field. You have to respect the leadership chain below you. And the president didn't do that. And I think right now, you know, every service member has to be asking themselves, is my immediate superior -- you know, I can just go around him. Do I have -- do I have to listen to them?

BERMAN: And what I have heard from people I know within the SEAL community is, look, the court case itself is one thing and he was acquitted on almost every charge except for one.


BERMAN: But whether or not you keep your trident as a Navy SEAL is another thing. That's an issue of honor and duty and that should be kept within the SEAL community.

SMITH: Well, even on the trial, I mean the president inserted himself in that, you know, during -- as you know, it was a Fox News effort to -- and I don't -- look, I don't know the facts here, but neither does the president. The president should have let the system play out. And when he doesn't, like I said, it undermines it for everybody because they don't think they have to follow it.

BERMAN: There's an impeachment investigation going on of the president of the United States.

SMITH: I've heard, yes.

BERMAN: It's not your committee, which I --


BERMAN: Maybe something you're grateful for in this case. The House Intelligence Committee is working this week to put together a report, the Judiciary Committee will put together articles of impeachment based on that. What are you hearing from Democratic constituents about this, especially given that it doesn't seem as if a single Republican at this point is going to vote?

SMITH: Well, here's the most -- one of the big, troubling aspects of this is, look, at the end of the day, and I hate to use this word, but the Republicans are lying, OK, about what happened. If you want to say the president did this but here's why it shouldn't be impeachable, that's fine. But when they say, look, he was just pressuring Ukraine because he was concerned about corruption. No, he wasn't.

And Gordon Sondland and every other witness last week made it very clear exactly what happened. The president, through Rudy Giuliani, started a pressure campaign to get Ukraine to back up this ridiculous conspiracy theory that Russia wasn't involved in the 2016 elections. And that it was all part of some elaborate hoax.

And, look, the really troubling part of this is this is a Russian propaganda effort. They're trying to deny what they did and the president of the United States is helping them. And also, as an added bonus to doing that, he discovered the whole Hunter Biden thing. And then he wanted Ukraine to investigate his political opponent. And for the Republicans to come out and say, look, no, it was just -- he was just concerned about corruption. There's no evidence of that. And there was a mountain of evidence that he was concerned about the other things. And then they said, but -- but he released the aid, so it's all good.


He released the aid after he got caught. Two days after it became clear that the whistleblower was out there.