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Judge Rules on Immunity; Charges in Giuliani Probe; New Poll on Impeachment; Sen. Cory Booker (D-NJ) is Interviewed about his Campaign. Aired 7-7:30a ET

Aired November 26, 2019 - 07:00   ET



JOHN BERMAN, CNN ANCHOR: United States and all around the world.

This is NEW DAY.

Call it Constitution 101. In a major, legal ruling that could have a huge impact on the impeachment investigation, a federal judge is warning the Trump administration, in no uncertain terms, that the president and his senior staff are not above the law, writing, quote, the primary takeaway from the past 250 years of recorded American history is that presidents are not kings.

This is just one line from a 120-page decision that orders former White House Counsel Don McGahn to obey a congressional subpoena and answer questions before Congress. Now the Justice Department does plan to appeal the ruling. This could have broader implications for other witnesses who have taken the same White House position of absolute immunity from congressional oversight. The judge calls that argument fiction. Absolute immunity is not a thing, she says, at all.

ALISYN CAMEROTA, CNN ANCHOR: And another court decision overnight. 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. House Democrats indicate they are moving forward with impeachment and do not plan to wait for the courts.

Also new this morning, we're seeing our first poll since the public impeachment hearings began. Has support plunged as the president has suggested? We will have those new numbers for you in a moment.

But joining us now to talk about all of this, we have CNN chief legal analyst Jeffrey Toobin, CNN White House correspondent Kaitlan Collins, and CNN political analyst Lisa Lerer. She's a national political reporter for "The New York Times."

Great to have all of you here at the desk.

Let me just read a little bit more about what the judge said because I think it's interesting. We've heard so much about immunity and that people in the White House shouldn't be obligated to have to testify. The judge disagreed. Here's what she said. With respect to senior level presidential aides, absolute immunity from compelled congressional process 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, Jeffrey, she couldn't have put a finer point on it. It doesn't exist. But that still doesn't mean that Don McGahn necessarily is going to have to testify because of the timeline.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: That's right. Well, he's not going to testify in the -- he may not testify in the impeachment inquiry because his lawyer said if the court of appeals issues a stay, that is sort of freezes the situation, he will honor the stay.

However, stays are not all that common, so he may not get a stay, and -- the White House may not get a stay, and that would mean he would have to show up to testify.

Now, the judge also said that the concept of executive privilege does exist, and there are certain questions that will be off limits. What that is, is not clear. So it -- what the judge was absolutely clear about is that you can't just refuse to show up. You have to show up and at least start to answer questions, but the precise contours of what's off limits and what's allowable is not -- still not clear.

BERMAN: But let's -- let -- just reiterate that last point you were making because the idea that absolute immunity doesn't exist, and the fact that she wrote it again and again and again in 120 pages, this was a big, sweeping ruling, Jeffrey, that completely undermines the case that the White House is making.

TOOBIN: That's right. And if it is upheld, it certainly has application to John Bolton, to Mulvaney, to potentially Secretary Pompeo, all of whom know a great deal about the Ukraine story and have refused to testify so far. So the principle of absolute immunity is currently in shreds. If it's still in shreds after the D.C. Circuit speaks, we'll see if -- you know, we'll see if they can actually get those people to come in and testify.

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: And that's what's so interesting is because Bolton and his attorney were trying to make this argument that because he was involved in national security matters, it was different than Don McGahn. The judge makes pretty clear here, she doesn't see a difference in domestic or national security matters when it comes to something like this.

Behind the scenes, the White House has kind of been expecting this. The judge made it pretty clear in these earlier hearings that she was deeply skeptical of the argument that these DOJ attorneys were making. So they saw this coming a little bit. But, still, it's a big rebuke of the claim that they were trying to make.

CAMEROTA: Patience is a virtue in that -- right now because not only does this have to play out in terms of if the public ever gets to hear from Don McGahn. Also, President Trump's taxes. So many people are interested in what might be on those and his financial records, including Congress, Democrats in Congress, and that too is -- there was a big court decision last night about that, but we don't exactly have the answer yet.

LISA LERER, CNN POLITICAL ANALYST: No. What it sounds like it that the court is leaning towards taking up this issue and deciding whether, you know, we will all get to see his taxes or Congress will get to see them. And that would mean that, if they do that, a decision would come out in June, which is just about general election season, we'll be in the heat of it. So that certainly would have a big impact on -- you know, could have a big impact on the race.


But I think in terms of these other cases about who's going to testify and not, they may not end up being all that applicable to the current process. I think Democratic leadership has the view that a good impeachment is a quick impeachment, and that's because this is a political process, they are making a political calculation, and they're looking at what they're seeing out there in the country. They're seeing that Democratic primary candidates are not asked about this all that much when you are in places like Iowa and New Hampshire. They're looking at the data from those governor's races in Kentucky and Louisiana, which they won, and they're seeing that even though they won those races, impeachment was a drag for them in those places.

So they don't want this running right into 2020 and running right into the fall campaign. And, ideally, they don't really want it running into the start of their primary campaign, which is coming up awfully quickly in February.

TOOBIN: And I think that the -- even if they were to get this testimony, John Bolton's testimony for -- in particular, who seems to be the key figure here, how much would it really change opinions? I mean opinions seem so locked in on this issue that -- that --

BERMAN: Literally locked in.

LERER: That is -- yes.

BERMAN: The new -- the new CNN poll, which we'll talk about in a little bit, shows that support for impeachment has not moved in a month. Now, that undermines an argument the president is making. He's been walking around spreading this lie that the support for impeachment is plummeting. There's no evidence of that. It's exactly the same as it was a month ago and it's 50 percent support impeaching and removing, which is not nothing.

But, Jeffrey, I want -- two legal points, if I can. Number one, you note that the choice of language from Don McGahn's legal team is interesting. They didn't say, we're going to wait until the bitter end of this legal process for Don McGahn to testify.

TOOBIN: Right.

BERMAN: They said, if there's no stay here, he'll talk. And, likewise, John Bolton's legal team this morning is basically saying, well, we're thinking about things. TOOBIN: You know, I -- the important point to remember here is that

these people have a lot of agency in the process themselves. They could walk in tomorrow and testify. Remember, the president said to Fiona Till to, Alex Vindman, don't testify. They were part of the National Security Council, which John Bolton headed. They went in there and did their civic duty and testified.

John Bolton could go in tomorrow and do this. So the idea that they're prisoners of the court system and bound by what's going on, they're not even -- I mean they are not bound by that at all.

So, yes, it is true they can wait to see the resolution of this case, and it is interesting that McGahn's lawyer said, only with the stay will we refuse to testify. But they have a choice to do it today if they want.

CAMEROTA: Should we move on to Giuliani or did you have any other questions?

BERMAN: Let's do it.

CAMEROTA: All right, Rudy Giuliani. Prosecutors, as we've learned, are looking into his business associates and his consulting business. And there is -- there are interesting subpoenas that indicate what they're interested in.


CAMEROTA: Here are some of the -- here's the laundry list of things, conspiracy to defraud the U.S., acting as an unregister foreign agent, obstruction of justice, making false statements to federal officials, wire fraud, money laundering, violations of federal election laws that prohibit the use of straw donors and foreign money --

BERMAN: You made fun of me when I read that whole list last time.

CAMEROTA: No, no --

BERMAN: You're like, oh, that's a really long list.

CAMEROTA: Oh, no, no, no --

BERMAN: I mean, yes, it's a long list. What do you want me to do about it? It's really long. No, I mean --

CAMEROTA: I wasn't making fun of the content, I was making fun of how you delivered it. You were like, conspiracy to defraud the U.S.

BERMAN: I was putting a little bit of emotion into it.

CAMEROTA: I know. You did. You did. You --

BERMAN: Say, you're going to lien into the list here. But you're like, oh, it's a long list. It's a long list.

CAMEROTA: I actually preferred your delivery. COLLINS: Well, you know who's reading it is Rudy Giuliani is reading it in that frame of mind because the longer this list is, the more concerning that is for him because what this subpoena and just how broad we're seeing that this investigation is, it includes Giuliani's consulting firm and his other sources of income. So that is why that's something that Giuliani should be concerned about and what his interactions with these two associates were. Something that they've tried to distance themselves from in -- since then. But, of course, these associates are proving time and time again to be more and more troubling by saying, not only what they're going to say potentially about Rudy Giuliani, but what they're saying about the president. And we should note that so far Rudy Giuliani has not been accused of any wrongdoing.

TOOBIN: Right, and the subpoena --

LERER: It's so striking, though, in the arc of Rudy Giuliani's career to see this. I mean this is someone who's a major national figure. He ran for president. He was America's mayor. He was the attorney general for the Southern District of New York, which is now investigating him, right? It's just such a striking moment in American politics when you think of it in that scope.

BERMAN: And now he's on the hook because of Lev and Igor.

LERER: Right.

BERMAN: I mean, you know --

LERER: Such a --

BERMAN: And that's no small thing and fraud guarantee. He was paid $500,000.

LERER: (INAUDIBLE) your name on the business is just --

TOOBIN: But, you know, but, I mean, you've got to offer one word of defense of Rudy, it' like, how would you suspect that a company named Fraud Guarantee wasn't like, you know, IBM or -- or -- you know, it's just -- how would you even guess.

LERER: Couldn't be more (INAUDIBLE).

CAMEROTA: Why would you ever set that up

COLLINS: So misleading.

CAMEROTA: But, Jeffrey -- I'm glad you're enjoying this.

But what do you think of this laundry list of things? I mean, is this all Lev and Igor related? Because we know that somehow their money from Ukraine made it in, reportedly, to a Trump super PAC.


TOOBIN: Well, you know, his lawyer, Mr. Costello, said yesterday, well, we haven't heard from the prosecutor, so what's the problem? That's actually worse for Rudy Giuliani. Ye, they don't contact the targets. They work around them. They go to the banks for their financial records. They go to the telephone companies for the phone records. So, you know, it is -- it is -- not a good thing to be investigated by the U.S. attorney's office. No one enjoys it. Many people who are investigated wind up not being charged. But if you look at that list, it is quite clear that they are investigating to see if Rudy Giuliani committed any crimes.

And, remember, they have two defendant who most of the time in U.S. attorney's prosecutions plead guilty and cooperate. So if Lev and Igor have anything on Rudy, I would be very concerned if I was on his team.

COLLINS: And that's why the president is watching this so closely. And he was a little wavering with the beginning right when they were indicted. When we were asking the president about these two associates of Giuliani. Yesterday, when he was asked about Giuliani making this claim that he now says is a joke, that he has insurance in case he needs it when it comes to the president and throwing him under the bus, the president still voiced support for Rudy, he's still standing behind him. But we should note, you're not seeing Rudy Giuliani come out and defend the president the way he had been in the past, except beyond his tweets. He's not making these lengthy cable news appearances that he had been before. And a lot of that comes as the fact that he's not representing the president when it comes to what's happening with impeachment.

TOOBIN: Wasn't he on Glenn Beck earlier today?


BERMAN: This has Trump tentacles everywhere, though --

COLLINS: It depends (ph). Not Hannity.

BERMAN: Because there are two, you know, Trump connected lawyers who were working for a Ukrainian here. I mean this really has a smell to it.

LERER: And that's why the timing of this thing is really going to matter. I think the shadow of Comey sort of haunts everything. And how quickly they move forward with this case, which seems like a -- it seems like a pretty broad inquiry at this point. And what the timing of this in relation to the election, not to say that all paths lead to the election, but they kind of do given that most -- most -- people in both parties think impeachment is going to be resolved next fall by the voters.

I think the timing of this and how quickly it moves will be really interesting to watch and certainly they're going to have to make some -- some difficult, strategic and political decisions with how they proceed with this, if there is a case.

CAMEROTA: Lisa, Kaitlan, Jeffrey, thank you all very much.

All right, so did the two weeks of public impeachment hearings change anybody's minds in terms of the polling? We have a new, CNN national poll on that, as well as the president's latest approval rating.



CAMEROTA: OK, fresh out this morning, a new CNN national poll shows support for impeachment holding steady with 50 percent of Americans saying that President Trump should be impeached and removed from office.

Here to break down the new numbers for us, we have CNN's senior politics writer and analyst Harry Enten.

OK, give us the top line numbers first.

HARRY ENTEN, CNN SENIOR POLITICS WRITER AND ANALYST: Yes, I mean, you saw it right there, right, is that impeach and remove is pretty much where it's been all along, at least over the last month. But I think when you did down into the numbers, you see some interesting things.

So I think one of the more interesting numbers that we have right here is the men verses women gap. And what we see, if anything, is that gender gap is expanding. Now, 61 percent of women say that Trump should be impeached or removed from office. Just 40 percent of men say that. That is a huge, huge gap. And, you know, I'm the type of guy who goes in the history books, studies these numbers. The idea that you would have this 21 point gender gap on a question like this is astronomical. It's ahistorical. I've just never seen anything like it before.

BERMAN: It really is interesting. I mean but 61 percent is a lot of women. I mean that is a huge number for women. I just want to point out one thing, because we didn't state it clearly now. The president and his defenders have been saying for the last week that support for impeachment is plummeting, and there is no evidence of that at all. It hasn't gone up, but there's no evidence that it's dropping. And 50 percent, it -- you know, is not a low number.

ENTEN: I feel like a football referee, no, incomplete pass.

CAMEROTA: But sometimes he looks at strange polls and you say even the strange polls it doesn't do this (ph).

BERMAN: It doesn't matter. I mean but it's a false argument. It's a false argument.

CAMEROTA: I'm just asking our pollster about that.

ENTEN: What I would essentially say, parents please stop fighting, is that, look, if you look at the overall numbers, I don't know what's in Trump's head, I can just tell you what the numbers are, and the numbers are, that statement, when looking at all the polls, is not correct. It's factually inaccurate. The impeachment and removal numbers are staying basically the same as they were previously.

CAMEROTA: Thank you very much. You will not be grounded this week as a result.

ENTEN: Thank you very much.

CAMEROTA: All right, so what other -- when you dive into the numbers, what else do you --

ENTEN: Yes, I think another interesting thing is, look at this. So this idea that the Republican are going -- you know, Republican voters are going to essentially run away from the president and therefore congressional Republicans will feel it easier to go against the president, look at this, congressional GOP defending Trump, among Republicans, are they defending him too much, the right amount or too little? Sixty-four percent say the right amount. Just 6 percent say too much. Twenty-four percent say too little. My goodness gracious, could they be defending him more? Apparently some GOP voters say they should be.

BERMAN: That's astounding, 88 percent say the right amount or even not enough.

ENTEN: Yes. I think that that gives you an understanding of why it's going to be so difficult for Republican lawmakers to move against the president of the United States because the fact is their voters, they are so afraid of a primary, and their voters are, simply put, not there.

One other thing I'd want to point out is just the overall numbers for Trump, the approval ratings for him. And I think it's very important to sort of put this in a historical context. And what we see right now for Trump overall is that 42 percent of Americans right now say that they approve of the president's job. And that's basically where we've been the entire time.


And what we see right now for Trump overall is that 42 percent of vote -- of Americans right now say that they approve of the president's job. And that's basically where we've been the entire time. And it's towards the lower end of that ranking.

Carter is the only one who was below. He obviously did not win re- election in 1980. Barack Obama's actually fairly close at 44 percent. So I think it's important to note that you can get recovery going into the final year of the presidency. But, of course, Obama's numbers fluctuated so much, right? They were up and down, versus Trump, 42, 41, 40, those numbers have been very, very consistent.

BERMAN: There is one number that the White House will really like, which has to do with the economy.

ENTEN: Yes, if you look at the -- President Trump's approval on the economy, take a look at this, 55 percent of Americans say they approve of Trump's handling of the economy, and this is something we've seen consistently throughout his presidency whereby his overall approval rating is in the SC, but his economic approval rating is in the SC. If the 2020 election turns into a referendum on Trump and the economy,

he will win. Unfortunately for him at this point, you have all this other stuff that's going on, and that's dragging down his overall numbers and therefore his economic approval rating is not casting the wide net that you might normally expect for an incumbent presidency heading into re-election.

CAMEROTA: But, I mean, obviously it's a real interesting note for Democrats, too, of how they play that, you know, because, do they focus on the economy, which people seem to be happy with, or at least approve of President Trump, or do they focus on impeachment, which, as your polls show us, is not getting a lot of traction since the public impeachment hearings (INAUDIBLE).

ENTEN: I would say focus on two things. Focus on Trump's character, yes, but also focus on health care. His numbers on that issue are much lower than they are on the economy. If you are President -- President Trump, if you're listening, focus on the economy, my friend. You do not want to be focusing on impeachment, and you don't want to be focusing on health care.

CAMEROTA: Interesting. All right, thank you very much, Harry.

ENTEN: Thank you.

BERMAN: All right, also breaking this morning, Senator Cory Booker running for president. I just saw him walk into our studio. His campaign just put out a memo outlining how the senator will get on the debate stage in December. We'll tell you what they plan to do about it, next.



BERMAN: Breaking this morning, the campaign for Senator Cory Booker has just released a new memo laying out a road map, frankly, for survival. So far the candidate has yet to reach the polling threshold to qualify for the December debate.

Joining me now is Democratic presidential candidate Senator Cory Booker.

Senator, thanks so much for being here.

SEN. CORY BOOKER (D-NJ), PRESIDENTIAL CANDIDATE: It's great to be on. Thank you for having me.

BERMAN: So, 7:00 this morning, your campaign put out a memo and said, this is what we're going to do. Right now, if the -- you know, if the deadline were today, you would not be on that debate stage in December.


BERMAN: How you going to get there? BOOKER: Well, look, the last debate was unbelievable. We had our best

fund-raising days online in the entire campaign, the surge since then. Even my New Hampshire trip we were kind of blown away. We had venues for events and we were overflowing those venues. So we see the energy. We see the surge. And if we can continue raising money online, we're going to start doing paid advertising, like you're seeing from a number of campaigns. It's helping their polling numbers.

So, look, we -- we got to get more people going to so we can have money for paid persuasion ads.

BERMAN: You're going to put ads on TV.


BERMAN: All right, well, radio and digital first.

BOOKER: Radio -- exactly. Exactly.

BERMAN: Look, you -- we do focus groups during these debates and it does seem that every time we ask these focus groups who did well on the debate, they say Cory Booker. They say you. They're happy with your performance in the debates. Yet, it hasn't yet translated in the polls.

BOOKER: Well, that's the key word is yet. Most people in the Democratic Party, if you look back you understand that never has there been someone who's leading in the polls in November who ever went on to be president. It's always the underdog. Jimmy Carter at 1 percent now, Bill Clinton at 4 percent. Barack Obama was 21 points behind Hillary Clinton. And so it's these artificial new rules about a debate stage that put a really difficult reality.

But, you know, we are surging. We have now more endorsements of any other campaign in Iowa and New Hampshire from local leaders. You know, elected mayors and others. You just start seeing all these ingredients necessary for an upset in Iowa. And so we're really excited. We just now have this challenge of getting on the debate stage.

BERMAN: And you see a surge in fundraising support. You may be seeing a surge in endorsements.

But -- but -- and, again, I'm not trying to harp on this, the polls haven't really moved. And they have moved for some other candidates. Amy Klobuchar, for instance, who often, people who focus group in these debates, they like her performance and yours, she has creeped up in the polls. Pete Buttigieg's numbers in Iowa have creeped up in the polls.

So, again, why is there movement with some candidates and not others?

BOOKER: Well, it's interesting, you've seen some movement up and some people go up and then come down.

BERMAN: Yes. BOOKER: So, at the end of the day, the polls have never been predictive. We're very confident that like John Kerry was polling at 4 percent four weeks before Iowa and then goes on to win. So the ground game is what's important to us. It's important to get those endorsements, people in caucus rooms, and the fundraising, fundraising, fundraising.


BOOKER: If you want to help, you want my voice to be in this race, go to and help us make sure that we have the resources to get on that stage.

BERMAN: And, just the last question about this, but you're willing to empty the bank to advertise to get on a debate stage in December?

BOOKER: Hopefully we can get a surge in fundraising that will continue so that we don't have to empty the bank, because the ground game -- you don't want the DNC's rules to take your resources away from what usually wins --

BERMAN: Right.

BOOKER: Which is investing in the ground game in order to make these new, artificial barriers.

But, look, we need to be on that stage. So if folks want to help us, please go to

BERMAN: Well, a really interesting moment in the last debate was when you and others were talking about the African-American vote. And it's splintered to an extent right now, although Joe Biden is leading among African-American voters in most polling.

Astead Herndon from "The New York Times," who's a terrific reporter and has done some great work talking to African-American voters, he had an article out the other day and I want to read you a passage from that. Astead writes, now younger black voters have largely flocked to Mr. Sanders and Ms. Warren over the race's black -- over, you know, instead of the race's black candidates because their left wing promises to upend systemic races and radically reform the economy are much more in line with the language of activism that emerged after the Black Lives Matter movement during Mr. Obama's presidency. Older voters, Astead writes, so far sticking with Joe Biden.

What do you make of, the idea that -- that Elizabeth Warren and Bernie Sanders might be attracting younger black voters?

BOOKER: Because a guy who's spent his entire career living and working in an African-American community, being the mayor of a majority black city, as far as the issues concerning our community, I've been fighting for them in an authentic way. Even in the Senate, the only major bipartisan bill that passed was the one that I led on criminal justice reform. So this is something that is in my wheelhouse.

[07:30:01] And I know again that Barack Obama was way behind in African-American voters to Hillary Clinton at this point before he showed he could win in New Hampshire.