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Don Lemon Tonight

Congress to Receive Full Mueller Report; House Democrats Wants Barr to Cancel News Conference; Rep. Ted Deutch (D-FL) is Interviewed About the Mueller Report. Aired 11-12p ET

Aired April 17, 2019 - 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" and I'm Don Lemon. We're now just hours away from the long awaited release of the redacted version of Robert Mueller's report on the Russia investigation. The attorney general, William Barr, holding a news conference at 9:30 in the morning, that's eastern time, to answer questions about it.

But, and this has Democrats on Capitol Hill fuming, Barr will take questions from the media on the report that he's not even releasing to Congress and the public until after 11:00 a.m. The chairman of the House Judiciary Committee saying this just a short time ago.

(BEGIN VIDEO CLIP)

REP. JERRY NADLER (D-NY): The attorney general appears to be waging a media campaign on behalf of President Trump, the very subject of the investigation at the heart of the Mueller report. Rather than letting the facts of the report speak for themselves, the attorney general has taken unprecedented steps to spin Mueller's nearly two year investigation.

(END VIDEO CLIP)

LEMON: Well tonight, House Democrats demanding Barr cancel his news conference and we're already getting a possible sneak peek. A source telling CNN it's expected to have relatively minimal redactions in the section on obstruction of justice.

And the "Washington Post" is reporting that Mueller decided he could not come to a conclusion on the obstruction question because it was difficult to determine Trump's intent. Well tonight, a White House official telling CNN that President Trump is not worried about the report's release.

Joining me now Shimon Prokupecz, Jennifer Rodgers and Michael Moore. So much to talk about. Good evening to all of you. So, we're learning tonight, Shimon, that the Mueller report is expected to have relatively minimal redactions in the obstruction of justice section. What more do you know?

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE REPORTER: Yes. So this is going to be probably the most revealing part perhaps maybe of this entire report. In terms of the investigation into obstruction, as far as we know, none of that evidence has ever been presented to a grand jury. So the Department of Justice, the attorney general have a little more liberty to put more information out there about that investigation.

What's important there is that we a0re going to get a window inside the conversations that were going on at the White House. There are people like Hope Hicks. The former White House counsel, Don McGahn. There is a lot of concern about what he may have said to the Special Counsel's office.

He's reported to have spent some 30 hours with them going over different parts of the obstruction investigation and other issues. So, we're going to get a window inside some of the conversations perhaps that the president was having with people in the White House about maybe firing people, what the thinking was and that is where I think that's going to be most important for us and that that part of this investigation we still need to learn a lot --

LEMON: Well, that's where the devil is going to be in the details. I mean, listen, that's going to be interesting to see what evidence there is but it is also the inner workings of this White House, the president and the administration, what goes on behind the scenes.

Some people may call it palace intrigue but people are going to get a window into that. But the "The Washington Post" is reporting, Michael, that the report, "will reveal that Mueller decided he could not come to a conclusion on a question of obstruction because it was difficult to determine Trump's intent and some of his actions could be interpreted innocently, these people said.

But it will offer detailed blow-by-blow of his alleged conduct -- analyzing tweets, private threats and other episodes at the center of Mueller's inquiry, they added. What questions does that raise for you, sir?

MICHAEL MOORE, FORMER U.S. ATTORNEY, MIDDLE DISTRICT OF GEORGIA: You know, I'm not really surprised that there's the question of intent. That's the nature of having a criminal case and making a decision about prosecution as you think about whether or not you can prove the element of intent.

The big elephant in the room is the fact that there has been a question whether or not you can charge a sitting president anyway. So, I'm wondering are we going to find out that Mueller was getting close to that and made the decision that the intent is going to push him back or that he feels some pushback maybe from the department.

But the problem that I see with where we are in this thing and what's happening now is that we're not doing things by the book. For a long time in this investigation, as it's rolled out, we've heard about department policy. There's this policy not to charge a president. Now there's a policy to not let grand jury information (inaudible) a statute actually, rule.

But there are other policies that they've been saying, you know, that they want to follow to kind of keep this on track. Now, Barr's broken from that and we're going to have a press conference and we're hearing now, the media reports, that suddenly that Barr is talking to the White House counsel's office about how to roll the report out so they can help prepare their media spin on it.

[23:05:06] That's not normal. That's not what we do. We don't have people. We don't have the Department of Justice essentially colluding with a subject of an investigation so that they can decide how to spin it after the fact. That strikes fear in me and starts to sound alike like other places in the world, you know, where the state meeting is to tell you what the facts are and the public don't have a right to review and make decisions for themselves so I think that's the trouble there (ph).

LEMON: You're right on with that. Jennifer, we still don't know whether Mueller wanted Barr to make the call on obstruction now or do we. Was that supposed to be left up to Congress?

JENNIFER RODGERS, CNN LEGAL ANALYST: The recent reporting makes it sound like he did make a decision in a way and decided there wasn't enough evidence, but I think we need to know more before determining that. I mean, we should learn more tomorrow especially if the redactions in that section are light.

We did hear last week at Barr's testimony that Mueller did not say in the report or to him that he wanted to leave it to Congress, that he, you know, was making decision or nondecision on the prosecutorial merits, but I think we'll learn more about that tomorrow when Barr has been protecting the president every step of the way here, including by not revealing to us what Mueller's thinking was as revealed in the reports. So hopefully that's one of the things we'll find out more about tomorrow, 11:00 a.m. or whatever it is.

LEMON: Yes. So let's talk more about that because the press conference is -- he's not releasing the report until after the press conference (inaudible) press conference is 9:30, right, 11:00 or 12:00, hours after his own press conference about this. I mean how does that make any sense, honestly?

PROKUPECZ: I've been to many press conferences at the Department of Justice and usually you have an indictment or some charges being announced and what they do is they give you the indictment before you come or when you get there they give you the indictment so you could read through it, decide what's important, what kind of questions you want to ask.

It's really weird that they're doing it this way and, you know, it leads everyone to believe that they are just trying to control the narrative here.

LEMON: Why is he even holding a press conference? Why not just release the information?

PROKUPECZ: Well, he wants to talk about the processes, the thinking that went into behind these redactions, behind the report, some of his thoughts on this. He's also expected to read a statement explaining some of his actions. But the thing is -- LEMON: But can he do that after?

PROKUPECZ: Right. You would think that you would release the report, let everyone read the report. Figure out what the news is. Figure out what we need to dive into. What more do we need ask the reporters who are going to be in that room. We have very experienced reporters who've been covering the Department of Justice that are going to be in that room.

They know what questions to ask. But the idea you're going to do this before the report comes out is really strange and if you look at anyone who's been at the Department of Justice, senior leaders, all will say it's really strange that you would do it this way. It only leads everyone to believe that, you know, they're trying to control the narrative.

LEMON: Of course they are. That's exactly what he's trying to do. He did it with a thing --

PROKUPECZ: It just looks bad, but it looks --

LEMON: Yes.

PROKUPECZ: There are a lot of things that you have to wonder about the decisions that they have made. You know, we all wanted to have faith in the attorney general, new attorney general coming in. You know, obviously there were a lot of concerns about Jeff Sessions, but the optics of this right now are very concerning and should be concerning for all.

LEMON: Well, listen. This is a new era (inaudible). Let's give him the benefit of the doubt. And I mean, if they're doing it this way and it looks bad, that's exactly what they're doing right in front of our faces. And we should stop pretending that maybe there's a question about it. I mean, it's because, Jennifer, last week Barr testified on Capitol Hill by saying he wanted to wait until the report was out before he discussed it. Listen to this.

(BEGIN VIDEO CLIP)

WILLIAM BARR, UNITED STATES ATTORNEY GENERAL: I'm not going to say anything more about it until the report is out and everyone has a chance to look at it. So, I'm not going to discuss it any further until after the report is out. I'm not going to characterize or discuss the contents of the report. The report will be made public hopefully next week.

The report is going to be out next week and I'm just not going to get into the details of the process until the plane is on the ground.

(END VIDEO CLIP)

LEMON: OK, so Jennifer, he's holding a press conference before the report is out. I mean, I think that just solidifies what I just said. Let's stop pretending. That's what he's trying to do. He's trying to shape the narrative and it looks they're trying to cover-up something. RODGERS: Yes. I mean, this whole thing stinks honestly. And it can't be about the process. He testified at length last week. We heard about color coding. We heard about the four categories of redaction and he explains those, you know. There is nothing more to say about process unless they have changed something from last week. You know

Otherwise, all he's going to be doing is repeating what he said last week. And by the way, giving us yet again, his spin on what's in the report instead of what's in the report, which obviously is ready for release. So, there is nothing about this that smells right. It's very, very disappointing for anyone who really hoped for good things from this attorney general.

[23:10:03] LEMON: If he actually, Michael, if he actually cared about answering questions about the report, I'm saying this for the people in the back, right? For the people who still have some idea that maybe he's doing it because off this.

If he wants to answer questions about the report, wouldn't you hold a press conference after the report several hours or maybe the next day? Give it a beat.

MOORE: Well, yes, absolutely. I mean, it's like asking somebody to give the book report before you let them read the book and that's essentially what he's trying to do, is tell us what (inaudible). You know, the problem when you have members of your own team investigating other members of the team, is that you end up with this idea that it's not a neutral investigation, that it's not objective and the public losses confidence.

So that's what's happened here. I'll say this, the department has a long history of remaining sort of neutral and being an honorable institution. And I've stood in the White House. I'll say this, I stood in the White House when President Obama specifically talked to the United States Attorneys, and he said look, you're not my lawyer. You're not here to protect me. You're here to represent the United States --

LEMON: Wait, can you repeat that again.

MOORE: Yes. I mean his comment was you are not my lawyer. You're here to protect the United States. You're not there do my bidding. And that's what's been lost and I think, you know, they're great people who work for the Department of Media Relations Office and the press office but Barr is getting bad advice because he's tarnishing what has been built over decades and that is the independence of the Department of Justice.

And that's the fear going forward. And so this idea that we're going do this circus of having let me tell you what I'm going to tell you, let me spin like I'm going to spin it, and then we'll roll it out to you is silly. And the idea that Congress can't have it, that there are going to be two different versions, we're going to do all these.

You know, maybe I'm more conservative than Mr. Barr. And that is, yes, I think that Congress works for me. And that is, you know, they ought to be able to see the report. I ought to be able to see the report. You know, we have to let the public see what's out there because that's my report.

I realize there are things that we have, grand jury information. I realize there are some seals (ph) from other ongoing investigations, I get that. But by and large, the report belongs to the American people. And we ought to know what's in there without being led down a path of sort of again, obfuscation.

LEMON: Well, Congress works for the American people. American people paid Congress salary, as well as William Barr's salary.

PROKUPECZ: The other thing that has come to mind for me about this press conference, Jim Comey, the former FBI director. He took so much criticism by the current Department of Justice, by Rod Rosenstein, the deputy attorney general. It's the reason they say, you know, they wanted -- they thought he should fired because he held that press conference where he talked about all the things that Hillary Clinton did wrong and the e-mail server investigation.

The thing is, you know, yes. This is the attorney general and he has a right to do this. But how far will they go? You know, will they go into steps similar to what James Comey did because Comey did take a lot of heat for having that press conference by talking about derogatory information.

Things he should not have been talking about, they say, because it violated the Department of Justice guidelines. What's going top happen here tomorrow and how does he deal with that? When people start asking him questions specifically about derogatory information? I think it did catch lot of us by surprise that he was going to have this press conference.

LEMON: Let me just make it very clear to the people who are watching. Trying to pull the wall over your eye. Stevie Wonder can see that. Thank you.

House Judiciary Chairman Jerry Nadler says the attorney general's planned press conference before Congress and the American people get to see the Mueller report is wrong. Well, we talked to a member of his committee, Congressman Ted Deutch is next.

[23:15:00] (COMMERCIAL BREAK)

LEMON: The attorney general is planning a press conference on the Mueller Report tomorrow at least an hour and a half before anyone has a chance to see it. The House Judiciary Chairman Jerry Nadler says that's wrong.

(BEGIN VIDEO CLIP) REP. JERRY NADLER (D-NY), CHAIRMAN, HOUSE JUDICIARY COMMITTEE: His central concern here is that the Attorney General Barr not allowing the facts of the Mueller report to speak for themselves, but is trying to bake in the narrative about the report the benefit of the White House. And of course he's doing this just before the holiday weekend so it's extraordinarily difficult for anybody to react. This is wrong. It is not the proper role of the attorney general.

(END VIDEO CLIP)

LEMON: So let's discuss now, Democratic Congressman Ted Deutch of Florida who sits on the judiciary committee joins me now. Good evening sir. Thank you so much. I appreciate it.

REP. TED DEUTCH (D-FL): It's good to be with you, Don.

LEMON: You heard. You were there. You heard what Nadler said. He said the attorney general is talking unprecedented steps to try to, I don't know, paint the investigation or spin the investigation

DEUTCH: Yes.

LEMON: What do you think?

DEUTCH: It's true and we've seen that already. It's now been three and a half weeks since the Mueller report was completed. We saw the attorney general take a weekend to review it and then issue his own findings in a four-page summary that I had think about 100 words from a 400-page document.

LEMON: Four hundred and one.

DEUTCH: Yes. And now it's been three and half weeks it's out there. He has seen it. Apparently, we've learned just in the past day or so that he shared it with the White House. He's had multiple conversations with the White House about it, and now it's ready to go, and he schedules a press conference so he can try to spin the story before it even comes out.

He's not the president's defense lawyer. Let him send Rudy Giuliani out there to do a press conference that's not his job. He's the top law enforcement official in America.

LEMON: What are his motivations do you think?

DEUTCH: Well, I don't know. I don't even know -- it's interesting. We're having his press -- he's having his press conference tomorrow which we only learned about because the president said he's having a press conference. So, I don't know whose idea it was.

[23:20:01] But the motivation -- the motivations seems clear. They want to get out in front of the story just as they did in the report which he put out his summary -- which he hoped would then guide the discussion going forward. It failed. So now the full report is ready. Now they're going to try one more time to try to guide the way the discussion goes.

He had to cancel his press conference. Show some respect for the American people and the press and members of Congress. Let the report come out. Let us read it And then if he wants to answer questions about it, absolutely we should be able to ask those questions.

LEMON: Several different powerful committees in Congress asking him to cancel the press conference and let the American people or at least postpone it, and let the American people read it and let Congress read it, let reporters, the press read it and then I guess later, if he wants to, fine. But, you know, I had Congresswoman Madeleine Dean on and she said she doesn't even understand why he's even holding a press conference because it's Mueller's report not Barr's report. Do you concur?

DEUTCH: I absolutely agree. There is absolutely no reason, none at all for the attorney general of the United States to go out ahead of the release of this report and do what? The only thing that we can surmise is that he's going go out there knowing what's in it, knowing the conversations that he's had with the White House, knowing the concerns that the White House has and to try to address those concerns before anyone --

LEMON: You're not insinuating that he's acting on behalf of the White House are you?

DEUTCH: Look --

LEMON: That is sarcasm.

DEUTCH: I understand. When the attorney general went up to Capitol Hill and started throwing around the word "spying", he did it because he knew the president was listening and that then led to the president talking about treason and a coup d'etat.

And unfortunately, when the attorney general, who is the top law enforcement officer does things like this, it plays right into what the president does, which is his ongoing assault against the institutions in our country, against the press, against the judiciary, against the men and women who work in the Justice Department.

LEMON: Well, the interesting thing is that he said I believe and then he said no, I don't believe, right. Remember he sort of walked back. The top law enforcement officer in the country would know that information and if he hasn't come out with it yet, chances are it doesn't exist so, speaking to an audience of one when it comes to that. But I've got to ask you about -- CNN is reporting, the "Washington Post" as well, minimal redactions on the obstruction of justice part of the report. Do you buy that?

DEUTCH: I hope that's true. All we've been doing for almost a month is speculating what we're going to see, but what's so interesting in that reporting that I haven't -- I don't think it's been talked about enough, is the reference to the fact that they reached their decision. He summarized it by saying that he couldn't exonerate but here also -- there wasn't enough there to find the president guilty.

In the reporting tonight, it says that, "some of the things that the president did could be interpreted innocently, could be viewed innocently.

LEMON: That means he did something. It has to be determined.

DEUTCH: That it means perhaps they're not going to be interpreted that way. That's one of the things that we're all anxious to see.

LEMON: You're a very smart man. And also when I read the first report and, you know, he came out and said it's a complete -- total and complete exoneration. If you read it, it says that they didn't establish that people in the Trump campaign conspired, right?

And then it said it did not exonerate him. But then the president -- everyone is like, oh, this is a complete exoneration for the president. Wait a minute, are you reading the same report that I'm reading? What are you expecting tomorrow because you guys are supposed to get a less redacted report than the one released --

DEUTCH: Don, that just came out today in court. I read the report. Chairman Nadler read that report. None of us have heard that. None of us received word that there is going to be a less redacted report for us to see. I hope it's true, but we're all expecting to get the same thing.

And look, it's clear they're doing this to start spinning the story. The only thing that could drag this out longer I guess is if they rode it out by hand and send it over on a horse.

LEMON: Pony express.

DEUTCH: Pony express. And that leads right into where we are, which is the holidays and we're heading into an important holiday weekend with Passover and Easter. I think they hope that people will focus on it for maybe a day and then move on.

It's not going to happen. Everyone's anxious to see what the Mueller team came up with, in addition to all of the people who have gone to jail, what they've come up with over the past few years.

LEMON: Don't forget, smoke signals. That's also a slow --

DEUTCH: Perhaps we should look --

LEMON: Keep it faster the way they're doing it. Thank you very much.

DEUTCH: Thanks Don.

LEMON: We're hours away from getting the redacted Mueller report and we'll breakdown the burning questions that all need answers, next.

[23:25:02] (COMMERCIAL BREAK)

LEMON: We're going to see a redacted version of the Mueller report in a matter of hours. So, what can we expect to learn about team Trump's ties to Russia? Let's discuss. Juliette Kayyem and Jeffrey Edmonds both here. Good evening to both of you. Thank you so much.

JEFFREY EDMONDS, FORMER DIRECTOR FOR RUSSIA, NATIONAL SECURITY COUNCIL: Hi Don.

LEMON: Juliette, so according to Mueller's letter, right? The Mueller report, I should say, Barr's letter about the Mueller report, it says the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities. That is really basically all that we have seen from the report on the issue of so-called collusion. There's a lot that we don't know about what happened between team Trump and Russia.

JULIETTE KAYYEMM, CNN NATIONAL SECURITY ANALYST: Right. And I'm so glad we're doing this because remember, that is the core of why Mueller was chosen. I was just looking at the mandate of his, you know, when he was appointed. It is about this issue.

And while I do not mean to denigrate, you know, obstruction of justice, it is key -- it is a crime. I think we're focused so much on that because of the question of why didn't Mueller decide that we're forgetting that we've already seen so much evidence through these cases, through media reports, pieces that we just -- are making no sense to us.

So, what I'm hoping for tomorrow is figuring out some narrative about what in fact was Russia doing, why were there these meetings in Seychelles, the pings (ph) in the bank, I mean, you name it. Remember all these stories over the last two years.

And if it falls short of collusion or even conspiracy, what was it then? What was it? Because it's not benign. I mean, you know -- and it is just that the president is compromising, cares more about his businesses than the United States. Well, that might not be a crime, but I would actually, as an American citizen, like to know that.

DON LEMON, CNN HOST: Yes. A lot of Americans -- I think most of the Americans want to know that. Jeffrey, how much do you think we're going to get to see on Russian efforts to meddle on possible collusion since? There might be so much sensitive national security information involved in it?

JEFFREY EDMONDS, FORMER CIA MILITARY ANALYST: Right. I definitely think that you will see less on the collusion part than you will on the obstruction of justice part. But I think, you know, to Juliette's point, what's really important here is what is -- what actually happened.

And I think -- was there a giant conspiracy by the Trump administration? Maybe not. I trust Mueller and his investigation. What I think we're going to pick up and get a better idea of is the fact that the Trump campaign and Trump himself lacked any moral compass when faced with a various sort of very intense Russian effort to undermine our democratic process.

LEMON: Juliette, let's talk about the Trump Tower meeting, OK? Speaking about, you know, things that we're going to learn. I think it's all just going to be in the details and how all of these worked and what was happening because, you know, that little part where they said some of it could be construed as innocent. It might be.

So, let's talk about this Trump Tower meeting. The The president's son in law, his campaign chairman met with a Russian -- met with a Russian -- Russians claiming to have dirt on Hillary Clinton. First, Don JR. said it was about adoption, then admitted it was about getting dirt on Hillary Clinton. The president reportedly helped to craft that cover letter, remember? And a lot of questions here, do you think that we're going to -- we're going to get some answers to those questions?

KAYYEM: I think we may. But there are -- you know, there are still some investigations are going on so that might be a legitimate reason why some of these information would be redacted. But let's just remember what we already know. In other words, the Mueller report is known to a certain extent.

One is the meeting occurred with no notification by anyone close to the -- anyone in the Trump campaign to the FBI that they were -- that the Russians were offering dirt. There are lies about the meeting, a couple dozen, right? We sort to have -- we know that from Mueller's investigation.

And then there's the cover up by Trump about what the meeting was about. Subsequent to the meeting, remember, the FBI briefed the Trump campaign about attempts by the Russians to get into their campaign and to muddy it up sort of the democratic process.

At no stage during this entire couple month period do the Trump people say, oh, you know what? We actually -- we're approached by them. We actually met with them. And so, there may not be the intent that gets to the criminal liability.

But once again, does that matter to the extent that you're just simply looking at facts that tell you the truth at this stage that they lied about a meeting that they were willing to have to get dirt by a foreign entity about an American -- about the election and the other candidates.

LEMON: And let's not forget -- we know about Paul Manafort gave campaign polling data through a business associate with Russian --

KAYYEM: That's right.

LEMON: -- ties, right? Remember that? Jeffrey, Barr said that Mueller found that campaign didn't conspire or coordinate with Russia. Actually, what he said was that the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.

So what do you think? Is it possible we will find out even more efforts by Russians to help the campaign that we didn't know about?

EDMONDS: I'm not overly optimistic on that part. I think a lot of that will be redacted because of national security issues. Like I said -- and to Juliette's point --

LEMON: Why is that? Why is that?

EDMONDS: Probably to protect sources and methods, different ways of picking up communication, how do they know what the Russians were doing. There were a number of those reports -- it was an unclassified report, but there were classified reports on Russian meddling as well. And they -- those sources and methods are very sensitive and they have to be protected.

LEMON: Thank you both. I appreciate it.

KAYYEM: Thank you.

LEMON: The White House is stonewalling Congress ahead of the Mueller report release. Are we headed for a constitutional crisis?

[23:35:00] (COMMERCIAL BREAK)

LEMON: House Democrats are holding firm in their demands for the full Mueller report, setting the stage for a big legal battle with the Trump administration.

I want to bring in former assistant special Watergate prosecutor, Jon Sale, also William Howell, the author of "Relic, How our Constitution Undermines Effective Government and Why We Need a More Powerful Presidency." Wow. Now, that is a book title. Thank you, gentleman, for joining us this evening. We appreciate it.

So, William, let me start with you. The House Judiciary Chair Nadler has a subpoena ready to be served for a full report and we -- are we headed for a big legal battle no matter what we see tomorrow?

WILLIAM HOWELL, PROFESSOR IN AMERICAN POLITICS, UNIVERSITY OF CHICAGO: Possibly. I think a great dial hinges upon how much is redacted, what we learn from that which isn't redacted.

[23:40:02] This may play out in the courts. I don't think we're likely though to see a full on -- sort of a full blown constitutional showdown between the two branches of government. There's too much in play, not just involving Russian collusion, but on all sorts of issues evolving this presidency, the likelihood that it's going to come to a head. Given what we know about what's in the Mueller report thus far, I think it's unlikely.

LEMON: So, not a constitutional crisis we're headed towards?

HOWELL: I don't think so. The attorney general has a fair bit of discretion to decide what to release and what actions to take, just as Congress has clearly the power to subpoena. Those things maybe put at odds. If they are at odds, the actual shift over to the courts and the courts will likely push both parties to try to come to some kind of political decision. And it may well be that both the House Democrats and the administration have incentives to come to some kind of accommodation.

LEMON: OK. So, let's bring Jon Sale in because, Jon, you're sitting by patiently. So much is at stake in seeing this Mueller report. I'm wondering what you think of what William said. Are we headed for a constitutional crisis?

Jon SALE, FORMER ASSISTANT SPECIAL WATERGATE PROSECUTOR: Well, I think our institutions are going to work. I mean I lived through a real potential constitutional crisis at the time of the Saturday night massacre in Watergate when the president was going to defy a court order. That's what I define as a constitutional crisis.

I think you have to go back to Andrew Jackson when he said something like John Marshall ordered something (inaudible) and it was the weight of public opinion that caused the president to back off.

But a constitutional crisis to me would be if the president says to the court I'm going to defy your order. That's when the three branches of government -- it's really not the two. It's the three. But I do -- one thing I do think this matter is going to be decided by the courts because Congressman Nadler said he has got a subpoena ready to go. When that subpoena is served, they're demanding an unredacted version. They're not going to get it. And the matter is then going to be resolved in the courts. But I think the president will ultimately abide by a court order. And I'm sure the attorney general will.

LEMON: I'm wondering though if we're at a -- if we're at a tipping point, William, because -- and what do you think about the president pushing the limits of executive power in the administration he tries to withhold -- if he tries to withhold this report. He did. Are we at tipping point, you think?

HOWELL: I think -- I'm not sure if tipping point is right. There's continuities to recognize with this president and there are some breaks. The continuities are that in the modern era really post-FDR we see presidents consistently pushing outwards on the boundaries of their power. This is what presidents do.

They look for ways to expand their authority in order to meet public claims that they can't possibly meet where -- when you just have a sort of narrow reading of the constitution on the one hand.

On the other hand, I think we've seen a politicization of the executive branch generally and of the justice department, in particular, taken to new heights. I think that there are lots of heightened concerns about Barr's action and his relationship with Trump and the extent which is acting in ways that are acting independent of Trump.

There are unique issues that we face that are -- that have real bite to them. Are they all new or yet is this something to structurally (ph) different from anything that we've seen before? Probably not. But it's a real acute moment that's in front of us.

LEMON: Yes. So, you know, in the last hour, I spoke with Congresswoman Dean about -- Madeleine Dean about the Mueller report and here is what she said that Congress will do. She said, Congress will not be denied. Watch this.

(BEGIN VIDEO CLIP)

REP. MADELEINE DEAN (D-PA): We have a constitutional job to do on behalf of the American people to make sure we get at the facts and the evidence about what happened in the interference in our election. So, we'll continue to do our oversight. And I don't think the contortions that the attorney general and Department of Justice seem to be going through would last very long.

(END VIDEO CLIP)

LEMON: She seems pretty certain, Jon, that the law is on her side.

SALE: Well, fortunately, that's what the courts are for. But I think the criticism we've heard tonight, all week, from political people, from legal people of the attorney general is really unfair. He's doing what he said he would do in his conformation hearing. He said he is going to be as transparent as possible, subject to the law. And I think he's going to give the Congress more than they're expecting, but he can't give them grand jury testimony

I mean, the law is clear on that and the law in the District of Columbia Circuit -- there's a case decided two weeks ago that said, the court does not have inherent power to order the release of grand jury testimony unless it comes in within this -- I don't want to get too lawyer alike -- but within the specific exceptions. And I think on grand jury testimony, we're just going to have to wait until sufficient time elapses when it all comes up.

[23:45:03] And I want to say one thing about the attorney general. To take the job at this stage of his life, I don't think he is going to want to go down in history as the attorney general in charge of a cover up. I think ultimately he is going to follow the law and -- but all the criticism of him, at best, is premature. We certainly -- let's wait and see what he does.

LEMON: But he did -- he's not doing exactly what he said in his confirmation hearings. He said he did not -- he wanted to wait for the plane to land. He did not want to comment on the report before everyone got to read the report. He's holding a press conference two and a half hours before the report is actually released or an hour and a half, maybe two hours before the report is actually released.

He's holding a press conference about a report that no one has written. How is that not -- how should one not be critical of that? And how is that doing what he said in hearings? He didn't say -- he's doing the opposite of what he said in his hearing.

SALE: Because -- well, I think because we're assuming what the press conference is all about. I don't think he's going to talk about the report. I think he's going to talk about the process that was followed. And he's going to be around. The report is going to be around --

LEMON: Jon , with all due respect, he said that last week. He gave the process last week. What's new unless the process has changed? Why even hold a press conference if he's not going to talk about the report?

SALE: Because -- no. Well, I'm not here to be an apologist for the president or the attorney general. All I'm saying is I think that would be a fast (ph) 10 o'clock tomorrow. Let's see what he has to say. That's the point I'm making.

LEMON: OK. William, I'll give you the last word.

HOWELL: Well, I think that these procedural concerns are second order. I think what's really at stake here is, first, what do we learn from the report and more generally when are we going to see some meaningful leadership on the threat that it clearly establishes that Russia intervenes in the elections in 2016 and constitutes a very real threat moving forward in 2020 as well.

This is something which the president hasn't stepped forward on and offering any meaningful leadership. And that whether or not he colluded or not, we need to see some action coming from the executive branch on that issue. We haven't seen any thus far.

LEMON: We'll, let's see what Jon said. We'll see soon enough and wait to hear what the attorney general has to say and what the report says. Thank you, gentleman. I appreciate your time. We'll be right back.

HOWELL: Thank you, Don. Good to talk to you.

[23:50:00] (COMMERCIAL BREAK)

LEMON: Newly released text messages from Chicago's top prosecutor on the Jussie Smollett case. Here's a quick refresher, OK? So, in late February, Smollett was arrested after accusations that he falsely reported a hate crime against him in Chicago. Weeks later, the state's attorney's office abruptly dropped the charges. The state's attorney, Kim Foxx, said that she had recused herself from the case, but newly released text messages between Foxx and a top assistant show that she still communicated with her staff about all of it.

So, joining me is Eric Sussman. He is a former first assistant state's attorney for Kim Foxx. Mr. Sussman, it's a pleasure having you. Thank you so much.

ERIC SUSSMAN, FORMER FEDERAL PROSECUTOR: It's a pleasure being here.

LEMON: Let's start with some of the texts, OK, the text between Foxx and assistant state attorney Joseph Magats, all right? And Foxx writes this. She says, "So, I'm recused. But when people accused us of overreaching -- overcharging cases, 16 counts on a class 4 becomes Exhibit A, pedophile with four victims 10 counts, washed up celeb who lie to cops 16 counts. Just because we can charge something, it doesn't mean we should."

She's talking about the disparity between the charges given. That's what we think between Smollett and R. Kelly.

SUSSMAN: Right.

LEMON: Given that Foxx has recused herself, were the texts appropriate?

SUSSMAN: Well, I mean the texts were not appropriate. I mean, there's no question there. She -- and she knew they weren't appropriate, which is why she began by saying, so I've recused myself but let me tell you what I think about the charging decision you made, Mr. Magats, and then as you know, she went on to even suggest an outcome that she thought was appropriate in the Smollett case.

LEMON: Can you explain for our audience why only a partial record of the text between Foxx and Magats had been released?

SUSSMAN: Well, essentially, under FIA, the Freedom of Information Act, the news media requested all of the text messages surrounding the Jussie Smollett case and particularly surrounding Kim Foxx's involvement to try to figure out why the case was dropped.

So there was a dump of about 3,000 text messages and e-mails yesterday. What's interesting is not so much what the news media and what we in the public got in terms of the text messages you referred to.

What's actually most interesting are the set of text messages between Kim Foxx and her first deputy that we did not get, that the office is withholding. Because in theory, if she's recused, there shouldn't be any text messages between her and her first deputy or her assistant about the Jussie Smollett case. But instead, what we saw was there are five of them, at least, and that the office is not turning them over.

LEMON: Are we -- eventually, will we be able to see them?

SUSSMAN: It's unclear whether we'll be able to see them. The -- I'm sure the news media will be challenging those. And I'm sure the investigation that's being done by the inspector general would want to look at those.

But it's fairly clear given what they told us about those texts when they withheld them that they're clearly texts about the Jussie Smollett case between Kim Foxx and her first assistant. And in certain of those texts, which took place on the day the charges were dropped, the office, the explanation they gave for not giving over those text messages was they were involved the deliberative process.

[23:25:10] so, in other words, the office is essentially conceding that she and the first assistant were talking strategy about the Jussie Smollett case, a case where the next day when she was interviewed she claimed to have absolutely no conversations about the case with anyone in her office.

LEMON: Do you think something's --

SUSSMAN: So, it's really disturbing.

LEMON: All right. So, I was going to say do you think something is fishy here because, you know, people are calling for her to step down they think -- because of her handling, what do you think? Should she?

SUSSMAN: Well, I don't -- look, I don't have an opinion as to whether she should step down. I think she was elected. But I do think, you know, she ran on a platform of transparency, a platform of integrity.

And what's going on now in terms of what the public is being told and the deceptions and the withholding of documents and the secrecy and the different explanations -- I mean, it undermines the reason she was elected and it undermines confidence in the justice system in Cook County, which has suffered enough over the last four years, and really doesn't need what's going on now.

LEMON: Eric Sussman, we always appreciate you, thank you so much.

SUSSMAN: My pleasure.

LEMON: Thanks for watching. Our coverage continues.

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