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Does the Firing of James Comey Raise Questions?; White House in Crisis. Aired 6:30-7a ET

Aired May 12, 2017 - 06:00   ET

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

CHRIS CUOMO, CNN ANCHOR: All right. The firing of James Comey raises serious questions about the FBI's active investigation into the Trump campaign and possible collusion with Russia. In that interview with NBC, the president says Comey told him three times he was not under investigation.

(BEGIN VIDEOTAPE)

UNKNOWN: You were the centerpiece of the Trump campaign.

TRUMP: All I can tell you is...

(CROSSTALK)

TRUMP: I know that I'm not under investigation. Me, personally. I'm not talking about campaigns; I'm not talking about anything else. I'm not under investigation.

(END VIDEOTAPE)

CUOMO: So, by all accounts, if James Comey told that to the president, he should not have. It was wrong to do so. And the president asking could be seen as active interference in the investigation. And the overall question becomes how well, you can trust the investigation now if you know the president is willing to manipulate it. Let's bring back the panel. David Gregory, Phil Mudd, Errol Louis. David Gregory, where do we start in this kind of analysis?

DAVID GREGORY, JOURNALIST: Well I just want to question - you're a lawyer and I'm not, I mean, is it wrong? Is it not -- does it not happen that the FBI would -would indicate to you, look, you are not under investigation at this time. I'm aligning for the possibility that it could have happened, even if were misinterpreted by - by the president.

CUOMO: Well, let's get a check from the bird-like man sitting to your left. Phil Mudd, what do you say about that?

PHIL MUDD, AUTHOR: I think David is right, but let's look at the context here. It's not just a question of whether someone's a subject of the investigation. The inappropriateness is a dinner with the FBI director whose has a 10 year term. Are you loyal? And am I the subject of the investigation? Side by side, that's where you get in -- this is not appropriate. You can't do that.

GREGORY: Yeah - no, I totally agree with that. And look, I also think people are focused on the wrong thing. Will the investigation move forward? Yes, I mean by all accounts it will. But again, I think we have to focus on the act of the president trying to undermine the investigation demanding a loyalty oath. We don't know who he's going to put into the FBI, whether that person will carry it out. And - and who the FBI director does matter.

Look at the Clinton e-mail investigation and the role Comey played. Now, critics would say he overplayed his role in that regard, and that's why he should be fired. But no matter who the FBI director is, who is in charge is going to matter terms of what's done, how it's done, the emphasis and all the rest, so we simply don't know the future.

POPPY HARLOW, CNN ANCHOR: I mean, there's a reason, Errol, that you -- you don't have that so a new FBI director of the (ph) administration typically. There's a reason that they're appointed for these 10 year terms, so that they can act independently of the president. So even if nothing were illegal here, it's still not intended to have those conversations, to give the American people confidence. You know, Andy McCabe - the acting FBI director - in his testimony yesterday completely countered what the White House said. The White House justification was not only the president lost confidence in Comey, the FBI rank and file lost confidence in Comey. Andy McCabe said that is blatantly not true.

ERROL LOUIS, JOURNALIST: That's right. And of course Andy McCabe was the handpicked top aide to Comey, so you can expect him to be loyal to his old boss. We can't really know for sure what is going on within the FBI.

HARLOW: But even some of the reporting of Pamela Brown, Evan Perez have as well; that they're largely...

LOUIS: Well, the reporting is actually right. It's been solid and it's been pretty much unanimous that the FBI feels like it is under attack. You know, frankly, I know some folks over there and the -- the morale is rock bottom; and there's a question about what is going on and what they're going to do to sort of rescue their institution. And very much as you say, I mean, look, J. Edgar Hoover was there from 1929 in - in the 1960s, 40 years later, he's still sort of dominating it.

And - and that's where the idea of the 10 year term to try and insulate them from politics comes from. I think a lot of people don't really quite understand. They think as if this was like the White House butler or something like that, where you can be fired or changed around and it doesn't mean anything. This is an important institution that is supposed to be held in check and supposed to be a little bit outside of politics. Clearly the president doesn't quite believe that.

CUOMO: Phil Mudd? What's your level of confidence this will get done the right way and do you think there needs to be a different level of independence in this probe (ph)?

MUDD: First of all, I don't think morale is at rock bottom. And we do know what's happening, believe Andy McCabe, I know him. Take it to the bank. To your point Chris, this looks simple from the outside. But the story on the inside is fundamentally different than any American who thinks you can shutdown this investigation. Remember, we're ten months in. There's a ton of data on the floor.

That's not in Jim Comey's office, that's in FBI electronic files. There are dozens, if not hundreds of people who know the details of the investigation, including what individuals in the Trump campaign did. They can speak to the press inappropriate or there are other avenues this will get out if it is ever shutdown.

Number one, the Congress can pull them behind closed doors and say what happened. Number two, this sounds inside baseball, do not under estimate the power of the inspector general over there at the department of justice to look into this. This story will get out regardless of what the president wants. I guarantee it.

HARLOW: David Gregory, reporting this morning, the Wall Street Journal that Rosenstein less than happy how the White House tried to totally lay this on him. We saw the White House change narrative. He apparently, according to the Journal went to Tom McGahn, the White House counsel and said correct the record. I'm not comfortable working in this environment if you don't. He has been invited to this all senators briefing as early as next week. A, do you think that happens and what -- what is the goal of that? What do they need to get from him?

GREGORY: Well, I think they want to understand exactly what role he played. Remember, he is new to the justice department at this level, just a couple of weeks in. Has a sterling bipartisan reputation, career prosecutor. I mean, he's the deal person to have level judgment against Comey without it looking political because he, like many others, whose behavior in the Clinton investigation and how he handled that would be - would be inappropriate.

So, I'm - I'm dying to know what he really thinks and whether he thinks this firing was appropriate, whether he actually recommended it. If he didn't, this is a really important time to do the right thing and to stand on principle. I'm not inside his mind, I don't know. But I think Congress has a right to know how this went down.

HARLOW: He didn't, and when you read that letter carefully, not one line in there he -- does he explicitly say I recommend the termination, which some people are pointing to.

CUOMO: Right, but you want to hear from him, because an obvious question is what did you think they wanted this for? You know, you just got in there; you're the new guy, they ask you to like, basically assemble your thoughts on why Comey has to go, what do you think this is about? But he should speak for himself.

Errol, how big a crisis is this? You can really look at it two - two ways, and we need to be objective about it. One is he can fire anybody he wants. He can fire the FBI director. Nobody liked Comey's handling of the e-mail. The Democrats were saying they wanted to fire him. Trump did not like how he handled the Russia investigation; it's his prerogative, he got rid of him. And if nothing comes from the investigation that fingers his (ph) people, then he's fine. Or it is everything that we're talking about right now which is a much bigger window into the president's willful disassociation of checks and balances and influence of the federal investigation.

LOUIS: I - I think - look, there are a lot of people, I happen to be one of them, who are a little bit unnerved. Every time this comes up. The president is unable to let go of this idea. He keeps telling us that there's nothing to it, its fake news; there's nothing to it, but he keeps bringing it back up. He tweeted yesterday he thinks the U.S. is tearing itself apart and that Russia is laughing up its sleeve at us and so forth. He seems to - to not be - not only is he inconsistent about it, but he seems to be really, really concerned about it in a way that to me, is not - is not quite comfortable. That also - look, the question is about checks and balances and our institutions. Everybody should be always concerned about that. How are they working in?

CUOMO: All right, appreciate it, fellows. Another bad headline for United Airlines. Did you hear about this? Remember the passenger dragged off the flight, right? For the second time in a month, a report of a scorpion...

HARLOW: This is no snakes on planes movie.

CUOMO: But look, you can't make it up. Another report of a scorpion on a plane. What does this mean to the beleaguered carrier? Next.

(COMMERCIAL BREAK)

CUOMO: News of expanded laptop ban on flights is expected soon. That's what sources are telling CNN following a classified meeting with Homeland Secretary John Kelly and lawmakers. If the ban expands to Europe, more than 350 flights a day could be impacted. The Trump administration pushed the original ban in North Africa and the Middle East, suggesting terrorists can hide explosives in laptops and other large devices.

HARLOW: Voter outrage getting physical at a town hall in North Dakota. Police escorting two people from the Republican Congressman Kevin Cramer's event after a heated discussion of the GOP's health care plan wash.

(BEGIN VIDEOTAPE)

UNKNOWN: Will the rich benefit from the -- if the healthcare is destroyed do the rich get a break?

CRAMER: Of course not.

(END VIDEOTAPE)

HARLOW: Wow, all right, this man showing his disgust with the Congress member's support of tax cuts for the wealthy. One part of the GOP plan right now. Cramer saying he doesn't have to agree with constituents, but does have an obligation to listen to them.

CUOMO: All right, a scorpion scare on the flights in Houston Thursday night. According to United, a scorpion reportedly crawled out of the passenger's clothing as it was taking off to Quito, Ecuador. The plane returned to the gate, paramedics examined the passenger, found no evidence of a bite. Passengers were put on a new aircraft and took off three and a half hours late. It's the second time in a month that a scorpion has been reported on a United flight. At least they didn't, you know, grab the scorpion stomp on it, drag it off the plane.

HARLOW: Bloody it. This is no snakes on plane.

CUOMO: Progress.

HARLOW: OK, moving on. Did President Trump admit to trying to obstruct justice in that interview he did about his firing of the FBI director. Our legal experts weigh in. What they make of the president's own words, next.

(COMMERCIAL BREAK)

CUOMO: The ouster of James Comey is leading many critics to ask whether President Trump impeded the Russian investigation. Listen to what the president told NBC. It is helping to raise eyebrows.

(BEGIN VIDEOTAPE)

TRUMP: In fact, when I decided to do it, I said to myself, you know, this Russia (ph) thing with Trump and Russia is a made up story. It's an excuse by the Democrats for having lost an election they should have won, and the reason they should have won it is the Electoral College is almost impossible for a Republican to win. Very hard, because you start off at such a disadvantage. So everybody was thinking they should have won the election. This was an excuse for having lost an election.

(END VIDEOTAPE)

CUOMO: So, the legal question becomes was this an attempt to obstruct justice by the president in firing Comey? Let's discuss with two men, you've got Mark Tushnet, a professor at Harvard Law School, and Alan Dershowitz, a professor emeritus at Harvard Law School. Harvard on Harvard. So, for us without the pedigree, let's put up the definition of obstruction of justice requires in terms of elements. You have that a defendant acted with corrupt intent.

So, intent is important in the crime. The defendant wanted to interfere with pending judicial proceeding, and those proceedings were pending; they were going on actually going on at that time. That the defendant's actions were likely to affect the judicial proceedings, and lastly that the defendant knew that the proceedings were pending. So, first, on the prosecution side of this. Professor Tushnet, what do you think? MARK TUSHNET, PROFESSOR AT HARVARD: I think at the moment we don't

know enough to say that the president had what the statute calls corrupt intent. We'll find out over time more about what he was thinking when he has done what he's done.

CUOMO: So we don't know enough. It is not out of the realm of possibility. Professor Dershowitz, what do you see?

ALAN DERSHOWITZ, PROFESSOR EMERITUS AT HARVARD: Well, every civil libertarian should be outraged by the breadth of the statute and that people are thinking of applying it to a president's decision to fire Comey. Think of the implications of that for the rest of us that anybody can be charged with obstruction of justice for doing something lawful.

There is a case - I actually argued it many years ago, where a lawyer was convicted of obstruction of justice for allegedly doing lawful things. In that case, they accused him filing privilege frivolous appeals and false motions and pleadings. But the obstruction of justice statue is a disaster from the civil liberties point of view. And it is a terrible mistake if you are a liberal who don't like Trump to try to broaden a statute to go after Trump and then we're stuck with a precedent that could really diminish the liberty of all Americans.

CUOMO: So, the fact that what he did was lawful; he had the lawful right to remove the FBI director under law. Why he did it doesn't matter?

DERSHOWITZ: Well, usually the criminal doesn't probe (ph) people's motive. We don't put people's motives on trial. There has to also be an illegal act. Now, there are some cases that say that if the whole scheme was corrupt, you could look at the things as a totality of circumstances.

CUOMO: How about his acknowledgement that he pressed the FBI director by his own admission for a loyalty oath on this matter and an insistence he was not being investigated?

DERSHOWITZ: Good reason for voting against him. Good reason for making him pay a political price. I'm sure that Trump did demand loyalty; he demands loyalty of everybody. I suspect the conversation about whether he was under investigation probably went something like this. Am I under investigation? And the FBI director could say look if you were a target, would you have gotten a target letter. So you can surmise from the fact you haven't gotten a target letter that you are not a target. I've had that kind of conversation with prosecutors.

CUOMO: You know Comey. Do you think he would have been in any way eager to give any offering like that to the president?

DERSHOWITZ: Of course not.

CUOMO: That's part of the problem but it's not a legal problem. So back to you, Professor Tushnet. We don't know enough. What are your concerns in the situation? Legally? Morally? Ethically?

TUSHNET: Well, what we're dealing with now is a combination of a problem that's a little bit law and mostly political. And the way the political process works is that people draw their inference from what they see in the press. As more smoke accumulates people begins to think there may be a fire there and as they think that there may be a fire there, pressure will build on politicians to investigate even more completely.

DERSHOWITZ: And there's one way the president can put out the fire. He has to appoint somebody better than Comey. Senator Lee came up with a brilliant idea. Merrick Garland. The guy was superb prosecutor. He was appointed by Democrats. Wow, that would put out all fires for months and months and months. Will the president do that? I doubt it.

CUOMO: What if it became known that the reporting that the firing came after Comey had put in a request for more resources to ramp up the investigation? If there was a connection between not just the timing, and intention to get rid of Comey after the request, does that change your analysis Professor Tushnet?

TUSHNET: I --I don't think it makes difference in thinking of sort of criminal prosecution, but again we're dealing with something that combines law and politics, and on the politics, yes, it would make a difference to some politicians that this action -- the firing occurred after Comey said he was going to intensify the investigation. I don't think there is much question.

CUOMO: Chasing the illegality, you believe is ill advised, but it doesn't mean that this wasn't wrong on different levels?

DERSHOWITZ: Well, here's the way we'll know whether it was wrong. If, in fact, there was a conversation about resources and then he appoints somebody who is a crony, and the crony says we have too many resources, let's cuts it down the investigation that would really raise serious questions. I hope he doesn't do that. I hope he appoints somebody of great distinction and not a crony, and I think then we - we survive a constitutional crisis. Otherwise, we're in one.

CUOMO: Professors, thank you for the perspective, as always. Poppy?

HARLOW: Some smart minds on the show this morning. Thank you, gentlemen. More on President Trump's interview and growing fallout from the firing of FBI Director James Comey. Is the white house in crisis mode? We're going to dig in next.