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Trump Lawyer: President Cannot Obstruct Justice; RNC Joins Trump in Backing Roy Moore in Alabama Senate Race. Aired 6-6:30a ET

Aired December 05, 2017 - 06:00   ET

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

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: The suggestion that he can't be charged with obstruction of justice is a laughable proposition.

UNIDENTIFIED MALE: The president's decision to fire the director of the FBI cannot itself be an act of obstruction of justice.

UNIDENTIFIED MALE: K.T. McFarland is emerging as a key actor.

DONALD TRUMP (R), PRESIDENT OF THE UNITED STATES: Well, I feel badly for General Flynn. Flynn lied, and they destroyed his life.

UNIDENTIFIED FEMALE: The RNC is actually going back to financially supporting Roy Moore. This is outrageous.

UNIDENTIFIED MALE: Voters don't want to be told from Washington who to vote for.

ROY MOORE (R), ALABAMA SENATE CANDIDATE: I do not know any of these women.

UNIDENTIFIED FEMALE: I felt like this was the first thing that I've seen that I know personally for a fact to be a lie.

(END VIDEOTAPE)

ANNOUNCER: This is NEW DAY with Chris and Alisyn Camerota.

CHRIS CUOMO, CNN ANCHOR: All right. Welcome to our viewers in the United States and around the world. This is your NEW DAY. It's Tuesday, December 5, 6 a.m. here in New York. Alisyn is off, and I have a star beside me in the form of Poppy Harlow.

Thank you for being here.

POPPY HARLOW, CNN ANCHOR/CORRESPONDENT: It's a pleasure.

CUOMO: As always.

We have a big starting lineup this morning. This legal question could shake the Trump presidency. Did Donald Trump obstruct justice when he fired FBI Director Jim Comey? The president's personal attorney now appears to be channeling Richard Nixon in defense to that proposition. Mr. Trump's lawyer is arguing that the president is above the law as the nation's chief law enforcement officer.

Now, Flynn's deputy, K.T. McFarland, is under scrutiny about whether or not she misled congressional investigators. In a written statement, she told the Senate panel she was not aware of any communications between Flynn and Russia's ambassador, but newly- unsealed court records appear to contradict her statements to Congress.

HARLOW: Also overnight, the Republican National Committee is now backing and funding embattled Senate nominee Roy Moore after the president endorsed him out loud yesterday, but not all Republicans agree with the president's support of the accused child molester.

President Trump's backing of Moore comes one week before the special election in Alabama; and it also comes as a woman who said she dated Roy Moore as a teenager comes forward with evidence of their relationship. We have it all covered.

Let's begin with CNN's Joe Johns at the White House with our top story this morning. Good morning, Joe.

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: Good morning, Poppy.

The significance of this is that it is reality sinking in when the president's lawyers, as well as the country at large try to come to grips with what happens and which rules, as well as which facts apply when the president's top adviser, a key confidante, is -- finds himself in the position of being -- pleading guilty as well as cooperating with federal investigators in a complex case that could implicate not just the U.S. federal criminal code but also the U.S. Constitution.

(BEGIN VIDEOTAPE)

JOHNS (voice-over): White House lawyer Ty Cobb downplaying the justice defense put forward by President Trump's personal lawyer, John Dowd, telling "The Washington Post" that while Dowd's assertion that a president cannot obstruct justice because he's the nation's top law enforcement officer is an interesting legal issue, it is not Mr. Trump's official legal strategy.

SEN. CHRIS COONS (D), DELAWARE: Frankly, the idea that our president is above the law, not only above the law but free to interfere with any investigation and act in ways that are obstruction of justice is Nixonian and, I think, unacceptable.

JOHNS: Dowd floating his controversial defense amid speculation whether this tweet from the president's account could lead to a potential obstruction of justice case. The tweet, which Dowd says he drafted, suggests the president knew his former national security adviser Michael Flynn lied to the vice president and the FBI before he allegedly urged former FBI director James Comey to drop the bureau's investigation into Flynn. A source now telling CNN that the president was told by White House counsel Don McGahn in February that Flynn misled the FBI about his contacts with Russians. McGahn reportedly telling the president Flynn should be fired. And after receiving a warning that Flynn might be compromised from then acting attorney general Sally Yates.

SALLY YATES, FORMER ACTING ATTORNEY GENERAL: We told him we felt like the vice president and others were entitled to know that the information that they were conveying to the American people wasn't true.

JOHNS: Despite McGahn's recommendation, the president kept Flynn on the job for weeks with access to the nation's most classified information, Trump caving eventually to public pressure, firing Flynn but insisting he was a good man.

The president now defending Flynn, after he pleaded guilty Friday to lying to the FBI.

TRUMP: I feel badly for General Flynn. Hillary Clinton lied many times to the FBI. Nothing happened to her. Flynn lied, and they destroyed his life. I think it's a shame.

JOHNS: Flynn's deputy, K.T. McFarland, also under scrutiny over apparent inconsistencies in her testimony about Flynn. McFarland told the Senate Foreign Relations Committee in July that she was not aware of any communications between Flynn and former Russian ambassador Sergey Kislyak.

But unsealed documents from Friday's court filings show that Flynn spoke to a senior transition official before meeting with Kislyak. Although McFarland was not specifically mentioned, CNN has confirmed she was the referenced official.

[06:05:03] REP. ADAM SCHIFF (D-CA), RANKING MEMBER, INTELLIGENCE COMMITTEE: It certainly appears that was a directly falsely misrepresentation to the Senate.

(END VIDEO CLIP)

JOHNS: Now, in the midst of all of this, a big temporary win in the courts for the president and the administration, of course, allowing the president's travel ban to go forward while challenges to that policy make their way through the courts -- Chris and Poppy.

CUOMO: Joe, appreciate it.

Let's bring in CNN political analyst David Gregory and CNN legal and national security analyst Asha Rangappa. This is a big turn in events that we have here now what the president's counsel just said.

So let's start with this proposition, David Gregory, politically, OK? We went from nobody is investigating the president. Don't say that Mueller is investigating the president. There's no indication that he's being investigated, and Comey said he isn't.

Two, even if this was obstruction of justice, you can't charge a sitting president with that because of the Nixon rule and what we learned during that and that he is the chief executive in terms of administration of justice. So, you can't charge him with obstruction of justice when he has sole authority over justice. DAVID GREGORY, CNN POLITICAL ANALYST: Well, I mean, it's a dizzying

turn of events here in the last couple of days. Beyond -- at the very least, incredibly sloppy lawyering, because somebody's not telling the truth about all of this. If the president knew that his national security adviser had lied to the FBI and to his vice president about contacts with the Russians and then later on turns into fire the FBI director, because he doesn't like the investigation after, according to the FBI director, he says, "Hey, go easy on this guy," then you've got a real grounds for obstruction of justice. That's just the bottom line.

You have the president coming out. This is the president of the United States, accusing Hillary Clinton of lying to the FBI, based on what evidence?

HARLOW: Right.

GREGORY: The president of the United States, with no evidence, making that claim. The FBI feels differently.

This is a president who's trying to undermine the Federal Bureau of Investigation that has certainly been criticized for some of its decision making. But it certainly had its integrity still upheld for all those agents who are out there working to defend the country. And the president is trashing them. So this is an extraordinary turn of events that's bringing more and more attention on the president and perhaps the biggest area of investigation by the special counsel that would relate directly to the president's conduct, brought on by himself. There would be no independent prosecutor, were it not for the president taking the extraordinary step of firing the man who is leading the investigation into this whole issue.

HARLOW: David Gregory, I'm so glad you brought up that point, because Comey testified, as you know, in July under oath that there is no evidence that Hillary Clinton lied to the FBI; and the president said exactly the contrary with a lack of any evidence.

Asha, to you. I'm old enough to remember when, back in 1999 then- Senator Jeff Sessions and Mitch McConnell and 40 Republican lawmakers were going after the president and using the terms "obstructing justice," then President Clinton, saying he obstructed justice in the Monica Lewinsky affair investigation. And now you have the argument, as Chris just laid out, that the White House is saying that the president cannot obstruct justice.

ASHA RANGAPPA, CNN LEGAL AND NATIONAL SECURITY ANALYST: Right. So, obstruction of justice was in the articles of impeachment for both Nixon and for Clinton.

HARLOW: Yes.

RANGAPPA: And, listen, this is a legal strategy, and that's what we need to understand. You argue that your client can't obstruct justice when, on the facts, you cannot argue that he didn't. So, as the evidence mounts, this is going to be what the lawyers are going to do. And, look, you know, this can be litigated. I think the vast majority

of scholars reject this idea and what's being described as called the unitary executive. It basically says the president can essentially do whatever he wants in this area.

And this has been tested in other areas. George W. Bush and his -- the war on terror with military courts. So it can go to a court and have that decided. I think that it's an uphill battle for Dowd. Because the weight of history and the fundamental principles of our Founding Fathers in the Declaration of Independence charged King George with obstructing justice.

HARLOW: There you go.

RANGAPPA: So...

GREGORY: Let's also remember our friend and colleague, Jeff Toobin in his "New Yorker" piece, makes this point. This is -- this question of obstruction as it relates to impeachment is fundamentally a political process; and it was for Nixon.

And, by the way, it was for Andrew Johnson, to go way old school, who was Lincoln's vice president, who was ultimately impeached. And there was a fury at the time that's detailed in this new biography of Ulysses S. Grant about whether this was just pure politics for his dismissal of a federal official.

[06:10:13] So you know, it's -- it's the idea of what President Ford, when he was in the Senate, described as obstruction is whatever, you know, Congress thinks it is as it's weighing an impeachment charge. That will ultimately be a question. It will be a political question.

CUOMO: That's true. And, look, I know this sounds a little bit in the weeds here. Alisyn calls it broccoli all the time.

HARLOW: I like that.

CUOMO: But there's different standards, saying Mueller can charge you with a crime versus the politicians in Congress can try to impeach you for a high crime or misdemeanor which means nothing. High crimes and misdemeanors doesn't mean high crimes or misdemeanors. In a phrase that Madison came up with the people just to give some substance to it, and they borrowed it from English common law. It's just about politics. So they're parallel paths, and obstruction of justice would have very different standards on each.

So let's look at how people are reacting to this today. "The New York Times," let's put up that op-ed, a little bit of the language from it and discuss it. OK? It was bad enough for the president to attempt to interfere in any way with the law enforcement investigation of one of his top aides. But with Saturday's tweet, Mr. Trump admitted that he knew Mr. Flynn had committed a federal crime at the time, which would be lying to the FBI. At the time, he fired Mr. Comey and, to refusing to stop investigating him.

To most people with a functioning prefrontal cortex, which is a part of the brain, it sure sounds like Trump is admitting to interfering or endeavoring to interfere with the conduct of investigations and to impeding the administration of justice.

Asha, here's a legal question, OK? He can impede and interfere with investigations. He can stop and start investigations.

RANGAPPA: That's right.

CUOMO: He can remove the head of the FBI. It's why.

Now Alan Dershowitz will be on the show later today. He's not a Trump supporter, but he does support this proposition, that you can't look at why he does it. He either has the power to remove people or he doesn't. The alternative legal theory is what?

RANGAPPA: Well, I would disagree with Dershowitz.

CUOMO: I know you will.

RANGAPPA: So for example, the president can't remove someone on the basis of race or religion. That would still be illegal. He cannot simply act on whatever motives he wants. There are going to be limits, and they're going to look at what his motives are actually, this is a part of what was motivating the travel ban litigation. The president has brought authority to determine who comes in and out of this country. What they were looking at was, was it being motivated by an anti-Muslim animus?

So I think that, in a number of contexts, the president -- the president does have a wide latitude, but courts have looked at what the motive was. But even in U.S. v. Nixon, they pierced executive privilege to look at what was going on criminally.

HARLOW: So David, John Dowd, one of the president's -- president's outside attorneys' defense, what got this all started yesterday morning sounds a whole lot like former President Nixon's defense back in 1977. Let's listen to that for a moment.

(BEGIN VIDEO CLIP)

DAVID FROST, TELEVISION HOST: Saying that there are certain situations, the Houston panel, that was one of them, where the president can decide that it's in the best interest of the nation or something and do something illegal.

RICHARD M. NIXON, FORMER PRESIDENT OF THE UNITED STATES: Well, when the president does it, that means that it is not illegal.

(END VIDEO CLIP)

HARLOW: OK. And the beginning of "The New York Times" editorial board piece this morning that Chris read is "You know you have a problem when you've been president for less than 11 months, and you're already relying on Richard Nixon's legal defense."

David, your thoughts. GREGORY: Well, there's a couple of things. One, I think what

Professor Dershowitz will argue, in part, is what you're hearing out of the legal circle for President Trump. His decision to fire the FBI director was actually related to his handling, if you can believe this -- which strains credulity -- his handling of the e-mail situation into Hillary Clinton as secretary of state that he thought Comey did such a bad job without it. That was his reason for dismissing him.

We know, based on what the president has said, that he was so angry about how he was handling this Russia investigation that he wanted it to stop. And I think that's the bigger point here.

I mean, we have the president of the United States who is cutting and thrashing his way through institutions in Washington, bad mouthing the FBI. And by the way, I think we have to put into this conversation. maybe he's going to try to fire Mueller. We haven't said that in a few weeks. But why would you assume that he wouldn't? I mean, he's...

CUOMO: He can't the same way. He could directly remove Comey. There's steps with Mueller.

GREGORY: Right. He'd have to do it and...

CUOMO: He'd have to get Rosenstein.

GREGORY: Rosenstein would resign before doing that, and on and on. But why don't we presume that the president won't try to make that kind of move, given how he's handled the FBI? This becomes a political process at the outset.

[06:15:06] CUOMO: And look, at the end of the day -- and I saw Asha's eyebrows went up when David was saying it. The fact that the legal team around the president would want to offer up evidence of why he removed Comey. Is an admission by them that why he removed Comey is relevant to the discussion. I mean, as soon as it becomes relevant to the discussion, he is exposed to analysis for obstruction of justice. And that's the thicket that they're in right now.

Rangappa, David Gregory, thank you very much. The name sounds Italian to me. That's why I keep saying it. That's the only reason I get it right. It's good. It's good a couple more times.

All right. The Republican National Committee joining President Trump in support of Roy Maher [SIC] -- Moore. Is this just putting party over morality for a Senate vote? Is it as simple as that? And does that make it OK? Next.

(COMMERCIAL BREAK)

CUOMO: All right. We're off and running this morning. And on the heels of President Trump's endorsement of Roy Moore, the Republican National Committee is opening the financial spigot in the final week of that big campaign in Alabama. The RNC had pulled its support after the accusations of sexual abuse of a teenage girl.

CNN's Kaylee Hartung live in Birmingham, Alabama, with more. What's the latest?

KAYLEE HARTUNG, CNN CORRESPONDENT: Well, Chris, we are one week away from the special election that's put a national spotlight on Alabama. Roy Moore has gotten what you could think would be a big boost, the explicit endorsement of the president of the United States and the financial backing again of the RNC.

[06:20:13] But in this deeply conservative state, Republicans remain split. The Republican National Committee restoring its support for embattled candidate nominee Roy Moore, despite multiple allegations of sexual assaults and pursuing relationships with teenage girls, including a woman who says Moore molested her when she was 14.

The shift comes hours after President Trump endorsed Moore, tweeting that the GOP needs Moore's vote to advance his political agenda.

DEAN YOUNG, CHIEF POLITICAL STRATEGIST, ROY MOORE CAMPAIGN: The president told him he would be with him 100 percent, to "Go get 'em."

HARTUNG: The RNC following Mr. Trump's lead, transferring money to the Alabama GOP.

But the committee that works to elect Republicans to the Senate refusing to follow suit. The committee's chair maintaining his commitment to staying out of the race after saying last month that Moore is, quote, "unfit to serve. If he refuses to withdraw and wins, the Senate should vote for expel him."

Senate Majority Leader Mitch McConnell initially towing a similar line.

SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: He's also not fit to be in the United States Senate, and we've looked at all the options to prevent that from happening.

HARTUNG: But over the weekend he, too, reversed that decision.

GEORGE STEPHANOPOULOS, ABC NEWS: Do you believe he should be in the Senate?

MCCONNELL: I'm going to let the people of Alabama make the call.

HARTUNG: Former Republican presidential nominee Mitt Romney slamming Moore in a tweet: "Roy Moore and the U.S. Senate would be a stain on the GOP and on the nation. No vote, no majority is worth losing our honor, our integrity."

This as Debbie Wesson-Gibson, who claims she dated Moore when she was 17 and he was 34, comes forward with new evidence of their relationship to "The Washington Post."

DEBBIE WESSON-GIBSON, ROY MOORE ACCUSER: I came across a card, and it was a high school graduation greeting card from Roy Moore: "Happy graduation, Debbie. I wanted to give you this card myself. I know that you'll be a success in anything you do, Roy."

HARTUNG: Moore initially said he knew Gibson but did not remember dating her before backtracking.

MOORE: I do not know any of these women, did not date any of these women and did not engage in any sexual misconduct with anyone.

WESSON-GIBSON: We kissed with my consent, and I'm very sad that he's decided to say that he doesn't know me.

This was the first thing that I've seen that I know personally for a fact to be a lie from his mouth.

MOORE: The inscription on Gibson's card appears similar to the message Beverly Young Nelson says Moore wrote in her yearbook. Nelson has accused Moore of sexually assaulting her when she was 16, allegations Moore denies.

(END VIDEOTAPE)

HARTUNG: In response to the new evidence Debbie Wesson-Gibson has shared of that relationship she alleges she had with Roy Moore, we obtained this statement from his campaign that says, quote, "'The Washington Post' is reaching. Roy Moore already said he knew Debbie Wesson and her family but did not recall any formal dates. Furthermore, when he stated that he did not know any of the women, he was referring to those who accused him of sexual assault."

Debbie Wesson-Gibson now, I should say, alleges that Moore pursued her as a teenager. But Chris, Poppy, there are four other women who have alleged that Moore abused or assaulted them sexually.

HARLOW: There are indeed. Thank you very much. And we are one week away from that special election in Alabama.

Let's bring back David Gregory and also bring in our reporter, editor at large of CNN Politics, Chris Cillizza with the point. I think that's the last thing I read last night, Chris, before I went to bed.

CHRIS CILLIZZA, CNN POLITICS REPORTER AND EDITOR AT LARGE: Oh, good.

HARLOW: And your point was so on that I wrote it down. And let's have you go through it. When you see the president come out yesterday morning and back Roy Moore, you know, explicitly in his tweet, you say it all comes down to his world view on one thing: How does this affect me?

CILLIZZA: Yes.

HARLOW: Is that really it?

CILLIZZA: Yes, I mean, I think it does. Donald Trump is not unique in that. I think most people, myself included, probably think, "Hmm, I wonder what this would mean for me when something happens," but he does so to a huge extent and more so, I think, than we've seen from people in the past in that role.

He has -- sees in Roy Moore sort of a kindred spirit. He believes that Roy Moore has been wrongly accused, in the way he believes he has been wrongly accused, by a number of women about his sexual conduct around them. He sees Roy Moore as someone who has stuck it to the establishment, the same way Donald Trump stuck it to the establishment in 2016. He sees Roy Moore as a fighter against liberal media, against liberal causes, against political correctness in the same way Donald Trump sees himself.

So, in a lot of ways it makes perfect sense he's endorsing Roy Moore, even though I suspect if you had George W. Bush as president, George H.W. Bush as president, Mitt Romney as president -- I mean, pick -- pick a Republican not named Donald Trump. I can't imagine you would see an endorsement. And this quasi rally later this week for -- that will benefit Moore, I should say, in Pensacola, Florida.

CUOMO: But let's also be quick to look at the president through the right lens. I don't see him as a cause here. I see him as a symptom of the disease because, David Gregory, to Cillizza's point, you saw a lot of tail turning and quickly that seems to make a very simple point.

When it suits them, you're hearing the Republicans in power say, "Let's leave it to the voters in Alabama." Forget about this moral agency thing. It's not for me to condescend to them about what to do. They want the seat. They're putting party and the numbers and the math ahead of the morality in this situation. Not to falsely convict Mr. Moore. He has every right to attack the accusations. Not all accusations are equal. But this is the political play, is it not?

GREGORY: No question about it. But look, they made a moral play. I mean, we do have the top -- I mean, much more -- keep talking about how they don't have much spine when it comes to certain things that President Trump says or does. This -- in this case, you had all the congressional leaders come out and say this guy should step aside, talking about Roy Moore, that he's not fit to be a senator.

How many senators were on this program saying, "Look, if he's voted in, he will be expelled. He will not be seated." They stated it as a fact. So they overreached, because the bottom line is they were looking for all kinds of ways to derail him, and he would not be shamed out of the race.

President Trump held back. And now he decided that, hey, you know, if he's going to fight this thing in the same way that he, Donald Trump, fought accusations up against him in the campaign, maybe he'll ride it out and maybe he'll win.

So the net effect of this is maybe Roy Moore becomes a senator. It's a tight race in which Republicans perhaps perhaps have a reliable vote on aspects of their agenda.

But what is for certain is that, to whatever extent that the Republican Party and Donald Trump will be nationalized in the midterm race, Roy -- Roy Moore is a big part of that, because opposition -- the opposition is going to just play all of the sound that you've heard from congressional leaders and say, "Hey, this is the Republican Party of today. You know, they're going to -- they're going to raise your taxes if you're in the middle class eventually. They're going to benefit the rich, and they've got guys like Roy Moore as the party." That's what the campaign is going to be.

HARLOW: So if you listen to Mitt Romney, he's saying there are certain things that are not worth having the majority, in his words on Twitter, "Roy Moore in the U.S. Senate would be a stain on the GOP and on the nation. Leigh Corfman and other victims are courageous heroes. No vote, no majority," Chris, "is worth losing our honor, our integrity."

Is Mitt Romney on an island here, though, in his party?

CILLIZZA: No, I don't think so. Because to David's point, look, you know, Mitch McConnell said the guy shouldn't serve. Corey Gardner, as Kaylee mentioned in her piece, the chairman of the National Republican Senatorial Committee, said, "We will expel him, or we should, if he's in."

I think this is just sort of rubber meets road pragmatism at this point. They tried the moral shaming route. Didn't work. Roy Moore not to be shamed, staying in the race.

And now, I think McConnell and others are doing what politicians do, which is trying to make the best of a very bad situation. I think they now recognize there's at least a 50/50 shot Roy Moore winds up in -- I tend to think it's better.

And, as I think I said on this show, the idea that they would expel him a week after the people of Alabama voted him in, knowing full well what the allegations against Roy Moore are, never really held water. I'd be stunned if that happens.

GREGORY: I agree.

CILLIZZA: So that's why we see people like Orrin Hatch yesterday in Utah saying, well, these allegations were years ago. I still think there's real danger. I think Mitt Romney is right. Winning at all costs comes with a price. And that is maybe not a price you realize on December 13, the day after the Alabama election, but maybe in a year's time or two years' time, you do. What sits at the core? What makes the party? What do you stand for? That, to me, is the longer- term danger.

CUOMO: And if you strip away all these accusations, they still have that problem with Roy Moore. I mean, this man is getting a great benefit of analysis by just this set of accusations. And not that they should be taken seriously, but there are plenty of reasons. This man has been removed twice from office as the type judge -- top judge for just ignoring the secular nature of this country.

Anyway, gentlemen, thank you very much. To be continued for sure.

In just hours, embattled Congressman John Conyers, Democrat, is going to make an announcement on his political future in a radio interview. "The New York Times" reports Conyers plans to announce he will not seek re-election amid allegations that he sexually harassed former members of his staff. "The Times" cites Ian Conyers, the grandson of the congressman's brother, who tells the paper he plans to run for the seat.

Conyers is under scrutiny for settling one case of harassment, using taxpayer dollars.

HARLOW: Ahead, a deadly wild --