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DOJ Memo Says, Executive Branch Witnesses Must Be Allowed To Bring Government Lawyers To Testimony; Nine Americans Killed In Brutal Ambush In Mexico Near U.S. Border; Michigan Voters Split On Impeachment. Aired 10-10:30a ET

Aired November 05, 2019 - 10:00   ET

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

JEAN CASAREZ, CNN CORRESPONDENT: -- asking the perpetrator to come forward, to know who you are and also anyone in that restaurant that can give identifying characteristics, because he's on the loose.

[10:00:07]

POPPY HARLOW, CNN ANCHOR: My goodness.

JIM SCIUTTO, CNN ANCHOR: Jean Casarez, thanks very much.

HARLOW: Thank you.

CASAREZ: Thank you.

HARLOW: All right, top of the hour. Aood morning, everyone. I'm Poppy Harlow.

SCIUTTO: And I'm Jim Sciutto.

New this morning, a new justice department memo says that White House impeachment witnesses should have a government lawyer present for House testimony calling any interviews without such government lawyers present legally invalid. It's a move that could open the department again to accusations of running interference for the White House here, but the key question is will it hold up in court.

HARLOW: Also today, Democrats are set to release the testimony transcripts from two more key witnesses in this probe, former special envoy for Ukraine, Kurt Volker, and U.S. Ambassador to the European Union Gordon Sondland. Both of them worked with Rudy Giuliani on a separate shadow, if you will, diplomacy with Ukraine.

Let's go first to to our Congressional Correspondent, Phil Mattingly. He joins us live on Capitol Hill.

So you have that, we're waiting for those and where two depositions that were scheduled for today does not appear again, just like the four yesterday like those are going to happen, is that right?

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes, it's a little bit of a split screen here. You have the public aspect of things as things start to spill out from those closed-door depositions, obviously, another two today, soon, public hearings as more transcripts come up. But you still have the scheduled closed-door depositions.

And as you noted, yesterday, the individuals who were asked to come did not show up. Today, it is going to be the same, according to people who are familiar with this process. Wells Griffith, a White House official and assistant to the president who works in the National Security Council, he has not shown up, and it's past 9:00 P.M., so I think it's pretty safe to say he's not coming, and also Michael Duffy who works at the Office of Management and Budget, who is a key player in the decision to withhold or at least sign off on the decision to withhold nearly $400 million in U.S. aid to Ukraine, has not shown up either. And they expectation throughout this process has been OMB officials would not show up.

And I think what this all underscores is why you have seen the shift towards the public phase of things. There is recognition now that as they kind of move up the chain and get closer to President Trump, those individuals are deciding in line with the administration saying they don't believe this is a legitimate inquiry not to show up. Then you reach the point of diminishing returns.

And when you talk to Democrats, guys, they believe, they say, they think they have enough to move forward already. So they'll keep scheduling these. If people don't show up, they'll move further into that public phase, two more depositions today. Expect depositions throughout the course of this week, and pretty soon, public hearings. Guys?

HARLOW: Yes.

SCIUTTO: Two more transcripts out today, what do we expect to see in those transcripts?

MATTINGLY: I think what's most interesting about these is really two- fold. Kurt Volker and Gordon Sondland are two who were intimately involved in the administration's Ukraine policy, both the official Ukraine policy and also kind of the shadow diplomacy, shadow policy that Poppy was referring to there. They were referred to as kind of two of the three amigos by William Taylor that were involved in the quote/unquote, irregular channels. They were deeply involved in conversations not just with administration officials but also with Rudy Giuliani. We're keenly aware of what individuals were doing outside the regular channels.

I think what's different about today's testimony from yesterday is yesterday is you got kind of a sense of how far the administration or actors that were aligned with the administration were willing to go to undercut a career diplomat. And I think when you read some of Marie Yovanovitch's testimony, it was almost surreal how things were happening and how she described them, seeing them from the inside, watching from the outside.

What's most important about today is these are two individuals who testified directly about whether or not there was a, quote/unquote, quid pro quo. Now, Republicans have been very clear. They have been waiting for Kurt Volker's testimony to come out. They believe that deposition is helpful to the president. Democrats and Republicans both have also been keenly waiting for Gordon Sondland's testimony to come out. The reason why there are several elements that Sondland testified to that in later depositions with other witnesses, they either contradicted them, they made it clear that he either had misstatements or misrecollections of things.

Keep an eye on kind of every piece of that testimony because that is going to be an indication whether Gordon Sondland, who, again, ambassador of the E.U., not totally sure why he was deeply involved in Ukraine policy, but he was, whether or not he will be called back for public hearings, one of those individuals that may consider. Guys?

SCIUTTO: Phil Mattingly on the Hill, thanks very much.

Let's get more from the White House now on that Justice Department memo.

HARLOW: It claims that any testimony is, in their words, legally invalid unless a government lawyer is present. Our Boris Johnson joins us this morning from the White House.

It's interesting. It is a new legal reasoning for the stonewalling we've been seeing.

BORIS SANCHEZ, CNN WHITE HOUSE CORRESPONDENT: Yes, that's right. Good morning, Poppy and Jim. This is effectively an attempt by the Department of Justice to limit the scope of House investigators and their reach and their ability to question officials within the administration about President Trump's dealings with Ukraine.

The legal reasoning in this five-page memo hasn't really been tested in court before, but it's important to point out that federal courts historically, generally speaking, have not allowed executive privilege or this version of it to get in the way of a criminal investigation. This is almost certainly something that Democrats are going to wind up challenging in court, so prepare for that legal fight.

[10:05:03]

And, of course, all of this is happening against the backdrop of President Trump expanding his attacks on this whistleblower. Just yesterday, before departing for a rally in Kentucky, the president, again, reiterated his attacks on the whistleblower, suggesting that this person's account of his call with President Zelensky of Ukraine was a fabrication and that this person was just out to get the president.

Of course, we know that this whistleblower's account has been corroborated by multiple administration officials, whether Bill Taylor or Lt. Col. Alexander Vindman, others that expressed concern over the president's attempt to withhold aid from Ukraine in exchange for political favors, namely an investigation into his potential 2020 rival, Joe Biden. Poppy and Jim? HARLOW: Boris Sanchez, thank you. I'm told I called you Boris Johnson.

SANCHEZ: It happens all the time.

HARLOW: Giving you a little promotion.

SCIUTTO: Is there a Boris Johnson? Is there a real one?

HARLOW: In the U.K. Sorry, Boris.

SANCHEZ: He has better hair.

HARLOW: That we can agree on.

All right, joining us to discuss all of this on a serious note, Robert Ray, former federal prosecutor, of course, he worked on the Whitewater investigation. Nick Akerman is also here, former assistant U.S. attorney who was involved in Watergate. Thank you both, gentlemen, for being here.

And, Robert, let's begin where Boris Sanchez ended his reporting there.

ROBERT RAY, FORMER FEDERAL PROSECUTOR: Now that we've got that straight.

HARLOW: Now that we've got that straight, facts first here always. On a very serious note though, do you support what we saw last night at the rally, the president, again, efforts to unmask the whistleblower in violation of federal law?

RAY: I think that the issue about the whistleblower and corroboration seems to get in the way of the obvious reality that we now have the transcript of the call with minor discrepancy aside about whether or not the words Burisma were mentioned versus what appears in the transcript which is the word company. I think all of this hullabaloo, if you just take a step back and sort of exercise some common sense here, corroborating the whistleblower, I understand, is the fashion and flavor of the moment, but the long and short of it is we have got pretty close to what I suspect is a transcripts of the actual call. So corroborating the whistleblower at this point doesn't seem to be as important as it might have once been.

HARLOW: It's an interesting point because the president keeps saying the whistleblower is totally wrong.

SCIUTTO: And to be clear, it's more than about the call, right? Because from this sworn testimony, you are seeing efforts over a number of weeks, are you not, Rudy Giuliani inserting himself, pushing out career State Department officials, et cetera. Based on what you have seen, and we have this enormous Whitewater experience, Watergate experience here, based on what you see now, do you see evidence of an article of impeachment for abuse of power?

NICK AKERMAN, FORMER ASSISTANT SPECIAL WATERGATE PROSECUTOR: Absolutely. It's not only abuse of power. I mean, the constitution provides for bribery as an act of -- for impeachment. We clearly have bribery here. We have a quid pro quo, we have corrupt intent, and corrupt intent is really defined by the courts to just be an improper purpose. The improper purpose here was using the levers of government, the $400 million appropriated by Congress, in order to get the Ukrainian government to Trump in his re-election campaign by investigating the Bidens.

You've got all the circumstances surrounding this that just reek of corrupt intent, hiding transcripts, people being told not to testify, hiding the ball on the facts here. So, yes, and you've also got extortion, the Hobbs Act, where, in fact, the Ukrainian government is being extorted with the money that was appropriated by Congress, the same thing that the governor of Illinois had been convicted on trying to hold back Medicaid payments in return for a campaign contribution. This is a slam dunk case, as far as I'm concerned.

HARLOW: Something tells me Robert Ray does not think that this is a slam dunk case. Well, let me just -- let me get your response.

RAY: I mean, I suppose it's enough to say it's not a slam dunk case, but --

HARLOW: But let me get you to respond to one part, the beginning of the case Nick -- he said it's bribery. Is it bribery if, Robert, the aid -- I think this is the Republican argument right now. If the aid eventually flowed, even though there is nothing disputing it was withheld, if the aid eventually flowed and the requested investigation into the Bidens did not happen.

RAY: Well, you have to prove corrupt intent. And under the law, there is no requirement that a bribe or an extortion actually be completed. So that's true as a legal matter. But that doesn't really answer the question about of a rather novel and expansive theory of campaign finance law that's going on here to suggest that the opening of a investigation is a personal thing of value to the president of the United States that would form the predicate of either a bribery case or an extortion case.

SCIUTTO: It's not in the president's -- it's not value to the president's to investigate a likely political rival?

RAY: Well, there are all kinds of reasons why you might call for an investigation that would be innocent reason, separating the part from what you're suggesting, which is that it's clearly and unmistakably of personal benefit to the president of the United States.

[10:10:04]

And that is, frankly, in the criminal context a rather novel extension of the bribery and extortion statute, one that the Supreme Court and other lower federal courts have been concerned about, this whole notion of the illegality of an in-kind campaign contribution is one that the Supreme Court has struggled with since the early 1990s.

So before we sort of wander off into impeachment land over what I think is, you know, arguably a pretty thin case that would be a criminal case that would have to be the predicate in addition to being able to show as an article of impeachment that constituted an abuse of power seems to be a long way away from suggesting that this is an open and shut case.

AKERMAN: This is, by no means, a thin case. This is a situation where there is just tons of evidence of corrupt intent. This is the exact same thing the governor -- former governor of Illinois was convicted of and is now serving time in jail for. It's the same thing, withholding government services, Medicaid and return for a campaign contribution.

Here, Donald Trump was withholding $400 million. He was withholding a visit to the White House in order to get an investigation into his prime political rival. None of this had any national purpose behind it. This wasn't some kind of interest in just finding out about corruption in Ukraine. This was all about Donald Trump, just like everything else he does is all about Donald Trump.

HARLOW: Robert?

RAY: Well, I think the answer to that question is we now have the investigation resident with John Durham, who is the U.S. attorney in Connecticut. It is sufficiently insulated from the political process. The attorney general has made clear that he is not in direct supervision of that investigation, that it's up to John Durham to decide. I don't know where that's going to lead.

I also don't know what we're going to see as the result of the Michael Horowitz investigation. I mean, I've asked for that report now as a present for Christmas. Hopefully, we'll see it before the end of the year. But it will also shed some further light about the origins of the Russia investigation. And you may well be right that the Ukrainian connection either does or doesn't have merit, so far, I don't know.

SCIUTTO: It is not us that's right, it is the Intelligence Community that assessed with high confidence it was Russia. And by the way, Mike Pompeo was CIA director at the time and endorsed that assessment.

AKERMAN: And now we have prosecutor who's looking into it so we'll know the answer, I would imagine, at some point.

SCIUTTO: Why do you need a -- I guess I'm just curious. Why do you need a prosecutor to look into whether Russia -- whether the Intelligence Community assessed with high confidence that it was Russia that interfered? On what basis does that prosecutor have that it was actually Ukraine?

RAY: We don't know yet. I mean, it depends on what the evidence and the facts are. That's why you have somebody charged with looking into it. Just because you have an investigation doesn't pre-judge whether or not it has any merit. That's why you look into it. That's what he is looking into. And that's also one of the reasons, and I think the error in judgment here is that's why you run things through proper channels. The argument that you get into when you don't do that is that political motivations become ones that the average American can see and become concerned about whether the actions are politically motivated. That's what we're trying to avoid and that's now why the investigation is where it should be.

HARLOW: A very quick response.

AKERMAN: Yes, very quickly. First of all, the John Durham investigation has nothing to do with this Ukraine matter and the bribery and extortion. Secondly, we have an indictment of 12 Russian intelligence operatives for breaking into the Democratic National Committee. It's all detailed in a 30, 40-Page indictment. The idea that it was Ukraine that was behind this and not Russia is a total fiction.

SCIUTTO: Well, it's a good point, because the standard for those criminal prosecution is even higher than what an intelligence assessment standard would be. And by the way, that's just formed under a Trump appointee that brought forth --

AKERMAN: And a grand jury that decided that.

RAY: And if that's correct, then there won't be charges. I mean, that's how it works.

SCIUTTO: The point is what evidence is presented to say that that's not correct, and that's the point. The president has thrown around a conspiracy theory that has no basis, as far as we know. And the question is what standard do you need to open the investigation.

RAY: Well, we won't know until the investigation is concluded. I mean, that's -- and, again, I think that's as it should be.

AKERMAN: But this investigation has nothing to do with the Ukrainian bribery and extortion.

HARLOW: You two should come back more.

SCIUTTO: I think we're going to have you back.

AKERMAN: We'll try.

RAY: I have a feeling this will not be the end of it.

SCIUTTO: Robert Ray, Nick Akerman --

AKERMAN: Thanks very much. Thanks for having us.

SCIUTTO: We appreciate having you both.

RAY: Thank you.

SCIUTTO: Still to come this hour, happening now, voters heading to the polls in several key states. Coming up, we're going to see what today's elections could tell us about voters' feelings heading into 2020.

HARLOW: Also breaking overnight, a tragic story, nine Americans, including six children, killed in Mexico in a brutal attack. We'll give you a live update.

And Michigan, of course, key to the president's victory in 2016, it will play a big role again in 2020. How is the impeachment inquiry playing there in a specific swing district?

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: It's horrible. It is horrible what they are doing.

UNIDENTIFIED FEMALE: The president is doing a great job.

[10:15:00]

UNIDENTIFIED FEMALE: I think it is important that the inquiry be going on.

(END VIDEO CLIP)

SCIUTTO: We're following breaking news, just a disturbing story near the U.S.-Mexico border, details of a brutal attack that left nine American family members dead, most of them children.

[10:20:03]

All nine were members of the Mormon community living there.

HARLOW: Devastating. Three mothers, six children were killed when their convoy of cars was ambushed in the State of Sonora, in Mexico.

Our International Correspondent, Matt Rivers, joins us again this morning.

Matt, what do we know?

MATT RIVERS, CNN INTERNATIONAL CORRESPONDENT: Yes, Jim and Poppy. I mean, this story just continues to develop. And each time we get more information, it just seems more and more tragic.

What we know is that it was on Monday around 3:00 P.M. when those three cars you mentioned carrying three women and 14 children in total left the compound where hundreds of people in the Mormon community that you mentioned have lived for decades now. They were actually headed towards the U.S. Border. It was around 3:00 P.M. when gunmen attacked that convoy.

And you can see in the video not only did they leave the cars riddled with bullet holes killing a total of nine people, but they also set at least one of the cars on fire. And a family member that we spoke to thinks that some of the people that were killed were actually burned alive. In terms of the motive, the speculation, according to the government in a press conference they gave this morning, as well as family members we've spoken to is that this could just be a case of mistaken identity. This is a region of Mexico that has been plagued with drug cartel violence for decades now. And what the government thinks might have happened here is a cartel mistook this convoy for a rival cartel and that's why they did what they did.

One thing that stood out this morning was the government response with the president of Mexico in a press conference saying it took national or federal authorities here four hours to reach the scene. It's all compounded into this pain for the family members that are surviving. Let's hear what one relative had to say.

(BEGIN VIDEO CLIP)

LEAH STADDON, FAMILY MEMBERS KILLED IN MEXICO ATTACK: I think a lot of us are just speechless. It's horrific.

My sister could actually see the smoke from her House and they heard the gunshots. I just can't believe that this has actually happened to our family. It just seems like a bad dream.

(END VIDEO CLIP)

RIVERS: And President Trump tweeted about this this morning saying that it's time for Mexico to go to are war with the United States' help against the drug cartels, unclear if Mexico's president will be willing to do that. Jim, Poppy?

HARLOW: My God. Matt Rivers, all I could think with your reporting is you said there were 14 children and six were murdered, which means that eight other children witnessed this and then waited four hours for authorities to get there.

SCIUTTO: And one was alive and injured when they got there four hours later. Horrible story.

HARLOW: Matt, thank you very much.

All right, so on politics here, you've heard from the pundits and legal experts and the lawmakers. Now, it is time to hear from the voters in Michigan on this impeachment inquiry, next.

(COMMERCIAL BREAK)

[10:25:00]

HARLOW: Once again, Michigan looking like a battleground state in the 2020 election. A prime example, Michigan's 11th district. The president won it in 2016, but it flipped for the Democrats in the midterms.

Our National Correspondent Jason Carroll went there to ask voters what they think.

(BEGIN VIDEOTAPE)

JASON CARROLL, CNN NATIONAL CORRESPONDENT: It was affluent suburbs and overwhelmingly white. Michigan's 11th is a congressional district carved Out of an area just northwest of Detroit.

DONALD TRUMP, U.S. PRESIDENT: Who won the State of Michigan after decades?

CARROLL: It's also a district that voted for Trump in 2016, then flipped and elected a Democratic congresswoman, Haley Stevens, in last year's midterms. It's a swing district in a swing state. So no surprise voters split on the impeachment inquiry.

UNIDENTIFIED FEMALE: I think it's a sham, okay? I think the president --

RITA DUNNING, TRUMP SUPPORTER: It's horrible. It's just horrible what they're doing.

UNIDENTIFIED FEMALE: The president is doing a great job.

CARROLL: In Plymouth, Michigan, Rita Dunning (ph), a former autoworker, proudly shows her support for Trump on her Ford pickup truck.

DUNNING: Women in Michigan love President Trump, end of story.

CARROLL: I saw your truck.

DUNNING: Yes. Women -- quit saying women are not for Trump.

CARROLL: Tell that to Amy Neale, a marketing director who says the inquiry is long overdue.

AMY NEALE, SUPPORTS IMPEACHMENT INQUIRY: I think it's heading in the right direction finally, the impeachment. I think that we're getting the evidence we need and I hope he gets what's coming to him.

CARROLL: UPS worker Steven Play (ph) says it's the Democrats who deserve to have what's coming to them, he says, for undermining a president who has done so well on the economy.

STEVEN PLAY: Look at the real estate. I mean, house goes on the market, it's gone in a week. I mean, the economy is just booming.

CARROLL: Since Trump's election, the state's unemployment rate has dropped nearly one point.

It should be noted, he narrowly won Michigan in 2016 by just over 10,000 votes after Obama won it twice.

CHRISTINE WILLIAMS, SMALL BUSINESS OWNER: He needs to face consequences for his actions.

CARROLL: Christine Williams is a small business owner who supports the inquiry. She says it's about more than just the bottom line. WILLIAMS: I think it's important that the inquiry be going on. I also think it's important that we not be distracted by it and that there is actually governance going on as well too.

CARROLL: About 30 miles northeast of Plymouth in the upscale suburb of Birmingham, former Marine Paul Cain (ph) also supports the inquiry.

PAUL CAIN, FORMER U.S. MARINE: I wouldn't look upon myself as left or right wing. I'm more middle of the road.

CARROLL: Cain says he is upset over how the president and his allies have criticized decorated war veteran and White House official Lt. Col. Alexander Vindman.

[10:30:08]

CAIN: That was just totally --