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Can The President Obstruct Justice?; Undercover Conservatives In Silicon Valley; RNC Joins Trump In Support Of Roy Moore. Aired 7:30-8a ET

Aired December 05, 2017 - 07:30   ET

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

(COMMERCIAL BREAK)

[07:33:05] CHRIS CUOMO, CNN ANCHOR: All right.

We've had a big turn in the reckoning of what's going on with the Russia investigation vis-a-vis the president. President Trump's own personal attorney, John Dowd, argues he cannot be guilty of obstruction of justice.

In an interview with "Axios," he says what's on your screen. "The president cannot obstruct justice because he is the chief law enforcement officer under Article II of the Constitution and has every right to express his views of any case."

Is it as simple as that?

Joining us now, big brains Jeffrey Toobin, CNN chief legal analyst -- and I must direct you to his piece in "Vanity Fair" out earlier this week. Very smart take on this. Jeffrey, OK with the shameless plug?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST, AUTHOR, "THE OATH", FORMER FEDERAL PROSECUTOR, STAFF WRITER, "THE NEW YORKER": "The New Yorker," not "Vanity Fair."

CUOMO: "The New Yorker," sorry. You will not find it in "Vanity Fair." It will never be in "Vanity Fair."

TOOBIN: I'm a great fan of "Vanity Fair."

CUOMO: It will only be in "New Yorker." It's out earlier this week.

And, Alan Dershowitz, Harvard law professor school -- Harvard Law School professor emeritus. Good to have you.

So, Professor, we start with you. Is Dowd correct?

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL, AUTHOR, "ELECTILE DYSFUNCTION": No, he's not. Of course, the president can be charged with obstruction of justice if he engages in acts beyond what Article II of the constitution allows him to do.

President Nixon and Clinton were both impeached for obstructing justice by telling witnesses to lie. Nixon, for paying hush money and destroying evidence. My point is that the president cannot be charged for simply exercising his authority under the constitution by pardoning people, by firing people he's allowed to pardon -- fire without regard to what his subjective intent may be.

It's much like Article I, which says that senators and congressmen have limited immunity from arrest for performing their duties under Article I of the constitution.

[07:35:00] That's my point and it should not be confused with a different point that says the president's above the law or the president --

CUOMO: All right.

DERSHOWITZ: -- can never be charged with obstruction of justice. Keep my point clear. That's what I have said.

CUOMO: All right. Let me know if I keep it clear, Professor.

Jeffrey Toobin, the words subjective intent stand out to me in what the professor just said. His position seems to be you can't look at why the president did it unless it fits into certain extralegal categories.

How do you see it?

TOOBIN: I disagree with my mentor, Alan, on that one because -- I mean, I think -- look, just to specify the core of our disagreement.

Alan thinks -- and Alan will correct me if I am wrong -- that there is no way that firing James Comey can be obstruction of justice because he has the legal right, as president, to fire James Comey.

I think that is --

DERSHOWITZ: That's right.

TOOBIN: -- completely wrong because I think the subjective intent can be considered by Congress an impeachment.

For example, you know, if he did it for corrupt motives, if he did it to protect his own liability, if he did it to protect his own financial interests -- if he did it for corruptive motives, that is obstruction of justice and that is an impeachable offense.

DERSHOWITZ: So when then -- why wasn't President George Bush the first impeached or prosecuted? He pardoned Caspar Weinberger and five other people for the explicit purpose of bringing an end to the Iran- Contra investigation by Special Counsel Lawrence Walsh, and that's what Lawrence Walsh said. Yet, nobody -- nobody suggested that he had committed any kind of a criminal offense for doing so.

So, you know -- by the way, I'm getting now attacked -- repeatedly attacked by the people on the right for saying that Hillary Clinton can't be prosecuted because of her subjective intent. We're seeing the shoe on the other foot now all over the place. People are now screaming for Hillary Clinton.

I'm defending both of them. I don't want to see the criminalization of political differences. I don't want to see laws like espionage, obstruction of justice used against political enemies on either side.

TOOBIN: Well, I mean, I'm not screaming and I'm attacking Alan, and I -- you know, I don't know what other -- I know that people on Twitter are being unpleasant because that's what Twitter is.

But the fact is we cannot give immunity to top officials, like the president, because the Constitution gives them certain responsibilities. Let me give you an example.

DERSHOWITZ: How about the Senate? How about the Senate?

TOOBIN: Well, let's talk about the president for now. Suppose ---

DERSHOWITZ: OK, but we have to talk about the Senate, too.

TOOBIN: Wait, Alan. Let me just give you an example.

Suppose --

DERSHOWITZ: Sure.

TOOBIN: -- a member of al Qaeda walks into the president's office and says here's a suitcase full of cash. Pardon someone who went -- who --

DERSHOWITZ: That's such a -- that's such a simple, obvious case.

TOOBIN: What?

DERSHOWITZ: He's guilty of bribery.

TOOBIN: So?

DERSHOWITZ: He's guilty of bribery. You can convict the president of bribery, you can convict the president of telling witnesses to lie.

What you cannot convict the president of is simply and merely exercising his Article II authority by pardoning somebody or by firing somebody. That's my point. You cannot do that.

You may be able to impeach him for misuse of his power but you cannot prosecute him for exercising his constitutional authority --

TOOBIN: Well --

DERSHOWITZ: -- any more than you can prosecute a senator for exercising his constitutional authority.

TOOBIN: Let's --

DERSHOWITZ: Of course, if a senator takes a bribe you can go after him for that. But you cannot go after the president merely for exercising his constitutional authority.

And these hypotheticals about taking bribes and al Qaeda support my position. That's why Nixon and Clinton were impeached, for going beyond their mere authority under Article II of the constitution.

TOOBIN: Well, I think you're drawing a distinction where one doesn't exist.

But let me just say that the constitutional question of whether a president can be indicted for anything -- whether obstruction of justice, robbing a bank --

DERSHOWITZ: Sure.

TOOBIN: -- stealing a car. That's a question that has never been resolved and I don't even know --

DERSHOWITZ: I agree.

TOOBIN: I certainly don't know what the appropriate answer is because there is a school of thought that says a sitting president can't be indicted because he is the --

CUOMO: Well, it's instructive -- it's instructive in this way, is that we're not going to answer it. I'm not talking about in this session. I haven't been saying anything because I'm fascinated by this. I love that you guys are talking about this.

But, Mueller isn't going to indict the president. That's not what's going to happen here, procedurally. He is going to wind up putting out information. It would wind up being kicked over to Congress.

That's why people like Dershowitz, Jeffrey, have been arguing that this should have been a commission all along because it's going to wind up being resolved politically, not legally.

DERSHOWITZ: Let's remember --

CUOMO: Let me get a quick final point from each of you -- Professor.

DERSHOWITZ: Let's remember what happened with Nixon. He was named as an unindicted co-conspirator.

CUOMO: Right.

DERSHOWITZ: So, Mueller can do that.

I'm saying it would be wrong --

[07:40:00] CUOMO: Unindicted.

DERSHOWITZ: -- to name him as an unindicted co-conspirator for the act of obstruction of justice if all he did was exercise his presidential authority to pardon, commute, or fire. That's my point, simple as that. TOOBIN: And my point is intent matters and that if it's done for a corrupt purpose you don't get immunity simply because it's within the president's power. That's the core of our disagreement.

DERSHOWITZ: You don't want to psychoanalyze -- you don't want to psychoanalyze --

CUOMO: Right.

DERSHOWITZ: -- a president and try to seek his subjective motives if he's exercising his constitutional authority.

TOOBIN: The court -- the courts look at intent every day.

CUOMO: All right. Thank you.

DERSHOWITZ: Not with the president.

CUOMO: Thank you, fellows. The professor always gets the last word. I mean, Jeffrey, it just happens.

TOOBIN: He deserves it. He deserves it.

CUOMO: It doesn't matter -- it doesn't matter. He does deserve it.

Thanks to both of you. Appreciate it -- Poppy.

POPPY HARLOW, CNN ANCHOR: All right.

Hiding in plain sight. Why conservatives in Silicon Valley fear talking about politics. Part two of our "DIVIDED WE CODE" series is next.

(COMMERCIAL BREAK)

HARLOW: When the topic of harassment in the workplace comes up, you would expect -- you would not expect wealthy, young, white, conservative men to say that they are victims, right? Maybe not in this narrative right now and what's going on in this country right now.

But in Silicon Valley, conservatives there -- some of them are claiming they are targets of a culture war that has implications for every American. It is a fascinating dynamic playing out.

Our Laurie Segall spent a lot of time there. She is with us now for part two of her series "DIVIDED WE CODE."

I remember when you were going out on this assignment and how fascinated I was to hear what they told you.

LAURIE SEGALL, CNN SENIOR TECHNOLOGY CORRESPONDENT: Right. I tried to get so many people who are conservative to talk to me on the record.

And I will say this. I have protected identities of sources before. I've done a lot on the hacker community. People have wanted to kind of hide and not reveal exactly who they are.

But I've never been asked to hide the identity of someone because they are conservative. It shows you that amount of polarization.

[07:45:00] You know, conservatives in Silicon Valley, Poppy, they say the stakes are simply too high to reveal themselves. Take a look.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: There's a real fear.

SEGALL (voice-over): He's not hiding his identity because he's committed a crime or because he's worried about his safety.

UNIDENTIFIED MALE: I'd describe myself as a blend of conservative and libertarian.

SEGALL: He's an entrepreneur who's worked with several big names in tech and he's conservative in Silicon Valley. It's enough to make him want to go incognito.

UNIDENTIFIED MALE: Is saying that I want more border security -- are people going to complain to H.R.? Am I going to get fired for saying that?

SEGALL: And he's not the only one in hiding. We spoke to several others who said the stakes were simply too high to share their identity.

Here's another conservative from a major tech company. He spoke with us on the condition of anonymity.

UNIDENTIFIED MALE: If I walked into work with a "Make America Great Again" hat, there would be repercussions. People would take it as a personal front. I would expect to be out of the company within weeks, if not a month.

SEGALL: These are the undercover conservatives of Silicon Valley. It's the perfect equation for a culture war playing out in what has long been a mecca for liberal politics.

UNIDENTIFIED MALE: It's a big deal as these tech companies get more and more control over the things we see. Easy content distribution, coupled with fewer gatekeepers, means people in these companies are going to have far more power, which is why I think it's a sad state where conservatives feel they might lose their jobs and can't speak out about some of the editorial decisions that could be made.

SEGALL: Civil rights attorney Harmeet Dhillon thinks conservatives might have legal recourse. She says she's been getting calls from people who say they've been discriminated against but they're too afraid to speak publicly.

HARMEET DHILLON, ATTORNEY, DHILLON LAW GROUP: If you're a young man in your twenties, you're making a quarter-million dollars or whatever with your salary and your bonus and your stock, do you want to be the martyr of conservative rights?

SEGALL: The multi-millionaire tech entrepreneur, an unlikely poster boy for discrimination.

DHILLON: Well, what it looks likes as being disciplined for innocent remarks, it's being not considered for job opportunities and internal promotions.

SEGALL (on camera): It's just -- it's so ironic because I feel like you could literally take that exact thing that you just said and apply that to some of the women's cases at these tech companies.

DHILLON: Well, I've suffered sexual harassment as a woman, as well. So the fact that that exists does not take away from the fact that political and viewpoint discrimination exists in Silicon Valley. Both can exist.

(END VIDEOTAPE)

SEGALL: It's interesting to look at why this matters and I think if you look at it, we are increasingly polarized by technology. So it's interesting to look at the people who are building the technology and those decisions being made behind closed doors are impacting all of us.

HARLOW: Viewpoint discrimination, something I haven't heard about, thought a lot about it. It's fascinating.

SEGALL: Yes.

HARLOW: Laurie, thank you very much. This is part one of a big series.

SEGALL: Yes.

HARLOW: We look forward to seeing more.

SEGALL: Thank you.

HARLOW: Thank you, Laurie.

Be sure to catch the CNN special "DIVIDED WE CODE." It is all this Saturday, 2:30 p.m. eastern time right here.

CUOMO: All right. Big news in the sports world. LaVar Ball pulling his son LiAngelo out of UCLA. It comes a month after he was arrested in China for shoplifting.

Andy Scholes has more in the "Bleacher Report." What's the play?

ANDY SCHOLES, CNN SPORTS CORRESPONDENT: Well, Chris, you know, after the shoplifting incident in China, UCLA said the three players, they were going to have to earn their way back onto the team.

Well, apparently, LaVar was tired of waiting for that to happen. He told ESPN, quote, "We get back over here and the consequences were even stiffer than China. So basically, they're in jail here."

Now, LaVar also saying his son will not be transferring to another school. The goal is to get him ready for the NBA. Right now, LiAngelo not considered an NBA prospect, really, at all.

Now, President Trump, of course, has been involved in this story. He helped LiAngelo get released in China and then called LaVar a quote, "ungrateful fool" when he refused to thank him for it.

And, Chris, I understand you're going to be talking to LaVar later on this morning and I'm sure that's something you're going to be asking him about.

CUOMO: That is the word on the street, Andy Scholes, that the big baller is going to show up on NEW DAY this morning. We'll see. It's really early out there on the west coast.

HARLOW: I brought --

CUOMO: We'll see how much does he want it.

HARLOW: He'll be awake. He'll be here. I brought popcorn --

CUOMO: Did you?

HARLOW: -- because last time it was must-see T.V.

CUOMO: Well, I'll tell you what. He certainly is a showman. He has that quality in common with our president.

That's why it was such an epic potential match-up. But there's a lot to ask him about and we will later.

So, President Trump and the Republican National Committee throwing support behind accused child molester Roy Moore. A debate on party over morality, next.

(COMMERCIAL BREAK)

[07:52:55] HARLOW: Welcome back to NEW DAY.

So, President Trump has officially endorsed Roy Moore. And now, overnight, the RNC jumped back in, following suit. But not all Republicans are throwing their support behind the embattled Senate nominee accused of child molestation.

Former Republican presidential nominee Mitt Romney writes this 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 is worth losing our honor, our integrity."

Joining me now, CNN political commentators Ana Navarro and Jason Miller. Nice to have you both here.

And, Ana, let me begin with you. You say, simply, we have seen this movie before in recent memory right before the 2016 election.

ANA NAVARRO, CNN POLITICAL COMMENTATOR: We did. We saw exactly the same thing happen where there were -- with Donald Trump, there were over 12 women who accused him of sexual harassment -- sexual assault on the record.

And at the initial stage of this we saw many Republicans distance themselves -- denounce him. We saw Reince Priebus, who was then the RNC chair, cancel fundraisers. We saw Paul Ryan, who had events scheduled with him, cancel events.

And then, all of a sudden, as the accusations started getting a little colder and the election started getting a little hotter, we saw them come back on board.

I think it's so disappointing as a Republican -- as a Republican woman, as an American. I am incredibly disappointed in the Republican Party. I think that they are compromising values. I think they're compromising principles and convictions for one vote.

And, Mitt Romney is absolutely right. There are things that just should not be compromised. This should not be about base versus establishment, rural versus urban. It should not be about left versus right.

This is about right and wrong. This is about decency and morality.

There's a coach in Florida who was arrested this week for an inappropriate relationship with a 17-year-old. Roy Moore was having an inappropriate relationship with a 14-year-old, and a 15-year-old, and a 16-year-old, and a few 17-year-olds and he's running for the U.S. Senate and he might be in that U.S. Senate.

[07:55:02] HARLOW: So look, he's neck-and-neck right now in the polls. His spokeswoman will join us in just a few minutes. We'll ask her about all that, including some of the new accusations.

Jason, to you. Chris Cillizza's newsletter that comes out every night, "The Point," had a great, fascinating debatable point last night, and his point is that this -- the president is all about what does this mean for me.

And your argument is endorsing Roy Moore like this, coming out yesterday and saying because of our agenda, because of policies, because of the Republican votes we need in the Senate, this is the man that needs to be in the Senate regardless of being an accused child molester.

You say this does not hurt the president. Why?

JASON MILLER, CNN POLITICAL COMMENTATOR, FORMER SENIOR COMMUNICATIONS ADVISER FOR TRUMP CAMPAIGN, FORMER COMMUNICATIONS DIRECTOR, PRESIDENTIAL TRANSITION TEAM: Well, I don't think so at all. The president very clearly endorsed a different candidate in the primary. And if we want to know why we had such bad candidates in this race to begin with -- and I think we ought to take that up with Senate Republican leadership.

But let's back up for a second here and I've made it very clear that I'm no fan of Roy Moore and I don't think he has any business being in the Senate. But if folks are wondering why he's -- a big part of the reason he's going to win and why he's going to be heading to Washington, Al Franken and Bob Menendez.

The fact that Democrats have been completely unable to get their house in order, I think the president and other Republicans have taken a look and said why should we unilaterally disarm and got and get rid of a crucial vote when we have such a very slim majority right at this point.

HARLOW: Do you think had Franken been out, Conyers been out, the Menendez trial hadn't been a mistrial this would have one the other way? With Moore, you think the president would have never gotten behind him?

MILLER: I think the conservation definitely would have been different. I think with regard to the president, and I have not spoken directly with him on this, but my hunch in just knowing the way that he looks at these things, he wanted to see if Roy Moore was going to be able to stand up and defend himself.

He stumbled a bit coming out of the blocks -- a couple of bad interviews. But then, the Moore campaign seems to have gotten their sound footing and he's probably going to win coming up next week.

HARLOW: So, Ana, I mean, you say your party, the Republican Party, cannot do this but it is doing this. I mean, McConnell's walking it back, saying it's up to the people of Alabama. Orrin Hatch is walking it back, saying it's a long time ago. It's up to the people of Alabama.

The party is doing this and Mitt Romney, with the exception of Jeff Flake and a few others, looks increasingly to be on an island.

So then what? If, in a week, Roy Moore wins, then what?

NAVARRO: I hope -- you know what I hope? I hope Mitt Romney runs for Senate in Utah and I hope he gets elected.

HARLOW: The president doesn't help that. That was pretty clear yesterday.

NAVARRO: Because he's actually -- because he's probably going to confront him and he thinks great, the Senate's going to be a lot friendlier without people like Jeff Flake in it, without people like Bob Corker in it.

But I think what -- we need some moral clarity and I think we need somebody that leads us out of this morass where politics, where agenda matter more than basic decency.

I actually agree with Jason on one point. Look, I think Democrats lost a lot of moral ground when Nancy Pelosi, for example, came out initially defending John Conyers and called him an icon. It turns out icons can be sexual harassers, too.

I hope this morning John Conyers does the right thing and retires because he -- there is no place for him, whether you are a Democrat or a Republican, in Congress.

The issue about Franken and Menendez -- look, Menendez -- there are no credible allegations, accusations against Menendez and this argument of OK, well, because there's one bad guy in the Senate, let's send another bad guy in the Senate.

That kind of whataboutism in our political rhetoric today --

HARLOW: Yes.

MILLER: So, it's saying that it's not --

NAVARRO: -- is so hurtful. It's making it -- it's cheapening the entire place.

HARLOW: You don't see it that way, Jason?

MILLER: This isn't -- well, this isn't a whatboutism. What this is about is should Republicans have the majority that they've rightfully gone and earned. Should we deal with a push-forward with President Trump's agenda and get tax cuts, and move on to infrastructure and all the great things that the president wants to do.

But I want to take a step back and talk about Mitt Romney for a minute here. I mean, it wasn't that long ago that Mitt Romney wanted to be secretary of state, and he's going to dinner with President Trump and he's hanging out with him and saying nice things. And if he doesn't get picked for secretary of state and now he's bitter.

So it's bitter Mitt Romney. He's been -- that's --

HARLOW: So you think that's all this is about? You think that's all Romney's comments are about?

Not the fact that you have credible allegations that Roy Moore was a child molester. You've got four women accusing sexual assault or abuse.

You think this is just about Mitt Romney being bitter?

MILLER: I think it's very clear that Mitt Romney is personally bitter against President Trump and I think everyone can see through it.

Now look, Mitt Romney is definitely fine to go and criticize Roy Moore, for example. I mean, I've certainly criticized him, as a lot of people have.

But ever since Mitt Romney got passed over for the secretary of state position he has attacked the president continuously this entire year, and I think people see right through it.

And I hope that Orrin Hatch -- I never thought I'd say this but I hope Orrin Hatch runs for and is elected to another term in the Senate. He did a great job getting the tax bill through the Finance Committee.

And I think Mitt Romney just needs to hang out in San Diego and enjoy this moment.

NAVARRO: Anybody that knows Mitt Romney knows --

HARLOW: We have to leave it there.

NAVARRO: -- there is not one bitter bone in the man. The man -- the man wants this world to be better for his 150 grandchildren.

HARLOW: We are up against the top of the hour so guys, thank you very much. You'll both be back.

We're following a lot of news. Let's get right to it.