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DOJ Files Paperwork To Appeal Ruling That McGahn Must Testify; New CNN Poll Shows Impeachment Support Unchanged Since Public Hearings; Subpoena Indicates Feds Interested In Giuliani's Business; Interview With Rep. Ami Bera (D-CA). Aired 10-10:30a ET

Aired November 26, 2019 - 10:00   ET

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

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[10:00:00]

JIM SCIUTTO, CNN ANCHOR: Good morning. I'm Jim Sciutto. Poppy Harlow has the day off.

This morning, the Justice Department is asking a federal judge to hit the pause button on forcing Don McGahn to testify before the House, this while they appeal the ruling to a higher court. And the House has agreed to a delay, at least a seven-day delay. The judge ruled that no executive branch official has a blanket right to dodge a congressional appearance, not even the president. But the DOJ thinks they can the case on appeal possibly taking the case all the way to the Supreme Court.

Democrats in Congress are pushing forward regardless. House Intelligence Chairman Adam Schiff says that their impeachment inquiry report is coming soon after they return from the Thanksgiving recess, but they are still open to hearing new evidence and, crucially, new testimony. Will The courts allow that? We'll see.

Meanwhile, the Supreme Court weighs in on a different fight, blocking Congress from seeing the president's tax returns, at least for now. But the standoff continues as the high court decides on a more permanent ruling, indeed, whether it will even hear the case.

Let's begin though with the McGahn. CNN National Correspondent Suzanne Malveaux joins me now from Capitol Hill.

So, Suzanne, how does this affect other witnesses here? Because you have other witnesses hanging in the balance, looking for a court's demand, in effect that they appear, John Bolton among them. But if the DOJ has appealed, has this pushed it out so far that it's going to be irrelevant in effect?

SUZANNE MALVEAUX, CNN NATIONAL CORRESPONDENT: Sure, Jim. Well, this was just in, this news that we're getting from Charles Cooper. He is the attorney for the former national security adviser, John Bolton, and his deputy, Charles Kupperman. And what he said this morning is that the case of Don McGahn and the judge's ruling regarding that does not apply to their case. As you know, they are trying to figure out whether or not they are compelled to testify before Congress. They have their own suit going. That is going to be determined later in December.

There was some hope potentially from House Democrats that this ruling, the McGahn ruling, would bring on or at least inspire National Security Adviser John Bolton to testify as well as others. But his attorney is saying, look, we have to deal with matters of national security. This is a different situation than the situation of a former White House Counsel, Don McGahn.

And as we want to remained our audiences, it was the judge's decision yesterday simply saying that there was no absolute immunity involving McGahn that he does, in fact, have to testify before Congress and that there was no case to be made here. That unfolding as they delay this whole process and the question becomes, Jim, whether or not they will get anybody additional testimony in their inquiry.

But so far, we've heard from House Intel Chief Adam Schiff saying it really doesn't matter. There is a sense of urgency here as this all plays out in the courts, Jim.

SCIUTTO: I see. So they're not wavering from sticking to their aggressive timeline here. Suzanne Malveaux on the Hill, thanks very much.

Joining me now is Ross Garber. He teaches impeachment law at Tulane Law School. You might say that's irrelevant to this case.

So, Ross, let's look at this McGahn ruling. The DOJ is going to appeal here. But when I've spoken to Shan Wu ad others and they say, listen, there is really no legal basis for anyone claiming absolute immunity here. Did you see different results going forward in the Court of Appeals on this case?

ROSS GARBER, CNN LEGAL ANALYST: Well, so we don't know. You know, it's interesting. This notion of absolute immunity, it's not new to Trump. Previous Justice Departments in both administrations have taken that position. And the whole issue is the Constitution tries to set up this balance of power between the president and Congress with the president being not so powerful as a king but also not having Congress as his boss. So it's this delicate balance.

What we do know though is that this is going to take a while to play out. It's going to to the Court of Appeals and then maybe the Supreme Court. And that's going to take months and months and months.

And then even if the Supreme Court agrees with this trial judge that McGahn has to testify, it doesn't mean that he actually has to answer any questions because he can still, on behalf of the president, assert executive privilege.

SCIUTTO: So believe that the Supreme Court will want to rule in on this in effect regardless of what happens in the Court of Appeals?

GARBER: Well, so, you know, this decision that came out yesterday, it's a trial court decision.

[10:05:01]

It's essentially the same as the trial court decision on a similar case during the Bush administration. And, normally, these things aren't appeal. They're worked out between Congress and the president.

You know, here, it doesn't seem like either side is looking to compromise very much. So, you know, it is a crucial question. And, you know, if it continues to get litigated, it is something that the Supreme Court, I think, would look at.

One other thing to keep in mind though is that there is a timing issue. There is an argument that the subpoena that was issued to Don McGahn actually expires in January of 2021. It becomes moot. And so there is a timing issue to try to get it litigated all the way to the Supreme Court by then.

SCIUTTO: I understand this from a legal perspective. I understand you're saying that the courts obviously have to decide this balance of power between the branches. But how is it a balance of power? How can you argue that the executive can claim immunity from answering any questions, in effect, from the House? Where is the legal background to back that up?

GARBER: Yes. So here is what's going on, and it dates back to this opinion from the Justice Department that was actually written by former Chief Justice William Rehnquist when he worked at the Justice Department back in the '70s.

And the argument goes something like this. You know, Congress has its authorities and its powers to investigate. But the president and his close advisers also have their responsibilities and powers. And it wouldn't make sense, the argument goes, if Congress could force the president or his close advisers to come in and testify and answer questions at a specific place and time that would effectively make the president's subservient to Congress. That would effectively make Congress the president's boss.

Now, the two judges who have ruled on it have not been very impressed by that argument. But there is that argument and the fact is, it's been made by the Department of Justice in both the Republican and Democrat administrations.

And so, you know, you get in trouble when you try to predict conclusively what the Supreme Court is going to do with something. But, certainly, the two courts have looked at it. The two trial judges haven't been impressed.

SCIUTTO: A quick question. And, of course, the other case is the Supreme Court now asking for the sides to make arguments as to how -- whether it should consider the tax case, whether the congressional subpoena for the president's taxes. Do you believe this is going to go to the Supreme Court as well?

GARBER: Yes. The fact that the Supreme Court issued a stay suggests to me that they're going to take the case. Keep an eye on that one. The Supreme Court term ends in June. And everyone has agreed to expedited briefing, quick briefing on it. And so it seems to me there is a very good chance that there is going to be a decision by the Supreme Court about whether Congress gets the president's financial information by June.

And it could come in June. Imagine, in the middle of a presidential election in June of 2020 and the House of Representatives gets the president's financial info. It could be sort of a June surprise.

SCIUTTO: It could be. And we should note, of course, all presidents going back to Nixon have voluntarily given up this information. Ross Garber, thanks very much.

Let's speak about this more with Bob English. He's a former Republican congressman from South Carolina.

Congressman, you were involved in the Clinton impeachment some 20 years ago. And you say that the comparison of Trump to Clinton is a poor one in your view because Trump has done more than Clinton did to prop this impeachment inquiry. Tell us why you believe that.

FMR. REP. BOB INGLIS (R-SC): Well, the matter that we impeached Bill Clinton for were really quite less serious than these matters. These matters go right to the heart of the functioning of our government, with the dealing of the president in foreign policy, and allegedly seeking political dirt on an enemy, a domestic political enemy in using the levers of our government to achieve that objective. That's different scenario, much more serious than Bill Clinton's marital infidelity.

SCIUTTO: And we could quote repeatedly that the sitting lawmakers who during the Clinton impeachment spoke about being truthful to Congress, et cetera, as impeachable offenses, Lindsey Graham among them, they're singing a different tune now. But as you know, current Republican lawmakers, none of them have broken ranks on this. What do you say to your Republican colleagues who are sitting lawmakers in the House and the Senate today as they've come out to defend the president without exception here?

INGLIS: I'd say to them, you know, if you're going to keep a republic, you've got to keep some principles. And, surely, the principle is to fairness and the rule of law.

And I just ask my Republican friends, if Barack Obama had done any of these things, would we have impeached him?

[10:10:01]

And the answer is pretty clearly, yes. In fact, we would have impeached him and removed him from office very quickly if he had done any of these things.

So it's important in the republic to keep in mind, you've got to follow principles. You can't just decide that, oh, no, for our team, we have a different rule, just like the discussion you were just having.

And the facts in this case, it's not Congress disagreeing with the president over foreign policy in Ukraine. It's rather, that would be a place where you'd want the presidency to be protected from intrusion by Congress.

This is a case where the president was departing from American objectives and seeking his own personal objectives. And I would think that would be a much easier case for the Supreme Court to say, you bet John Bolton needs to testify.

SCIUTTO: Let me ask you this. It was interesting, we noted the Washington Examiner, of course, a conservative publication, it recently had an editorial making the following argument that some wrongs aren't impeachable but that doesn't make them right.

In effect, this -- that the Will Hurd position, which is that the president's behavior, as it relates to Ukraine, was appropriate but not impeachable. What's your answer to that argument?

INGLIS: Well, this seems to me as a case where you are really using the office of the presidency. The allegation is that he held up foreign aid to a country, engaged in a hot war in order to get them to make statements that would be advantageous to President Trump in his political race.

It's clearly -- it seems to me, if we're following principles, we'd say, doesn't that sound like an abuse of power to you?

And, again, for my conservative and fellow Republicans, I'd ask, if Barack Obama had done anything like that, what would be our response?

SCIUTTO: Yes, it's a fair question.

Adam Schiff made, and I know you have made comparisons to Watergate, but Adam Schiff as well. And he said the difference here, in his view, is not the accusations against the president or even the party, but it's the Congress. Do you feel the same way that in the current partisan environment that even Nixon's crimes would not have resulted, not impeachment but his resignation facing impeachment?

INGLIS: Yes. I think that what we are really dealing with here is people getting the news from completely different news islands. And the result is that we don't have a shared set of facts. The difference between now and the Nixon case is that everyone of the senators in the U.S. Senate faced ABC, CBS and NBC each night 30 minutes, same news show, basically. And everybody was getting their news from the same place.

Now, you can go to a news island and find out exactly what you want to hear and that's the difference. And so the result is, we don't have a shared set of facts.

SCIUTTO: Yes. That's fair. It's a fair point, islands of news. That's where we are living today, Bob Inglis. Islands of facts, you might even say. We appreciate your time, Congressman, and your candor.

INGLIS: Great to be with you.

SCIUTTO: Still to come this hour, did two weeks of stunning testimony from 12 witnesses change voter's minds when it comes to impeaching and removing President Trump? CNN has new polling.

Plus, conspiracy and money laundering are just some of the charges of associates of Rudy Giuliani, the president's personal attorney, could be facing. Find out what else we have learned from a subpoena in that case.

And fierce winds and low humidity are fueling an intense wildfire in Santa Barbara, California. Now, residents have been ordered to evacuate. We're going to take you there live. It's a familiar scene and it's a scary one.

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SCIUTTO: So far, at least, it seems that two weeks of explosive public impeachment testimony has not done much to sway voter's minds. A new CNN polling finds 50 percent of Americans right now feel that President Trump should be impeached and removed from office. That number, though, the same as in October before the impeachment public hearings.

With me now, Democratic Congressman Ami Bera of California. Congressman, thanks so much for taking the time this morning.

REP. AMI BERA (D-CA): Jim, thanks for having me on.

SCIUTTO: So you see those numbers there. Public opinion of impeachment and removal has not changed from before the and after public hearings. I wonder, do you believe that Democrats failed to make their case to the American people here?

BERA: I think the last two weeks you saw public testimony and a clear abuse of power, clear instance where the president withheld funding in order for a political gain. I think that charge has been proven. In addition, you've seen repeated obstruction of justice.

SCIUTTO: Okay, I know. For you, you may believe that. But in terms of the number of Americans who buy that argue that it's sufficient to remove him from office, it hasn't budged since the public hearings.

BERA: Well, again, I think Adam Schiff, the Intelligence Committee made the case. And now, it will actually move most likely to former articles of impeachment. And, again, hopefully the public is paying attention here.

I also think I may be in the minority here, but Mick Mulvaney's name repeatedly comes up, John Bolton's name repeatedly comes up, and I'd love to hear those folks testify.

SCIUTTO: No question, and that's a fair argument.

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You can argue that the White House has successfully obstructed in the investigation by preventing those witnesses.

But you and I spoke on the first of this month, and at the time you said that when they public hearings happened that you'd expect the public hearings to shift opinion on this. And if you look at CNN's numbers support for impeachment and removal among independents, it's even down during that same time period. Does that concern you?

BERA: No. We have to do our jobs. We can't let the polls dictate how we approach this. And, again, our job is to do oversight as members of Congress. And that is the check and balance, that's in our Constitution. So, again, we have to present the facts and, hopefully, the public will follow those facts and see where they lead.

We'll see what those articles of impeachment are. It sounds like the Intelligence Committee is drawing their report. We'll see what the Judiciary Committee chooses to (INAUDIBLE). But we have to hold this president accountable.

SCIUTTO: There is some discussion of including an article of impeachment outside of the Ukraine issue going back Robert Mueller, the Special Counsel's findings on possible or alleged obstruction of justice with regards to the Mueller probe. Do you believe that that should be included as a separate article of impeachment or keep it focused on the Ukraine issue?

BERA: I would probably keep it pretty narrowly focused. You had pretty compelling witnesses coming forward, you know, the case was laid out fairly well. You just had the former Republican congressman on there. We have to be a country of rule of laws.

And, remember, there is going to be a Democratic president coming after this at some point and what we're doing right right now is setting precedents for what our checks and balances are on the Constitution.

SCIUTTO: As you look forward here, you mentioned witnesses that should have testified in this, whether it be Mick Mulvaney, John Bolton. You have the Don McGahn decision yesterday, of course, from a separate case, but still conceivably relevant to this because it speaks to the White House's argument here, the Trump administration's argument here, that there is absolute immunity.

A judge ruled, in effect, in Congress's favor here. Do you believe Democrats should adjust their timeline and wait for this to move through the courts so they could speak to administration officials who were directly Involved?

BERA: Yes. Certainly, again, my opinion would that Mick Mulvaney, John Bolton, Mike Pompeo, all the president's men, their names have come up repeatedly. If the president is innocent, let him come forward under oath. Let him clear his name. But it is difficult to get to the truth if you don't have the folks that were in the room making the actual decisions and testify. And look, these are not executive privileges, so I don't buy the absolute immunity argument.

SCIUTTO: Final question before I let you go, you are aware of the case of Eddie Gallagher, of course, the Navy SEALs, many of based out in California, your state there, and the president's intervention. You now have the Navy secretary saying that the president is undermining military discipline here.

As a member of the Foreign Affairs Committee, are you concerned by the president's intervention in this case?

BERA: Very much so. I think the president went out of bounds here. You have a chain of command within the military. And you have to have discipline and that those processes of military justice.

Again, I think the president stepped out of bounds. And I support the secretary of the Navy. I understand there is a chain of command that the president, I think, overstepped his authority.

SCIUTTO: Congressman Ami Bera, we appreciate you joining you the program this morning. We wish you and your family the best for Thanksgiving.

BERA: Thank you, and Happy Thanksgiving, Jim.

SCIUTTO: Coming up, President Trump keeps saying he has full confidence in his personal attorney, Rudy Giuliani. But could new revelations about an investigation into Giuliani's close associates change his confidence? We're going to discuss that next.

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

At this time Giuliani, himself, says he has not heard from prosecutors and he, we should note, denies any wrongdoing.

I'm joined now by CNN's Kara Scannell.

You look at this subpoena. What does it tell you just about the scope of the investigation of his partners or any danger for Giuliani, himself?

KARA SCANNELL, CNN REPORTER: Well, it tells us that the prosecutor is taking a very broad hard look, because Lev Parnas and Igor Fruman, those associates, were charged with campaign finance violations last month. Now, we're learning they're looking at money laundering, wire fraud, unregistered and foreign agent activity. So you really see the scope is much more than just campaign finance.

And we also learned from the subpoena that prosecutors are interested in any communications, any payments with whether they were actual or potential, any kind of financial arrangements for Giuliani and his firm.

So we can see here that prosecutors are looking at these two men. They're also looking at the relationships with Giuliani. And, you know, this subpoena that we happen to have inside into is one that is sent to one person. It doesn't even tell us the full scope of what investigators are looking at here.

SCIUTTO: So it doesn't necessarily indicate that they are looking at Giuliani for criminal activity?

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SCANNELL: Well, this is what's unclear. We know that prosecutors are looking at Giuliani's businesses relationship with these men, and whether it crosses --