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The Lead with Jake Tapper

Trump Immigration Plan Angers Both Sides; Source: Trump Tried to Fire Robert Mueller; Interview with Virginia Senator Mark Warner; Don McGahn, a Key Player in Multiple White House Controversies. Aired 4-4:30p ET

Aired January 26, 2018 - 16:00   ET

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

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JAKE TAPPER, CNN HOST: So, the president trying say, you're fired.

THE LEAD starts now.

With the president on a collision course with special counsel Robert Mueller as soon as next week, perhaps his attempt to fire Mueller reignites burning questions about possible obstruction of justice.

Is the White House immigration proposal already dead on arrival? It's no surprise Democrats are ripping it apart, but many conservatives are also furious.

She's a high-profile member of President Trump's team. She's been talked about as a possible presidential candidate, but now U.S. Ambassador to the United Nations Nikki Haley is not only denying baseless rumors of a White House affair. She's also talking at length about what is behind them. You will find out why.

Good afternoon, everyone. Welcome to THE LEAD. I'm Jake Tapper.

We begin today with our politics lead.

The special counsel for the Russia investigation is talking to the president's team about trying to conduct an interview with President Trump soon, one for which the president said he would sit.

But now we know President Trump has tried to prevent that interview from ever happening by trying to fire Robert Mueller as special counsel.

In June of last year, an informed source tells CNN that President Trump ordered the firing of the counsel. And, as "The New York Times" was first to report, President Trump was only stymied from the firing when chief White House counsel Don McGahn threatened to quit if the president went through with it.

The story was shocking and yet simultaneously not particularly surprising. After all, last summer, Trump friend and confidant Chris Ruddy of Newsmax said this:

(BEGIN VIDEO CLIP)

CHRISTOPHER RUDDY, CEO, NEWSMAX: I think he's considering perhaps terminating the special counsel. I think he's weighing that option.

(END VIDEO CLIP)

TAPPER: At the time, CNN had additional reporting confirming that to be true. And then -- and since then, the White House repeatedly and vociferously, off the record, on background, on the record, denied it.

(BEGIN VIDEO CLIP)

SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY: While the president has the right to, he has no intention to do so.

KELLYANNE CONWAY, TRUMP SENIOR ADVISER: The president is not discussing firing Bob Mueller.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I have not given it any thought.

QUESTION: Are you considering firing Robert Mueller?

TRUMP: No, not at all.

WOLF BLITZER, CNN ANCHOR: Is there any chance at all that the president will try to fire Robert Mueller?

JAY SEKULOW, ATTORNEY FOR PRESIDENT DONALD TRUMP: The answer to that is no.

(END VIDEO CLIP)

TAPPER: These denies went all the way to Switzerland today, where in Davos President Trump denied that which multiple sources have confirmed to multiple media outlets, from "The New York Times," to FOX News, from CNN, to "The Washington Post."

(BEGIN VIDEO CLIP)

TRUMP: Fake news, folks. Fake news

QUESTION: What's your message today?

TRUMP: Typical "New York Times" fake stories.

(END VIDEO CLIP)

TAPPER: The falsehoods told to the public by this White House are so commonplace now, they no longer seem to even raise eyebrows.

But more important, perhaps, than this cascading waterfall of lies is the fact that this is just the latest evidence of President Trump's desire and actions to end the Russian probe.

Last winter, as Americans learned more about Russian efforts to interfere in the 2016 presidential election, President Trump kicked off his relationship with his own FBI director by asking Director Jim Comey for his loyalty, according to Comey, a request made just days after the FBI had interviewed then National Security Adviser Michael Flynn.

And Flynn lied to them about his contacts with Russia. That lie was something that McGahn told President Trump about that month, sources tell CNN. And President Trump later tested that loyalty request by urging Comey to drop the FBI's probe into Flynn, whom he had just fired, and ultimately, with the Russia investigation on his mind, the president, as we know, fired Comey.

We also know the president leaned on his attorney general, Jeff Sessions, to not recuse himself from supervising the Russia probe and then after the recusal contemplated firing Sessions. The president has also contemplated firing Deputy Attorney General Rod Rosenstein, who oversees the probe, "The New York Times" has reported.

We know that the president helped draft that false explanation that Donald Trump Jr. shared with the world about why he met with the Russian lawyer who had promised dirt on Hillary Clinton. They pretended it was about adoptions.

On top of it all, all that we know now, President Trump ordered that Mueller be fired as well.

Now, whether or not this all constitutes obstruction of justice or attempted obstruction of justice, that will be up to Robert Mueller and the Congress, maybe even a judge.

What is clearer is the political fact that President Trump has already had his months-long version of President Richard Nixon's Saturday Night Massacre, when Nixon ordered Attorney General Elliot Richardson to fire independent special prosecutor Archibald Cox.

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Richardson refused, leading to Richardson's resignation and that of Deputy Attorney General William Ruckelshaus.

After all, Trump has already fired Comey, with Russia on his mind, and he tried to fire Mueller. But unlike with Richardson with Nixon, McGahn's pushback worked.

Still, we're all just sitting around and waiting to see how far President Trump is willing to push this and how much his advisers and Republicans in Congress are willing to put up with.

My panel of experts is here with me to talk about it all.

So, Laura, does the president ordering the fire of special counsel Robert Mueller constitute obstruction of justice or attempted obstruction of justice if it was not carried out?

LAURA COATES, CNN LEGAL ANALYST: Yes, it could certainly do that. This is a crime that you can use if it's based on an endeavor. If you

attempt to do it, that can still constitute obstruction. You need not accomplish it. Remember, he did fire Comey. If the reason was to obstruct justice, as has been told, then that could be the accomplishment.

But if you also endeavor to do so, and your plan is to do that, that can also constitute obstruction. We've got yet another weight on that scale that was already weighing in favor of obstruction.

But, again, this is not the endgame for Robert Mueller. He does not want to focus necessarily exclusively on whether you obstructed justice, but what it is you were trying to obstruct him from finding out. That's the question he's undertaking. And that has not been fully panned out.

TAPPER: So, Phil Mudd, as a former FBI official, I want you to listen to the three reasons why President Trump at the time was thinking of firing Mueller, thinking that he had a conflict of interest.

This is according to "The New York Times"' reporting. First, a dispute over fees at Trump National Golf Club in Virginia that caused Mueller to end his membership there, two, that Mueller had worked for the law firm that previously represented Jared Kushner, his son-in- law, and, three, that Mueller had been interviewed to return as FBI director to replace Comey the day before he was appointed special counsel.

What do you think about that reasoning and those potential conflicts of interest?

PHILIP MUDD, CNN COUNTERTERRORISM ANALYST: I don't think that flies.

There is only one issue you need to focus on here, Jake, and that is the issue of intent. Clearly, he didn't follow through on this, so you can't say that he purposely took an act to impede the investigation. He never fired anybody.

But the point is, in these investigations, as someone who used to analyze this stuff, it's very difficult to figure out what somebody thinks. For example, I go back to terrorism investigations, which is what I worried about.

We would have subjects say I was researching al Qaeda online and communicating in code with an al Qaeda recruiter because I wanted to learn about them. They're in the news, I was a college student, I want to learn.

Then you have an informant next to him that said actually he told me he wanted to join al Qaeda.

That issue of intent was critical. In this case, I think the issue of intent is equally critical. President Trump could say I fired Comey because I didn't think the FBI was led properly, because I think morale was bad. You cannot say that I considered firing Robert Mueller because I was worried about the FBI or because I was worried morale.

There's only reason, only one intent that you can consider firing him for, and that's because you want to stop the investigation.

TAPPER: Neal Katyal is also with us. Neal, just to disclose -- oh, he went out again.

OK, we will come back to Neal. We're having a problem with it.

Let's focus on the larger context of all of this.

Let me tick through this, because you talked about Comey. President Trump has pressured the intelligence chiefs to say there was no collusion publicly to clear him. He's ordered that Sessions not recuse himself from the Russian investigation, he's fired Comey, he tried to fire special counsel Mueller.

Taken as a whole, does that add up to a pattern?

COATES: It absolutely does.

Here's the thing. What you're about, Phil, and the idea of intent is so critical and why the interview between himself and Mueller's team will be so critical, because all of these reasons you're given and what he's talking about could very well be pretextual reasons for why he really wanted to do it.

It could be that he gave all these reasons that may be sound and may pass the smell test, but it's throwing spaghetti on the wall here. If you can look at the person and have the interview and figure out what your true intent was, all this does add up to that pattern.

And remember you can build a case, if that's the intention of Mueller, on the contextual clues, the body of evidence about all these different patterns that make up the intent. You need not have the actual statement that says I intended to do this in a nefarious way.

That is not the only way for you to be successful in an obstruction of justice case. It is helpful. It's probably why there's a negotiation right now with his attorneys about what he's going to say and what he's not going to say, but it does not fully immunize him if he doesn't make that explicit statement.

TAPPER: He does have the power, the president, fire the special counsel. There's really no question about that, not directly. He can tell the person in charge at the Justice Department. So, that's not a question.

Why would this be obstruction of justice if he has that power?

MUDD: If you look at what's happening so far, if you look at his power to fire the special counsel, I don't think it's just about obstruction of justice.

[16:10:01] I mean, if you look at the pattern of activity, that's one issue you got to focus on. If I'm his lawyers -- and I'm not a lawyer, but I watched these investigations for years -- the second thing I'm worried about is lying to a federal law.

The president has said within the past 24 hours, I didn't do this. He's not just talking about what his special counsel did. Did his special counsel offer to resign or not in the face of the request to fire Mueller?

His lawyer has been interviewed. So have the people around his lawyers. The special counsel has also looked at e-mails. When you go into the interview with the president, it is not just about whether he obstructed justice. The bottom line, Jake, is you're going to say, was there ever a conversation about the removal of the special counsel?

And I fear the president is going to say, this is easy, the answer is no. It's not only McGahn who has been interviewed by this. You might have three or four other people who said McGahn told me the president...

(CROSSTALK)

TAPPER: Yes. I think 20 people in the administration have been interviewed.

MUDD: That's correct. He might have e-mails that say...

TAPPER: Yes, Mueller clearly already knows about the story that broke last night.

MUDD: Correct, correct.

And this is why the lawyers don't want the president going in with an open-ended conversation to the special counsel. It's not just about he said/she said, the president vs. Don McGahn.

It's about the president vs. Don McGahn, whoever else he told, what e- mail Don McGahn sent, what text messages there are. There's a pattern of activity about the removal of the special counsel I guarantee you Mueller has seen, and the president risks walking into a trap if he just says this never happened.

COATES: And, by the way, if I may, there's proof that this is not a case simply about obstruction of justice. There are four words, Paul Manafort, Rick Gates.

None of those are obstruction of justice. They were in the scope of the investigation.

(CROSSTALK)

TAPPER: But those charges aren't even about Trump.

COATES: No, they're not even about Trump. So, the idea that Mueller's entire probe is centered around one end point and one endgame being obstruction is absurd.

And, note, you're right, Phil, when you talk about the idea this Mueller investigation and interview. Bill Clinton sat for four hours. Do we think that Donald Trump has the wherewithal to be able to withstand four hours, 40 minutes, four minutes with Mueller and his team to be able to do all these things, to withstand all these very seasoned investigators asking questions point blank, and being able to navigate the very murky waters.

It's a very impossible feat.

TAPPER: And let's recall, of course, that President Clinton, one of the articles of impeachment was perjury, and NATO one of the four I think was suborning perjury.

Thanks so much for being here. Really appreciate it.

Our apologies the Neal Katyal and whatever happened with that satellite feed.

Everyone, stick around. We have got a lot more to discuss on the president ordering the firing of Robert Mueller. What might this mean for the investigation itself? The top Democrat on the Senate Intelligence Committee, Mark Warner, will be here to weigh in next.

Stick around.

(COMMERCIAL BREAK)

[16:16:39] TAPPER: We're back with our top story. CNN has confirmed that President Trump ordered special counsel Robert Mueller fired back in June, but he backed off after his White House counsel threatened to resign if he went through with it.

Joining me now is Senator Mark Warner. He's the top Democrat on the Senate Intelligence Committee.

Senator, of course, I want to get your reaction to the news that President Trump ordered the firing of special counsel Robert Mueller. He only backed off after the White House counsel, Don McGahn, refused to carry out the orders and threatened to resign.

SEN. MARK WARNER (D-VA), SENATE INTELLIGENCE COMMITTEE: Pretty remarkable. I've been on your show a number of times where I say I don't think I could be surprised anymore but this president continues to shock and surprise. I went to the Senate floor. I was worried about this in mid-December and gave a speech saying firing Mueller or for that matter pardoning some of the people who have been indicted would be a red line that shouldn't be crossed. Obviously, the White House's own lawyer felt the same, said it would be -- it would create chaos.

And, Jake, I think -- if the president had gone through with this or tries to go through with it on a going-forward basis, we're in unchartered territory. We're in to the real question of the fundamentals of our democracy. Are we still going to be a country where the rule of law pervades? And that no one even the president, is above the law? My hope will be come next week, that -- will the Congress take up bipartisan legislation that was around last year that will protect the special prosecutor from these kind of arbitrary actions?

TAPPER: So, Senator, supporters of the president say even if he did want Mueller fired, even if he said that Mueller should be fired, it never actually happened. McGahn never actually carried it out. So, this cannot qualify as obstruction of justice and, therefore, is not all that significant. How do you respond?

WARNER: Well, I respond, first of all, I've tried to give the president the benefit of the doubt. But, boy, you've got a pattern here. You got a pattern that he wanted James Comey to back off the investigation of General Flynn. And then when he didn't, he fired him. You got a pattern where he got mad at the attorney general for recusing himself and then ended up also pressuring the attorney general to try to fire another senior FBI official Andrew McCabe.

You've got a pattern where the president's allies are -- have been going out with outrageous claims in the last few weeks trying to basically undermine the overall image of the FBI and the Department of Justice. And now you've got this evidence coming out that the president at least wanted and intended to fire Bob Mueller himself.

These are not the actions of an individual who doesn't have something to hide.

TAPPER: So --

WARNER: The president keeps saying there's no there there. Well, there's no there there, let these investigations, including our bipartisan Senate intelligence investigation finish our job.

TAPPER: Have you uncovered anything in the Senate Intelligence Committee that would lead you to conclude that there is there there?

WARNER: I've reserved final judgment until we see all of the witnesses and get all the facts. But we have seen enormously important documents, new documents in the last 60 days and you see particularly the president's supporters going out, making these, you know, outrageous and on some level silly charges with secret memos and secret societies being asserted and then people having to back off.

[16:20:12] We are getting into uncharted territory. And while I want to try to give the president the benefit of the doubt, his actions and his allies' actions really undermine any remaining credibility they may have.

TAPPER: So, you're a co-equal branch of the government, the House and Senate. There has been legislation, you referred to it, that would protect the special counsel. It has not passed. Republicans have said there's been no need for it. Have you heard any comments from Republicans, who obviously control

the Senate, suggesting that they are now willing to go forward with it?

WARNER: Well, I've not had a lot of conversation today. Most of the senators are out of town today, but I would be hard pressed to try to go on any show and explain why you wouldn't want to pass that legislation if you actually respect rule of law.

I mean, we're approaching a time where I think we got to take off our Democrat and Republican credentials and realize that our oath of office was to the Constitution. And quite honestly, history is going to judge how all of us act at this moment. And my hope is that we would take up this bipartisan legislation. If they've got improvements on it, let's have at it.

But at the end of the day, special prosecutor Mueller has got to finish his job, our bipartisan committee, the Senate Intelligence Committee has to finish its job because the American public deserves to know what happened in 2016.

TAPPER: Democratic Senator Mark Warner of Virginia, thank you so much, sir. Appreciate your time.

WARNER: Thank you, Jake.

TAPPER: So who is the chief White House counsel who stopped President Trump from firing Robert Mueller? A closer look at Don McGahn's role in the Oval Office with our panel, next.

Stay with us.

(COMMERCIAL BREAK)

[16:26:07] TAPPER: One man prevented President Trump from firing special counsel Robert Mueller, we're told, White House counsel Don McGahn. McGahn was a key player in the firing of Acting Attorney General Sally Yates, the Justice Department holdover from the Obama administration. McGahn also played roles in national security adviser Michael Flynn's dismissal and James Comey's firing. Notice a theme here?

CNN's Tom Foreman reports on who McGahn is and why some today are questioning his motives.

(BEGIN VIDEOTAPE)

TOM FOREMAN, CNN CORRESPONDENT (voice-over): Some are hailing White House counsel Don McGahn as a hero in the wake of the report he stood up to President Trump and beat down an attempt to fire special counsel Robert Mueller, the man leading the investigation Trump find so infuriating.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Russia is fake news. This is fake news put out by the media. FOREMAN: Others, however, are not so sure. The former director of

the Office of Government Ethics tweeting, I bet McGahn's objection was not that firing Mueller was wrong but that it was dangerous. Also, this is not the first leak to paint McGahn in a good light at Trump's expense. If I were Trump, I'd wonder about McGahn.

But if the president has doubts about his top legal man, they're not showing.

DON MCGAHN, WHITE HOUSE COUNSEL: There's a reason why President Trump appointed, asked me to be his lawyer.

FOREMAN: A long time lawyer for Republican interest and a Trump ally for several years, McGahn has been by his side throughout the Russia probe, at times to the consternation of investigators.

When the Department of Justice first raised red flags that security adviser Michael Flynn was lying to White House officials about his Russia contacts --

SALLY YATES, FORMER ACTING U.S. ATTORNEY GENERAL: One of the questions that Mr. McGahn asked me was essentially why does it matter to DOJ if one White House official lies to another White House official.

FOREMAN: When the president fired FBI Director James Comey, McGahn reportedly pushed Trump to make sure he cited concerns about Comey's competence, backed up by other government officials.

TRUMP: He's a showboat. He's a grandstander.

FOREMAN: An attempt perhaps to make it appear the dismissal was not just about the FBI's Russia probe, which Comey led.

JAMES COMEY, FORMER FBI DIRECTOR: The Russians interfered in our election.

FOREMAN: And when the president wanted Attorney General Jeff Session to hold the range of the Russia investigation and not recuse himself --

TRUMP: Which frankly, I think it's very unfair to the president.

FOREMAN: Whom did he reportedly send to change Sessions' mind? He failed but "The New York Times" says again, it was Don McGahn.

(END VIDEOTAPE)

FOREMAN: Important to note in all of this, McGahn himself, along with more than a half dozen members of his White House legal team, have reportedly been questioned as part of the Russia investigation -- Jake.

TAPPER: All right. My political panel joins me now. Thank you so much to Tom Foreman. So, Kristen, let me start with you, because McGahn has obviously been

a hatchet man in some instances in this administration, not that that's not the job, it is, but he's carried out some tough things for the president. But here he is standing up to the president. What do you make the observation from Walter Shaub, that, you no, this might be leaked out of self-interest, to get his own reputation out there, that he's trying to do the right thing amidst these capricious winds?

KRISTEN SOLTIS ANDERSON, COLUMNIST, THE WASHINGTON EXAMINER: Well, first of all, I think thank goodness for Don McGahn. Certainly, this story paints him in a good light but he's doing what a good attorney will do, which is prevent you from doing something that's going to get you into more trouble.

It sounds like in the series of things he's done, he's trying to prevent Donald Trump from winding up in hotter water than he's already gotten himself in. So, certainly, the story does make Don McGahn look good, but I think justifiably so.

And second, I think it's been a long time since June. And it's possible that the first time around that the president attempted to want to fire Mueller, at the time, the groundwork had not been laid by the White House's allies to make it a politically palatable thing to do.