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Don Lemon Tonight

President Trump Stays Silent on Two Key Issues Facing the Administration, Russia and Stormy Daniels; Promised Wall Awaits Funding; Can a Sitting United States President be Indicted?; The 2020 Census to Ask Respondents if They are U.S. Citizens. Aired 10-11p ET

Aired March 27, 2018 - 22:00   ET

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

[22:00:00] (COMMERCIAL BREAK)

ANDERSON COOPER, CNN HOST: Thanks for watching 360. Time to hand it over to Don Lemon. "CNN TONIGHT" starts now.

DON LEMON, CNN HOST: This is CNN TONIGHT. I'm Don Lemon.

This may be the most surprising thing to come out of the White House. The president is saying nothing. Nothing. We haven't heard from him for four straight days. And so far, anyway, he's got no public events on his schedule tomorrow. He's saying nothing about the bombshell accusations from Stormy Daniels. He's hardly even tweeting. Whatever happened to Trump the counter-puncher?

(BEGIN VIDEO CLIP)

SARAH HUCKABEE-SANDERS, WHITE HOUSE PRESS SECRETARY: Sometimes he chooses to specifically engage and punch back and sometimes he doesn't.

(END VIDEO CLIP)

LEMON: Well, there's no question the president has a lot on his plate right now. He is facing the prospect of the most important interview of his life when and if he sits down with Robert Mueller. He's reportedly still going back and forth on whether he'll talk to Mueller at all. So it couldn't be more important for President Trump to have a legal team that can handle all of this.

Yet more and more star lawyers are turning down offers to join the Trump team, leaving the president with just one personal lawyer working full-time on the response to the Mueller investigation. And make no mistake, Americans are watching all of this.

Our new CNN poll out tonight shows six in 10 think the investigation is serious. And most Americans, 55 percent, say the president is not doing enough to cooperate with the investigation. And with all of this, the president is also struggling to make good on one of his biggest campaign promises, the wall. Build that wall.

Since there's no money for a border wall in the spending bill the president signed last week, signed under protest, the one that some of his team members worked on, now he is floating the idea of getting the Pentagon to foot the bill, which is, well, let's call it, extremely unlikely.

Whatever happened to Mexico paying for the wall? Right, they said no. I want to bring in now CNN's chief political analyst Gloria Borger and political analyst, April Ryan.

Good evening to both of you. Thank you for joining us this evening.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Sure.

LEMON: Gloria, why is President Trump staying silent on two key issues facing the administration, Russia and Stormy Daniels?

BORGER: Well, the question of Stormy is a little bit easier to answer. It's, you know, it's clear to me that his lawyers are telling him that there's no upside to him for talking about this, because if he talks about it, it becomes more and more part of the news cycle and what he's trying to do is stop the news cycle, except that hasn't happened, because he's met his match in Stormy Daniels and her attorney, Michael Avenatti, who are keeping the story alive.

I think the other issue, quite frankly, is personal. Which is that he has a wife and he has a child and his wife is clearly unhappy about this and if he goes out there and denies it, then he's going to perhaps have to take a deposition in court and his public comments will then be judged against the comments in court and then his wife will make him answer for all of that, if she hasn't already.

So, I think there's a personal side, a legal side, and a political side to all of this. As for Russia, you know, that's the big question, Don. I mean, you know, you -- the United States did absolutely the right thing in expelling diplomats. And we heard about it from everyone else, except the president himself, who is happy to tweet about Russia. The Russia investigation, calling it a hoax and a witch hunt, but not about this expulsion. And I think that's only a question that he could answer if we would ever get to ask it.

LEMON: April, Sarah Sanders, today, watch this.

APRIL RYAN, CNN SENIOR POLITICAL ANALYST: Yes.

(BEGIN VIDEO CLIP)

SANDERS: The president still been incredibly engaged. He gives us messages to come out and deliver on his behalf on the regular basis. But he's also put out a number of tweets over the last week. He also has a country to run. And he's doing a great job with that. Sometimes he chooses to specifically engage and punch back and sometimes he doesn't.

(END VIDEO CLIP)

LEMON: OK, so, April, he is not tweeting because he has a country to run? I mean, let's get real. This president tweets about all sorts of things, all the time. He is watching cable news all hours of the day and at night as well. RYAN: Yes, and remember, this president has been using what they term

as executive time in the morning to make these tweets. And he would come into the White House, you know, granted, he lives above the store, he would come into the White House around 11.30 when other presidents, at least Barack Obama and George W. Bush would come in around 7.30, 8.30 at the latest in the morning.

[22:05:01] Yes, this president does tell Sarah Huckabee Sanders and others to offer his thoughts to different subjects. But at the same time, when you're so used to hearing this president, when he's happy, when he's sad and when he's just downright angry.

But what's happening right now, Don, even though this president is not tweeting, the world is still rotating on its axis and all is well. So these tweets are -- or lack of tweets -- are kind of astounding when you have a president who has been so vocal. Who has gone around his press shop and he's possibly, as Gloria said, listening finally, to his lawyers. Because this has some serious tentacles that go farther than just this moment.

LEMON: Do you think -- do you think, Gloria, in both cases, the president's silence is because Putin and Stormy Daniels may know something about Trump?

BORGER: Well, we know what Stormy Daniels knows. She's told her story on 60 Minutes, in excruciating detail, I might -- I might add. You know, the Putin question, I honestly -- I honestly can't answer. I mean, that's something, obviously, that Robert Mueller is looking into.

And, you know, that is the big question. Why has this president been so reticent to criticize Vladimir Putin? We -- you know, it's a mystery. It's a mystery and we don't -- we just don't know the answer to that. I -- I think maybe one day we will. Maybe one day we'll get to ask the president that question. I would like to. And maybe one day he'll answer it.

LEMON: Maybe! We shall see. If you do, let us know.

BORGER: Yes.

LEMON: April, I mentioned it in the open. You know, the White House released the schedule for tomorrow and unless there are any additions, I mean, it will be the fifth day with no open events to the press and the American people. Sarah Sanders says that the president is incredibly engaged.

How is that incredibly engaged? I have the schedule here. It's nothing -- there's nothing on there tomorrow for the public. Press briefing with press secretary Sanders, White House in the briefing room on camera.

(CROSSTALK)

RYAN: At 1.30. LEMON: The president has lunch with the secretary of defense, private dining room, closed press. The president hosts a credentialing ceremony for newly appointed ambassador to Washington, Oval Office, closed press.

RYAN: You know, I'm thinking back to when this president was in negotiations, trying to prevent a government shutdown and his staff was actually, during the negotiations, but they were saying that he was presidential.

It almost reminds me of that time when he's in the background and everyone else is in the foreground; Sarah will be in the foreground tomorrow. But, again, this goes back to all of this controversy. And he must be listening to his lawyers at this time. But at the same time, this is not just about Mueller anymore.

And yes, Russia is a big issue, but right now, I'm going to go to this Stormy Daniels issue. It's not just about the Mueller investigation. And now Mueller could be looking at Stormy Daniels, trying to find the trail of money.

And then you could also now be bringing in the FEC, which could take a year to look at this if they do. And then on top of that, you bring in Michael Cohen. Michael Cohen could wind up being squeezed like a lemon to flip, just to get information.

So this is a whole new wrinkle in this very complicated Russia investigation that could go into Stormy Daniels. And when we talk about Michael Cohen, remember this. No lawyer worth his salt or worth his degree will actually do what he did, a $130,000 equity line of credit for his friend/client to give to -- to pay off to someone, to keep her quiet, just days before an election. And no one has done this. And there could be a complaint to the bar about what he did.

So, this has got a lot of tentacles that could still continue to unfurl in the middle of this.

LEMON: But--

(CROSSTALK)

RYAN: The president is being smart by being quiet.

LEMON: Well, you know, sometimes he'll walk over to the rope line when he's getting off the plane or the helicopter and he'll come over and talk. But he hasn't really--

(CROSSTALK)

RYAN: But he hasn't.

LEMON: He really hasn't had a full press conference, let's see in how long, 404 days since the president, his last real--

(CROSSTALK)

RYAN: Over a year.

LEMON: -- his last real press conference. So he's gone on favorable media.

RYAN: Yes.

LEMON: But you know, listen, in Cohen's defense, he says he's very loyal to the president, he loves him, they're good friends, and he did it without the president's knowledge. That's his defense.

But Gloria, speaking of lawyers, OK, two more lawyers have declined to represent President Trump in the Russia investigation.

BORGER: Right.

LEMON: I mean, in D.C., I mean, you can't throw a rock down the street without hitting a lawyer. Why is that? What's going on here?

BORGER: Well, they think he's a lousy client, Don, for one. He's a client who wants to run his own legal team. He doesn't take the advice of his attorneys. That's one of the reasons John Dowd quit. And he wants to run the show.

[22:10:01] And there are also lots of firms at this point, as you know, who are involved in this case in one way or another. So lots of large law firms have real conflicts. And other law firms are kind of saying they have conflicts.

The -- from the White House perspective, and I talked to people there, they say, look, we're in no rush. Jay Sekulow is handling the negotiations with Bob Mueller. He was always in those negotiations. So, if Dowd is gone, that's still proceeding apace.

And they say they're in no rush, but they are aware, and I can tell you this, that if the democrats were to take the House, for example, they better get another lawyer who understands what impeachment is and how to deal with that.

And so, I think they're casting a net here. They say they have lawyers calling them. But they just say, stay tuned, we're not in a rush. The lawyers that we talked to all say, you know what? I don't want to get involved in this. It's very, it's very difficult. And they don't want to put their firms through it, because it could cost them business at their law firms.

RYAN: Yes.

LEMON: I want you guys to stick around. David Gergen is going to join us for the next block, so stay with me and we'll have more conversation.

BORGER: Great.

LEMON: Who's going to pay for the wall? The president used to say Mexico. Now he says, maybe the Pentagon should pick up the tab. Can the president make good -- this may have been his biggest campaign promise. Can he?

[22:15:00] (COMMERCIAL BREAK)

LEMON: So it seems to pop up every time the president has a problem. Michael Cohen, Donald Trump's longtime fixer, and we're learning a lot more about him tonight and about what he does for the president.

Gloria Borger has that. She's back with me, along with April Ryan and David Gergen joins the group. David, welcome to the program.

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Thank you, Don.

LEMON: I want to start with Gloria, because Gloria did a profile on him and she's going to set this up for us. President Trump's fixer, attorney Michael Cohen, who is a central figure, really, really central to Stormy Daniels, that controversy, let's take a look at it.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: Michael was, I'd always like to say, the Ray Donovan of the office.

UNIDENTIFIED MALE: I'll take care of it.

He took care of what had to be taken care of. I don't know what had to be taken care of, but all I know is that Michael was take caring of it.

UNIDENTIFIED MALE: He is the guy that you could call 3 in the morning when you have a problem.

BORGER: Do you know stories of Donald Trump calling him at 3 in the morning?

UNIDENTIFIED MALE: Donald Trump has called him at all hours of the night. Every dinner I've been at with Michael, the boss has called.

BORGER: But Cohen did not call the boss, he says, when he decided to pay Stormy Daniels $130,000 out of his own pocket, 11 days before the election.

(END VIDEOTAPE)

LEMON: So, it's not just Stormy Daniels. Michael Cohen's name comes up when it comes to things involving Trump and Russia, Gloria?

BORGER: Right. Michael Cohen, since 2007, has been at Donald Trump's side and has done anything Donald Trump wants him to do. And so he's worked on a variety of businesses. He also worked on a lot of branding issues.

One of those was Trump tower in Moscow, where during the election, when the president was saying, I've had no contact with Russia, I'm not doing any business with Russia, at the same time, Michael Cohen was signing or getting a letter of intent to try and brand a Trump Tower Moscow. And that deal fell through. Never happened, but was going on during the campaign.

And I think that he was doing it, clearly, at the behest of The Trump Organization, which probably didn't think Donald Trump was going to win. And wanted to continue its business and could really capitalize on the fact that Donald Trump was now a lot more well-known and popular, even than he had been during the apprentice. And so what Cohen has always done is whatever Donald Trump wants.

LEMON: So, David, all this really shows is just how unique this president is. Michael Cohen didn't come to the West Wing with the president, but the president is still financially tied to his private companies and still tied to his fixer at the Trump organization.

GERGEN: It certainly appears that way. And Gloria's reporting has been very, very helpful on this question. And it's worth remembering that Mueller, the special counsel, is now investigating the Trump tower and Moscow episode and how it fits into this broader pattern in trying to put the dots together.

So Michael Cohen has suddenly become a very, very important player. And I think one other thing we know for certain, in a sea of uncertainties, is that a guy like Michael Cohen, who is your fixer, does not do anything, especially for Donald Trump, that Trump doesn't want done or that Trump doesn't ask him to do.

So Donald Cohen -- Michael Cohen is operating, when he dealt with the women, he was operating, you just have to assume that Donald Trump knew exactly what he was doing and the notion that Donald Trump was somehow separated from a $130,000 payment, for example, on its face is a very, very hard thing to believe.

LEMON: You think that the president -- well, he wasn't president then -- knew what Michael Cohen was doing?

GERGEN: I think he knew everything that Michael Cohen was doing. And I think Michael Cohen kept him informed, because that's the nature of these kinds of relationships. We've had other people who have sort of fixers or someone who lives next to them and they know everything.

And by the way, there's an old saying, no man is a hero to his valet. Because they see everything. They see all the dark sides. And I think Michael Cohen has been there, from what Gloria has been reporting, has been there for a decade at his side and would not move on something without talking to him.

LEMON: Yes. And let's just remember, it is being portrayed in some media that this is about a story that happened, you know, a long time ago, between Stormy Daniels and the president. This is about what happened 11 days before the election.

GERGEN: Exactly.

LEMON: That is the issue here.

GERGEN: Exactly. LEMON: Yes. So, April, listen, let's talk about the wall. Because I

think -- don't you think the wall was his biggest campaign promise, guys? That was probably, because build a wall, build a wall. But sources are telling CNN, April, that President Trump is privately floating the idea that the U.S. military should foot the bill for the construction of the border wall with Mexico. But, I mean, I just want to go back in time, way back -- not even way back -- during the campaign. Watch this.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: And who's going to pay for the wall?

[22:20:00] One hundred percent.

(END VIDEO CLIP)

LEMON: What happened to Mexico?

RYAN: They said, you know what you can do with your wall. So, anyway, they said, no, no, this isn't going to happen.

But here's the bottom line. This president made a promise about Mexico during the campaign and Mexico paying for the wall. But he also, during the campaign, talked about our soldiers and talked about the U.S. military and when he got into the White House, he talked about the U.S. military and supporting them and wanting more money to bolster the forces.

And you know, he said, just last week, he would not normally sign a bill like this, but the only reason why he signed this omnibus bill was about the bolstering and pay and other things for the military. And now what does he do? He floats an idea to take the money to build this very expensive wall that fiscal conservatives are very upset about.

So there is -- it just doesn't compute. You know, one minute, we understand that he wants the wall, but he also wants to support the military. And he's happy with the financial boom that happened in the omnibus bill for them. But at the same time, you know, he's going to take to build this wall to stop illegal immigrants, as well as drugs, he says. And the military doesn't fight that the last time I heard about.

LEMON: Yes.

BORGER: Well, it's not going to happen anyway. Because the money just -- you can't just take money out of one pot and put it in another if you're president.

RYAN: That's true.

LEMON: You stole my line, Gloria! I have it, listen.

BORGER: OK. LEMON: Here it is. I'm going to read it and you can -- congressional budgeting is done with very specific instructions for how dollar amounts are spent.

BORGER: Right.

LEMON: Any repurposing of funds requires express congressional approval which Trump is unlikely to get. A source noted that additional authorization for Congress would likely be necessary if this option was pursued. Go ahead, Gloria.

GLORIA: Yes, absolutely.

(CROSSTALK)

RYAN: But they are always --

LEMON: Gloria?

BORGER: Absolutely. You can't just do that. And so you would have to -- it would have to go back to Congress. Congress is not going to approve it. I think Donald Trump was getting a little creative here and he was thinking, my God, where am I going to get $25 billion?

Well, maybe I'll take it out of the defense budget since they got so much money recently. And this is a matter of national security. The wall is a matter of national security. Well, it doesn't quite work that way. You're not king. You can't just say, this money goes there and this money goes somewhere else. I mean, you know.

LEMON: Yes.

BORGER: Maybe he gets an A for effort, but it isn't going to happen.

LEMON: David, you know, we know the president brought this up with the House speaker--

(CROSSTALK)

RYAN: But, Don--

LEMON: I have to -- I've got to get David in real quick, April. With House Speaker Paul Ryan, does this idea fly in the face of what Trump is promising, to rebuild the military?

GERGEN: Well, it certainly suggests that he thinks that there's just a lot of, you know, just money floating around now, there's just -- and you know-- it certainly -- it suggests, what kind of disciplined process is this that leaves 20 to $25 billion just floating around that the president thinks he can take without impairing the quality of the military.

You know, this is -- you know, if we don't need the money, you know, if the money is not there, if he thinks there's money there for the wall, and Congress is not going to do it, shouldn't be any appropriations bill to start with. It's just, you know, it's fat. They ought to -- they ought to get rid of it and spend it on more important things.

LEMON: And April, I've got to go, so quick, if you can do it in five seconds, didn't his own people work on this appropriate -- the money, the budget that he complained about and threatened to veto?

RYAN: Yes, they did. And his own people, his own party and the problem is, is this president looks bad when he wanted to veto something his own party put together and they approved.

LEMON: Yes. Thank you, all. Fascinating conversation.

BORGER: Thanks.

LEMON: Love to have you every night--

(CROSSTALK)

GERGEN: Thank you, Don.

LEMON: -- but, you know, you're not available every time. Thank you. I appreciate it.

We have some breaking news to tell you about right now. It's on North Korea. Kim Jong-un made a surprise four-day visit to China and host talks with President Xi Jinping, that's according to the Chinese state-run news agency. The news coming after two days of intense speculation over the sudden appearance of a mystery North Korean luxury train in the Chinese capital.

President Xi has now reportedly accepted an invitation to visit North Korea. The White House saying, quote, "We see this development as further evidence that our campaign of maximum pressure is creating the appropriate atmosphere for dialogue with North Korea." More details to come.

When we come back, the question swirling around Washington, is the president above the law? My next guest who argued nine cases before the Supreme Court says you can indict a president.

[22:25:00] (COMMERCIAL BREAK)

LEMON: It is a question looming over Washington and legal experts are going head-to-head over it. Can a sitting United States president be indicted?

Walter Dellinger is a former assistant attorney general and a former acting solicitor attorney general. He believes the answer is yes, and he joins me now.

Mr. Dellinger, thank you so much for joining us. You wrote an op-ed in the New York Times. It says, "yes, you can indict the president." And you argue that without the power to indict, a president could never be held accountable for crimes committed while in office. Explain that.

WALTER DELLINGER, FORMER ASSISTANT ATTORNEY GENERAL: Well, you know, most federal crimes have a period within which you either have to prosecute someone, indict someone, or not. Or they forever go free. For most federal crimes, that's a period of five years.

So if a president commits, is engaged in criminal activity before taking office and can't be indicted while he or she is in office, that five years can expire. A president might even be tempted to run for re-election just to make sure that the period for bringing criminal charges elapsed while he or she was in office.

You know, Don, I don't think that a president could e made to go through a trial while he was serving. I think that would be too disruptive of his role of being chief executive of the nation's government. But there's really not a very good argument against indicting a president.

[22:30:02] LEMON: Yes. So, in other words you're saying, no one is above the law, not even the president. Because that appears to be the thinking now that a president cannot be indicted, cannot go to trial, and so on.

DELLINGER: That's right. I mean, there is -- there is an opinion of the legal counsel to the Justice Department from 2000, the most recent opinion, mainly deals with the question of whether a president could be put on actual criminal trial.

It deals briefly with the question of whether a mere indictment is possible. And says, well, no, that would put a cloud over the presidency, so that shouldn't be allowed either.

It could well be that the -- that the Special Counsel would consider himself bound by that opinion. Though he could ask the Justice Department, the legal counsel, to give serious consideration to whether there's any reason not to indict a president.

Take for example, a situation where a president is one of several defendants in a multi-count indictment. You could have the president as a, quote, un-indicted co-conspirator. That's what Nixon Investigator Leon Jaworski did during the Watergate scandal.

But that, itself, cast a cloud over the presidency, without actually taking care of the statute of limitations problem that a president could go free if the time expired for criminal charges while he was in office.

LEMON: Let me ask you this, because, Mr. Dellinger, you argued the Clinton v. Jones case before the Supreme Court, making the case that indicting President Clinton would keep him from doing the job of running the country.

And that turned out to be a losing argument. So why are you arguing the other side when it comes to this president -- to President Trump?

DELLINGER: Well, a couple of reasons, Don. The most important one is that we lost, Clinton against him, 9-0. The court rejected the position we argued. So the law is established by Clinton against Jones that you can actually make a president go through a civil trial while he's in office. And so -- and sets a very high standard for exempting or immunizing a

president from the ordinary criminal processes. But moreover, I argued in Clinton against Jones that an actual civil trial ought to be postponed.

Not that the complaint should be dismissed. And Clinton's personal lawyers in that case were willing to stipulate that they would not argue that any expiration of time barred her suit if the case were postponed.

So in both cases, I believe that a civil trial and a criminal trial should be postponed. But that a civil complaint should be allowed to go forward, at least to be issued, and that an indictment could be issued, which would make sure that the president would ultimately be accountable for any criminal activity.

LEMON: Even if he was -- maybe after he was out of office, right?

DELLINGER: Yes, yes. Even if you have to wait until he's out of office.

LEMON: All right. So there's so much swirling around President Trump. Let's start with the Special Counsel Robert Mueller's investigation. He's looking at collusion or conspiracy from a legal perspective.

Obstruction of justice also possible and appropriate financial connections to Russia, that could all involve the president. How would charges stemming from Mueller's investigation be brought?

DELLINGER: Well, a couple of things. It is an exercise of wisdom, and judgment, and not just logic, so that a special counsel might well think that he should defer to the House of Representatives and their impeachment processes in a trial by the Senate.

That would be particularly commendable in circumstances where it's -- the crimes are of a political nature. But suppose the crimes are more ordinary criminal cases like tax evasion or money laundering.

In that case, the independent counsel could file an indictment naming multiple defendants. A president might say, oh, you have to strike me from the indictment, because I'm a sitting president who can't be indicted.

At that point, the special counsel or the judge would say, will you -- will you agree that you will not argue, after you leave office, that the time for bringing charges has expired? And only if the president agrees to that, would you withdraw an indictment.

LEMON: Yes. So, before he resigned, the President's lawyer, John Dowd, argued that the President cannot obstruct justice, because under the constitution, he is the chief law enforcement officer. Does that argument hold water, do you think, Mr. Dellinger?

DELLINGER: I'm holding water now, and the answer is no. The answer is absolutely no. That is the lamest argument that I have -- that I have ever heard.

A president has the power to appoint people, to fire people, but he can't do it for a corrupt reason without triggering criminal liability. A president who takes a bribe in order to appoint someone or fire someone is guilty of bribery.

[22:35:05] And a president who fires someone for a corrupt motive can be guilty of obstruction.

LEMON: How much peril is this President in, do you think?

DELLINGER: How much trouble is he in?

LEMON: How much peril? Yes.

DELLINGER: Peril, you know, I really don't know. One of the things that have been absolutely wonderful about the Special Counsel Mueller's operation is they don't leak.

The only thing we know and I see in the press, Don, has come from people who are interviewed by his office, not by anything from this office.

So we just don't know, what we don't know. My guess is that we've only seen the tip of the iceberg of the matters that Mr. Mueller is investigating.

You know, there was a time when people said, oh, Mueller is not investigating anything having to do with collusion with the Russians. Well, I thought, nobody knows that. Nobody knows what he's looking at this moment.

LEMON: Yes. Walter Dellinger, the article is in "The New York Times," and it's called, "Yes, You Can Indict the President." Thank you, sir.

DELLINGER: You're quite welcome. Thank you, Don.

LEMON: And when we come back, are you an American citizen? Why the Trump administration says that question on the upcoming census is necessary to protect voters. We're going to breakdown the logic behind that, next.

[22:40:00] (COMMERCIAL BREAK)

LEMON: The Trump administration defending its decision to include a question about citizenship tonight 2020 census. It was dropped decades ago, and adding it back already has prompted lawsuits from some states.

Here to discuss, Vanita Gupta, the former Head of the Justice Department's Civil Rights Division and Michael Higginbotham, who is a Professor of Constitutional Law at the University of Baltimore, and the author of "Ghosts of Jim Crow: Ending Racism in Post-Racial America."

Thank you both for joining us this evening.

So let's talk about this, Michael. You believe this is a bad idea and politically motivated. Why so?

MICHAEL HIGGINBOTHAM, PROFESSOR, UNIVERSITY OF BALTIMORE SCHOOL OF LAW: I think it's a real bad idea, Don. The census is so important. We have to get it right. There are so many things that are connected to it.

Particularly when it comes to apportionment in terms of our House of Representatives, the state -- the representatives from each state, and also in terms of federal funding, for central services, Medicaid, Head Start, school lunch program.

So it's really important that we get it right. And what I'm concerned about is that this is partisan politics. I'm suspicious when, you know, Republican-dominated state legislatures pass restrictive voter I.D. laws under the guise of protecting imaginary voter fraud.

I'm equally suspicious when you have an attorney general who's not known for protecting voter rights suggesting that we include this question, which could seriously impact an accurate calendar.

LEMON: But, Michael, here is -- the administration is saying the question about citizenship is being added to satisfy the Justice Department, who is looking for voter -- for a violation of the Voting Rights Act. I mean, what's -- is there a problem with that rationale for you? They're saying they're trying to protect voting rights.

HIGGINBOTHAM: Well, there is a problem in the sense that funding is tied to various services based upon an accurate count. And in our climate today, there's a great deal of suspicion about people participating in the census.

And so I'm concerned, the census has to accurately count not only citizens, but non-citizens as well. And I'm concerned of getting that accurate count.

I'm concerned that the census is only as good as the public's willingness to participate in it. And I'm concerned that this is a guise to reduce the participation in the census so we don't get an accurate count.

LEMON: OK. So, Vanita, the White House was wrong on the facts when it came to the question of legal citizenship. Watch this.

(BEGIN VIDEO CLIP)

SARAH SANDERS, WHITE HOUSE PRESS SECRETARY: This is a question that's been included in every census since 1965, with the exception of 2010, when it was removed.

This is -- we've contained this question that's provided data that's necessary for the Department of Justice to protect voters, and specifically to help us better comply with the Voting Rights Act, which is something that is important, and a part of this process. (END VIDEO CLIP)

LEMON: So, Vanita, the question actually hasn't been asked since the 1950s. Why was it taken off the short questionnaire back then?

VANITA GUPTA, PRESIDENT, THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS: Well, it was taken off in 1950, and I'll remind you, by the way, that's the pre-civil rights era when communities of color were systemically underrepresented and undercounted.

And it was -- it hasn't been on the short form of the census that goes to every single household around the country since 1950. So the White House got multiple things wrong. They got that fact wrong.

They got the fact that this is necessary for Voting Rights enforcement wrong. I oversaw the Justice Department's Voting Rights enforcement for just under 2 1/2 years.

And the enforcement of the Voting Rights Act has never depended on a citizenship status question being on the short form of the census.

In fact, the Justice Department has relied on data that is obtained from the American Community Survey, which is sent to a sampling of households. It's a much longer form with very different conditions.

And so, the White House kind of over and over again, you know, made false statements. And then, of course, as you pointed out, Jeff Sessions, who's called the Voting Rights Act intrusive, claiming to suddenly want to enforce the Voting Rights Act using this data, carrying a deeply anti-immigrant nativist agenda.

I think folks can see this for what it is. But there is a huge consequence that this is an alarming development. And it's really up to Congress to undo, or for the courts to protect, and save the census, which is a cornerstone of our democracy. It should not be weaponized for political reasons. It shouldn't be weaponized for nativist reasons.

[22:45:00] We've got -- we've got to be able to fight to protect the census to be a nonpartisan count.

LEMON: And it's supposed to count all people, not all citizens, correct? That's the ultimate purpose.

GUPTA: That's right. You know, there are very few programs that are actually written into the constitution, but the 14th Amendment is clear that every 10 years, this country has to count all people.

Not citizens versus non-citizens, but every single person in this country regardless of their status or background. And that's why you're seeing litigation in the numbers that you are right now.

LEMON: So, Michael, President Trump's re-election campaign sent an e- mail to supporters last week talking about adding the citizenship question, saying the President wants the 2020 United States census to ask people whether or not they are citizens. In another era, this would be common sense. But 19 attorneys general

said they will fight the President if he dares to ask people if they are citizens.

The President wants to know if you're on his side. So many people are viewing this as an attempt to suppress the counting of minorities and immigrants. Will it have that effect?

HIGGINBOTHAM: I think here we go again. I think it could have that effect, because there's a great deal of concern from individuals about the government, and about immigration rights, and immigrant status.

And so, I think, individuals may simply say, I'm not going to participate in this. I don't want to open my door to people that may come to the door, and I don't know who they are. So I think there will be some concern. And it's alarming.

LEMON: Yes. Michael, Vanita, thank you so much, I appreciate the conversation. When we come back, the citizenship question on the census actually be political payback. Why some blue states are crying foul and what they could stand to lose.

[22:50:00] (COMMERCIAL BREAK)

LEMON: The State of California wasting no time filing a lawsuit today to block the Trump administration from putting a citizenship question back on the 2020 census, other states saying they will do the same, fearing that they could lose a huge chunk of federal funds, not to mention power in Washington.

I want to bring in our CNN Political Commentators Joan Walsh and Scott Jennings, so glad to have you both on. And this is an interesting conversation. So let's get to it.

Scott, two maps explain why the census change is bad for Democrats. Pew Research Center shows where most of the -- most of the 11 million undocumented immigrants live in America. And you can see that they're largely clustered in 20 cities.

I want to just check out the political landscape from 2017. Every single one of those areas trends blue, voting heavily Democratic for presidents, for governor, for Congress members, state legislators. Is there any question that this will hurt Democrats politically?

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: Well, I think if you want to answer that question, you're basically accepting the premises that people are going to be too afraid to fill out the census because of this question being added.

I'm not sure that premise is correct. I don't think it's the presence of the question that would make someone afraid. I think if someone was here illegally, and they were going to be fearful of papers, or someone coming to their door with a clip board, they are going to make the decision to be afraid before scanning the questions on the sheet.

I also think it's important to remember in this debate, Don, it is illegal for the census bureau to share any of this information with another agency. That is against federal law.

So I think people tonight, Democrats are trying to make folks afraid and they are trying to generate a bunch of outrage, but they're leaving out core facts here, and I think frankly maybe blowing this out of proportion.

LEMON: Go ahead, Joan.

JOAN WALSH, CNN POLITICAL COMMENTATOR: Scott, the core fact is that bipartisan groups of census officials past and present have said that this question will in fact depress census participation.

And your former boos, George W. Bush administration -- the Bush administration administered -- they put together the last census. It did not used to be political. This question hasn't been there since 1950.

And when the Barack Obama came in, they administered the Bush administration's census questions. It was bipartisan. This is a partisan move. It's obvious why they're doing it.

And it will -- experts in the field, and you tend to defer to them, Scott, you're reasonably. They say this is a problem. This is going to depress the count, it will depress representation. They are saying don't do it. Wilbur Ross is all alone with Donald Trump, who is now trying to fundraise around it, saying do it. It is very political, and we're not making it.

LEMON: Scott, before you respond, because you said it was Democrats with demographers, and other experts including several former directors in the census have warned that adding a citizenship question could result in reduced response rates, and inaccurate answers.

And by the way, according to the experts we had on earlier, Scott, it is according to the constitution that persons are counted and not citizens.

JENNINGS: Yes, I don't -- I don't reject the concept that we need to count all persons. I just don't understand why with all the other information we collect in the census, why the condition of a being a citizen is so problematic.

I think in past counts, people have been assured by posters and other information deposits that no information you give to the census is going to be shared with any other agency.

It strikes me that if we follow federal law, and we don't share information among agencies, and we reassure people that that is the law, and that they should be forthcoming, then we can alleviate a lot of these fears.

But I don't hear the people fomenting outrage tonight, talking about the fact that it's against the law for the census to share this information.

(CROSSTALK) WALSH: But you know what, actually...

JENNINGS: Again, I don't reject -- I don't reject counting all persons, but I do reject not reminding people that this information won't be shared.

WALSH: The census has in fact in the past shared the information to assist with Japanese internment during World War II. And there are some allegations that information was shared about Muslim-Americans after 9/11.

So it has been used that way. And you know, Scott, people who actually know about it, who spent their lives studying it say it depresses participation.

So why isn't that an acceptable answer? Why suddenly after 50, 60 -- what am I saying 65, 60 -- almost 70 years, why is this up for addition now. Why is Donald trump adding it now? It is political. And if you don't care, and you're not sure, then defer to the officials who do care and are sure.

LEMON: I want -- can I ask you this, Scott, because in the last segment -- let me find this, in the last segment I have read...

(CROSSTALK)

WALSH: Which is excellent by the way.

LEMON: Oh, yes, here we go. The President wants it -- this was sent out from an email from President Trump's re-election committee, saying the President wants the 2020 United States census to ask people whether or not they are citizens.

[22:55:08] In another era, this would be common sense. But 19 attorneys general said that they will fight the President if he dares to ask people if they are citizens.

The President wants to know if you're on his side. So if it's not going to be share, if it's not political, why is his re-election -- why are his re-election folks asking for it to be on the citizenship form? Why are they asking potential voters that?

JENNINGS: Well, to look at this through the lens of a political analyst which I am, I would say frankly this is an 80/20 issue. I think if you ask most Americans, would it be important or problematic for the government to find out the condition of citizenship of its population, most folks would say no.

I don't know what the big trouble with me. Yes, I recognize they are going to be some people to argue against it, but frankly, Don, I think this is one of issues...

(CROSSTALK)

LEMON: You're missing my point. It's not coming from the White House, it's not coming from the government, it's not coming from the censorship folks. It's coming from the census folks -- it is coming from his re-election committee.

JENNINGS: Well look, every politician's campaign committees communicate about virtually every official action they take. So am I surprised that this re-election campaign is talking about that what they're doing in the White House?

No, I'm not surprised about that at all. And again, I think frankly, if you poll this, and I'm seeing any polling on it, but if you did, I bet you're going to find a pretty wide disparity of Americans that say yes, I don't see what the big deal is.

WALSH: Well unfortunately, that means a lot of the Americans don't understand our constitution, Scott, which is a very sad fact, but it might be true. It might be true that they would support it, but then that would mean that they didn't understand that the founders set -- explicitly set out this was about the actual numeration of persons living here.

Not citizens, not legal status, nothing else. Who lives here, where do they live, and in our modern times, are they -- should they be represented by political representation? Yes. The answer is always yes.

And what funding do they need? What programs? We know that federal aid is distributed based on the census. So it is so political, it is so divisive. And you're right.

It probably does resonate with the President's base, which is largely white, and unfortunately, a lot of them are white nationalist. And they like this.

JENNINGS: No. Don't misunderstand.

LEMON: Thank you, Scott. I got to go.

(CROSSTALK)

JENNINGS: I didn't say it resonates with the President's base. I don't think it resonates with the President's base. I think it residents -- resonates with most American, it's what my view is.

LEMON: Thank you both. I appreciate it. Thank you so much.

WALSH: Thank you.

LEMON: We'll be right back.

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