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Trump Loses Key Court Battle But Wins Delay in Tax Fight; Subpoena Indicated Federal Investigators Interested in Giuliani's Business. Aired 6-6:30a ET

Aired November 26, 2019 - 06:00   ET



UNIDENTIFIED FEMALE: A federal judge is ruling former White House counsel Don McGahn must testify under congressional subpoena.


UNIDENTIFIED FEMALE: The president's claim of absolute immunity is absolute absurdity.

JIM ACOSTA, CNN CHIEF WHITE HOUSE CORRESPONDENT: The White House is saying, essentially, that this decision contradicts long-standing precedent.

UNIDENTIFIED FEMALE: The Supreme Court said the House will not get President Trump's financial documents, at least for now.

UNIDENTIFIED MALE: Their obsession with impeachment is going to cost them their majority next fall.

UNIDENTIFIED FEMALE: We can't be held up for months at a time through frivolous appeals. We've got to move forward.


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

ALISYN CAMEROTA, CNN ANCHOR: We want to welcome our viewers in the United States and around the world. This is NEW DAY. It is Tuesday, November 26, 6 a.m. here in New York.

JOHN BERMAN, CNN ANCHOR: Look who's here.

CAMEROTA: I decided to come back.

BERMAN: Must be nice.

CAMEROTA: It must be Tuesday.

Two critical legal rulings that could test the limits of presidential power and impact the impeachment investigation.

First, a federal judge rejecting the White House claim that top presidential advisers can ignore congressional requests. The judge's message, quote, "Presidents are not kings," end quote. The ruling means that former White House counsel Don McGahn must comply with a House subpoena to testify in the impeachment inquiry.

Now, the Justice Department says it will appeal that decision.

Second, the U.S. Supreme Court temporarily blocking the immediate release of Mr. Trump's taxes and financial records.

Resolving these two cases could take weeks if not months, but House Democrats indicate they are moving forward with impeachment. They do not plan to wait for the courts.

BERMAN: And breaking right now, I mean, right now. A brand-new CNN poll on what America thinks about the impeachment inquiry, and it undermines an argument the president and his allies have been making.

They have been claiming that impeachment is losing support. They are wrong. Fifty percent of those polled support impeaching and removing the president from office; 43 percent oppose. That's exactly where it was last month, so no drop at all, no gain either. But we'll get into the numbers in just a moment.

Meanwhile, federal investigators appear to be zeroing in on Rudy Giuliani's consulting business as a part of a criminal investigation into two of his associates. The president's personal lawyer has not been accused of any wrongdoing, but there are a number of troubling signs for him.

So we have a lot to get to this morning. Let's begin with CNN's Suzanne Malveaux live on Capitol Hill -- Suzanne.


Well, a federal judge ruling on a key issue in the middle of the impeachment inquiry, and House Democrats are now seizing on this. They hope that this compels key witnesses to testify later on.

And the chair of the House Intelligence Committee, Adam Schiff, yesterday sending a letter to House lawmakers, saying that he's not ruling out the potential for additional witnesses and depositions.


MALVEAUX (voice-over): A federal judge ruling Don McGahn must testify before Congress, delivering a blow to President Trump's efforts to stonewall the impeachment inquiry.

The decision striking down the Trump administration's previous claims that officials are immune are from complying with House subpoenas. In a scathing 118-page decision, U.S. District Judge Ketanji Brown Jackson writing, "Stated simply, presidents are not kings," adding "absolute immunity from compelled congressional process simply does not exist."

REP. STEVE COHEN (D-TN): We've been defied in our attempts to have proper oversight that the Constitution allows us because of this administration stonewalling. And so it's good the judge agreed with us. It's the law. It's oversight, as American as apple pie.

MALVEAUX: The White House says the Justice Department will appeal the decision, adding they are "confident that the important constitutional principle advanced by the administration will be vindicated."

Back in May, the White House blocked McGahn from complying with a House Judiciary subpoena, after the Mueller report revealed he witnessed several instances of Trump attempting to interfere with the Russia investigation.

Now, McGahn's lawyer says he'll comply unless a stay is issued. The ruling could factor in House Democrats' push to have other Trump officials like acting chief of staff Mick Mulvaney and former national security adviser John Bolton testify.

REP. MIKE QUIGLEY (D-IL): I think it's a message to all the witnesses who will obstruct it in the White House for telling them not to appear, it's time to show up.

MALVEAUX: While McGahn could be compelled to appear, the judge's ruling making clear he may still be able to refuse to answer questions, citing executive privilege.

Still, House Democrats are working furiously to expedite the impeachment process. Intelligence Chairman Adam Schiff writing in a statement, "The testimony and documents we have succeeded in requiring reveal a fact pattern that is overwhelming, unchallenged, and damning."

REP. ZOE LOFGREN (D-CA): The Intelligence Committee has done the fact finding. We can't be held up for months at a time through frivolous appeals of very well-reasoned decisions. We've got to move forward.


MALVEAUX: But in a victory for Trump, the Supreme Court yesterday ruling a temporary block from Trump releasing his financial records to House investigators. The justices are giving him until next Thursday to appeal -- John.

BERMAN: All right, Suzanne. We're watching this very closely to see how Democrats react to all of this.


What will last night's court ruling mean for the other top officials who have so far refused to talk to impeachment investigators? That's next.


CAMEROTA: Developing overnight, a federal judge rejecting the White House's argument that senior officials have absolute immunity from congressional subpoenas and ruling that former White House counsel Don McGahn must testify. The Justice Department says it will appeal. So what does that mean for other key witnesses refusing to testify?

Let's bring in CNN political analyst Rachael Bade. She's a congressional reporter for "The Washington Post." And CNN legal analyst Elie Honig.

OK. I'll read a little bit more about what the Judge, Ketanji Brown Jackson, said yesterday about this. She said, "With respect to senior-level presidential aides, absolute immunity simply does not exist. Indeed, absolute testimonial immunity for senior-level White House aides appears to be a fiction that has been fastidiously maintained over time."

So she couldn't put a final point on it, Elie, but they are appealing it. The White House is appealing it, so what does that mean? Are they going to have to testify or not?

ELIE HONIG, CNN LEGAL ANALYST: So I think this decision will stand up on appeal. That snippet that you just read, that's what we call a legal smackdown. She's being very clear here. She's speaking to the other witnesses. She knows this issue is going to come up again, and she's saying this applies to McGahn but also, for future judges who are going to be applying this, it should apply to you here.

Now, here's the difference, though, between law school and real life. Law school, you say, there's no meaningful distinction between does Don McGahn have to testify and does Bolton and Mulvaney and Pompeo have to testify? But real life, what I think the Republicans are going to do, is still fight those cases -- Mulvaney, Pompeo, Bolton -- if they come to the courts, because they'll just stall out. They know that they're going to have to go back through the courts. They'll argue there's some difference between the two and hope to run out the clock.

BERMAN: Yes, as the kids say, Judge Jackson basically wrote absolute immunity is not a thing.


BERMAN: It's not a thing.

HONIG: Yes. Stop trying to make absolute immunity happen.

BERMAN: Yes, fetch isn't going to happen here. And she went even further than that, because she said it's not just the case of Don McGahn. It's domestic policy advisers. It's foreign policy advisers, like, say -- She doesn't say it explicitly -- but clearly, she's talking about John Bolton, Rachael.

So now the question for Democrats is this. They've had one positive legal ruling here, indicative, perhaps, of where this will head if they were to wait. But is there any sign that they're willing to wait?

RACHAEL BADE, CNN POLITICAL ANALYST: Yes, not at all, I would say, John. I would say this court ruling is really -- it's sort of a -- it's a victory for Democrats but without that prize. I mean, we're not going to see -- we're unlikely to see McGahn

testifying on Capitol Hill in the next few weeks because of these appeals processes.

And yes, the judge was clearly signaling to other witnesses that she believed they had to testify. But I mean, again, the reality is that their lawyers are already arguing that there's a distinction between various cases.

So I think obviously, everybody's watching John Bolton right now, because he has sort of been -- he has told associates he was really uncomfortable and unhappy with what he saw happening in Ukraine and has made it clear that he has firsthand information that is relevant to this investigation that lawmakers are doing on the impeachment inquiry regarding Ukraine and conversations with the president.

And this could potentially give him cover if he wants to come forward now, instead of saving these stories for this book that he's writing.

But again, we're just very skeptical that they're going to do it. And Democrats have shown no signal, no sign that they are willing to wait for the court to rule on anybody to slow their impeachment inquiry.

CAMEROTA: Here's what Don McGahn's attorney said yesterday: "Don McGahn will comply with Judge Jackson's decision, unless it is stayed pending appeal. The DOJ is handling this case, so you will need to ask them whether they intend to seek a stay." They are doing that.

So Elie, I mean, this is a hollow victory for Democrats, and that means it's a victory for the White House.

HONIG: To some extent it is a hollow victory. Now, here's the thing, though. They should still fight this fight. It's important that Don McGahn be compelled to testify. A, as a matter of congressional imperative as a matter of balance of powers; and B, I think there's a -- there's a compromise position here Democrats can reach.

I agree with Rachael, they will not wait. They should not wait. They should not get slow played.

But what they can do, if they want, is proceed on the fast track with the Ukraine impeachment. If they want to consider an article of impeachment based on McGahn's testimony, do it off the Mueller report. You don't need his live testimony. There's no rule saying that.

And in the Clinton impeachment, they impeached based on the Starr report. They didn't call in live witnesses. And still pursue, again, in the courts. And if you win and get him to testify, and it's way down the line, so what? Bring him in. The historical record needs to hear about it.

BERMAN: I may take issue with your reasoning, though, there, Ms. Camerota. Because No. 1, Jeffrey Toobin pointed out, it's no guarantee that a stay is issued here. Because the law -- a stay, you need a reasonable likelihood that the decision will be overturned. And that may not exist here in regards to just showing up to testify. Just showing up to testify is what the judge ruled --

CAMEROTA: I like that.

And I would say-

BERMAN: -- that these people have to do. And -- and, I would say --

CAMEROTA: I was going to give you the win, but go on.

BERMAN: How can it be -- how can it be a win for the White House if a judge, in a 120-page ruling, outlines in meticulous detail how the legal reasoning you are using is wrong?

CAMEROTA: Because if Dan -- Don McGahn never testifies, it's a win.

BERMAN: Don McGahn wasn't testifying already. This might give the impeachment investigators and the people running the inquiry, Rachael Bade, the chance to create a new article of impeachment on the idea of obstruction of Congress. You did not come testify when a judge said you had to.


So how likely is it they'll include those as articles of impeachment?

BADE: I mean, obstruction of Congress was already going to be something that Democrats were looking at. They were looking at, potentially, witness intimidation, refusal to comply with subpoenas. Yes, this is just going to add to that growing body of evidence.

But I think, you know, court cases like this and sort of all these different pieces that we're seeing turn up right now that Democrats are sort of hesitating, do we pursue them? Do we keep going? They really are sort of making Democrats question -- or not question, but maybe they should be questioning, is this, you know, fast track the wisest course for them right now?

I mean, why do they need to be done by the end of the year? Obviously, they have political considerations, and 2020 is right around the corner. They don't want to step on Democrats running for the nomination. But, look, there's investigative work to do, and potentially, waiting on the courts could make their case stronger.

CAMEROTA: I think that's really interesting, because obviously, conventional wisdom has been thrown out a couple of years ago, but Democrats are still applying conventional wisdom, that there's a certain calendar that they need to adhere to, and well, we just don't know the answer to that.

Rachael, Elie, thank you very much.

So a new subpoena shedding light on the potential legal jeopardy Rudy Giuliani is facing. We will explain why prosecutors appear to be zeroing in on his businesses and the money he's been making in Ukraine.



BERMAN: New questions this morning about Rudy Giuliani's potential legal exposure. CNN has reviewed a grand jury subpoena that indicates federal investigators are looking into Giuliani's personal and business relationships with two of his associates who are under criminal investigation.

Back with us, Rachael Bade and Elie Honig.

This subpoena includes questions about conspiracy to defraud the United States, acting as an unregistered foreign agent, obstruction of justice, making false statements to federal initials --

CAMEROTA: You're really delivering this.

BERMAN: -- wire fraud, money laundering. Well, the list goes on here. Violations of federal election laws that prohibit the use of straw donors and foreign money in U.S. elections.

Again, right now, it's just his associates who are under investigation, but his name comes up in the subpoena, Elie, and there's that long list there. So how worried should he be?

HONIG: So that subpoena is an interesting tell for me. Because when you do a subpoena as an AUSA in the Southern District of New York, which I was, there's a line you have to fill out: what crime are you investigating?

We would always try to short-shrift that as much as possible, like list as little as -- we would just list "conspiracy" to tell the world and the target nothing, as little as we could.

The fact that they listed out all those statutes that you just read, John, to me is a warning shot. And it's something that would concern me a lot if I was representing Rudy Giuliani. And those crimes are largely the same crimes that Parnas and Fruman are charged with. And if one of them's cooperating, they're giving up the goods on him.

CAMEROTA: I mean, Rachael, I don't know that you need to be a legal scholar like Elie to be able to connect some of these dots. Rudy Giuliani was making a ton of money from Fraud Guarantee, Lev Parnas's company, as was Trump's legal advisers, Joe DiGenova and Victoria Toensing.

And so of course prosecutors were looking into this. They were -- Lev Parnas is accused of funneling money, Ukrainian money, into U.S. politics. I mean, follow the money.

BADE: Exactly. I was going to say rule No. 1 of journalism, follow the money, at least of investigative journalism.

I think it's -- I mean, this just shows that there's a whole other side of the Ukraine story that impeachment investigators in Congress haven't even touched. I mean, prosecutors are clearly casting a very wide net here. They're

-- they see potential financial crimes, multiple financial crimes here, campaign interference. And you know, this is -- these are questions that Democrats haven't even asked on Capitol Hill.

And so again, you know, we just talked about how fast Democrats are moving. I have talked to Democratic lawmakers who do want to look at this side of the Ukraine controversy, but if they are trying to get impeachment done by the end of the year, this is another area of, you know, where they haven't overturned stones and haven't investigated.

BERMAN: It was one of the remarkable things in the hearings, which is that they didn't really dig into Rudy Giuliani more than they did. Wasn't it?

CAMEROTA: I think that this is what is confusing about the Democrats' strategy, Rachael, is that when so much focus from the Republicans has been on Hunter Biden and the money that Hunter Biden made in Ukraine, why don't Democrats just flip the switch and say and what about Rudy Giuliani? What about some of President Trump's other advisers?

BADE: Yes, I mean, half a million dollars, that's how much Giuliani was making through all of this, right? I think we've seen in reports. It's a great question. They absolutely could do that.

I know that I've heard from Democrats throughout this whole impeachment investigation that they want to keep the focus on the president. There's a big fear of getting bogged down in details that, you know, will not implicate Trump, even if they're problematic for Giuliani, so why go down a rabbit hole? That's sort of the other argument.

But again, this is the president's personal lawyer. Trump was listening to Giuliani on Ukraine policy, so it all is intermixed, and again, it's a piece of the story we just don't know about.

BERMAN: Very quickly, Elie, from a legal standpoint, the Giuliani legal team, which is growing, put out a statement saying, "I have not seen any subpoena that looks for communications or documents from Mayor Giuliani or Giuliani Partners."

What's interesting about that is they put that out like it's good news for them. It's actually bad news. One hundred percent bad news.

HONIG: I think they're misreading the tea leaves there. The basic rule is if you have someone who is a target, meaning someone you believe is reasonably likely to be charged, you don't approach them. You don't subpoena them. You don't try to compel their testimony. So the fact that they haven't directly gone to Rudy Giuliani to me is not a good sign for Rudy Giuliani.


CAMEROTA: OK. Rachael Elie, thank you very much for that.

Well, the snow is falling in Denver as a winter storm moves across the U.S.

BERMAN: Look at that.

CAMEROTA: It's beautiful. Chad Myers has the forecast and how it will ruin your holiday travel plans.


CAMEROTA: Two winter storms will wreak havoc for millions of holiday travelers this Thanksgiving week. Denver is getting walloped this morning by what could be the biggest snowstorm there in years, as much as 16 inches of snow is predicted.

CNN meteorologist Chad Myers has our forecast. What are you seeing, Chad?

CHAD MYERS, CNN METEOROLOGIST: You know, I think the people of Boulder are tired of snow.