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DOJ Prepares for Court Battle Over Trump Executive Privilege; Catastrophic Floods Leave 8 Dead, More Missing in Kentucky; Mitch McConnell, Kevin McCarthy at Odds Over Bipartisan Deal-Making. Aired 6-6:30a ET

Aired July 29, 2022 - 06:00   ET

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

[06:00:00]

BRIANNA KEILAR, CNN ANCHOR: This time from top Trump officials inside the Department of Homeland Security. And outrage after Republican lawmakers stand in the way of help for veterans exposed to burn pits.

JOHN BERMAN, CNN ANCHOR: Catastrophic flooding. At least eight people are dead in Kentucky as rescue efforts are underway. CNN is live on the ground. And members of the controversial Saudi-backed golf league teeing off at Donald Trump's New Jersey golf course. They will be greeted by the protests of September 11th families.

Good morning to viewers here in the U.S. and around the world. It is Friday, July 29th.

The dam is breaking. That from members of the January 6th Committee. And there are new developments from both the committee and the Department of Justice in their investigations into the attack on the U.S. Capitol.

First on CNN, federal prosecutors are preparing for a court battle to force former White House officials to testify about Donald Trump's conversations and his actions on or around January 6th. The DOJ's preemptive move is the clearest sign yet that federal investigators are closing in on Trump's efforts to interfere with the peaceful transfer of power. CNN has learned the January 6th Committee plans to share 20 transcripts with Justice Department investigators.

BERMAN: The committee also seems to be zeroing in on former Trump Cabinet officials. Of particular interest, conversations about possibly invoking the 25th Amendment to remove Trump from office. "The Washington Post" reports texts from Ken Cuccinelli and Chad Wolf, two top officials from the Trump Department of Homeland Security, those texts are missing from the period leading up to January 6th.

Also first on CNN, a former DOJ staffer who worked with Jeffrey Clark at the agency, he is cooperating with the criminal probe. Trump tried to install Clark as attorney general or there were discussions to install Clark as attorney general in the days before January 6th.

We want to get right to CNN's Evan Perez in our Washington bureau.

Evan, that was a long list of developments. But you broke the news on what might have the greatest legal impact here, which is that the Department of Justice federal investigators are preparing a case to force Trump advisers to testify, basically to get around claims of executive privilege. What exactly is happening and what could this give investigators access to?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Well, good morning, John. This would give access to some of the closest people around the former president. This is a major step that the Justice Department is preparing to take, which is something that they didn't even do during the Mueller investigation, for instance. And what they're preparing to do is essentially go to court to try to force some of these officials to provide testimony about their direct interactions, their direct conversations with the former presidents in those key days, in late December 2020, early January 2021.

And look, I mean, this is something that has already come up in the grand jury testimony of two key aides of the former vice president, Mike Pence. We know that Greg Jacob and Marc Short both testified to the grand jury in recent weeks. And they declined to answer questions about their direct conversations with the former president. Those two men were obviously very important, because they were in a January 4th, 2021 meeting, where the former president tried to pressure the former Vice President Pence to set aside the results of the election, and try to find a way to seat these fake electors from seven battleground states, as a way to keep Donald Trump in power.

Again, this is a step that is not taken very lightly because we know that the investigation is getting closer and closer to the former president. And they're going to need testimony from some of these officials who had very, very, very close conversations, direct conversations with the former president. It gives us an indication of an investigation that really is homing in on the actions that the former president took in those days as he was trying to cling to power, John, and Brianna.

KEILAR: Evan, we learned recently the Secret Service has not turned over and is missing a lot of texts from January 6th.

PEREZ: Right.

KEILAR: Now "The Washington Post" is reporting that there are even more missing texts from officials in the Trump administration. What can you tell us here?

PEREZ: Right, this is a finding from the non-government group called the Project on Government Oversight. And what they found is that Chad Wolf and Ken Cuccinelli had these text messages that have been wiped out as part of what the Homeland Security Department called a reset of their phones when they left the government. "The Washington Post" reports that there were a number of messages that are missing in that key period before January 6th.

[06:05:02]

Obviously, this is a big deal for the investigations on the Hill, on -- we know the January 6th Committee has been looking to see what people knew ahead of the riot on the Capitol, the attack on the Capitol. And as you pointed out, this is a repeated problem over there with the Homeland Security Department. We know that there's some frustration with the inspector general, who is asking for these text messages from key members of the Secret Service.

And those were wiped out during what they call a migration of new devices, new phones over at the Secret Service. We know one of the frustrations there with the Congress is that the inspector general did not notify Congress immediately after discovering that these messages were missing. In the case of Chad Wolf and Ken Cuccinelli, top officials at the Homeland Security Department, apparently the inspector general learned of this months ago, and only now are we learning about it -- Brianna and John.

KEILAR: Wow. Evan, thank you so much.

PEREZ: Thanks.

BERMAN: All right, with us now, CNN legal analyst, Joey Jackson, and former federal prosecutor Danya Perry.

Danya, first to you. If federal investigators are taking on executive privilege or preparing to, what does that tell you about where they are in this investigation?

DANYA PERRY, FORMER FEDERAL PROSECUTOR: Well, what's interesting about this move is that, as you said in the introduction, this is preemptive. Usually, it's reactive. We saw that with the National Archives fight that Trump brought, where he claimed executive privilege, that went all the way up to the Supreme Court in a matter of months, and they handily decided that executive privilege does not apply in this case, and they ordered the production of the documents.

Here, the Department of Justice after arguably dragging their feet for some 18 months now seems to be moving with some haste, and they are getting out in front of this. And they know it could be months, perhaps, once again. And so they seem now to be acting more swiftly and trying to get a ruling. We know that some of the witnesses in the grand jury have invoked executive privilege and so they want to be able to get a complete testimony from some of these witnesses and others that we can all anticipate will be called to the grand jury in the weeks and months to come.

KEILAR: Joey, what's the likelihood, as you see it, of success here, and how long do you think this will take?

JOEY JACKSON, CNN LEGAL ANALYST: So I'm one that doesn't believe that it's a fight worth having. Certainly, executive privileges, we can wax poetic and argue about it all day. Was there a crime-fraud exception that applied? Was he acting in his official capacity as president or outside of that? Are there other issues that really should defeat the privilege?

But I think, certainly, while prosecutors want the best evidence in knowing what the specific conversations were, there's something very powerful in law. It's called circumstantial evidence. Did you call state officials and were you trying to get them to upset the election and come on your side? Did you meet with the vice president and in that meeting did you allude to or directly ask him to take steps to intervene?

Are there missing text messages all over the place that seem somewhat suspicious? What am I getting at? And I could go on and on and on. There's evidence of value that may not be specific, direct, you saw things, but guess what? If I came in here and there was no drop of water on the ground and I went outside and there's water everywhere, it rained. And so all I'm saying to you is that, yes, they can have the fight and the courts will rule as they deem appropriate.

Privilege is important. You want to protect the sanctity of conversation. You want to make sure it doesn't chill the effect of what I'm talking to, Brianna, and John, and Danya. Look, the bottom line is, I just don't think it's a necessary fight in terms of the evidence that ultimately clearly demonstrates what happened here.

BERMAN: A fight not worth having, Danya. Do you agree with that, given just the huge array of things this could open up to federal prosecutors, a fight not worth having over the possibility, possibility of discussions that involve criminal activity?

PERRY: Well, I certainly agree with Joey that we've seen a lot of both circumstantial and direct evidence of criminality here. And many of the witnesses have in invoked, Pat Cipollone, White House counsel, has invoked executive privilege, but managed to circumvent that to a large degree and give pretty damning testimony. So I certainly agree with you in that respect, but I also agree with what the Department of Justice seems to be doing.

They might as well get ahead of this. And it could be months, but this investigation will certainly take more than months before it comes to a conclusion. So I think they might as well pursue that track, as well, and get the most direct information they can about direct conversations with the former president.

JACKSON: And the only other thing of which is a concern is DOJ's own guidance. How do we now, do we get into the 2024 election? What is this grand jury, and separately on a parallel track, the select committee doing? It's not an exercise in futility. I think at the end of the day, grand juries convene to indict people.

[06:10:02]

Can we call it for what it is? You don't have to have proof beyond a reasonable doubt. You have to have information, right. Is there probable cause to believe a crime was committed and this person committed it? And so you're going to get into a fight which potentially gets you into presidential election season, never mind we can't indict now.

I think the president is really -- we're in uncharted territory. I think there could be indictments of him and I just think that this could lead to paths that might protect him in the long run. KEILAR: Danya, more missing texts this time from Chad Wolf and Ken

Cuccinelli. And you have an IG, an inspector general who did not alert Congress, even though he was aware of this and four House committees had sought some of these records. How bad is this?

PERRY: It seems pretty bad to me. It's certainly possible, within organizations and government agencies are no exception, for mistakes to be made and glitches to occur. But this does seem pretty systematic. And we're talking about an agency that concerns itself with cybersecurity and national security, and it seems like a pretty big mistake to have been made. And the delay, as you have mentioned, by the inspector general, for many months, not to even raise this with Congress seems indicative of some kind of, I don't want to say, consciousness of guilt, but there's an issue there.

And so I think who knows. Certainly the committee is looking at this closely. I'd be surprised if the Department of Justice does not open an investigation within an investigation to figure out what happened with this. It's call spoilation of evidence and as a term of art in the law. But it's just destruction of a massive load of text.

BERMAN: Yes. Look, you have both worked on small cases I'm sure where if this much evidence was just gone or erased, you'd be going nuts right now in front of a judge. Now I don't know what happened. We don't know what happened. But still it's not the kind of thing that is supposed to happen in an investigation like this.

Joey Jackson, Danya Perry, great to see both of you. Thank you very much.

So former Trump White House acting chief of staff, Mick Mulvaney, who just testified before the January 6th Committee yesterday, will join us a little bit later. We're going to ask him about what they wanted to hear. What was it like to be in front of the committee.

So deadly flooding in eastern Kentucky and officials say it is not over yet. CNN is live on the ground.

Hearing the nickname the grim reaper for killing so much Democratic legislation, now Mitch McConnell is under fire from fellow Republicans for being too helpful in passing bipartisan bills. We have new CNN reporting, ahead.

KEILAR: And outrage on Capitol Hill after a bill that would help veterans exposed to toxic burn pits and other toxins is blocked by Republicans.

(BEGIN VIDEO CLIP)

JON STEWART, ACTIVIST, FORMER LATE-NIGHT HOST: If this is America first, then America is (EXPLETIVE DELETED).

(END VIDEO CLIP)

[06:17:06] KEILAR: At least eight people are dead this morning and more are missing after catastrophic flooding in eastern Kentucky. Flash floods have overwhelmed creeks and streams there that consumed entire communities when parts of the state that were already saturated received more than nine inches of rain. And likely, this is not over yet.

CNN's Joe Johns is joining us live from Hazard, Kentucky. Joe, tell us what you're seeing there.

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: Well, you know, last night, there was concern that there was going to be more rain and it was going to make things even worse. There wasn't that much rain. Still, eastern Kentucky is digging out this morning, as the sun comes up.

Just to give you an idea, over here at this tree line, on the other side is the north fork of the Kentucky River. But right here in front of me, what looks like a body of water with some mud. That turns out to be a parking lot for the Hazard city hall. They've had floods in this part of Kentucky many, many times, but the authorities here say this had been much different, simply because of the flash flood element.

All of that rain for hours, hitting up in the mountains, washing down here into the residential areas, taking with it houses, mobile homes, even the asphalt in the streets. Governor Steven Beshear has said that eight people have died, but there are concerns that the full extent of the tragedy here in eastern Kentucky will not be realized at least until today. Listen to the mayor.

(BEGIN VIDEO CLIP)

MAYOR DONALD "HAPPY" MOBELINI, HAZARD, KENTUCKY: Today will be the sad day. I mean, it's all sad. Anytime you lose a property, but, you know, this is the first time I remember that there's been a loss of life. And at this point, we don't know what that looks like. Because, you know, you get fragmented details of this, this, and this, or you get stories, and you know, it may be true, it may not be. But today, we'll -- the next three days will tell the tale.

(END VIDEO CLIP)

JOHNS: So many streets and roads in this area have been washed out. It's something that fire and rescue team simply could not handle. The governor did call in the National Guard. They've made a huge difference.

Back to you in New York.

KEILAR: The damage is just huge there. Joe, thank you so much for the update. We'll be looking to see what happens at first light, as well.

So later this morning, we'll be speaking with Kentucky Governor Andy Beshear on how his state is handling that devastation. BERMAN: There was flooding overnight in Las Vegas as well. Heavy rains

leaking from casino ceilings after a severe thunderstorm. And look at this.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: No. Oh, my god.

(END VIDEO CLIP)

BERMAN: That's water, look at that, just pouring through the wall television, those monitors, a TV at Circa Casino. I'm not sure it's going to work so well after that.

[06:20:09]

So don't play with fire. That warning from China to the United States over Taiwan. What was said during the more than two-hour phone call between President Biden and Xi Jinping.

KEILAR: Plus the deal that no one saw coming. How the new climate and economic bill agreed to by Joe Manchin could impact the lives of everyday Americans.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

TREVOR NOAH, LATE-NIGHT HOST: Joe Manchin agreed to vote for a bill? Which means Democrats might actually get something done?

(CHEERS AND APPLAUSE)

NOAH: Am I dreaming?

[06:25:01]

And if so, what a boring dream? And also, what a week for Joe Biden, huh? First he defeats COVID, then he defeated low expectations. Look at you, Joe. Look at you.

STEPHEN COLBERT, LATE-NIGHT HOST: The bill pays for itself by setting a 15 percent corporate minimum tax rate on $1 billion companies or larger.

(CHEERS AND APPLAUSE)

COLBERT: Funding --

(APPLAUSE)

COLBERT: Funding to help beef up tax enforcement, especially for wealthy Americans. Finally, the mega rich will have to pay any taxes at all. It's got Elon Musk so scared, he is as white as a ghost.

(END VIDEO CLIP) BERMAN: The picture is like more than a week old now and they're still making jokes about it.

KEILAR: He just uses sun block. I don't understand why they're so --

BERMAN: I have a feeling we're going to be seeing that for years.

KEILAR: I think so. So Senate GOP leader Mitch McConnell is in hot water with members of his own party, in the other chamber anyway, after helping to push through a series of bipartisan legislative victories for Joe Biden. While formerly nicknamed the grim reaper for shutting down Democratic legislation, McConnell is now at odds with House GOP leader Kevin McCarthy.

Joining us now is CNN's Melanie Zanona. She broke this story, and CNN political commentator, S.E. Cupp.

Mel, tell us what's happening here?

MELANIE ZANONA, CNN CAPITOL HILL CORRESPONDENT: Yes. Well, Mitch McConnell, as you note, used to have this reputation of the grim reaper because he was known for killing Democratic legislation and keeping his conference together, but lately Mitch McConnell has been responsible for keeping some of these key bipartisan victories alive that Democrats are now touting on the campaign trail.

Last year, he voted for the infrastructure deal. Earlier this summer, he voted for gun reform. And just this week, he supported a bill that would increase chip manufacturing and make the U.S. more competitive with China. And so that has really put him at odds with his own party. It has especially put him at odds with House GOP leader, Kevin McCarthy, his counterpart in the lower chamber. And it's created some frustration and tension among Republicans, especially in the House, who want to see senators fighting tougher.

But look, some of his allies, McConnell's allies, say that there is a method to his madness. That he wants to prove that the Senate can still work. And perhaps more importantly, wants to show middle America that Republicans are just not reflexively opposed to middle-of-the- road legislation, especially on an issue like gun reform. And so he is facing a much tougher battleground in the Senate than in the House.

There are different calculations between Kevin McCarthy and Mitch McConnell. But it is still notable to see how differently they approach everything from politics to policy, especially on the issue of Donald Trump. They're very different when it comes to how they've treated the former president. And so that could become even more pronounced if they're in the majority next year.

BERMAN: S.E., there's, I guess, the substance and the soap opera of this. Let's start with the soap opera.

SE CUPP, CNN POLITICAL COMMENTATOR: Please.

BERMAN: Shall we?

CUPP: Always.

BERMAN: So McCarthy, McConnell, who wins?

CUPP: Well, I think so it's fair to say Mitch McConnell is in a much better position. He knows what he's doing. There isn't no reason for why he's picking these fights, as Melanie indicated. Mitch McConnell, A, wants to preserve the filibuster. B, wants to at least to appear to be a working partner to show that, you know, he can get some stuff done, and that allows him to object to other stuff.

But most importantly, he wants to regain the majority. And stuff like the gun legislation, he heard from suburban voters all over the country that they were really upset about the rise in mass shootings. So he's playing that game.

The game in the House, and Kevin McCarthy's real motivation only seems to be own the libs. Don't ever support anything if it will politically advantage Democrats, even if it will advantage voters. It's a grosser game, but that's where Kevin McCarthy seems to be.

KEILAR: Speaking of the game, the game normally with Mitch McConnell is chess, and with Kevin McCarthy, it's more like tic-tac-toe.

CUPP: What are you saying, Bri?

KEILAR: It just is.

CUPP: That he's just not as good at this?

KEILAR: It's just known. Mel will tell you, on the Hill.

CUPP: Yes.

KEILAR: You know, Mitch McConnell is known as very strategic and Kevin McCarthy is not, Mel.

ZANONA: Yes, but it's different in the House and the Senate.

CUPP: Sure.

KEILAR: In the Senate, you have people who represent statewide. In the House, you have these gerrymandered districts. You have a conference that is becoming increasingly more conservative. And so for Kevin McCarthy, it is a different game. Let's also keep in mind, he's trying to become speaker next year and he will need support of the conservative base, of the former president. And so that is also what you're seeing here, whereas Mitch McConnell, he's very safe in his position despite Trump calling for people to oust him.

He maintains a good standing in the conference. But nonetheless, there are people already jockeying for his position once he decides to step down.

BERMAN: He's safe in his position now, S.E. I mean, the Senate makeup is changing election by election also. And depending on who wins in November, he could have people who look a lot more like the ones that Kevin McCarthy is dealing with in the House.

CUPP: Definitely. And I think he's very aware of that. And so regaining the majority, I think, for him, is about his own preservation, as well as, you know, the Senate at large and the Republican Party.