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Did FBI Have Probable Cause To Reopen Case Against Clinton?; NC Lawmakers Consider Repeal Of Controversial HB2 Law; Photographer Talks About Witnessing Assassination; Trump Family Backs Away From Charity Event. Aired 7:30-8a ET

Aired December 21, 2016 - 07:30   ET

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

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[07:30:30] ALISYN CAMEROTA, CNN ANCHOR: We have an update now into why FBI director James Comey reopened that investigation into Hillary Clinton's emails 11 days before the election. The search warrant that was used to reopen that investigation has now been unsealed and after reading it former Clinton press secretary Brian Fallon called the evidence "flimsy" and "salt in the wound" and he's not the only one. CNN senior legal analyst Jeffrey Toobin joins us now with more.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST, FORMER FEDERAL PROSECUTOR: Good morning.

CAMEROTA: Jeffrey, was the evidence flimsy on that search warrant?

TOOBIN: Well, it certainly wasn't very incriminating. Can I just like give you a little context here?

CAMEROTA: Please.

TOOBIN: OK. So, Comey closed the investigation over the summer, said there was nothing there. Well, in the fall, Anthony Weiner, Huma Abedin's husband, starts to be investigated for his potentially improper relationship with a teenage girl and the FBI seizes his computer. Once they seize the computer they see also on the computer emails between Huma Abedin and Hillary Clinton. So they say OK, we want to look into those as perhaps relevant to the investigation that appeared to be closed. So they get a new search warrant --

CAMEROTA: Right.

TOOBIN: -- for those other emails.

CAMEROTA: Sounds legit. What's the problem?

TOOBIN: That's -- and that's what the affidavit is that came out yesterday.

CAMEROTA: OK.

TOOBIN: The search warrant for that. It does -- it does seem vaguely legit because you think why not? You know, it's relevant to this investigation. These emails could be relevant. CAMEROTA: They don't even know if they're new. I mean, they think maybe these are new emails we've never seen.

TOOBIN: Exactly, so I don't really think there is anything so outrageous about the FBI looking at these emails. The thing that is bizarre about this whole process is basically I would call this affidavit part of cleaning up loose ends of the investigation, right, of Hillary Clinton, seeing if there's anything there.

CAMEROTA: Yes, yes.

TOOBIN: Why did James Comey feel compelled to release the information that they were looking into these emails right before the election? That remains bizarre, inappropriate, and that's the heart of the conversation.

CAMEROTA: That is the heart of the matter.

TOOBIN: Right.

CAMEROTA: And by the way, this search warrant does not reveal what his thinking was in terms of that. Why he would send the letter.

TOOBIN: Right. And it came out that these emails that were found were not newly incriminating, they were just repeats of emails --

CAMEROTA: Right.

TOOBIN: -- that the FBI had seen before.

CAMEROTA: So, he should --

TOOBIN: So there was nothing there.

CAMEROTA: Right. So in retrospect, he should have waited until he knew the content of what was on the emails to send the letter.

TOOBIN: Exactly --

CAMEROTA: OK.

TOOBIN: -- or said nothing at all. I mean, remember, you -- the rule at the Department of Justice is on the eve of the election you don't say anything.

CAMEROTA: Right.

TOOBIN: You don't interfere in the political process.

CAMEROTA: But, I mean, you're getting ahead of us because --

TOOBIN: OK.

CAMEROTA: -- basically, if you -- if you rewind the tape --

TOOBIN: Right. CAMEROTA: -- to the search warrant and why they thought there was something possibly juicy and/or relevant on there, they say it's because they saw subject headers that suggested that it was either from Mrs. Clinton's private server or it said something incriminating enough to arouse flags. So doesn't that tell -- I mean, in other words, that tells you you should get a search warrant to look at them.

TOOBIN: Absolutely. You know, I don't see anything wrong with the FBI investigating what was on the computer given the fact that they had been investigating Mrs. Clinton's email for the summer. These might have been new emails. And so, the affidavit itself doesn't suggest anything inappropriate, but most of the time law enforcement operates in secrecy. It does not disclose investigative steps, especially on the eve of the election. The issue is not the search warrant, it's the disclosure publicly of the investigation.

CAMEROTA: Well, that's your issue --

TOOBIN: Well, yes, it is.

CAMEROTA: -- but it's -- other people's issues is that actually the FBI and judge didn't even have probable cause to issue a search warrant.

TOOBIN: OK.

CAMEROTA: Let me give you an example. This is David Kendall. This is Mrs. Clinton's lawyer who says, via "The Washington Post", "The affidavit concedes the FBI had no basis to conclude whether these emails were even pertinent to that closed investigation, were significant, or whether they had, in fact, already been reviewed prior to the closing of the investigation. The FBI put forward the same evidence the Bureau concluded in July was not sufficient to bring a case. The affidavit offered no additional evidence to support any different conclusion."

I think what he's saying is that the judge shouldn't have said that was probable cause.

[07:35:00] TOOBIN: Well, but I think he's sort of working a little backwards there. He's saying once they looked at the emails they saw there was nothing there, so what was the whole bother? My point is you only knew there was nothing there once you looked at them. And so I think David Kendall -- I mean, he's correct that there was nothing there that was incriminating, but the only way you could know that was by looking at them. So I disagree that looking at them was inappropriate. It's the disclosure that I think is so wildly inappropriate.

CAMEROTA: Do you disagree with Brian Fallon that the evidence was flimsy to get a search warrant?

TOOBIN: I don't know about flimsy. You know, in law enforcement circles it's pretty easy to get a search warrant. I mean, magistrates who sign these search warrants, they are not looking for proof of a crime. The standard is, is there probable cause that there is evidence of a crime? That's a pretty low standard.

You know, both Kendall and Fallon, understandably, are furious because a) nothing turned up incriminating, and b) the disclosure of this whole latest step in the investigation was catastrophic for Hillary Clinton's campaign. I mean, that -- and that remains, to me, the heart of the controversy here is why James Comey felt obligated to broadcast to the world on the eve of the election and this doesn't answer that question.

CAMEROTA: Gotcha. Jeffrey Toobin, thanks for helping us understand that.

TOOBIN: Good to see you.

CAMEROTA: You, too. What is your take out there? You can tweet us @NewDay or you can post your comment on facebook.com/NewDay -- Chris.

CHRIS CUOMO, CNN ANCHOR: All right. Really tough images captured moments after a diplomat's assassination. CNN spoke to the photographer who took these incredible shots under dramatic circumstances. What was it like to be there, next.

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[07:40:40] CUOMO: Lawmakers in North Carolina are huddling right now in a special session to possibly repeal the state's controversial bathroom law. House Bill 2, as it's known, has been a lightning rod ever since its quick passage by the legislature in March. We've got CNN's Nick Valencia live in Raleigh with the latest -- Nick.

NICK VALENCIA, CNN CORRESPONDENT: Good morning, Chris. There has been no shortage of drama between the two major parties in this state over the course of the last year. It all started in February with the Charlotte City Council passing a nondiscrimination ordinance that gave added protective rights to members of the LGBT community here in the state.

Conservatives were furious at the unexpected move in Charlotte and, as a result, called a special session here in Raleigh to pass House Bill 2, more commonly known as the "Bathroom Bill". And what it did, it not only stripped the rights given to those in Charlotte but also statewide. Made it illegal for transgender people to use the bathroom of their choice. Instead, under House Bill 2 they had to use the bathroom that corresponds with the gender on their birth certificate.

What followed was a huge economic blow to the state of North Carolina. Tens of millions of dollars were lost as entertainers canceled performances and concerts here. The NBA also pulled out its All-Star game for Charlotte. And as result of his support for House Bill 2, Pat McCrory, the governor, in his reelection bid became the first incumbent governor in North Carolina history to lose his reelection.

That brings us all to this week. On Monday, Charlotte City Council voted unanimously to rescind its original ordinance with the hope and expectation that House Bill 2 would be repealed sometime later. That brings us to this special session announced on Wednesday with the expectation that House Bill 2 will be repealed later this afternoon.

And while there is hope, there is a ton of anxiety. The last time a special session was called was under the guise of Hurricane Matthew relief, but they also ended up stripping some of the powers of the incoming governor. A vote on House Bill 2 and its repeal is expected sometime later today -- Alisyn.

CAMEROTA: Nick, thank you for all of that background. I mean, who would have thought that that decision -- the ripple effect would have been tens of millions of dollars in the state's economy?

CUOMO: Oh, and who knows how many votes? You know, make no mistake. This is entirely a political issue. Remember, they could present no significant evidence that there was a predator risk. That's what it was. You could have a predator go into the girl's room under the guise of being transgender. They never proved that. There's no good research on it. But it did loom large and it's a burden for Democrats. This bathroom issue became a metaphor for the left. They don't get where we are culturally in America anymore.

CAMEROTA: Right.

CUOMO: And it's interesting to see how it plays out there and beyond.

CAMEROTA: All right. We have a couple of other headlines to tell you about, including this important one. The Taliban confirming that this new video shows a North American couple kidnapped in Afghanistan in 2012. American Caitlin Coleman and her Canadian husband Joshua Boyle had been in captivity for more than four years. Kidnappers took them during a backpacking trip. In the video, Coleman urges President Obama to secure her family's release. She also addresses President- elect Donald Trump, saying that the Taliban will not release them easily.

CUOMO: My, the little kid there doesn't even look four years old. Another kid in the news, Bana al-Abed, the 7-year-old. Remember her? Her tweets from inside Aleppo really painted the desperation of so many kids there in the middle of a war. Well, she's now safe and in the Turkish capital. Bana met today with PresidentErdogan, who she thanked for helping her out of that war zone. According to state media, 68 kids are among more than 170 Aleppo evacuees undergoing treatment at hospitals in Turkey. There are many, many more.

All right. Now, we have a story of incredible composure. Many -- very often, what we understand from tragedies because somebody bravely stood by and took pictures, in this case, of a cold-blooded assassination. CNN's international diplomatic editor Nic Robertson spoke with the AP photographer who kept taking pictures just feet away from the gunman who assassinated Russia's ambassador to Turkey. Now, these images, they are not easy to look at but they tell the truth of a situation.

[07:45:00] (BEGIN VIDEOTAPE)

NIC ROBERTSON, CNN INTERNATIONAL DIPLOMATIC EDITOR: New video shows an apparent stunning security lapse. Ambassador Andrei Karlov's killer standing behind him, unchallenged for several minutes before he pulls his gun.

BURHAN OZBILICI, ASSOCIATED PRESS PHOTOGRAPHER: In the very first photo the gunman was standing behind ambassador like he was part of the ambassador's staff or somebody from the art gallery, but very calm.

ROBERTSON: That's Ozbilici moments before the attack, taking photos of the ambassador. Seconds later, this, Ambassador Karlov dying on the floor. The gunman shouting defiantly "God is greatest" and "do not forget Aleppo, do not forget Syria" but chose not to shoot anyone else.

OZBILICI: The people standing in front, they disappeared. They throw them on the floor, then they try -- they were trying to hide them, to take shelter.

ROBERTSON: Were you afraid?

OZBILICI: I was shocked but afraid, but not much, not panicked.

ROBERTSON: Were you not afraid taking his picture? You've got a camera and he's got a gun.

OZBILICI: Well, I'm very sensitive and in difficult situations I'm calm. I think I have a responsibility to record it, this event and the ambassador lying on the ground, not moving. And the guy was making some political motivated speech but I could not understand it. I thought maybe he was speaking Russian -- in Russian. Some people were screaming and crying so I could not hear well. Then he turned around to the body and from very close range he shot one more time.

ROBERTSON: On the ambassador?

OZBILICI: Yes.

ROBERTSON: Just to make sure he was dead.

OZBILICI: I think so. When I learned that the guy was killed I was very shocked. Why they kill him? He did nothing to take anybody hostage. He was alone. They had to capture him alive.

ROBERTSON: Nic Robertson, CNN, Ankara, Turkey.

(END VIDEOTAPE)

CAMEROTA: Wow, that's a fascinating perspective. I mean, he says obviously in very tough situations he gets more calm. That is what you need to have that.

CUOMO: He's been interviewed by someone who is the exact same way. Nic Robertson knows what it's like to be very close to death.

CAMEROTA: It was an incredible story. We're following it all morning for you. Meanwhile, Donald Trump's potential conflicts of interest in the news again. His children now distancing themselves from a charity that was reportedly offering access to the president-elect for $1 million. We will speak live with the reporter who broke the story next.

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[07:51:42] CUOMO: The questions about conflicts and the president- elect and his family are not going away. This morning there's a report about a charity event. The event raised concerns. Why, because individuals were reportedly being given the opportunity to pay a ton of money for access to Donald Trump and his family. Now, Trump's transition team is saying the Trump family is not involved with the event.

Joining us now is the reporter who revealed the details surrounding the event, Carrie Levine. She's with the Center for Public Integrity. We're also joined by Rachel Abrams. She's a business reporter for "The New York Times" who has reported on the Trump kids and their role in the family business.

Carrie, let's get it straight. What do we know about this? Was there an organization that was actually formed, were the kids on it, was their an invitation that had this solicitation? What is real?

CARRIE LEVINE, POLITICAL REPORTER, CENTER FOR PUBLIC INTEGRITY: Well, this is obviously a fast-developing story. Yes, there was a new foundation formed and registered with the State of Texas and both Eric Trump and Donald Trump Jr. were listed as directors of the new organization on the form.

There was pamphlet -- a solicitation circulating among donors offering big-dollar donor packages for sponsorships that would give them the chance to meet with the newly-inaugurated president over inauguration weekend.Now, the organizers are saying that information wasn't final and the Trump transition team is distancing Donald Trump Jr. and Eric Trump from this event.

CUOMO: Have you ever heard of a draft invitation and a concept meaning that you're listed on this Texas document but it didn't mean anything final? Have you ever heard of that in any other situation like this?

LEVINE: I've never heard of it when it comes to actually filing to create an organization, which is a legal document. They were on that legal document and it's a little confusing and unclear, still, exactly how their names got on the document and what they did or didn't agree to.

CUOMO: So, when we look at this, Rachel, we look at this in the context of what is unknown about Trump, his business operations, and the conflicts between the kids being in charge of the business and influencing government. This falls right into that category.

RACHEL ABRAMS, REPORTER, "THE NEW YORK TIMES": Yes, and it's not necessarily that anything -- we know that anything is wrong or anything is amiss. It's just mainly -- what it is, at the very least, is an optics problem. When you have, even offensively, something that is for charity where you're basically giving people the ability to pay to access the president or his surrogates, which his kids have effectively been during the campaign, you have issues and people are going to see that as a potential conflict of interest.

CUOMO: You have illegality and then you have wrong, right? You have the right to do something and then whether or not it is right. Carrie, I'm assuming that it's the second type of perspective that drove your interest into this about whether or not this is the right thing to do. The president-elect saying so many times during the campaign, I don't need the money. They can't buy me. I will drain the swamp. This looks like anything but that. This is business as usual in an ugly form.

[07:55:00] LEVINE: That's a -- that's a fair point and I also think the question is about the standards that the president-elect has set for himself, has set for his administration. He talked a lot on the stump, as you point out, about draining the swamp and about sort of decrying pay-to-play politics. And saying that he didn't want to give the appearance, as many politicians do, of people buying access to him. And so something like this really raises the question of how he's going to handle this in his administration going forward and how he's going to set limits on this kind of thing.

CUOMO: And, of course, the lack of transparency comes up. Now this, Rachel, I think you distinguish from what happened last week. There was going to be an auction off for time with Ivanka Trump. The proceeds were going to go to St. Jude's Children Hospital. Now that's different, I suspect, because that's a real charity, it does real work. And the one that we're talking about around the inauguration is a new charity, you know, that has the beneficiary being something that nobody's ever heard of and has any belief that it's real. Different situations, but do they raise similar questions?

ABRAMS: I certainly think so, and I think people have raised the fact that they, in essence, raise the issue of people paying to access, again, Trump's children in the hopes of perhaps getting a message to the president, for example. I think my colleagues wrote that last week when you had the Ivanka situation you had people going on the record -- business people who said that they were interested in bidding for this coffee with Ivanka because they wanted to get a message to her father.

CUOMO: Right.

ABRAMS: And I think that that's where a big issue comes in.

CUOMO: All right. Now, quickly, let's play what Newt Gingrich just said as a supposed defense of what Donald Trump should do in this situation.

(BEGIN VIDEO CLIP)

NEWT GINGRICH (R), FORMER SPEAKER OF THE HOUSE: You have somebody who is a billionaire, and we have not really dealt with this relative scale of wealth in the White House, in some ways, since George Washington, who may have been the wealthiest man in the colonies. He also has, frankly, the power of the pardon. I mean, he -- it is a totally open power and he could simply say, look, I want them to be my advisers. I pardon them if anybody finds them to have behaved against the rules, period.

(END VIDEO CLIP)

CUOMO: Carrie, your reaction to that statement from Newt Gingrich about pardoning them in advance?

LEVINE: Well, I guess that assumes that they've done something that requires a pardon, so I'm not sure exactly what the former speaker is suggesting that the children may or may not do. Certainly, the president does have the power of the pardon. I don't think we've really seen it used in the way that he's suggesting.

But I also think that, again, this is a question for the president- elect about how he wants to run his administration and the pact that he's made with the public who voted for him. And also, I think it's really a question about what he said on the stump and how he wants to structure things so that he lives up the standards he's set for himself.

CUOMO: I think Newt Gingrich was just suggesting that our next president decides that his kids cannot do anything wrong by law, which is one of the more bizarre things we've heard. We're trying to check with the speaker and get some clarification. Carrie, Rachel, thank you very much for the reporting and the perspective. Appreciate it.

We're following a lot of news. We have new details on the suspect that authorities in Germany are trying to track down right now. Who is he, what was his motivation? Let's get to it.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Authorities now looking for a Tunisian national after finding his identity papers inside the truck.

UNIDENTIFIED MALE: ISIS is making this claim that they've inspired this attack but they've offered no evidence.

UNIDENTIFIED MALE: It's prudent to treat this as a plausible terrorist attack.

UNIDENTIFIED MALE: German police spent 24 hours interrogating the wrong man.

UNIDENTIFIED MALE: Whoever carried out this attack is at large, armed and dangerous.

UNIDENTIFIED MALE: Explosions rocking a fireworks market north of Mexico City.

UNIDENTIFIED MALE: The horrifying scene, nearly three dozen people killed. That death toll could continue to rise.

MIGUEL MARQUEZ, CNN HOST: Investigators are trying to determine what went wrong.

(END VIDEO CLIP) ANNOUNCER: This is NEW DAY with Chris Cuomo and Alisyn Camerota.

CUOMO: Good morning. Welcome to your NEW DAY. It is Wednesday, December 21st, 8:00 in the East. We have breaking news out of Germany. The investigators there now believe that the Tunisian man they're looking for in connection with Monday's terror attacks is linked to a pro-ISIS network.

CAMEROTA: And the terror group is claiming that it inspired the attack that killed those 12 people and injured dozens more. We have the breaking developments covered, beginning with CNN's international anchor Hala Gorani. She is live in Berlin -- Hala.

HALA GORANI, CNN INTERNATIONAL ANCHOR & CORRESPONDENT: Yes, indeed. Well, we are learning from security sources, as you mentioned there, that a Tunisian national born in 1992, so 24, 25 years old, is sought in connection with the terrible atrocity that happened in that market square behind me. A truck plowing into the Christmas market killing 12 people, including an individual in the cab of the truck.