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Don Lemon Tonight

Rudy Guiliani Gets Smacked Down; FLOTUS Hasn't Discussed Anything With Guiliani; Veteran Of Senate Intel Committee Arrested For Lying To Investigators In Leak Investigation; Colin Kaepernick's Legal Team Expected To Seek Subpoenas For President Trump, Vice President Pence; Trump Wants To Hate; Trump Versus NFL; Top Republicans Dismiss Trump's Unproven 'Spy' Claim. Aired 11-12a ET

Aired June 07, 2018 - 23:00   ET

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

[23:00:00] (COMMERCIAL BREAK)

DON LEMON, CNN HOST: This is CNN TONIGHT. I'm Don Lemon. 11:00 p.m. here on the East Coast, live with all the new developments for you tonight.

The President's lawyer, Rudy Giuliani, getting smacked down by the first lady's spokeswoman after he dragged Melania Trump into the Stormy Daniels saga. And then there's the apparently never ending story of EPA chief, Scott Pruitt and all the questionable things he is asked his staff to do for him. Wait till you hear the latest on that.

Here to discuss now, CNN Political Commentator, Amanda Carpenter and Alice Stewart and also Ryan Lizaa, CNN political analyst and the new chief political correspondent for Esquire Magazine. Fancy. Congratulations.

RYAN LIZZA, CNN POLITICAL COMMENTATOR: Thanks, Don.

LEMON: Good to see all of you. Welcome to the program. Amanda, President Trump's personal attorney, Rudy Giuliani, continued his attack on Stormy Daniels. Telling CNN's Dana Bash, he said, if you're a feminist and you support the porn industry you should turn in your credentials. Now, Giuliani is attacking Daniels on her work in the adult film industry. But his client, President Trump has appeared in three soft core porn videos, he appeared in Playboy films in 1994, 2000 -- 2001. He wasn't naked, though, but he was in the movies. So what is this -- what is the strategy here?

AMANDA CARPENTER, CNN POLITICAL COMMENTATOR: Thank god he wasn't naked. Sorry, I just had to laugh on that one. The strategy here is to describe Stormy Daniels' credibility. And while, he is doing that, he is ignoring three big questions that I think are raised by this case. To take this case seriously you have to take the sex out of it.

And Stormy Daniels is alleging the three big things. The first of which she was led to sign this MDA under false pretenses. The second thing is that she was bullied and intimidated by, you know, an unknown man in a parking lot. Her lawyer says there are very incriminating tapes with threats by Michael Cohen that will come out at some point in time. And lastly, all this was done to hide information from the voters before a major election, and also the possible that Michael Cohen and Donald Trump might have more agreements like that out there with women.

We didn't learn about the agreement they stuck with Karen McDougal until all that came out and she finally got released from her MDA with the National Inquirer. So, there are important elements to this case, but Rudy Giuliani was keeping us focused on the sex, on the sliminess of it, because he can't address these questions.

ALICE STEWART, CNN POLITICAL COMMENTATOR: And Don, I think just as troubling as feminist who support the porn industry so are chauvinists who support the porn industry. And if you ask me $130,000 check for hush money is in some ways is supporting the porn industry. And I think Rudy Giuliani needs to think about all of the things that his own client is accused of before he goes spouting off about porn stars and those who supports the industry. I think more than anything the advice we often give on campaigns or and administrations is stay in your lane. And I think Rudy would be better serve off sticking to legal issues, stay away from talking about Melania, Kim Jong-un and porn stars.

LEMON: That is what is known as a mic drop, so good-bye everybody. We will see you tomorrow. That was actually incredible. That was a mic drop moment. $130,000, if that is not supporting the porn industry, then what is? Right?

STEWART: It does, Don. Sad but true.

LEMON: So, Ryan, Guiliani continued to attack Stormy Daniels credibility today telling CNN that he said, our real point about her is that she is not just generally un-credible, she is un-credible from the point of view of wanting to get money. She is a con artist. So, is he using the same tactic that Stormy Daniels that he is with the Mueller investigation, just saying anything that try to discredit the opponent in the public arena?

LIZZA: Yes, he is trying to discredit her and frankly in a pretty vulgar way. So far what she is alleged has been -- seems pretty credible to me so far. I don't see anything that she has alleged that people have said is just beyond the pale or not supported by the known facts.

You know, I think she is really -- she and Avenatti have really gotten under the skin of the President and his team. But the bigger question is why is Giuliani speaking out on so many of these peripheral issues? Right? I'm sure everybody has their opinion on the Stormy case, just to let you know, multiple sides.

LEMON: Gives less content.

LIZZA: But as far as I know the guy was hired to deal with the Mueller investigation, right? He was hired to help negotiate some kind of an agreement with Mueller about this interview.

[23:05:05] He was hired to sort of get the President out of the perilous situation he is in with respect to the Special Counsel. And he keeps popping off on all of these other peripheral issues that have nothing to do, as far as I can tell, with his actual job.

LEMON: Yes. So, yesterday, Giuliani says that Melania Trump believes her husband's denials of an affair with Stormy Daniels. Watch this.

(BEGIN VIDEO CLIP)

RUDY GUILIANI, ATTORNEY FOR PRESIDENT TRUMP: She believe in her husband, she know it is not true, I done even think there is sight suspicion that is true, when you -- excuse me -- when you look at Stormy Daniels. I know Donald Trump and -- look at his three wives, right? Beautiful women, classy women, women of great substance. Stormy Daniels?

(END VIDEO CLIP)

CARPENTER: This is just like on the campaign when women accused Donald Trump of misconduct and he is like, well, look at those women. But can we get one thing clear? Donald Trump was seen hanging out with beautiful women who took off their clothes, whether they were porn stars, whether they were playmates, whether they were models, whether he owned their rights to their bodies in a beauty pageant. That is what he did, that is what he was into for most of his life and didn't make a big secret about it. And so for Rudy Giuliani to say oh, I can't believe those women take off their clothes, well, you hung out with Donald Trump for all that time, you knew what he was into. And so there is such low class women, why did Donald Trump have a bad judgement to be hanging out with them all the time. How about Rudy Giuliani answer that question.

LEMON: But Alice, listen, Melania's spokesperson is pushing back saying I don't believe Mrs. Trump has ever discussed her thoughts on anything with Giuliani. Was speaking for Melania, a big mistake by Guiliani?

STEWART: Certainly, you don't mess with Melania, you don't mess with the first lady. In my view, Melania has done a good job of maintaining her dignity. And at times when this has really been in the headlines and front and center on top of every news show and above the fold, she has maintained her independence and stayed away and driven to events aside from him in order to keep her composure and keep her distance and maintain some level of dignity and privacy in this.

And it's her decision how she wants to respond and hers alone. And I think Rudy was way out of line to speak on this and talk about something he clearly knew absolutely nothing about. But as our colleague Dana Bash has said, she has spoken with him now. He acknowledges he hasn't interviewed her about it, --

LEMON: Let me put up the quote here. There it is. You're right he said he had not interviewed. Go on, I am sorry.

STEWART: All the more reason for him not to be talking out of school and this is difficult enough for her. You know, my heart goes out to her or any woman in that situation. And I think let her speak for herself. And if she doesn't want to talk about it, which she clearly doesn't, then don't talk about it. And once again, clearly Rudy needs to put blinders on and focus on at his task at hand which is being the president's private attorney, specifically with the Mueller matter and leave everything else to the experts.

LEMON: Here's a quote what he told Dana, if we can put that up on the screen. There it is. Yes, I believe that she knows him well enough to know this one is, what's the word, fakakta?

So here is my question, Ryan. You know, he was saying, of it is a strategy for misinformation and you answered that question just, but can it be that Rudy Guiliani just love the spotlight. He says anything then the President has realized that this has becomes a distraction, so he just allows him to do it. Not that it's a strategy. It is just sort of stumble into -- oh look, he is out there saying a bunch of crazy thing and the media is writing about and not paying attention to the actual story and what is going on here at the White House. What do you think, Ryan?

LIZZA: I think that is right. I think Rudy is absolutely loving this moment in the sun. He loves the idea of just defending the President in this full throated way, in a way that he knows Trump for the most part probably likes, right? These guys are about the same age. They've known each other in New York politics for a long time. They have a sort of similar wavelength. I think he realizes he can get away with a lot. And it might cause, you know, White House aides to roll their eyes and us in the media and the pundits to sort of be outraged.

But for the most part Trump likes, you know, people who sort of get down in the gutter a little bit. But, I mean, I probably shouldn't say this, Don, but this idea that Donald Trump would not be interested in Stormy Daniels is because she is a porn star, I mean does anyone buy that? That is like saying, you know, Chris Christie wouldn't be interested in, you know, a hamburger. It's just not credible, right? It's kind of on brand for Donald Trump, if I'm not mistaken.

LEMON: OK, sorry. Anyway.

LIZZA: I shouldn't have said that.

(LAUGHTER)

LEMON: You should stick with your first instinct. I'm sorry, I just can't believe you said it. Anyway. So and I'm not laughing at him.

[23:10:00] I just can't believe that you said it. Let's talk about Scott Pruitt before we go here, all right. So, this is some of the scandals, Pruitt arranged a bargain deal for rent in D.C. He was looking to buy a discounted mattress from the Trump hotel. And Politico reports said he raised eyebrows for frequenting the White House mess, bothering the White House staff, he was trying to get a chick-fillet franchise for his wife. The EPA has spent millions on around the clock security detail. He had dinner with a Vatican official accused of sexual abuse and that is not even half of it. Amanda, I mean I want that job, because you can do anything. CARPENTER: There's something weird going on here. Here's what blows

my mind, you are cheap enough to want a discount mattress from a hotel, that probably hundreds of people had slept on and yet you blown thousands of taxpayer dollars on vanity pens for the EPA. I mean, it's weird what he is doing. And I don't understand why there's such a high tolerance for grift just because he does good job slashing regulations. I promise you there is another Republican somewhere in America that can effectively run the EPA without turning the agency into a personal concierge service. Somewhere you can find it. We don't actually had to put up with that.

STEWART: That has been said, Don, to Amanda's point, he is executing the policies in an agency that Donald Trump specifically wanted changes made, reducing federal regulations, pulling out of the Paris climate deal, sharing the President's views on global warming and climate change. And these are policies that are not popular amongst many people who are looking into this and reporting on this. And so he is certainly under the spotlight.

That laundry list of things you just played, many of those are very, very troubling and certainly worthy of scrutiny. But now we're getting to the point where staffers are talking about how they had to get him a granola bar. If I had, you know, a story every time I had to do something for someone I worked for that seemed menial, but you do that. You do things for your boss, when things need to get done, but this large thing where he has profiting off -- potentially his office need to be looked at. But, we are getting to the level when we are talking about certainly earns that staffers have to do for him, but he is not going anywhere I don't see, because he is executing what the President wants him to do.

LEMON: OK. See you all, now I want to -- I am trying to figure out if it's a granola bar or a Big Mac or a Whopper later. So, we'll see. Or maybe a single from Wendy's or may be some Chic-fillet, we will see. Thank you all. Have a good night.

LIZZA: Thanks, Don.

CARPENTER: Thanks.

STEWART: Thank you.

LEMON: When we come back a former Senate Intel Staffer indicted for lying to the FBI about his contacts with reporters. I'm going to get Congressman Eric Swalwell to weigh in on that next.

[23:15:00] (COMMERCIAL BREAK)

LEMON: So here's the breaking news tonight. A long time senate staffer has been arrested on charges of lying to federal agents as part of an investigation related to unauthorized disclosure of information. That is according to a federal indictment. I want to bring in now Congressman Eric Swalwell to weigh in on this. So just want to get your take on this breaking news, Congressman. Welcome to the program, by the way. Good evening to you.

REP. ERIC SWALWELL, (D), CALIFORNIA: Good evening.

LEMON: James Wolf is a former security Director for the Senate Intelligence Committee for a leak investigation here. And tonight "The New York Times" says they were informed by federal investigators, e-mail and phone records of their report had been gone through. What do you think about this story?

SWALWELL: Well, Don, we are still learning more about it. Obviously you have to shoot straight when you talk to federal investigators. You cannot lie to them. But I also am a little concerned that in this investigation they did seize records of a reporter. And, you know, I know that reporters are not shielded from, you know, committing crimes, but I do think we should have a much higher standard when we start going through their e-mails and phone contacts.

There are first amendment interests that are at stake. So I'll reserve judgment, Don, until we are able to learn more tomorrow when Mr. Wolf is arraigned. But, again, you have to be truthful with investigators. But I think we have to be very careful, because we don't want to see the first amendment eroded as President Trump would like in this country.

LEMON: I'm reading this, and this is from "The New York Times" article. It says Mr. Wolf's case led to the first known instance of the Justice Department going after a reporter's data under President Trump. The seizure disclosed in a letter to the reporter Alley Wattkin (ph) suggested that prosecutor's under the Trump administration will continue the aggressive tactics employed under President Barack Obama. But we know that this President has complained bitterly about leaks, has turned stories, legitimate stories into stories about leaks rather than on the substance of the actual story is.

SWALWELL: Don, he is also -- the president has also declared that the media is the enemy of the American people. And one of the publications involved here, "The New York Times," is an entity that the President routinely goes after. And so that, of course is the reason I think that the Justice Department has to meet a higher standard, because the President I think is biased against these publications.

And the public will look at it with caution if they believe that the President is using his Justice Department to punish who he perceives as an enemy. Again, I'm going to reserve judgment, because it's just too early until more facts are known.

LEMON: It's interesting that he secretly loves the media, but then he, you know, he disparages us every chance he gets.

SWALWELL: That is right. If you guys didn't report on him he would be very lonely then.

LEMON: Can you imagine? Oh, my gosh. Nobody is talking about me. So listen, the top Democrat on your House Intelligence Committee is requesting chairman, Devin Nunes, to release transcripts to the Special Counsel's Office. Adam Schiff says, a witness may have lied to the House Intelligence Committee. Can you tell us anything about who it might be and what they potentially lied about?

SWALWELL: Sure. One of them is Eric Prince. His transcript is public, and there's "The New York Times" reporting that contradicts what Mr. Prince told the House Intelligence Committee. So that is one. But Mr. Schiff is really asking Mr. Nunes to fulfill a promise that the Republicans made. Which was that, our transcripts would be made public, but the public deserves to see the evidence of collusion that we heard in our investigation. The public deserves to see the contradictions that were made, and the public deserve to see the lack of interest that the Republicans showed in following up on what was told to us.

[23:20:05] And so they broke that promise, and they've got the shovels out, the Republicans do. And they're doing all they can to bury the evidence and protect the President. And we think at the very least, Bob Mueller should be able to review the transcripts, and right now he can't.

LEMON: Your Republican colleague's shutdown the Intelligence Committee's investigation into Russian interference and the 2016 election back in March, I think. Does Schiff really expect Devin Nunes to give up the transcripts?

SWALWELL: Well, I know Mr. Schiff and I and others in the committee expect the public sentiment to continue to be high. And the interest is protecting future elections and with an intelligence committee that is not interested in looking at what the Russians did or what they want to do, that actually leaves us more likely to be attacked.

And if the public expresses to its lawmakers and other Republicans on the committee that they want this committee to be a committee of the future in looking at future attacks. Hopefully that will move Mr. Nunes to do the right thing or to move Speaker Ryan to remove Mr. Nunes.

Don, this week we found out that there's now a new club. It's called everybody but Nunes. Because everybody but Nunes who was briefed about the President's bogus spy gate claims has now come out and said that the president was wrong. So Devin Nunes is on an island of his own and we should not allow him to continue to obstruct the progress we have to make.

LEMON: Everyone but Nunes. Interesting.

SWALWELL: DVN.

LEMON: Yes. So next week the gang of eight gets access to some of the DOJ documents regarding the FBI's decision to deploy an informant to meet with members of the Trump campaign back in 2016. And one of your colleagues told CNN just a short time ago that he thinks that is a mistake. Here he is.

(BEGIN VIDEO CLIP)

REP. MIKE QUIGLEY, (D), ILLINOIS: An entity being investigated to get information from the Justice Department. That is a horrible precedent. It's been done I think once before. It was a mistake then. It's a worse mistake now, simply because I think the intent is to turn this information over to the Trump legal team. Chairman Nunes, one of the gang of eight.

UNIDENTIFIED MALE: He is the chairman of the House Intelligence Committee.

QUIGLEY: That is right. I think was working hand in glove with the White House during the entire Russia investigation.

UNIDENTIFIED MALE: What are you alleging? What is he going to do?

QUIGLEY: Well, I think what he is done all along. He went along with the White House gag order.

(END VIDEO CLIP)

LEMON: Do you share Mike Quigley's concerns?

SWALWELL: Absolutely, Don. There were so many times where witnesses would come in and their lawyers would tell us, oh, we were told by the Republican majority staff that we wouldn't have to answer questions about this. And we would look at them and be like who told you that and why would you think that was true? So we got an idea very early on in our investigation that there was cooperation between the Republican majority members and staff and the Trump White House.

There was one case, Don, you wouldn't believe this, where one lawyer represented three witnesses. And this guy represented Reince Priebus, Steve Bannon and Don Megan, and surprise, surprise information was being passed back from this lawyer from what we were talking about in our committee to the White House. So there were a number of things that concerned us through this investigation. And that is why we don't think that Devin Nunes and his team should be able to reach in to the FBI evidence locker, because it would risk passing out information back to a subject of investigation, the president himself.

LEMON: Congressman Swalwell, thank you so much, I appreciate it.

SWALWELL: My pleasure.

LEMON: When we come back. Colin Kaepernick's legal team plans to seek subpoenas for President Trump and Vice President Pence. Can they force Trump and Pence to testify?

[23:25:00] (COMMERCIAL BREAK)

LEMON: Word tonight that Colin Kaepernick, the out of work NFL quarterback at the center of the President's battle over standing for the national anthem, is planning to take legal action that involves the President. Here to discuss CNN Political Commentators, Charles Blow and Steve Cortes and CNN Legal Analyst, Laura Coates.

Hello everyone. So, Laura, Colin Kaepernick's legal team expected to seek subpoenas for President Trump and the Vice President Mike Pence relating to the quarterback's collusion case against the NFL. Do they have a shot at getting testimony from either of them?

LAURA COATES, CNN INTERNATIONAL LEGAL ANALYST: They do. And here's why. First of all, it's not ironic that and not lost on me that you have collusion cases that are putting the President between a rock and a hard place. One being the Russia investigation which he believes no collusion exists and one being this collective bargaining agreement grievance filed by Colin Kaepernick and their grid about this issue.

So you have the collusion base definition and of course what this is all saying is that the President of the United States in some way influenced or conspired with team owners in the NFL to try to avoid having them ever play again. And that has been the result with Kaepernick who hasn't played since 2016. The idea of the subpoena, though, has to go through two steps.

The first one being, because it is under a (inaudible) bargaining agreement, you actually have to have the arbitrator agree that they have some substantive claim in which to say, there is necessary testimony from these two people, who are not covered by the agreement and if they meet that hurdle and pass it, then you have to have that meeting in federal court that says, OK, you can go ahead and pursue the subpoenas and we'll issue them.

The president said statements, his tweets, his commentary and that of the deposition testimony of the NFL orders already make it such that the President's testimony may in fact be crucial and not be able to be received anywhere else. He may have even more of a fighting chance anyone else on collusion and gain the president's testify.

LEMON: I want to bring up this polls, Steve. This is for you. This is new Quinnipiac poll, and the numbers show 53 percent of Americans say professional athletes have the right to protest on the playing field. 51 percent say, they support the NFL's policy requiring players to stand. 51 percent oppose fining the players who don't stand. And 58 percent say NFL players who kneel in protest are not unpatriotic. And most of those instances, a majority of Americans side with the players. What do you say to that?

STEVE CORTES, CNN POLITICAL COMMENTATOR: Right, Don, what I would say is I don't agree. Look, none of us has a right to unfettered protests at work. I don't at CNN, you don't at CNN. A waiter at a restaurant can't walk up to every table and say, you know what, I really think killing an unborn child is murder. I am your servant tonight, what would you like? And I will tell you about the specials. That would be totally inappropriate. It is irrelevant to his job, and it is not -- we don't have a right to protest on the job.

We don't -- the NFL players don't. It's disrespectful on top of that.

It's always framed as a First Amendment issue, which is a canard because it isn't. Outside of that, it's bad business, it's bad manners, it's disrespectful to our country. The NFL is a brand that was built in large measure on patriotism.

(CROSSTALK) LEMON: For your analogy then if the guys who were protesting, they should fire them, is that what you're saying? Because I could protest if I wanted to. I could hold up a sign here and, you know, my boss would decide to keep me or not. So are you saying if they protest --

CORTES: Right.

LEMON: -- if you're the star quarterback, they should just fire them?

CORTES: If you insist on a personal protest on company time, if you insist on subjecting the NFL, the fans, all of us to your protests, yes, you should be fired. Now, you can protest all you want to your heart's desire when you're not at work.

Colin Kaepernick can protest nonstop. And by the way, now he's not in the league, which isn't because of Donald Trump and his supposed collusion, it's because he went one in 10 in his last 11 --

LEMON: That's what this case is all about.

CORTES: He's not in the league. He has nothing to do with protest. And he is welcome to do so. And it is fully his right --

LEMON: I don't think that has been decided about where he is not --

CORTES: -- the NFL.

LEMON: Yeah. So, but --

CORTES: It's not within his rights to compel the NFL to employ him.

LEMON: OK. Charles, here's your latest piece. It's from The New York Times. It says, I want to hate. Right? You said -- you're talking about president's response to the Central Park Five and now he brought full-page ads, calling for a return to the death penalty even after their conviction was overturned. Trump said, settling doesn't mean innocence.

So you write this. You said, he wants to hate. When Trump feels what he believes is a righteous indignation, his default is hatred. Anyone who draws desire, anyone whom he feels attacked by or offended by, anyone who has the never to stand up for himself or herself and tell him he's wrong, he wants to hate and does so.

So you go and explain his feelings about black people, about women, about Muslims, about immigrants and so on. Talk to me about your column, why you wrote that.

CHARLES BLOW, CNN POLITICAL COMMENTATOR: Right, that phrase, I want to hate, comes from the body of the ad that he took out. And people get caught up on the headline of the ad which was bring back the death penalty, bring back our police. But people don't often pay attention to what he's actually saying in the body of it.

And he's saying a lot of things that kind of relate to how he behaves now. There's no break in that line of reasoning for him. He is saying be rough with these guys, punish them, punish people who we think break the law, who I find a distasteful in society. I want the police to do it. I want them to be put to death.

These are things that he says now. His position in there when he says is that the mayor at the time was trying to calm everybody down and says, you know, don't be infected by this kind of hatred or whatever. He says, no, no, no. I want to hate them and I always will.

And for him to do it and it's one thing to do it right after the rape has happened and she's still in a coma, but it's another thing to hold onto that position. Having told the entire city and I guess the world because, you know, to hate these boys, now men, and to even after they're exonerated, even after DNA links the confessed rapists to the rape, he still refused to accept --

LEMON: It says -- yeah, even to this day. Hold on, I got -- Steve, I've got to -- I want to ask Laura this because Laura as an attorney, you deal with facts, OK? Let me just give you a comparison. I wonder if this is going to be applicable to this case.

Because just for comparison, The Washington Post tracked the statistical performance of each team's top passer in the 2016 regular season. The Kaepernick's 2016 averages, OK? Ten quarterbacks were worse, seven about the same, 15 were better. So the question is going to be whether he was blackballed.

And as I said to Steve, it hasn't been decided yet whether they colluded or whatever. So how does that play into this and quickly because I've got to get to some breaking news. Sorry about that.

LAURA COATES, CNN LEGAL ANALYST: I think it's evident that he was blackballed because of the position he took and the reason that he knelt and it made for a bad business agenda for the people who are in leadership positions.

And of course, when you are in a private agreement and a private employment contract, naturally it's good to be the king, which very much mirrors the president of the United States' thinking and why there is a collusion allegation as is.

LEMON: OK. I to got to get some breaking news. Thank you. We will continue this conversation at another time. I appreciate all of you. Breaking new tonight, a former Senate intel staffer indicted for lying to the FBI about his contacts with reporters. We'll break it down for you right after this break. Don't go anywhere.

[23:35:00] (COMMERCIAL BREAK)

LEMON: Our breaking news tonight. A veteran Senate staffer has been arrested, charged with lying to federal agents as part of an investigation related to unauthorized disclosure of information. That is according to a federal indictment.

And joining me now is CNN Legal Analyst, Jennifer Rodgers, a former federal prosecutor, and John Flannery, a former assistant U.S. attorney for the southern district of New York. And joining us by phone now is CNN Law Enforcement Analyst, Josh Campbell, a former FBI supervisor special agent.

We have the right folks assembled here. Josh, I'm going to get to you, right, because this involves the FBI. So, help us out. You said that this investigation including obtaining reporters' records would have to go to the highest levels of a DOJ. Explain why and who would have to approve this.

JOSH CAMPBELL, FORMER FBI SUPERVISOR SPECIAL AGENT (via telephone): That's right, Don. So you have to be familiar with these leak investigations, how they work within the FBI, and obviously as the FBI conducts these investigations on behalf of multiple agencies that informally handle classified information, there are two issues here at play.

The first is you appear to have a staffer in the Senate Intelligence Committee who was allegedly providing information that shouldn't have been disclosed to those who were not authorize to have it. In this case, being the media.

[23:40:02] The second issue being the fact that this actually involves the journalist. Now, inside the FBI and the Department of Justice, there's a certain category of investigation that's deemed a sensitive investigative matter, a stem (ph) as we call it.

And these are investigations that involve members of the press, members of the clergy, lawyers, for example, politicians. It's a certain protective class because obviously these are officials and those who are engage in employment that involve First Amendment activities.

So, in order to start an investigation in order to take any type of enforcement action or to gather records, these have to be signed off at the highest levels of the Department of Justice in the FBI. This isn't your run of the mill investigation where you're trying to find a criminal.

Anytime there is an investigation that intersects with information that may be protected by the First Amendment, it has to go to those highest levels. It's a very serious investigation.

LEMON: OK. So Jennifer, let me bring you in here. This former aide, his name is James Wolfe, right? Obviously he has exposure here if indeed proven that he did leak information and it was classified unauthorized. What about the journalist here? What about the journalist involved? If the paper printed it, what exposure if any do the journalists have with this?

JENNIFER RODGERS, CNN LEGAL ANALYST: Well, someone who helps to disseminate classified information that they know is classified does potentially have some exposure. You know, it will depend on a lot of things. And it seems from so far the reporting in the indictment that it was at the confidential and secret level. So, you know, you may not be talking about super sensitive information. But there is possibility --

LEMON: This one now is for lying to federal investigators. But also this is the first time under the Trump administration that a reporter of records has been involved and there is concern about that because this administration complains about leaks all the time and also journalists reporting what they deem to be leaks.

RODGERS: That's right. So after the Obama administration went after leaks and reporters much more than any prior administration had, they actually tightened up the rug (ph), so that it's even harder to do that. They wanted folks to have to jump through additional hoops.

I guess it remains to be seen whether or not the Department of Justice properly did that here. We assume that they did if they got the information. That's what people are so concerned about, with the emphasis on leaks in this administration. This may be the beginning of more attacks on journalists.

LEMON: John, you've been both an assistant U.S. attorney and special counsel for the Senate Judiciary Committee. So talk to us about leaks and what's your assessment of the story?

JOHN FLANNERY, FORMER ASSISTANT U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK: Well, leaks are a significant problem, but the answer is not to invade a reporter's privilege to make a case. And I can't tell you because I don't know all the facts, but if was her counsel, we would assert the reporter's privilege.

We would also assert the Fifth Amendment because it appears that she did know. And the possibility of prosecution exists, and you don't have to be a witness against yourself. And then finally, if that was overridden, I would suggest to a client that they be held in contempt so it could be appealed on the issues of the fifth and the reporter's privilege.

In this administration, I do not feel confident that Sessions is conducting this in the correct manner. And so I wouldn't presume the rightness of this decision. In fact, I would presume the opposite. And while I do not support leaks of confidential material, I do think we also have to protect the rights of individuals. We have to protect the right of the press.

And we have to protect the right of accused or subjects of an investigation who have a right to remain silent. So, I think that this is going to be examined in the district court and on appeal. And I just wish that the reporter had invoked the Fifth Amendment at least. And I can't understand why she didn't.

LEMON: So Josh, let me ask you this then. Is this administration going to be going after reporters in a whole new way, you think?

CAMPBELL (via telephone): I think that remains to be seen. We have two competing issues here. Obviously the first one being there's an an individual who is alleged to have shared classified information with someone who did not have access. So I think the burden here is on him, the person who in the position has responsibility to protect that information.

Again with respect to the reporter, I agree with what John was saying just know. The government will have to show that they would not be able to obtain these records in any other way than by going after the reporter. I just read the indictment, the series of description of what happened here with respect to the individual.

And appears as though investigators did a textbook case where they approached him and asked him if he had access. What was interesting is they apparently had photographs of him with the reporter. I don't know if that was some type of surveillance or some other method that they were able to obtain.

My question is, did they need to go after the reporter's records? Was there any other way to do that? That's going to be the question here.

LEMON: What's next?

FLANNERY: I was just in a room here, the green room, and I was with a whole bunch of reporters. And to assume by association that I was leaking secure material would be outrageous. So, you know, reporters are all over the hill.

[23:45:00] And I don't know if he has a relationship with her, but somebody said that he may have. And if he does, then he would be expected to be with her.

LEMON: I've got to run. Thank you all. Perfect team to talk about this. I appreciate it. We'll be right back.

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LEMON: Top Republicans on Capitol Hill breaking with the president on his claim that a spy was placed inside the Trump campaign. Joining me now, two former Republican Congressmen, David Jolly of Florida and Charlie Dent of Pennsylvania. Good to see both of you. Thank you.

Representative Dent, I'll start with you. We seem to be seeing an increasing number of Republicans speaking out against the president's conspiracy theories or his policies. But there's a catch. It's only the ones who are leaving office. So be honest with me. Why is that?

CHARLIE DENT, CNN POLITICAL COMMENTATOR: I'll tell you what, many Republican members in the House especially feel like they're kind of in a catch-22 situation. They're in a real predicament. They feel they can't get too close to the president because that will hurt them in a general election.

At the same time, they can't move too far away because that will hurt them in the primary elections. So I think that's the role of politics behind all this. That said, will disappoint of more having spoken up. But I believe this trade issue is a seminal issue.

[23:50:00] It's a core principle for Republicans. I believe they are going to see more Republicans speak up now over this trade issue more than any other.

LEMON: And we had actually a Republican on the air last night who did say that, said he can't trade his principles for that because he didn't believe on what the president was doing with trade and with tariffs.

Representative Jolly, you know, it's like leaving office is some kind of truth serum for lawmakers. Are you disappointed in your former colleagues?

DAVID JOLLY, FORMER U.S. REPRESENTATIVE: Look, I wish more would speak up. I happen to when I was in office but it came with real consequences including loss of support of the party and frankly party financing in my reelection. Don, to give a lot of former colleagues the benefit of the doubt, however, many of them represent Trump constituencies, right?

Constituencies that do support the president and these members of Congress have an obligation to give voice to those constituents, as well.

But in areas when you're talking about national security, these fake allegations of Spygate, and when you're talking about simply matters of integrity coming out of this White House, questions of integrity on broad social issues of race, gender and so forth, more Republican members of Congress whether they're leaving or not need to speak out.

Their legacies will reflect whether they speak out or not.

LEMON: Let me give you one example, very recent example. And that's only after announcing his retirement did Paul Ryan publicly contradict the president, saying that he has seen no evidence to support the president's claim that a spy was embedded in his 2016 presidential campaign. He also criticized Trump's claim that he can pardon himself. But he has got a lot of unhappy members, right?

JOLLY: Yeah, look, Paul Ryan frankly might be trying to hang on to his speakership through the end of the term because he has ruffled so many feathers within the caucus. Don, something else that we are seeing among them, I think Paul Ryan unfortunately falls into this group.

A number of Republican members of Congress have made a certain deal with the devil to accept advances in a Republican orthodoxy and ideology that they do want to see advance, from the deregulatory agenda to reducing corporate taxes. They're willing to accept trumpism if they get the policy results in return.

LEMON: Yeah. What do you want to say, Congressman Dent?

DENT: I had spoken out against many of the president's inflammatory statements during the campaign and when he was in office, on the travel ban, on the health care bill, on Charlottesville, and other issues as necessary.

But at the end of the day, look, many of these members are in a difficult spot. Some are speaking up in a different way. Look at members like Carlos Curbelo and Will Hurd and Jeff Denham, you know, were taking on this dreamer issue and they are really bucking their leadership and the president on a very important issue to them. They feel very strongly about that policy and they are stepping up right now. They are kind of speaking out maybe in a little different way. But they're really showing a lot of leadership and courage.

LEMON: Florida Congressman Matt Gaetz said in an interview after Ryan's comments, he said, we need the speaker to be an institutionalist for the Congress, not to be a defender of the deep state. First off, there is no deep state. Behind closed doors, is there a clear sense of who is with the president and who is troubled by the constant falsehoods? Congressman Dent?

DENT: Yeah, look, when the president goes down that road of deep state, conspiracy theories on Spygate and all this sort of thing, this is where Republican members need to step up and call the president out. Look, I said to them all along, when the president is on the right track, you should support him on those policies.

When he is moving in the wrong direction, you check him. If he goes off of the rails, in the case to say Spygate or Charlottesville, he has to be called out. I think that's appropriate. I believe Congressman Rooney today from Florida I believe called out the president out on Spygate in betting (ph) somebody in the campaign.

So I think more members need to do this. It is the right thing to do. As Dave Jolly says, we're all going to be judged sooner or later, you know, about how we acted during this time, because people are going to look back on us with a lot of misgivings about how we may not have exercised oversight to the extent that we should have.

LEMON: And it's a very, very dangerous game. Did you want to say something, Representative Jolly?

JOLLY: Representative Matt Gaetz is an aggressive debater. He really screwed this one up. To defend the institution of the Congress means to push back against this administration when it comes to matters of -- including the Mueller investigation, his attacks on Justice Department, his attacks on the courts and on the press.

Frankly, Republicans had a stronger Congress, a stronger majority working against Barack Obama than they have working with Donald Trump. Republicans had courage when Barack Obama was in office. They have no courage with Donald Trump in office.

LEMON: Why?

JOLLY: Because Donald Trump has taken over the party. This is Donald Trump's party. He won the majority of the votes within the party. And so, if you are a Republican, that's the political reality.

[23:55:01] And that is something you have to acknowledge. If you have constituents who embrace the president, you have to acknowledge that. Now, ultimately, it is a test of leadership and personal fortitude. I do think legacies will be formed by whether or not more Republicans speak out while they're in office before they're leaving.

LEMON: So Congressman Dent, one thing that stood out to me on Tuesday night's primaries was a fact that Alabama Congresswoman Martha Roby will now face a runoff. This is after Trump's Access Hollywood tape came out. Roby said she couldn't justify a vote for a man who promotes and boasts about sexually assaulting women. That seems to be a reasonable statement. Is she paying the price for that now?

DENT: Martha Roby stood up during the campaign and she said she couldn't support the president after Actress Hollywood. That is true. She is under a lot of criticism. That is a very safe Republican district, among the safest districts in the country.

So, if any member is subject to a vulnerable, to a primary, it would be somebody like Martha. She's a feisty campaigner. I wouldn't count her out by any means. She's tough. So I think she can withstand that storm. So, I wouldn't panic.

LEMON: Thank you, both. I appreciate it.

JOLLY: Great to be with you, Don.

DENT: Thank you, Don. Great to be with you.

LEMON: That's it for us tonight. Thanks for watching. I'll see you right back here tomorrow.

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