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The Lead with Jake Tapper

Hillary Clinton's E-Mail During State Department Tenure Under Fire; Obamacare Faces Supreme Court; Tsarnaev's Attorney: "It Was Him"; First Late Night Host To Visit Nation Since 1959

Aired March 04, 2015 - 16:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

JAKE TAPPER, CNN HOST: I want to bring in former deputy press secretary for Hillary Clinton, Karen Finney, and CNN political commentator Kevin Madden, a former Mitt Romney senior advisor.

Karen, let me start with you.

The Clinton folks trying to downplay this. Congress says they are going to investigate it. Can Hillary Clinton avoid personally addressing this, personally, for long?

KAREN FINNEY, FORMER DEPUTY PRESS SECRETARY FOR HILLARY CLINTON: Well, she has said that she will appear in front of the committee. So, I suspect if they ask the question in that context, then she'll answer that question.

But I think, you know, part of what the Clinton folks are doing that I think is wise is, you know, when the story first came out, we had kind of a different version from "The New York Times" than what we later learned in terms of the legality of what she did or did not do, which is -- and I think it's an important point -- she did not break any laws.

And even the person who was quoted in the first story corrected himself today and made that clear.

TAPPER: Kevin, I know Republicans are making a lot of hay out of this, but there are plenty of Republicans, including many 2016 contenders, who also have transparency issues.

Even Jeb Bush, who released 250,000 e-mails from his time as governor, still has not released hundreds of thousands of others. Is this really an issue that Republicans can afford to talk about?

MADDEN: Sure.

Look, I think the reason that it's going to continue to be an issue is, I don't think the Clinton folks are handling it very well. I think also the contrast still works in Republicans' favor, 250 million -- 250,000 e-mails by Jeb Bush vs. 50,000 from Clinton...

FINNEY: Fifty-five.

MADDEN: Sorry, 55,000 from Clinton. That's still I think a good comparison, when you are Jeb Bush or any of the Republicans.

The other thing is, why would you set it up in the first place? It could be argued -- and I think it's a very easy argument to make to the public -- that the reason that that e-mail was set up was to evade any sort of public disclosure.

(CROSSTALK)

FINNEY: But it wasn't a big secret since so many people were receiving the e-mail.

(CROSSTALK)

MADDEN: Here's the biggest problem.

FINNEY: And Jeb Bush released e-mails that have already been released.

MADDEN: Here's the bigger problem is that a lot of it fits very neatly with what people's suspicions about Hillary Clinton are on a negative side anywhere, which is that she is constantly secretive and that she is somehow above the law.

And I think that really hurts them when they are trying to fight back on this.

FINNEY: This is the problem I have with that. You are going on the presumption something that she did was against the law. We know it was not against the law.

(CROSSTALK)

MADDEN: The law says...

FINNEY: No, there were 2009 rules that were updated in 2013 and 2014.

(CROSSTALK)

MADDEN: You should use the State Department for official business.

(CROSSTALK)

FINNEY: It doesn't say you can't. Colin Powell used personal e-mail for official business.

MADDEN: If, as a candidate, you want to litigate those differences with the American public, go ahead.

(CROSSTALK)

FINNEY: But you're holding her to a different standard. You are suggesting that she's doing something different than what others did.

I'm saying, that's, A, not true. B, you are also suggesting that Jeb gets held or Scott Walker or Chris Christie gets held to a different standard with regard to their e-mails than she should be with her e- mails.

(CROSSTALK)

MADDEN: Would you argue there's a big difference?

FINNEY: I hear what you're saying though from a political perspective, but I'm saying let's just be honest. It's a different standard.

MADDEN: We are here to talk about the political perspective of it.

FINNEY: OK. But let's also be honest.

(CROSSTALK)

MADDEN: Would you agree that 250,000 e-mails being released proactively is very different from 50,000 being turned over?

FINNEY: I think that is a smart, I think that is a wise political strategy on the part of Jeb Bush, because he released a lot of what was already out there. And he has his own problems with regard to transparency.

(CROSSTALK)

FINNEY: So, yes, if I give you what you already have and then I pat myself on the back for being transparent?

MADDEN: The other thing that's very telling here is the Clinton response, which is they do two things any time they are in trouble. They automatically distract and then they try and demonize any of their critics.

And I think that is really something that the public is largely going to pick up on.

FINNEY: I just don't think that this is going to be a real issue once we get to the point of the campaign actually starting.

I'm not surprised that -- Trey Gowdy, who said he is not smart enough earlier on the air today to know whether or not she broke the law, then why is he leading the investigation? He's clearly on a witch- hunt. That's fine.

MADDEN: See, there it is.

FINNEY: Yes. There it is.

MADDEN: Distraction and witch-hunts.

TAPPER: And I got to end it there. Karen Finney, Kevin Madden, thank you so much. Appreciate the passion you both bring to this.

(CROSSTALK)

TAPPER: The money lead now. Four little words in the Obamacare law could give critics the death blow they have been looking for to finally have the law overturned, leaving millions uninsured. It turns out the White House may have intentionally neglected to put together a backup plan -- that story next.

(COMMERCIAL BREAK)

TAPPER: Welcome back to THE LEAD. I'm Jake Tapper.

In the money lead today, will millions of Americans lose their health insurance because they lose the subsidies? That's one of the issues at stake as the Supreme Court considers a challenge to the Affordable Care Act, better known as Obamacare, the president's signature health care law.

The question before the justices is whether the Obamacare federal subsidies in 34 states are legal, whether they comply with Obamacare law.

Joining us live outside the Supreme Court to discuss the possible fallout is CNN senior legal analyst Jeffrey Toobin.

Jeff, I know you're good at not burying stories like this in a bunch of legalese, so explain for us, if you will, what's being argued, what's at stake.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, the question really is very simple before the court, is, did the Obama administration violate the law, violate its own Obamacare law by offering tax subsidies to the individuals who bought insurance on the federal exchanges in those 34 states? It's a simple question. The answer can get very complicated.

TAPPER: The decision, of course, will not come down until May or June, Jeffrey, but, if you will, read the tea leaves for us, if you would. Based on what was being asked and by whom, can you figure out where it was leaning?

TOOBIN: Well, you certainly could figure out where some votes were leaning. Six hours ago, almost to the moment, Michael Carvin, the lawyer for the challengers to the law, stood up and he was set upon. The atmosphere was just electric in there.

The four Democratic appointees, Ginsburg, Breyer, Sotomayor, Kagan, all jumped on him, saying he was distorting the meaning of the law. But when Don Verrilli, the solicitor general defending the law got up, Justice Scalia and Justice Alito set upon him.

So I would say those six votes, along with Clarence Thomas, who almost always votes with Scalia and Alito, who was silent today, those votes seem to be pretty much set in stone.

The real key to this case I think is Chief Justice Roberts and Justice Kennedy. And I think predicting those votes is a lot harder. Kennedy seemed somewhat more sympathetic to the Obama position than I might have expected. And John Roberts, in what was for me the biggest surprise of the day, said almost nothing at all, which is very uncharacteristic for him.

TAPPER: One thing, Jeffrey, I want to ask you about is, I know that the justices are supposedly above politics.

But you and I know and the viewers know that it's not exactly that simple. I have heard it prognosticated by pundits, none with your expertise, but, nonetheless, saying that this Supreme Court is probably preparing, people like Kennedy, to rule in favor of same-sex marriage again. And, therefore, they might pull back and not support Obamacare this time, as Roberts did last time, Roberts, of course, taking a lot of heat from conservatives for ruling in favor of Obamacare last time.

Do they even think that way in terms of, I will do this and then I will do that, or is it not that way at all?

TOOBIN: Whether they admit it or not, it is very much on the minds of everyone around the Supreme Court.

Think about what happened two years ago. They struck down the Defense of Marriage Act in the Edith Windsor case, a great victory for progressives, but the next day, they struck down the core of the Voting Rights Act, a great victory for conservatives, a real balance here.

And, in fact, one reason why a lot of Obama supporters were so upset that the court took this case is for just that reason. They thought they would give with one hand on same-sex marriage, because a lot of people think that there are five votes to have same-sex marriage in all 50 states, but they would take in the Obamacare decision.

Now, I think this argument -- I don't want to get too far out on this -- I think the argument went a little better for the Obama administration than it might have been expected. But that's by no means a guarantee that this law will be upheld. And there's lots to think about.

TAPPER: Right. And, of course, millions of Americans' health care, health insurance at risk.

Jeffrey Toobin, thank you so much. Appreciate it.

TOOBIN: All right.

TAPPER: Next on THE LEAD: His lawyers saying he was just a regular kid who fell victim to pressure from his older brother to pull off a savage attack, a terrorist attack at the Boston Marathon finish line. Will that be enough to get the suspended -- suspected Boston bomber off the hook?

And, later, he's 6'4'' with red hair. We are sure Conan O'Brien didn't stand out at all in Cuba. We will talk to the late-night host and share unseen footage from his historic visit to Cuba coming up.

(COMMERCIAL BREAK) TAPPER: Welcome back to THE LEAD. I'm Jake Tapper. They are

horrifying images trapped in our memories, metal shrapnel shredding through limbs. Hundreds of people running in confused chaos. Of course, I'm talking about the terrorist attacks at the Boston marathon which killed three people and injured hundreds more.

Today, the trial of Dzhokhar Tsarnaev, who faces 30 counts related to the terror attack, finally began. Apparently both sides agree he did it, but it gets a lot more complicated from there.

Let's go to CNN national correspondent, Deb Feyerick. She was in the courtroom. Deb, so what is the defense strategy here admitting that he did it?

DEBORAH FEYERICK, CNN NATIONAL CORRESPONDENT: Yes, their strategy, Jake, is one thing and one thing only. That is to have the jury believe that his life should be spared. Their opening was less than 20 minutes, but they said it was him and they said this was the act of two misguided brothers essentially or the misguided act of two brothers and they pointed to Dzhokhar Tsarnaev sitting in that court.

I'll tell you this became very, very real to everybody who was in that courtroom today, just hearing the witness testimony. Several of them had lost limbs.

One woman said that after the blast, she crawled over to her friend, Crystal Campbell, one of the victims, and held her hand and Crystal Campbell said my legs hurt and then all of a sudden, her hand went limp and she never spoke again.

Another victim describing how her main artery was severed by shrapnel deliberately put in that pressure cooker bomb. She said I was bleeding out. I knew I was dying. My body was going tingly and I felt cold.

She was describing how her mother, who was standing right next to her, was wheeled into the same room as she was, her mother having lost both legs. Jake, it was so real to everybody in that court, in a way that just the straight telling of the facts before has never been.

You could hear the emotion in the people's voices describing the rivers of blood, the bones that were sticking out of the bodies. This was at the first blast site. It was interesting, the prosecution said it doesn't matter who planted that first bomb or the second bomb.

What matters is that these two brothers were co-conspirators and that's what this is all about so very, very emotional, very difficult to listen to. Tsarnaev shifted a couple times in his chair.

But you and I were here at the same time and you know how difficult it was to tell the story. Now we are hearing the story from the victims' first-hand and that is even more painful -- Jake.

TAPPER: Very painful indeed, Deb Feyerick, thank you so much, live outside the courthouse in Boston. Up next on THE LEAD, no internet, no visas, no problem, we'll talk to Conan O'Brien about how he pulled off something that has not happened on late night TV in more than 50 years. A late night show taped entirely in Cuba.

(COMMERCIAL BREAK)

TAPPER: Welcome back to THE LEAD. The Pop Culture Lead, February 3rd, 1959, the day the music died. Now more than half a century later, the National Transportation Safety Board reportedly might reopen the investigation into the plane crash that killed rock and roll icons, Buddy Holly, Richie Valens and the Big Bopper.

The plane took off in heavy snow and crashed just 4 minutes later into a field near Clear Lake, Iowa. Investigators at the time said the cause was most likely pilot error as well as weather, but the "Des Moines Register" says an experienced pilot from New England recently petitioned the NTSB to reopen the investigation, suggesting there could have been a problem with the plane's rudder pedals.

Now our Pop Culture Lead, he is simply on a mission to make them laugh. Tonight, Conan O'Brien will do something that has not been done on late night since 1959 before the days of Johnny Carson. Put on a show in Cuba. He literally danced into their hearts there. Here's a sneak peek.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: We have an incredible show for you. Isn't that right, Cuban Andy?

(END VIDEO CLIP)

TAPPER: Joining us now is the host of Conan, the icon of Team Cocoa, Conan O'Brien. It's so glad to have you here. Thanks for joining us.

CONAN O'BRIEN, HOST, "CONAN": Thanks for having me, Jake.

TAPPER: So first of all, how did this idea come together?

O'BRIEN: I look for any excuse to leave the studio. After 22 years of hosting a show, I will jump at any opportunity. I will shoot a whole show from your basement in D.C. I will go anywhere. I just want out of that studio.

So what happened was shortly after President Obama announced in December that there were talks about establishing relations with Cuba after 53 years, my head writer, Mike Sweeney, said casually we should go to Cuba and I jumped all over it. We mobilized. We scrambled and we got it together as quickly as we could.

TAPPER: And so when you got there, what was it like? I know you didn't go there as a reporter investigating human rights abuses, but did you have government minders at all?

O'BRIEN: No, we had no minders. We had nobody following us, nobody telling us where we could go, where we couldn't go, and that's actually what made the experience really terrific is we sent our camera crew a day ahead of us. They came in through Canada.

We came in through Miami and we just said we're tourists and then hooked up with our camera crew and we started shooting immediately. We didn't know what was going to happen so we shot for pretty much four days continuously, and got a lot of great stuff.

They obviously don't have the internet. They don't have American TV there. Did anyone have any idea who you were?

O'BRIEN: Well, Cubans don't know but here's the thing. Cuba is filled with tourists, tourists from Canada. I'm a god in Canada. Well, okay, that's going too far, but they know who I am.

I got a lot of fans in Canada and also, my show is seen throughout parts of South America. There are a lot of South American tourists, there are European tourists.

I even had people in Finland who watch the show regularly who recognized me. I was recognized by European tourists and South American tourists and Canadians but Cubans, no. They have no idea.

TAPPER: Isn't it the president of Finland that's your doppelganger? Am I confusing --

O'BRIEN: No, you're not. I bear a striking resemblance to the former -- I believe former president of Finland. The only problem is she's a woman. That's sort of bad news for both of us, bad news for her, bad news for me.

TAPPER: So you obviously didn't go fully staffed. How were you able to bring the late night presentation to your show? What are viewers who tune in tonight, what are they going to see?

O'BRIEN: What you're going to see is a show where we do a lot of improvisation. And not just in my talking to people and making up comedy on the spot in situations, but we literally improvise a talk show set.

We found a street that looked pretty good. I asked a cafe can I borrow a table and chair. They said yes. There were four young women playing salsa music in a band, in a restaurant across the street, I said would you ladies be my talk show band.

They said "si" which means yes. Then we found a guy who was willing to be Cuban Andy so my sidekick so we set it up very quickly and then we shot an opening, an ending and different wrap-arounds. The rest of the show is me out and about in Havana.

TAPPER: Did you make them laugh? I know it's only 90 miles away from Miami, but there can be something of a culture shock as I understand it.

O'BRIEN: Yes. They really did. I think when I behave like an idiot it's a universal language. So I did not want this in any way to be snarky or me being cutting about their culture.

I wanted to go and in a lot of my remote segments, the joke is on me. I'm the fish out of water. That's really the spirit that I wanted to bring to it. I wanted it to have kind of a sweetness to it.

So I went and you can see them throughout, everywhere I went, when I'm behaving like an idiot with this orange pastry on my head, and my skin tone, it looks like I'm sickly. They just start laughing.

I think to me, that's the greatest kind of diplomacy is, you know, don't go in as like the scary imperialist. Send Conan in first so they can ridicule me. It softens up any tensions that might have been there.

TAPPER: Conan, thank you so much. Again, don't miss Conan in Cuba tonight at 11p.m. over at our sister station, TBS. Thanks, Conan.

O'BRIEN: Thanks a lot, Jake.