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A Major Court Ruling Is Expected, Could Give A Boost To Democrats In Impeachment Inquiry; Controversy At The Pentagon; President Trump Has Found A More Secluded Space To Work In The Executive Residence. Aired 2-2:30p ET

Aired November 25, 2019 - 14:00   ET

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

[14:00:15]

BROOKE BALDWIN, CNN HOST: Hi there. You're watching CNN. I'm Brooke Baldwin. Good to be here.

Within the next couple of hours, a major court ruling is expected that could give a boost to Democrats in this Impeachment Inquiry. It could open access to firsthand testimony from people in the President's inner circle, many of whom have talked to him directly about Ukraine and the millions in military aid it was initially withheld. More on that in just a moment.

As we wait for that judge's decision, we are learning more details about what the White House knew regarding the nearly $400 million that Congress had approved for Ukraine security.

"The Washington Post" is reporting that a confidential White House review uncovered hundreds of documents hundreds -- hundreds -- showing an effort to come up with a quote-unquote "after the fact" justification for why President Trump chose to keep the money from Ukraine. And the review came after the White House learned of that whistleblower complaint.

So let's start at the White House with our correspondent there, Boris Sanchez, and Boris, any response from the White House on this?

BORIS SANCHEZ, CNN WHITE HOUSE CORRESPONDENT: Hey, Brooke. Yes, the White House Counsel's Office has declined to comment on this story in "The Washington Post." The O.M.B. put out a statement effectively saying that these e-mails, these hundreds of documents show that they were trying to comply with the law every step of the way.

They said that these e-mails show that they're following procedure. But as you pointed out, this quest by Mick Mulvaney, to find reasoning to find justification legally for withholding aid to Ukraine came after that decision was already made. It also came after the White House counsel learned that there was this administration official who was unhappy with the way that the President was handling Ukraine policy, who ultimately filed that complaint that led to impeachment proceedings.

Notably in these e-mails, there's also this dispute between officials at the O.M.B. and officials at the State Department and the National Security Council over whether this holding of aid was even legal.

Take a look at this from "The Washington Post" they write, quote, "E- mail show that O.M.B. staffers arguing that withholding aid was legal officials at the National Security Council and State Department protested. OMB lawyers said that it was legal to withhold the aid as long as they deemed it a temporary hold. That's according to people familiar with the review."

That is really important to keep in mind because in these e-mails, Mick Mulvaney is actually asking what temporary means legally. He wanted he wanted to know how long this temporary hold could actually last.

Also important to point out in this "Post" reporting, two White House officials tell "The Washington Post" that the President made the decision to withhold aid back in July, quote, " ... without an assessment of reasoning or legal justification," even if you step back from all of the controversy that this led to. It is yet more evidence of the way that this White House runs with the President making decisions based on his gut, not an actual legal reasoning -- Brooke.

BALDWIN: Okay, Boris, thank you so much with all of the reporting. Let's discuss what he just laid out with our legal experts. Danya Perry, is a former Federal prosecutor and Paul Callan is a CNN legal analyst and former prosecutor.

First, just Danya, starting with the e-mails, how might this impact the Impeachment Inquiry going forward?

DANYA PERRY, FORMER FEDERAL PROSECUTOR: Look it all goes to, you know, the same conclusion that the Democrats are likely to draw from this, that there was bad behavior and that there was then a cover up. And it's the acts of deception after the fact.

The fact is this was a reverse engineer. The Democrats will certainly argue to try and provide legal justification for decision that was made by the President for his own political --

BALDWIN: On the legal justification, Paul, you know, Boris just read the quote from the O.M.B. lawyers, why would labeling the hold temporary -- temporary hold. Why would that make it what they did legal?

PAUL CALLAN, CNN LEGAL ANALYST: Well, it could make a huge difference if they come up with a justification for withholding the aid that's totally unrelated to the President's desire to investigate Hunter Biden and Joe Biden. If it was sort of a more general consistent with national security kind of reason for withholding the aid, then he gets a defense.

This is a Latin lover's dream, because I call it an ex post facto, no quid pro quo. How do you like that?

BALDWIN: What does that even mean?

CALLAN: An ex post facto law, which by the way is unconstitutional, is it kind of changes the facts of something that happened previously, all right.

So they're looking for -- they're going back into the past to try to say, we're going to change what really happened, which I mean, all the evidence seems to suggest that the President did what he did was because he wanted dirt on Joe Biden.

BALDWIN: Right.

CALLAN: So, now we'll change that to make it look like there was a legitimate national security reasons for withholding the aid, so there -- that's an ex post facto act, and it has to do with the bribe, the quid the quid pro quo.

[14:05:09]

CALLAN: So, I'm really -- I shouldn't be using either of those phrases on television, but it was irresistible. So --

BALDWIN: Just to call it Latin lover's dream. Why did you --

CALLAN: Latin lover's dream, ex post facto quid pro quo. Yes, there you go.

BALDWIN: There you go. Do you think -- what's the likelihood that the House Democrats would even get their hands, Danya, on these e- mails?

PERRY: I think it's highly likely.

BALDWIN: Yes.

PERRY: I mean, these are subject to public records requests. And it's because it's not just internal White House documents, its external with agencies, N.S.C. and the office of -- and the O.M.B. So I think it's highly likely and certainly now that this is out there, I'm imagining there's already a request in.

BALDWIN: Okay, let me turn the page and ask you about we're waiting for this decision, which could come as we mentioned off the top, you know, any moment, the next couple of hours on this judge ruling and potentially in the Democrats' favor with regard to Don McGahn and so obviously, it's news depending on which way the judge decides.

But how would, Paul, you know, depending on how it goes, might this impact potential future testimony of John Bolton or a Mike Pompeo or a Mick Mulvaney?

CALLAN: Well, I think it'll have an enormous impact.

BALDWIN: Why?

CALLAN: Because there are witnesses out there, who at least many of the Democrats in the House think will provide information that would support impeachment.

And I think it's very important that such people as Bolton and McGahn and others testify. This will be a ruling as to whether executive privilege applies, whether there's an attorney-client privilege, or whether there has been a waiver.

Because remember, that even if you have these privileges, by making public statements about the conduct in question, there's always an argument that you've waived the attorney-client privilege or the executive privilege. So this is a very important ruling by the court.

BALDWIN: So if the judge green lights, Don McGahn testifying, would that mean that John Bolton would have to testify A, just point blank and B, how could the White House fight that?

CALLAN: Well, McGahn is in a position where he sort of has a double privilege that he can assert. He can say it's an attorney-client communication, so it's protected. And also, I'm one of the top advisers to the President. So that might be an executive privilege situation.

Bolton would only have the executive privilege defense to prevent him from testifying. But if the judge rules against the attorney-client privilege and against the executive privilege claim, Bolton will have to testify, McGahn will have to testify and a number of other people may have to testify.

BALDWIN: Danya, underscoring the significance of this ruling.

PERRY: Yes, it's huge, not just obviously from McGahn's testimony, but for Bolton and his Deputy as well. And, you know, they have said that they will testify if there is a favorable ruling from the District Court Judge.

So it that could have happens sooner rather than later. Obviously, there are layers of appeal, which likely will happen relatively quickly.

But from the statements that at least Bolton has made, it seems he will testify. You know, he has certainly been teasing that he will and that could happen in short order.

BALDWIN: Okay. Danya and Paul, thank you very much.

CALLAN: Thank you, Brooke.

PERRY: Thanks.

BALDWIN: Please stay tuned with that judge in the coming hours. Meantime, this fiasco at the Pentagon and Navy Secretary forced out and delivers this scathing rebuke of the President. We will talk live with one of his predecessors. I get his opinion on all of this.

Plus, a dangerous new phase. Republican senators embracing and peddling the President's debunked conspiracy theories -- theories that benefit Russia.

And why is the President reportedly spending more time inside the White House residence instead of the Oval Office? We've got the scoop on that. You're watching CNN. I'm Brooke

Baldwin. We will be right back.

(COMMERCIAL BREAK)

[14:13:46]

BALDWIN: We're back. You're watching CNN. I'm Brooke Baldwin.

To this controversy at the Pentagon. There are varying accounts today over why the Secretary of the Navy was pushed out of his job.

Secretary of Defense Mark Esper says he fired Richard Spencer for going outside of his chain of command and proposing quote-unquote "a secret deal" with the White House.

This all centers around this scandal involving a Navy SEAL Eddie Gallagher. He was accused of war crimes and was acquitted of murder, but convicted of posing with the corpse of a 12-year-old ISIS fighter.

As result he was demoted in rank, but his case started this power struggle between the Navy and the Commander-in-Chief, President Trump.

Trump intervened, ordered Gallagher's rank to be restored earlier this month. But when the Navy began a review of whether to expel Gallagher from the Navy SEALs, the President intervened again. And now the Secretary of the Navy has been forced out.

In a pretty powerful resignation letter to the President, former Secretary Spencer wrote, quote, "I no longer share the same understanding with the Commander-in-Chief who appointed me in regards to the key principle of good order and discipline. I cannot in good conscience obey an order that I believe violates the sacred oath I took."

So let's start here with CNN Pentagon Reporter, Ryan Browne.

And Ryan, are you getting any more clarification from Secretary Esper today? What's he telling you and just clarify for us what Spencer may have been trying to negotiate with the White House?

[14:15:12]

RYAN BROWNE, CNN PENTAGON REPORTER: Well, it's a great question, Brooke. You know, this morning, Secretary Esper came out and spoke to reporters in an attempt to kind of clear up what he felt was an incorrect narrative about why Secretary Spencer was ousted.

Now, he said it wasn't about the Eddie Gallagher case. It was about Spencer's violation of the chain of command. But again, this has all sparked, as you said from the Gallagher case and President Trump's decision to weigh in. Secretary Esper saying today that Secretary Spencer had in fact negotiated an arrangement with the White House without his knowing in an attempt to ensure that if the Navy was to go through its review process, the end result would be that Eddie Gallagher would retain his membership in the Navy SEALs upon his retiring from the Navy.

Now again, this is a Exactly what wound up happening because President Trump, Sunday night, ordered Secretary Esper to in fact, restore Eddie Gallagher's membership in the Navy SEALs, something that Secretary Esper said today he had done to allow him to retain that.

So again, unclear exactly what happened here and even to complicate things even further, Secretary Esper this morning said that the Navy Secretary Spencer had, in fact threatened to resign over this issue on Thursday, saying that he would not follow the order to restore Gallagher's rank.

So despite all of that confusion, Secretary Esper is saying this is not about Eddie Gallagher. This is about a violation of the chain of command.

But again, President Trump himself weighing in on Twitter last night, saying that Spencer had not kept costs low in the Navy and had also ruined the Eddie Gallagher case overall.

So it's really confusing exactly what happened here. We're going to try to find out exactly which narrative being pushed is the correct one.

BALDWIN: Yes. Ryan, thank you, and in our search for clarity, let me bring in Ray Mabus. He served as Secretary of the Navy under President Obama.

So Mr. Secretary, a pleasure. Thank you so much of course for your service to this great country and I've got a lot of questions for you.

RAY MABUS, FORMER SECRETARY OF THE NAVY: Okay.

BALDWIN: So let's just begin with you know the multitude of reasons for Secretary Spencer's exit, right? We're hearing -- as Ryan just outlined, President Trump said it had to do with cost overruns and the way Eddie Gallagher had been treated in the Navy.

You have the SecDef saying that it's because Spencer sidestepped DoD. And then you have Spencer himself saying it's because he didn't obey the President. So my question to you is, which of these reasons seems most believable?

MABUS: Well, what you've got here, as you pointed out is just chaos and confusion. And I don't think we ought to lose sight of the very central point here. None of this would have happened, not a bit of it if the President had not inserted himself absolutely inappropriately in a way that undermined military justice, in a way that dishonored the military who serves without committing war crimes, and in a way that just threw accountability out the window.

So I hope we can sort through this -- the various reasons. But that's not the basic issue here. The basic issue is we've got a President who is really causing immense harm to the military by these actions.

BALDWIN: Well, let me jump to that -- if -- let's focus on the President and how he has inserted himself. And I'm curious for you, you know, if you're hearing from other members of the military, and if there are fears that this sets a precedent, or how this could undermine commanders in the field, that certain atrocities overseas could now even go unpunished. What are you hearing?

MABUS: Well, if, if this is a precedent, it's a very dangerous one, because then accountability really doesn't matter. Then you can do anything you want to, as long as you've got the right connections. And it really goes to counter commander command. Can a service determine who is -- who has the merit to be in that service? Who is qualified to be in that service?

Because what happened here, the SEALs, Gallagher's SEAL Team compatriots turned him in. It was going to be a SEAL team or a group of SEALs, five SEALS that reviewed whether or not he would keep his trident. And the Navy does this all the time.

Since 2011, a hundred and fifty four tridents have been pulled for various reasons, not many this serious, but for various reasons.

And to say that, no, we're not going to do that. No, you're not going to be able to determine who is qualified to serve in your unit just causes this confusion and completely undermines the notion of a chain of command, completely undermines the notion of any sort of accountability.

[14:20:08]

MABUS: And the final thing is when you've got somebody on active duty, like Gallagher who goes on television, on "Fox and Friends ..."

BALDWIN: Actually pause, sir, Secretary Mabus, let me -- let me play the clip in case people haven't seen it. You read my mind. Here he was. Eddie Gallagher on Fox News.

(BEGIN VIDEO CLIP)

EDDIE GALLAGHER, U.S. NAVY SEAL: This is all about ego and retaliation. This has nothing to do with good order and discipline. They could have taken my trident at any -- anytime they wanted. Now, they're trying to take it after the President restored my rank.

(END VIDEO CLIP)

BALDWIN: What do you make of him, Secretary Mabus, going on Fox to rebuke his superiors?

MABUS: Gallagher is still on active duty. The notion that you can go on television, you can trash your chain of command. You can basically say anything you want to as long as you've got the right connections and the President of the United States tweeting out that you ought to listen to it, that he is going to be on "Fox and Friends."

This just -- you cannot have a disciplined military service, you can't do the job that you need to do with these sorts of actions. BALDWIN: Have you ever, just off the top of your head, known of a

President ever inserting himself or this sort of -- this sort of, I don't know, lower level using his influence at this level?

MABUS: None off the top of my head, none off the bottom of my feet.

BALDWIN: None of the top of your head. Okay.

MABUS: No President in history that I know of has ever done anything remotely like this.

BALDWIN: I want to focus on now former Secretary Spencer and his resignation letter because I can imagine he wrote those words lightly, just that he no longer shares the quote, " ... same understanding of the Commander-in-Chief," and that quote, "I cannot in good conscience, obey in order that I believe violates the sacred oath I took."

Secretary Mabus, can you just -- when you first read that, what did you make of his choice in language and the significance of these words?

MABUS: Well, Secretary Spencer's letter hones in on exactly the key thing here -- the good order and discipline. The fact that this destroys so much of that or has the potential to destroy so much of that.

And again, the basic question is here, the good order and discipline. A President inserting himself into something that is a purely military decision that is a decision that people in the military have to make.

And so writing those words, you have to see how seriously somebody would take this to do something like this. You know, he is absolutely correct in the way he has framed this.

No matter what happened between Secretary Esper and Secretary Spencer in the White House, the way Secretary Spencer has framed this is exactly the way it should be framed.

BALDWIN: Secretary Ray Mabus, thank you, sir very much.

MABUS: Thanks, Brooke.

BALDWIN: With the increased pressure of this Impeachment Inquiry, President Trump has found a more secluded space to work. We will talk to the reporter who says, forget the Oval Office, the real action is now in the executive residence.

Plus they took an oath to protect America's security, but Republicans -- Republican senators, now embracing the President's debunked conspiracy theories. We will explore the danger this poses. Ahead.

(COMMERCIAL BREAK)

[14:28:30]

BALDWIN: How about this next story. POLITICO is reporting the President Trump is opting to spend less and less time conducting official business in the Oval Office at the White House and instead is spending more and more time conducting presidential affairs from the White House's private residence.

And that includes hiring his acting Chief of Staff Mick Mulvaney and making that infamous July 25th phone call with his counterpart in Ukraine -- all happening in the residence.

Nancy Cook is the White House reporter for POLITICO who uncovered the change in the President's pattern. And Nancy, I was fascinated by this -- by your reporting and one of the nuggets in your piece, you point out that, you know, outsiders can only reach Trump in the private residence through the phone or if he invites them in.

So you tell me, why is all the action in the residence now?

NANCY COOK, WHITE HOUSE REPORTER, POLITICO: Well, I think that the President during the impeachment hearing has been very dismayed by the number of administration officials testifying from the State Department and the National Security Council. So he is definitely feeling very frustrated by this parade of administration officials going up to Capitol Hill, and I think is just feeling very wary of the people around him.

There have been so many staffers that have left over the last three years as well, that I feel like there's fewer and fewer people around him who he trusts, who he really feels comfortable with.

And so he is just retreating a bit more to the residence. He has always used the residence for work. That part is new, but I just think during impeachment, as he grows more wary of the people around him, he is leaning on it more and more as a place to do business and meet people.

BALDWIN: But as you point out, he is not the first President to prefer spending time in the residence or staying up late making calls. How did past Presidents use that space?

[14:30:09]