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Rosenstein's Fate May Be Resolved Same Day as Kavanaugh Hearing. Aired 7-7:30a ET

Aired September 25, 2018 - 07:00   ET

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

BRETT KAVANAUGH, SUPREME COURT NOMINEE: I'm not going to let false accusations drive us out of this process. I'm not going anywhere.

[07:00:09] UNIDENTIFIED FEMALE: If he's willing to talk to FOX News I don't understand why he's unwilling to talk to the FBI.

DONALD TRUMP (R), PRESIDENT OF THE UNITED STATES: People who come out of the woodwork from 36 years ago, it's totally political.

UNIDENTIFIED FEMALE: You listen to Kavanaugh claiming he is a church- going choir boy. Look at his yearbook. That is not the picture that is painted.

SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: Judge Kavanaugh will be voted on here on the Senate floor.

(END VIDEOTAPE)

ANNOUNCER: This is NEW DAY with Alisyn Camerota and John Berman.

JOHN BERMAN, CNN ANCHOR: All right. Good morning and welcome to your NEW DAY. The United States has three co-equal branches of government; and all three are in turmoil and all three could face dramatic shifts in just a few hours later this week.

Will President Trump move to upend the Russia investigation and push out the man who oversees it? The future of Deputy Attorney General Rod Rosenstein, who does have authority over Robert Mueller, Rosenstein's position is very much in doubt. There's drama. There's confusion and flat-out chaos as he heads to the White House on Thursday to meet with the president face-to-face.

And there is no clear sense if the president will fire him or whether Rosenstein will resign. Again, that's Thursday.

ALISYN CAMEROTA, CNN ANCHOR: And that's the same day as the high- stakes hearing when embattled Supreme Court nominee Brett Kavanaugh and his accuser, Christine Blasey Ford, will testify about her sexual assault allegations.

Kavanaugh defended himself in an unprecedented interview last night, saying that he will not withdraw his nomination and that he is innocent of all sexual misconduct claims against him.

Joining us now is the former director of national intelligence, James Clapper. He is a CNN national security analyst.

Good morning, Director Clapper.

JAMES CLAPPER, CNN NATIONAL SECURITY ANALYST: Well, g'day, mate, as they might say here "down under" in Australia.

CAMEROTA: I see that you are having fun over in Australia. We appreciate you taking time out of your assignment there to talk to us.

So let's start with what's happened with Rod Rosenstein. Given all the drama that I assume you monitored from half a world away yesterday, with Rod Rosenstein heading over to the White House and not knowing his fate, are you more worried about Rod Rosenstein today?

CLAPPER: Well, you're always in, you know, a high hover with this administration, and it is kind of interesting being 10,000 miles removed from it, the constant drama that we seem to, you know, have gotten used to.

I am not, Alisyn, as concerned about this. I think this could be perhaps simply an air clearing between the president and -- and Rod Rosenstein.

This is not -- if the intent is to fire him, it's certainly not following the precedent or the template established in the manner in which Jim Comey was fired.

I think, you know, it's really in the president's interest to see this investigation to completion. And I think aborting it would result in this cloud that hangs over this presidency, this administration and the country. And it's in everyone's best interest to see the investigation through to the end, and I hope the president sees it that way, as well.

CAMEROTA: But -- but, Director Clapper, are you saying that, if Rod Rosenstein is fired, that you think that that would affect Robert Mueller's work, and the investigation would somehow be aborted?

CLAPPER: I'm not so sure of that, either, Alisyn, because at this stage, I think the Mueller investigation is pretty far-reaching; and there are tentacles of it that extend beyond the immediate investigation.

So I think it would be very hard to turn it all off, even if the president wanted to, which I guess -- I guess he would. So I don't think, you know, Rosenstein's departure necessarily imperils the Mueller investigation.

There are some complexities here involving law and the circumstances of his departure --

CAMEROTA: Yes.

CLAPPER: -- under the provisions of what's kind of an ambiguous law, the Vacancy Reform Act, depending on whether he resigns or fires, then who is in the Department of Justice pecking order, and there are complexities there.

CAMEROTA: Well, I mean, just -- just to --

CLAPPER: So I'm hopefully that we avoid all that with all the other drama going on.

CAMEROTA: Yes, fair enough. But I mean, just -- the way we think it would play out is that Noel Francisco would be -- is the next in line in sort of that command chain and that he would take over. Do you know him at all?

CLAPPER: I do not. I do not. As I understand it, he has no -- no prosecutorial background at all.

CAMEROTA: John Brennan, one of your former intel chiefs, he's, as you know, has been outspoken about the Trump presidency. So last night, he tweeted this: "Any attempt by the White House to subvert or manipulate law enforcement should be resisted. Rather than resigning, officials should stand their ground and wait to be fired. Resisting abuse of presidential authority is not a policy difference. It's about adhering to the rule of law."

Basically, saying that Rod Rosenstein should never resign. Your thoughts?

CLAPPER: Well, I agree with John. My preference, my strong preference, would be that Rod Rosenstein stay in office at least for the duration of the investigation, which should be allowed to be completed. So I hope he does stand his ground, and he -- he doesn't resign.

CAMEROTA: I mean, it sounds like he was willing to offer his resignation. I mean, as you know, there's been lots of reporting that he was verbally offering to do it to John Kelly.

CLAPPER: Yes.

CAMEROTA: It sounds like he doesn't like feeling embattled and besieged and who could blame him, but you're encouraging him to put all of that sort of personal discomfort aside.

CLAPPER: Well, yes, and I can well imagine -- I mean, he's been in the hot seat now for a long time. And there's a question about, you know, how long you want to endure that, but I just hope he sees his -- what I consider the higher duty here, the higher obligation to -- to the country to stay in office, if he possibly can, and at least until the Mueller investigation is completed.

CAMEROTA: Jay Sekulow, one of the president's attorneys, had a suggestion on his own radio show for what should happen if Rod Rosenstein were to leave. What should happen to the Mueller investigation. Here is that moment.

(BEGIN VIDEO CLIP)

JAY SEKULOW, ATTORNEY FOR DONALD TRUMP: I think it's really important that there be a step back taken here and a review, and I think it's a review that has to be thorough and complete and a review that has to include an investigation of what has transpired with all of these statements and all of these allegations going back to the Strzok and Page and Bruce Ohr and basically a timeout on this inquiry.

(END VIDEO CLIP)

CAMEROTA: What do you think about that, a timeout on the inquiry?

CLAPPER: I'm kind of not surprised that one of the president's attorneys would suggest that we have a, quote, "timeout," which I'm sure, at a minimum, would extend through the midterm elections.

And I just don't see the need for an investigation of the investigation, particularly with respect to the Mueller investigation itself. And I don't see any need for to stop and investigate it before we go on. So again, I think you have to consider what Mr. Sekulow's agenda is.

CAMEROTA: Consider the source. You're saying, yes, we do that.

CLAPPER: Yes.

CAMEROTA: So, Director Clapper, you say that you think it would be hard to turn off the Mueller probe at this point. But we just had Carrie Cordero, one of our great legal analysts on who said that, if Rod Rosenstein were to leave of his own accord or be fired that the parameters of the Mueller probe could change, that he could be tasked differently, that the report that he issues could be put out differently. The scope of it, basically, could change. What do you think?

CLAPPER: Well, that's certainly a possibility. And of course, everybody is in the game now, speculating just what could happen and how this will all play out. I don't know.

I just -- I do think that the Mueller investigation has a momentum all of its own, which will be difficult, at least immediately, to turn off.

Now, over time, yes, it could -- the parameters and the shape of it could be -- could be altered, I suppose, but I also think we need to at least consider how close Mr. Mueller is to completing his investigation.

CAMEROTA: Director James Clapper, have fun in Australia. Thank you very much for taking the time for NEW DAY.

CLAPPER: Thanks, Alisyn. Thanks for having me.

BERMAN: I don't want to gloss over the fact that he used an Australian accent there at the beginning of the interview. I thought that was fascinating and, frankly, a little disturbing.

All right. I want to bring in Jeffrey Toobin, CNN chief legal analyst; CNN chief political correspondent, Dana Bash; and Phil Mudd, former FBI senior intelligence advisor and CNN counterterrorism analyst.

And Jeffrey, you know, Director Clapper, he doesn't think that the Russia investigation is in jeopardy in any way, whether Rosenstein comes or goes. You, sir, wrote a whole piece in "The New Yorker" which I made sure to read the minute it went to press, suggesting the exact opposite, saying that the investigation is very much in doubt, should Rosenstein go.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, you know, there -- it's -- it's in danger in two ways. One is, it is quite clear that the president has wanted to fire Mueller several times during his year and a half in office; and it has been principally Rosenstein who has stopped that. Rosenstein has been emphatic throughout that he has seen no basis on which to fire him. And he's not going to fire him. And they'll have to fire Rosenstein to put someone in who will fire him.

[06:10:15] But the less obvious peril -- and I think Alisyn mentioned it in the conversation with Clapper -- is that Rosenstein doesn't just have the power to hire and fire Mueller. He has the power to supervise the investigation and limit the areas or expand the areas in which Mueller is allowed to investigate.

This has come up -- the paperwork for this has come up in redacted forms during the Manafort trial. So the new supervisor could restrict Mueller in ways that would paralyze his investigation without an actual firing. And I think that's just an example of how serious a threat the removal of Rosenstein would be, especially if we don't know the outlook that the successor would take, whether it's Noel Francisco or someone else.

CAMEROTA: Phil Mudd, how do you see it?

PHIL MUDD, CNN COUNTERTERRORISM ANALYST: I see it a little differently. I agree there would be a threat here. I mean, predicting what the president will do is not something I do for a living.

But if you look at the -- and how this might play out, first, just at a general level, you have someone who's supposed to keep the seat warm. That is potentially an interim deputy attorney general. So he wants to come take a U-turn on the most critical investigation since Watergate? I think for an interim deputy attorney general, that would be quite something.

There's also games in Washington that I'd be watching. Let me give you one. Let's say, as Jeffrey suggested, and I think it's something we ought to consider, that the new deputy -- the acting deputy attorney general issues different guidelines. If our Robert Mueller -- and he is a smart man, I'd say -- "I want to see that in writing, particularly the areas of the investigation you would like me to shut down."

Boy, that is a risky path for a deputy attorney general to take, because the Congress is going to get ahold of that and say, "The parts of the investigation you wanted shut down, we're going to open those ourselves. OK?"

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: And --

BERMAN: Go ahead, Dana.

BASH: And you mentioned Congress. There certainly have not been a whole lot of profiles in courage, to say the least, on the Republican side with regard to making sure that this investigation stays its course legislatively, meaning the legislation to do that has been languishing, because Republican leaders on both sides don't want to pick a fight with the president right now.

Having said that, my impression in talking to those Republicans in private, if it came down to Rosenstein going, and those potential road blocks happened that Jeffrey talked about, which are very, very real, that they would try to find a way to make sure that doesn't happen. And perhaps it would be easier, given the fact that Mueller appears to be -- certainly is not beginning his investigation, perhaps coming to a close.

BERMAN: So we talked about turmoil in all three branches of government. This covers the executive branch, the investigation into the president. The other two branches very much tied up right now with the fate of Brett Kavanaugh. Will he be the next Supreme Court justice?

And overnight, there was an interview on FOX News where Brett Kavanaugh sat down -- P.R., going out there, telling his version of the story. And inside this interview he revealed -- and I would submit he knew he was going to do this -- details about his sexual history. He said he remained a virgin for many, many years after high school. Let's listen to that.

(BEGIN VIDEO CLIP)

BRETT KAVANAUGH, SUPREME COURT NOMINEE: We're talking about allegations of sexual assault. I've never sexually assaulted anyone. I did not have sexual intercourse or anything close to sexual intercourse in high school or for many years thereafter. And the girls from the schools I went to and I were friends.

MARTHA MACCALLUM, FOX NEWS ANCHOR: So you're saying that all -- through all these years that are in question, you were a virgin?

KAVANAUGH: That's correct.

MACCALLUM: Never had sexual intercourse with anyone in high school?

KAVANAUGH: Correct.

MACCALLUM: And through what years in college, since we're probing into your personal life?

KAVANAUGH: Many years -- many years after, I'll leave it at that. Many years after.

(END VIDEO CLIP)

BERMAN: All right, Jeffrey Toobin.

TOOBIN: Oh, please, God, tell me less. Tell me less. What was that about?

BERMAN: Well, tell me about it. Tell me, because I -- it is cringe- worthy; and I would submit that it's cringe-worthy by design.

TOOBIN: Really? But I mean, it doesn't even make -- it's not even relevant to the accusation. I mean, the accusation is one of -- I mean, very serious like pawing and touching and gross behavior, but, I mean, the fact that he's a virgin doesn't -- is neither here nor there whether he's -- you know, he did what Ms. Ford accused him of doing. It's like what was that all about?

BERMAN: I think the design is to make it intentionally uncomfortable, because one of the arguments the Republicans have made -- and Dana, you can mention this, and Lindsey Graham has said this -- how low have we all gone? This whole process, it stinks. And look, you have a person who has been nominated to the Supreme Court having to talk about when the first time he had sex was. How awful is that?

[07:15:05] BASH: Well, that could be part of it, but another part of it is potential allegations to come. Michael Avenatti has said in a statement that he has a woman who we have yet to hear from who has made allegations that would suggest that -- that he did have sexual relations, in an unwanted way, back then. So to me I thought -- I saw it as a way to kind of try to get ahead of that.

But I think you're also right. It had the additional political benefit, John, of sort of speaking to the growing anger and frustration inside the conservative base that this guy is being -- is being railroaded and that Democrats are overplaying their hand and are beating up on somebody who they think is qualified to be on the Supreme Court.

You can't discount that feeling, and that is from my reporting, part of -- a big part of the shift in strategy that you're even seeing from -- never mind the president, but Mitch McConnell yesterday, really, really harshly in harsh terms talking about the alleged victims here.

TOOBIN: Can I also just say that Michael Avenatti's behavior so far in this area has been really irresponsible. I mean, you know, it is one thing -- "The New Yorker" magazine, you know, did a very carefully on-the-record story with -- with one accuser. "The Washington Post," on-the-record accusation from Ms. Ford.

For Michael Avenatti to just simply throw out there that there are these unnamed people who are going to make these allegations, that is really not how the process should work. It is not fair to Brett Kavanaugh. It is not fair to anyone involved. It is publicity seeking of the worst kind and unless, you know, he can -- I mean, if he has a person to attach to that, that's one thing, but simply to just throw this garbage out there with no name is really, I think, awful. CAMEROTA: I'm glad you made that point, because if he has something,

then he should reveal it to us. He should come on and reveal it, but just teasing it in this way isn't fair.

TOOBIN: It's terrible.

CAMEROTA: Really to anyone.

Phil Mudd, is there anything over breakfast that you'd like to reveal about your own personal history?

MUDD: I am not doing boxers or briefs this morning. I cannot figure out why we had that conversation last night. And I agree completely with Jeffrey.

No. 1, why did this even come up? And No. 2, every time the judge speaks, he lays a different fact out there that someone has the potential to attack. I would go home, have a cup of coffee, take a nap and be quiet. This is like -- this is unpleasant. I need a spa day, Alisyn. This is killing me.

BERMAN: First of all, that is something none of us should ever see. Leave that -- leave that there. But I do think a couple things came out of this interview.

No. 1, he was asked about an FBI investigation, he sort of dodged that question. And there's a legitimate thing that hangs out there, why not have the FBI go ask a few questions about this, about "The New Yorker" piece. And then there is the political reality of why this is happening and why Republicans want this to happen so quickly.

CAMEROTA: But there's also the model that we've seen before, Dana, of a wife sitting by her husband and attesting to his character. And I think that it's different than the Clinton model because Clinton was accused of things with women who had come forward.

BASH: Of infidelity.

CAMEROTA: Yes.

BASH: Yes.

CAMEROTA: Yes. I can't even remember all of the accusations when she sat down famously and said, "I'm not Tammy Wynette."

BERMAN: Gennifer Flowers.

TOOBIN: That was Gennifer Flowers. I'm a historian on this thing.

CAMEROTA: Very good. But my point is, we've seen women have to do this, Huma Abedin. I could go through history. And standing by their husband. And I do think that there is something a little uncomfortable and a little effective, a little effective about a woman saying, "This is not the man I married. This is not the man that I have known for all these years. This is not the father of my children. I can speak to his character. No one knows him better than I."

BASH: Absolutely. And I do think it is different. I mean, the image is the same. The imagery is the same, but the -- this whole situation is quite different, because the accusations are from the time from when he was a teenager, well before she met him. They met in the Bush White House.

But I also, just sort of getting back to the whole notion of Kavanaugh doing this interview in the first place, I was talking to a good friend last night saying, why? And the answer was pretty simple and the attempt to sort of explain it was pretty human, which is he has been sitting -- and his family -- have been sitting there listening to these accusations, which he insists are absolutely flatly not true; and there's only so much a surrogate can do. He wanted to get out there.

And, yes, he's going to -- plan is for him to get out there in public under oath on Thursday, but because Kavanaugh has such political sensibilities from working in politics and working in the White House for many years, he understands, especially, today's times. The difference between Monday and Thursday could be a political eternity. He wanted to make sure he got to Thursday.

[07:20:18] BERMAN: And let me just say, there may be a new development this morning. Sarah Sanders, White House press secretary, on "GMA" moments ago talking about these new accusations in "The New Yorker" made by Debbie Ramirez, who says that Brett Kavanaugh put his genitals in her face when she was at Yale.

Listen to what Sarah Sanders just said about her.

(BEGIN VIDEO CLIP)

GEORGE STEPHANOPOULOS, ABC NEWS: You've said that everybody's voices should be heard. So does the president want Ms. Ramirez to appear before the Senate Judiciary Committee, as well?

SARAH SANDERS, WHITE HOUSE PRESS SECRETARY: Certainly, we would be open to that, and that process could take place on Thursday. Again, the president has been clear, let them speak, but let's also let Brett Kavanaugh speak and let's let him tell his side of the story before we allow allegations to determine his entire future.

(END VIDEO CLIP)

BERMAN: Now, unclear to me whether that's an official new position. Jeffrey, your eyebrows are up. Is it the White House position now that Debbie Ramirez should testify before the Senate on Thursday? That's a new --

TOOBIN: I have the same reaction, that that is a new position, and it's certainly not the position, as far as I'm aware, of Charles Grassley, the chairman of the Judiciary Committee, and the Republicans who run that committee. Everything they have done is to try to keep that hearing as narrow as possible to, you know, his word against her word. If this had been a legitimate, real investigation, there would be

other witnesses. Debbie Ramirez would be one. Mark Judge would be an obvious person to call as a witness, you know, the guy who was allegedly part of the assault on Ms. Ford.

I mean, this is -- that's how you do a real investigation is you try to get corroboration, or the lack thereof, for multiple stories. I have seen no interest on the part of the Republicans who run that committee in calling Ms. Ramirez, but that would be an appropriate way to deal with it. I certainly agree.

CAMEROTA: It's also very possible that the president will not second that notion on Twitter this morning or later today and that, in fact, Sarah Sanders possibly spoke before talking to him, since yesterday he called these all false accusations.

BERMAN: And, Dana, just to one quick point, because we're running out of time here, but Grassley and McConnell, they've shown no wiggle room on this hearing, no inclination to let anyone else testify, maybe which is why Sarah Sanders felt comfortable suggesting something she knew wouldn't happen.

BASH: Right, they're the ones in charge. So far the answer is, no, they haven't, but, you know, if the whole goal is to make the allegation baseless, and if they believe that they can do that based on what they read in "The New Yorker," that she was drunk at the time and is very much open about the fact that she was drinking at the time way back when, three decades ago, you know, maybe there is a growing discussion about whether it might be beneficial to have her. Who knows?

But I think the key thing to remember is they want to do this quickly. They want to do this as simply as possible, and bringing her into it would certainly not achieve that goal.

BERMAN: Yes. If they don't get Kavanaugh, then there is uncertainty about when and how this confirmation would happen -- might happen with a different composition in the Senate.

Dana, Jeffrey, Phil, sir, thank you all for being with us.

CAMEROTA: Thank you.

BERMAN: So one person worked very closely -- many did -- with Brett Kavanaugh in the White House. What does former attorney general Alberto Gonzales think about all these accusations? What does he also think about the future of the Justice Department he used to run, Rod Rosenstein? We'll ask him next.

(COMMERCIAL BREAK)

[07:27:56] BERMAN: The Russia investigation right now, led by Robert Mueller, hangs in the balance as we wait to see if President Trump will oust Deputy Attorney General Rod Rosenstein. Rosenstein oversees the Russia investigation. Mueller reports to Rosenstein. So what happens if Rosenstein goes? Joining me now is the former U.S. attorney general, Alberto Gonzales.

He ran the Justice Department in the George W. Bush administration and worked with Supreme Court nominee Brett Kavanaugh inside the White House, we might add. Mr. Gonzales is now the dean at Belmont University College of Law and author of "True Faith and Allegiance: A Story of Service and Sacrifice in War and Peace."

Thank you so much for being with us. You do have a lot of knowledge about everything we're talking about this morning.

I want to start with the Justice Department. Rod Rosenstein, the deputy attorney general, going to meet with the president on Thursday. Do you think he can continue to work in this environment after "the New York Times" story came out suggesting that he perhaps wanted to tape the president and discuss the 25th Amendment to remove him from office? Is that a continuing plausible working environment?

ALBERTO GONZALES, FORMER U.S. ATTORNEY GENERAL: It certainly, I think, is a difficult one, but let me just say that I know Rod. Rod was a U.S. attorney when I was the attorney general.

I can't imagine Rod having this kind of conversation seriously. Perhaps in a pique of frustration he may have made a comment, but the notion that this -- that he would seriously entertain the thought of exercising the 25th Amendment, to me is just -- I just don't believe it.

And I think this meeting on Thursday is really to clear the air and to get a sense from the president, "Mr. President, do you still want me to continue? First of all, this is what -- this is what happened and do you still want me to continue in this position?"

And it may be solely a situation where Rod Rosenstein is tired. Obviously, this Russia investigation and everything else going on with him within the Department of Justice, I think, has placed great -- great stress and strain on himself and his family and just, again, just an opportunity to have a candid conversation with the president about his -- about Rod's future and the future of the Department of Justice.

BERMAN: Do you think it would be a loss for the Russia investigation if Rosenstein either resigns or is removed?

GONZALES: Potentially. But I think it's also quite possible that things will simply continue, that the person who steps in as the acting attorney general --