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Federal Judge Rules Don McGahn Must Testify Before Congress; Supreme Court Temporarily Blocks House from Seeing Trump's Taxes; White House on Lockdown After Plane Enters Restricted Space; White House Lockdown Lifted, Fighter Jets Scrambled After Aircraft Enters Restricted Air Space; Three Baltimore Men Exonerated After Serving 36 Years in Prison; Prosecutors Scrutinize Giuliani Firm and Donations to Trump Super PAC. Aired 9-9:30a ET

Aired November 26, 2019 - 09:00   ET

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

[09:00:23]

JIM SCIUTTO, CNN ANCHOR: Very good morning to you. I'm Jim Sciutto in New York. Poppy Harlow has the day off.

Just minutes ago, the Justice Department filed paperwork to appeal a federal judge's opinion that included these telling words. Presidents are not kings. That line written as Judge Ketanji Brown Jackson ordered former White House counsel Don McGahn to testify before the House, as he was subpoenaed.

It was a major blow to the White House's efforts to stonewall the impeachment investigation. In fact, all witnesses from appearing before Congress. The 120-page ruling says, quote, "With respect to senior level presidential aides, absolute immunity from compelled congressional process simply does not exist."

But McGahn won't be sworn in yet. He will wait to testify while the case is appealed as the DOJ just did. May go all the way to the Supreme Court. Meanwhile, the Supreme Court handed down a temporary win for the White House in another case blocking Congress from seeing the president's tax returns for now. But the court is fast-tracking the case asking both sides to make their best arguments for why the court should weigh in on the tax return fight in this term.

CNN's Kaitlan Collins has been covering this story and joins us now here from New York.

So first, on the White House strategy as it relates to this loss or temporary loss on McGahn's testimony.

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: It's a pretty big rebuke to what their strategy had been, which they had been maintaining for a while ever since McGahn, which this is dating back to Mueller testimony.

SCIUTTO: Right.

COLLINS: Is that essentially these people do not have to go. They had this absolute immunity. And if you read this 120-page ruling you see what this federal judge thinks of that. And we knew that they were skeptical of this argument that the White House had been making about how essentially everyone was protected by this.

SCIUTTO: Right.

COLLINS: But what you see in this is just how far it goes because this is much broader than just the former White House attorney, and whether or not he can go before Congress. But it goes into National Security officials as well which is essentially you're reading former National Security adviser John Bolton who is making the argument that his case is different than McGahn's because he was so involved on these national security issues.

The judge says essentially no, that is not the situation there. You cannot get this widespread, you know, point-blank ruling about whether or not someone can testify.

SCIUTTO: OK. So that's on the McGahn issue, of course, relates to witnesses appearing before Congress. You have the tax issue now. And the Supreme Court putting a stay, but not really tipping its hand as to whether -- where it's going to decide in this case but it does say, you know, at least it's giving both sides an opportunity to make the case the Supreme Court should weigh in on this.

COLLINS: Right. So it's a win for the president but the question is how long does that win last. Is this something that's long-term? Because essentially with this ruling, with this stay, they are inviting them to make a pretty full-throated argument.

SCIUTTO: Right.

COLLINS: So what are they going to say about this and then where does it go from there. It shows that they're still pretty unclear on how this is going to end up.

SCIUTTO: To be clear, though, part of the White House strategy, is it not, is delay? You know, it's --

COLLINS: Yes.

SCIUTTO: To push it out. I mean, first of all, push these witnesses beyond being able to testify in the impeachment inquiry that they may have already won that battle and then on taxes trying to push it, well, hopefully beyond the election or at least wait.

COLLINS: Right. And that's what they're counting on with the McGahn situation even though they're saying, yes, it could have these far- ranging implications for people like John Bolton, Mick Mulvaney, even the Secretary of State Mike Pompeo. But essentially they're counting on the fact that it's not going to affect them now and it could help them later on.

We saw this before. The White House had been looking at that Harriet Miers case, the counsel for George W. Bush.

SCIUTTO: Sure.

COLLINS: That was something that wasn't decided until 2008. And by then, it was essentially, well, you know, it's 2008. That's kind of what the strategy they've been counting on now. So they knew that this could be coming.

SCIUTTO: OK. OK. Kaitlan Collins, thanks very much. Certainly things to follow here and we will continue to follow them.

Joining me now to discuss, Shan Wu, defense attorney and former federal prosecutor, and Ron Brownstein, senior editor for the Atlantic, as well as CNN senior political analyst.

So, Shan, first, you know, a lot of cases to go through here. Let's go on the McGahn case now. This is key. DOJ as expected is going to appeal. Not clear yet, I believe, whether they're going to ask for a stay, but probable they're going to ask for a stay here. What is likely to happen next?

SHAN WU, CNN LEGAL ANALYST: That's exactly right. I think it is key whether they'll ask for a stay or not. It makes sense they would ask for the stay. So really what happens next, Jim, is it's going to -- they're going to lose on this argument of absolute immunity. I mean, that's been widely expected as Kaitlan was reporting. Even in the Miers case, Judge Bates there had basically rejected this blanket assertion.

It's going to end up with McGahn in a witness chair but then it's still going to go question by question. So he may try a little bit more, absolute immunity, or rather the White House may try some more on some questions and then they'll revert to executive privilege.

[09:05:03]

So it's the long way to go in terms of litigation, but I think importantly, this legal ruling is a big help for the Democrats' obstruction argument.

SCIUTTO: OK. But, Ron, as you know, this is all about timing here because part of the White House strategy, as I was discussing with Kaitlan, is just, you know, push these witnesses out so that they can't be a factor in the impeachment inquiry. And on that note, particularly because the Democrats, you know, they've got a piece of this as well. Right? Because they have a very aggressive timeline. They said they're not going to fight it out in the courts.

On that point, regardless of how the courts decide, haven't -- hasn't the Trump administration effectively won on keeping these witnesses out of the impeachment inquiry?

RON BROWNSTEIN, CNN SENIOR POLITICAL ANALYST: They have, no question. And, you know, like many things in American life, I mean, this is ultimately going to be decided by John Roberts. You know how John Roberts feels the morning it comes to him because the pattern of decisions on a wide variety of issues is at the -- four other Republican appointed justices are going to give the administration a lot of leeway. I mean, their posture has been deference, much like the Republicans in Congress toward what the Trump administration wants.

I do think there is the potential that this could be relevant for the 2020 election more than for impeachment. You know, if you look at the tax case, it is -- if the court takes it, you know, they could delay it all the way until next June but ultimately if they decide, if they conclude that he must release the tax returns, that will be available to Congress at that point. Potentially the same thing with his testimony but it is not on a track to influence whether or not the House votes to impeach.

And on something like that, the CNN poll this morning showing, you know, support remaining at about half the country is probably more relevant.

SCIUTTO: OK, Shan, let's go to the other case which is about the president's taxes. Supreme Court has granted a stay in effect, says it's going to decide on this or at least asking both sides to present arguments as to why it should be decided and decided quickly.

Where do you see this going? Where do you see the court leaning on this issue and where is the legal precedent on whether Congress should have access? Because, I mean, you read the law. It says the House Oversight Committee shall have the right to do so.

I mean, Shan, is the law clear?

WU: Well, there's not really legal precedent on the president's taxes being released. It's been my view, I'm still going to stick with it, I'm not sure that the Supreme Court is going to take it. They are asking for both sides to give their best reasons for why they need to take it and take it fast. But ultimately, I am not sure which way they're going to come out on it because it's a little step removed from him.

It's not he's being personally subpoenaed to produce these. It does go into the question of whether his so-called immunity from process, meaning you can't charge him or indict him while he's in office, goes to this question of whether a third party can get his taxes or even whether the fact that they're being subpoenaed automatically means he's being pulled into a criminal process.

So there's a lot of stuff to kind of slice and dice there. And I don't know that they're going to want to jump into what we're thinking of as the basic question of must the president release his taxes. There's a lot of nuances that they can cut away on that.

SCIUTTO: You know, Ron, as you know, John Roberts is very protective of the Supreme Court's position to the extent that it still exists today as a nonpartisan body here. There are going to be a lot of tests to that, will there not, in the next seven to eight months?

BROWNSTEIN: And as Shan was talking, that's what I was thinking. I mean, really, in many ways the controlling dynamic here may be John Roberts -- how far does John Roberts' desire to have the court not be seen as a partisan institution extend. You know, he broke from the other conservatives on the census case when the administration was trying to change the rules in the Senate, says in a way that would likely reduce the count of nonwhite Americans.

On the other hand, you know, they backed the Muslim ban and it looks like they're going to support the administration ending DACA. If they don't take the case, you know, we will probably learn that ultimately it was Roberts' desire not to be seen as reflexively protecting the president that controls --

SCIUTTO: OK, Ron Brownstein, hold your thought. Hold your thought, Ron, because we have some breaking news, this out of Washington just now.

The White House, we are learning, is on lockdown due to a security threat. Possibly related to an aircraft in restricted air space. We have our Joe Johns who is inside the White House in the briefing room on the phone because of course the White House is on lockdown. Actually, no, he's on camera.

Joe Johns, tell us what we're learning.

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: Well, we do know that there has been an air defense event, if you will. Apparently an aircraft that has somehow strayed into restricted air space, which has created a situation certainly around the White House and perhaps up at the capitol as well, where air defense measures have been put into effect.

So here at the White House what that means is we're on lockdown. Everybody is being kept inside. Now the United States Secret Service, uniformed officers and others patrolling outside with the full armed gear.

[09:10:04]

And we're waiting for authorities to give us an all clear sign. This information about this air defense condition reported by Barbara Starr over at the Pentagon, Suzanne Malveaux up on Capitol Hill. We here at the White House first heard of this during a brief news conference, if you will, a briefing here with Kellyanne Conway. Last question was about an evacuation at the capitol which I don't believe has been confirmed. However, what we do know is that there has been this situation involving an aircraft that has entered restricted air space.

SCIUTTO: OK. Joe, hold that thought there. Because, you know, often security authorities will act with an abundance of caution here. We have our Barbara Starr at the Pentagon I believe coming up live now. Barbara learning from Defense officials that this aircraft not known to be hostile at this time.

Barbara, tell us -- tell us what you're hearing.

BARBARA STARR, CNN PENTAGON CORRESPONDENT: Jim, a Defense official has just told us they do not believe at this time this unidentified aircraft is hostile. But nonetheless, Washington is always sensitive to these issues and they immediately engage in their standard procedures. So often what happens is there are military aircraft in the national capital region on standby at all times and they go up and look at what this aircraft may be doing.

They look for tail number so they can identify it. They try and signal the aircraft that it is in restricted air space and it must turn around and leave immediately. They can do this, the military pilots, by essentially maneuvering their own aircraft, waving their wings at the unidentified aircraft, flashing lights, signaling, trying to reach them by radio communications. Everything they can to ensure that whatever air pilot may be up there, civilian pilot, knows they are in the wrong place and they must turn around immediately.

SCIUTTO: Right.

STARR: What we do know is that a conference call, a high-level interagency conference call under way at this time. They are monitoring the situation trying to identify the aircraft and trying to find out exactly what is going on.

SCIUTTO: OK.

STARR: So there's a lot of concern but pretty standard protocols at this time -- Jim.

SCIUTTO: We're learning and we could report this now that military craft have scrambled to respond. And we should note and, Barbara, you know this well, a lot of this is the legacy of 9/11. These protocols are in place to operate out of an abundance of caution so they can react quickly to this sort of thing.

I just want to be clear, when you say it is not known that the plane is hostile at this time, are you saying that Defense officials have made a judgment that it is not hostile or they just do not know that there is hostile intent?

STARR: What our understanding is right now, and, of course, this can change, is right now they appear to have no information that would indicate it is hostile.

SCIUTTO: OK.

STARR: Most of the time in these incidents, they are small, private planes, civilian pilots who essentially get mixed up about where the restricted air space is. They may not have read the latest bulletins from the FAA, and these small planes often just simply wander in, frankly, to restricted air space. Even if they may be trying to test the boundaries of it, even if it's maybe deliberate, they don't see hostile intent but look, that is exactly why the U.S. military scrambles aircraft and sends them up there to have a look at this.

SCIUTTO: Yes.

STARR: Trying to identify exactly what's happening.

SCIUTTO: And as we learned on 9/11, if they're not up in the air quickly, then they can't react. Oftentimes those planes, you know, on that day were up too late.

Barbara Starr, thanks very much.

We do have news coming out of the White House now. We'll bring our Joe Johns back.

Joe, if you're there, I understand that the lockdown on the White House has now been lifted?

JOHNS: That's right. The lockdown has been lifted. People are being allowed back out on the grounds freely and starting to get back to normal here. Obviously, as you said, abundance of caution. I know back during the Ronald Reagan funeral, there was an evacuation of the U.S. capitol and another lockdown because of a plane flying into restricted airspace. If I remember correctly that was the governor of Kentucky whose pilot had strayed too far into restricted air space.

Abundance of caution and it's looking pretty good here from the capitol.

SCIUTTO: OK. There you have it. Momentary, for minutes, concern at the White House but now that lockdown is lifted. Again, this appears to be a case of an abundance of caution. We have seen, as Joe was saying, cases like this before where pilots make a mistake. They don't know where the restricted air space is around Washington. They find themselves inside it. We should feel comfortable knowing the military is able to notice this and react very quickly.

We do have Suzanne Malveaux on the Hill where there was also for a moment concern there. And I believe the possibility of a lockdown. But are you hearing similarly there, Suzanne, that the threat is gone now?

SUZANNE MALVEAUX, CNN NATIONAL CORRESPONDENT (via phone): Yes, Jim, we got the all clear probably about five minutes ago from a U.S. capitol police source. We're on the third floor of the capitol on the Senate side in the Russell Building.

[09:15:00]

And we were able to go out into the balcony and see for ourselves that Constitution Avenue was closed for a time, about 30 minutes or so, closed to traffic right outside of the building.

There was also a helicopter that was hovering above the court area in front of the Supreme Court. But according to our U.S. Capitol police source, what was happening was that, they were -- what they call an air condition, as you know, some sort of aircraft that was in the area that they could not communicate with.

That wasn't -- had violated the air space around this area, very sensitive. And so, it was a code orange is what I'm told. The codes go from green at normal, yellow, monitoring the situation, orange, a heightened state of alert, and red is when we would have evacuated.

SCIUTTO: Right -- MALVEAUX: There was no evacuation here. There was no shelter in

place. We were inside the building, so they allowed us to stay, but they were preventing people from coming inside of the Capitol. And that's what happens when it's a code orange. We were just told about 5, 10 minutes ago --

SCIUTTO: OK --

MALVEAUX: That it had gone back down to a code yellow --

SCIUTTO: OK --

MALVEAUX: And it has since been cleared.

SCIUTTO: Well, the headline there, the all clear at the Capitol, all clear at the White House. This appears to have been a false alarm, but, again, we should feel comfortable knowing that they react very quickly to aircraft like this who stray into air space where they should not be. And it shows you how quickly they can respond in the event of a genuine threat.

But again, the headline there, the lockdown now lifted on both the White House and Capitol Hill. We'll bring you more information as we have it. Still to come at this hour, conspiracy, obstruction of justice campaign finance violations, money laundering. Federal investigators are looking into all these charges in their investigation of Rudy Giuliani and his associates.

And he's not going quietly. The fired former Navy Secretary Richard Spencer speaking out after a stunning twist in the case of a Navy SEAL accused of war crimes. His message to the president, ahead.

Plus, they spent 36 years in prison for a murder they did not commit. Today, three Baltimore men walking free, hear from them just ahead.

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[09:20:00]

SCIUTTO: Federal prosecutors are looking at a wide range of charges for associates of President Trump's personal attorney Rudy Giuliani. The subpoenas indicate the charges of money laundering, conspiracy, obstruction of justice and campaign finance violations are under consideration. This is all part of the federal investigation into Giuliani's consulting firm.

At this time Giuliani says he has not heard himself from prosecutors. He denies any wrongdoing. Joined now by Kara Scannell. So these charges, do they relate purely to his associates, Fruman and Parnas or might they also include Giuliani himself?

KARA SCANNELL, CNN REPORTER: Well, this is interesting. So we have seen a subpoena that's been sent to one possible witness. And in the subpoena, they're asking for information about this person's communications with Lev Parnas, Igor Fruman.

But also any communications that he's had with Giuliani and his consulting firm Giuliani Partners.

SCIUTTO: I see.

SCANNELL: And as part of that, they're specifically asking about any actual or potential payments or any agreements that may have been done with Giuliani or his firm. So, that indicates that there's an interest specifically in any business dealings. And as we know, Giuliani was paid half a million dollars by a company set up by Lev Parnas.

So, you can see that prosecutors are trying to better understand the relationship between these men and any money flows that may have existed between the men.

SCIUTTO: OK, a concern here is that his partners, Fruman and Parnas might flip on him, I mean, to protect themselves of course, but might then provide information that's useful to prosecutors against Giuliani. Is that a genuine concern now?

SCANNELL: I think it is. I mean, we have seen at least from Lev Parnas, we've seen --

SCIUTTO: Yes --

SCANNELL: His lawyer be very outspoken, saying he wants -- that Lev wants to tell his story. He's made overtures to the impeachment investigators in Congress, saying that he would be willing to provide information. There have been reports that they have turned over documents, audio recordings, other details --

SCIUTTO: Yes --

SCANNELL: So Lev Parnas' team definitely is making this overture that he wants to tell his story. Now, we don't know how much he has. We don't know what is corroborated. So, we don't know how good of a witness he is. But there's definitely an indication from him that he wants to.

Now Igor Fruman's team has been quiet. We don't know what they're thinking on this, they could also be doing things behind the scenes, but just not telegraphing it. But it's hard to know at this point where this is going to shake out.

SCIUTTO: OK. Another story, I understand CNN has learned that David Pecker, of course, the head of the "National Enquirer", close friend of the president, he spoke with the Manhattan District Attorney's Office -- in a separate case, what do we know?

SCANNELL: That's right, so Manhattan District Attorney's Office is investigating the Trump Organization and possibly the president about the hush money payments made to silence the two women who alleged affairs with the president. You know, there was the federal investigation. This -- you know, the Manhattan DA's office is looking to see if any state laws were violated in that -- in the process of those payments.

So, they interviewed David Pecker last month, David Pecker as you said is a long-time friend of the president --

SCIUTTO: He protected the president on a lot of stories --

SCANNELL: Exactly, he has done these catch and kill deals. And he was involved in the payments to these two women either directly or indirectly. So, he has a lot of knowledge about what the strategy was. So prosecutors have met with him at the end of October, and they're expected to meet with him again.

He did have a cooperation agreement with the federal prosecutor. So, you know, this is a relationship where we do see, you know -- kind of the tables have turned, a long time friend and protector of the president --

SCIUTTO: Yes --

SCANNELL: Now he's cooperating with this investigation.

[09:25:00]

SCIUTTO: And that should be of worry to the president. Kara Scannell, thanks very much. We have Shan Wu back now to help us put this into context here. First of all, Shan, as a lawyer, if you have a subpoena that asks about communications with Giuliani, does that indicate as a prosecutor that you suspect Giuliani committed crimes here?

SHAN WU, FORMER FEDERAL PROSECUTOR: Well, if I was the prosecutor making a statement, I wouldn't use the word that "I suspect him", quote, unquote. But he's certainly going to be what they call a subject of the investigations. That's kind of one category down from being the target. And he's just going to give him small comfort that he's not named at this point because he's unquestionably a subject.

Also from a prosecutor's standpoint, he should be worried that they haven't talked to him yet. He's sort of putting it out there, they haven't contacted me yet. Well, investigations, prosecutions work their way in from the outside down to the inside. So, if he's at the center, they're not going to talk to him until they've talked to everybody else. So all those things are kind of warning signs for Mayor Giuliani.

SCIUTTO: Now, when Mayor Giuliani says that he has insurance, you've heard that comment, is he saying he believes the president will pardon him? Is that your read?

WU: That could be the read. He may also mean that he has information that could be damaging to the president, or that he has information that he's certain will basically clear him of any wrongdoing. And it's probably that latter, that he's implying with that. And you know, Giuliani likes to place a lot of emphasis on the idea that he's a zealous advocate.

He's always -- defense names many people as his clients, and so his problem here is that if these folks, if Parnas was his client as he has said at some points, he has no privilege there because that privilege is Parnas' privilege, not his.

So if his client wants to help the client themselves and roll over on Giuliani, he can't do anything to prevent that.

SCIUTTO: Shan Wu, it's going to be an interesting case to follow. Thanks very much.

WU: Sure thing, Jim.

SCIUTTO: Well, there's turmoil, hard questions really in the Pentagon. Fired Navy Secretary Richard Spencer may be out of a job, but he's not out of things to say about what really happened in the case of the Navy SEAL Eddie Gallagher and his concerns about the president's involvement. We'll have more.

And we are moments away from the opening bell on Wall Street. The markets look to start the trading day flat after the Dow, Nasdaq and S&P 500 all closed at record highs once again. Plus, we've just learned that Treasury Secretary Steve Mnuchin had a phone call hours ago with the Chinese Vice Premier -- focus of course, U.S.-China trade war. Does this mean they're making progress? We'll have more.

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