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State of the Union
Interview With Rep. Ro Khanna (D-CA); Interview With Sen. Marco Rubio (R-FL); Interview With Former U.S. Deputy Attorney General Rod Rosenstein. Aired 9-10a ET
Aired February 11, 2024 - 09:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[09:00:41]
(BEGIN VIDEOTAPE)
JAKE TAPPER, CNN HOST (voice-over): Impasse. Both parties now agree the border is a problem, but they cannot agree on how to fix it after Republicans killed the bipartisan border deal.
SEN. MARCO RUBIO (R-FL): A bunch of problems in this bill.
TAPPER: As the Senate works through the weekend, what do Republicans want now? Florida Senator Marco Rubio is here exclusively.
And just a number? As Democrats panic, the White House fires back after the special counsel highlights President Biden's age and memory problems.
JOE BIDEN, PRESIDENT OF THE UNITED STATES: How in the hell dare he?
TAPPER: With all the political cases on its plate, can the Justice Department stay out of the crossfire? Former Deputy Attorney General Rod Rosenstein joins me exclusively.
Plus: on duty. In South Carolina, Donald Trump mocks his remaining GOP competitor over her deployed husband.
DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES (R) AND CURRENT U.S. PRESIDENTIAL CANDIDATE: Where is he? He's gone.
TAPPER: And he says he threatened to encourage Russia to attack NATO allies who did not spend enough on defense.
TRUMP: No, I would not protect you.
TAPPER: Will Republican lawmakers fall in line? Our panel of experts is here to discuss.
(END VIDEOTAPE)
TAPPER: Hello. I'm Jake Tapper in Washington, where the state of our union is wondering if this contest we're watching now is really the best that the United States of America can do.
We're closing out a hugely consequential week in the 2024 presidential race. President Joe Biden appears to be legally off the hook in the special counsel investigation into his handling of classified documents, although the special counsel report was also a gift to his opponents politically, given its conclusions that -- quote -- "Mr. Biden's cooperation with the investigation, his diminished faculties and advancing age and his sympathetic demeanor would be factors that would likely make it difficult for jurors to conclude he had criminal intent" -- unquote.
Mr. Biden came out that night to challenge the special counsel's judgment of his -- quote -- "diminished faculties and faulty memory." And then he referred to the president of Egypt as the president of Mexico.
(BEGIN VIDEO CLIP)
BIDEN: The president of Mexico, El-Sisi, did not want to open up the gate to allow humanitarian material to get in.
(END VIDEO CLIP)
TAPPER: That's the Rafah gate he's referring to.
Now, this special counsel report happened to also land the same week that President Biden told stories about conversations he had with European leaders, conversations in 2021, but he referred to leaders who had died years before, such as French President Francois Mitterrand, who died in 1996.
So, imagine, if you will, being a Democratic official, worried about having to address these issues, and then, on Saturday, a gift to you, this one from former President Donald Trump at 77, just over three years younger than Biden at 81.
Trump, who has battled confusion issues of his own in recent months, calling Nancy Pelosi Nikki Haley, confusing the prime minister of Hungary with the president of Turkey, and warning that Joe Biden wants to get us all into World War II. I think he meant III.
And, of course, beyond those moments of confusion are moments such as this yesterday, where he suggested he encouraged Putin to attack NATO allies at a time when NATO allies are terrified about Putin doing such a thing.
(BEGIN VIDEO CLIP)
TRUMP: The president of a big country stood up, said, well, sir, if we don't pay and we're attacked by Russia, will you protect us?
I said, you didn't pay? You're delinquent? He said, yes. Let's say that happened.
No, I would not protect you. In fact, I would encourage them to do whatever the hell they want. You got to pay.
(CHEERING AND APPLAUSE)
(END VIDEO CLIP)
TAPPER: Encourage Russia to do whatever the hell they want.
And, of course, also, moments such as when he smears service members, not the first time Mr. Trump has done such a thing. Here he is making insinuations about former Governor Haley and her husband, Major Michael Haley, who is a commissioned officer in the South Carolina Army National Guard, currently deployed to Africa.
(BEGIN VIDEO CLIP)
TRUMP: Where's her husband? Oh, he's away. He's away. What happened to her husband? What happened to her husband? Where is he? He's gone.
(END VIDEO CLIP)
TAPPER: He's serving his country, Mr. Trump.
And then, of course, the lies, the lies and the lies and the lies. Here he is talking about his classified documents case.
[09:05:04]
(BEGIN VIDEO CLIP)
TRUMP: They didn't see the ones we had. We had them locked up, and we had Secret Service all the time, because I was president all the time.
(END VIDEO CLIP)
TAPPER: What?
Here are the documents, decidedly not locked up at Mar-a-Lago. Here they are in a ballroom. Here they are in a bathroom. And this was after his presidency, not during.
Welcome to the next nine months, if not longer. And we are only getting started.
(BEGIN VIDEOTAPE)
TAPPER: And joining me now is the vice chair of the Senate Intelligence Committee, Republican Senator from Florida Marco Rubio.
Senator, thanks so much for joining us this morning.
I know the NATO alliance is very important to you. You just pushed and got legislation to require the advice and consent of the Senate or an act of Congress before any president could suspend, terminate, or withdraw U.S. membership from NATO.
So I want you to take a listen to something Donald Trump said yesterday on the campaign trail.
(BEGIN VIDEO CLIP)
TRUMP: The president of a big country stood up, said, well, sir, if we don't pay and we're attacked by Russia, will you protect us?
I said, you didn't pay? You're delinquent?
He said, yes. Let's say that happened.
No, I would not protect you. In fact, I would encourage them to do whatever the hell they want. You got to pay.
(CHEERING AND APPLAUSE)
(END VIDEO CLIP)
TAPPER: You have endorsed Donald Trump.
Are you comfortable with him suggesting that he wouldn't defend NATO countries, and, actually, he would invite Putin and Russia to invade them?
RUBIO: Well, that's not what happened. And that's not how I view that statement.
I mean, he was talking about something, a story that he talked about happened in the past. By the way, Donald Trump was president, and he didn't pull aside a NATO. In fact, American troops were stationed throughout Europe. As they are today, they were then as well.
But he's telling a story. And, frankly, look, Donald Trump is not a member of the Council on Foreign Relations. He doesn't talk like a traditional politician. And we have already been through this now. You would think people had figured it out by now.
What he's basically saying is, if you see the comments, he said NATO was broke or busted until he took over because people weren't paying their dues. And then he told the story about how he used leverage to get people to step up to the plate and become more active in NATO.
He's not the first American president. In fact, virtually every American president at some point in some way has complained about other countries in NATO not doing enough. Trump's just the first one to express it in these terms.
But I have zero concern, because he's been president before. I know exactly what he has done and will do with the NATO alliance. But there has to be an alliance. It's not America's defense with a bunch of small junior partners. Some of these are big countries with big economies. Many of them are doing more. The Germans are doing a lot right now.
TAPPER: So, let's talk about the role of the U.S. when it comes to leadership.
The U.S. Senate, as you know, is going to hold a procedural vote later today on legislation to provide aid to Israel and to Ukraine after that bipartisan border bill was killed earlier this week that was originally part of that package. How do you explain to leaders of Israel and Ukraine, both of them
countries in the middle of wars, who say they need United States' help, why you're going to vote against this legislation, why you oppose giving them the help, the aid that they need?
RUBIO: I don't oppose giving them the help that they need, especially in the case of Israel.
And if you put the Israel thing up to a -- if you Israel aid up to a vote right now, it would pass. I don't even know -- maybe a couple of people would vote against it. But, basically, it would pass very quickly. The problem is, Israel is being held hostage so they could get Ukraine.
As far as how do I explain it to them, before I explain anything to them, I have to explain to my constituents, I have to explain to the people of Florida, I have to explain to the American people because I'm a U.S. senator. And my number one obligation is America. If America is not strong, we can't help any of our allies.
And I will have to explain to them why the Senate is going to work all through Super Bowl weekend, which is fine with me. We're going to make a big priority, except on something that's critical to this country, which is the invasion that's going on, on our own border, on our own border.
We're over -- according to a House committee and the documents and the statistics they put out -- I think these numbers are low, but let's just use them -- 3.3 million people have been released into the country who arrived here illegally. Over 600,000 of them either have criminal convictions or pending criminal charges against them.
I mean, this is a huge problem and it has to be addressed and they put out a bill. They can call it whatever they want. It wasn't a border security bill. It wasn't tough. And, frankly, it was negotiated by three people. I don't begrudge it, but I wasn't involved in that negotiation. I didn't even ask for a bill.
I asked for the president to reverse the executive orders that created this crisis when he took over in January of 2021.
TAPPER: I want to get to the border in a second, but just to clarify something, are you in support of aid to Ukraine?
RUBIO: I think, if we secure our own border here in the United States, I have said that we should do -- we should help Ukraine.
Look, half the money that's going to Ukraine is not going to Ukraine. It's to buy back our own weapons that we gave them to restock our own shelves. And, obviously, Taiwan is included there as well.
My problem is this. Before we do these things, we have to make America and Americans a priority again. In city after city now, in New York, and Denver, and Chicago, here in Florida to some extent, we are seeing the impact of this migrant crisis, not just on social services, not -- but on the street in crime, in a crime wave that we have going on. [09:10:15]
And now you have got -- the mayor of Denver is now crying because he says the federal government has to send him a bunch of money to help with the migrant crisis, and he says the only people that are not to blame for this are the migrants themselves.
Why are we spending all of this taxpayer money to house migrants, feed migrants, accommodate migrants? We have a bunch of needs in our own country for Americans. How is that not our priority?
TAPPER: So...
RUBIO: Americans have to be our priority, and then we can help our allies.
TAPPER: So I totally hear what you're saying that you want there to be a tougher border.
Let's talk about this deal negotiated by Senators Lankford, Murphy, and Sinema. I understand that you have issues with it. A lot of people have issues with it. The National Border Patrol Council, which is the union for Border Patrol agents, which is a very conservative group, they support this legislation.
I want you to take a listen to the head of that union, Brandon Judd.
(BEGIN VIDEO CLIP)
BRANDON JUDD, PRESIDENT, NATIONAL BORDER PATROL COUNCIL: I'm going to look at, is this bill better than the status quo? And it absolutely is. Nobody can argue that. Nobody can argue that it's not better than what we currently have. Although it's not perfect, it is a step in the right direction.
And I would rather have the step in the right direction than nothing.
(END VIDEO CLIP)
TAPPER: Now, I know you know Brandon Judd, but, for viewers, this is the head of a union that endorsed Trump strongly in 2020, consistently criticize President Biden. Go check out their Twitter feed. They mock him all the time.
They say this is better than nothing; it should become law. Are you saying that the Border Patrol Union is wrong?
RUBIO: Yes. If that's what they still believe, they're wrong. It's not better than nothing.
Look, there are some things in that bill that we should do, change the asylum standard and the like. Here's what else the bill did. The bill basically creates an asylum corps, OK? It creates a bunch of -- thousands of bureaucrats, basically agents, asylum agents, that would be empowered right at the border to either allow people into the country with an immediate work permit. Today, they got to wait six months. You give them an immediate work
permit, you're going to have more people coming. That's a huge magnet. Or they have the power to immediately release them and grant them asylum, which now puts them on a five-year path to citizenship, which is what a lot of Democrats want.
They want to turn a bunch of illegal immigrants into voters, into citizens, into voters, in the hopes that those people will then turn around and vote for them in future elections, grateful because they will know who let them in.
(CROSSTALK)
RUBIO: That's a huge problem. That doesn't solve the border. It makes it worse.
TAPPER: This doesn't provide a path to citizenship for any of these people, just to clarify.
But it raises...
RUBIO: Yes, it does. Absolutely, it does.
(CROSSTALK)
RUBIO: No, no. Yes, it does.
When you have asylum, you are on a path to citizenship. An asylum -- when you get asylum, you are a year away from a green card and four years away from citizenship. Absolutely, it does.
TAPPER: But you said you approved of the asylum changes.
(CROSSTALK)
RUBIO: And these bureaucrats would have the power to grant you asylum, not even a judge, a bureaucrat.
TAPPER: But the judges, as you know, are not judges, per se. They're immigration judges. They are -- it's a different kind of judge. It's basically an immigration attorney who's empowered to be an immigration judge. You know that.
But you said that you liked the changes to asylum. I mean, they raise the standard for asylum. The people who support this bill say it is much needed. Senator Lankford calls it by far the most conservative border security bill in four decades. That includes, of course, the 2013 compromise that you negotiated as part of the Gang of Eight.
This bill would have allowed the administration to temporarily shut down the border. It included funding for the border wall. It would have made it much more difficult to claim asylum. It added detention beds. It added ICE agents. It added deportation flights and asylum officers.
And it has none of the Democratic priorities that were included in your 2013 compromise, such as a path to citizenship. Why isn't that a win for Republicans?
RUBIO: Well, first of all, you went through a list of long things that I don't agree with.
First of all, it doesn't shut down the border. It creates the ability to shut down the border, but it also gives the president the ability to say, we're not going to do it. The emergency is suspended because it's not in our national interest to do this.
By the way, you still have to process, I believe, 1,400 illegal immigrants a day even in one of these emergencies. And it goes away in three years. The other thing it does is, it doesn't touch the parole program, which is one of the loopholes the president has used to release all these people into this country.
He's paroling them in. That's not even asylum. You talk about the asylum, about the judges, the immigration judges. Here's the difference. Those judges, their decision can be overruled by the attorney general. The attorney general could actually step in and overrule them. These asylum officers that they're -- this asylum court they're going to create, they can't even be overturned by the attorney general.
These people would have the power right at the border to grant people asylum. And a lot of people don't talk about that, but it's right there in the law. It does that. As far as the standard of -- yes, it's good to change the standard, but it's going to be applied, and it's ultimately going to be applied by an administration that has proven its unwillingness to enforce our immigration laws.
This entire crisis began in January of 2021, when the president decided for the first time in American history that we were going to release every -- virtually 85, 90 percent of any migrant that crossed the border, including single -- single men.
[09:15:09]
TAPPER: But this would change that, right? But this would change that.
RUBIO: No.
TAPPER: Isn't this better than the status quo?
RUBIO: No. No, it would not change that. How would it change that? It would not change that. You come in...
(CROSSTALK)
TAPPER: Because it would allow more people to be turned back and returned to the country they came from, because the asylum claim standard is so much higher.
RUBIO: It is not so much higher.
It's -- again, it's going to be interpreted at the border by people who've shown a propensity to interpret it very liberally. That's the reason why they're letting them in now, because they're basically saying, we think you might have a chance at asylum. We're going to release you.
Now, in the hands of another administration, perhaps that asylum standard could be applied differently. But, ultimately, once you have this asylum corps hired by Mayorkas, hired by Biden, put at the border, they are going to be -- they will have the power.
If they want, they will have the power to either release people pending a future hearing with an immediate work permit, which is going to draw hundreds of thousands of more people into our country, or they are going to be able to give them asylum right there and then on the spot.
And that is a pathway to citizenship. Asylum is a pathway to citizenship.
TAPPER: I want to turn to another topic because we're running out of time.
I want you to take a listen to something else Donald Trump said yesterday while campaigning in South Carolina. It was about Nikki Haley and her husband, Michael, who, as you know, is deployed as a major with the South Carolina National Guard.
(BEGIN VIDEO CLIP)
TRUMP: Where's her husband? Oh, he's away. He's away. What happened to her husband? What happened to her husband? Where is he? He's gone. He knew. He knew.
(END VIDEO CLIP)
TAPPER: He's in the Horn of Africa serving his country.
Governor Haley responded by saying that -- quote -- "Someone who continually disrespects the sacrifices of military families has no business being commander in chief" -- unquote.
I know when you ran against President Trump in 2016, you said his comments about John McCain were disqualifying. What do you think about these comments?
RUBIO: I think they're part of the increasing nastiness of this campaign and every campaign in American politics.
I mean, they're calling him a grumpy old man. They're attacking Donald Trump. I remember, when Melania Trump was not visible for some period of time, you have people in the media and others snickering and speculating that she was no longer with Donald Trump. We find out later, of course, that she was caring for her ailing mother, who was in the last weeks and days of her life.
So this sort of nastiness, Trump gives as good as he gets. Now, we know that. It's just part of these campaign cycles, unfortunately. People don't like it. They're turned off by it, whatever it may be.
But at the end of the day, I think one of the things I'm not going to do any longer is, like, respond to every comment Donald Trump makes and say, oh, you still support him? I do. And I support him because Joe Biden's a disaster, because Joe Biden is a disaster.
He's done tremendous damage to this country. America is less prosperous and the world is less safe because Joe Biden became president.
TAPPER: Yes, just a reminder, folks, the comments you made in 2016, when Biden -- I'm -- when -- I'm sorry, President Trump, then-private citizen Trump said John McCain wasn't a war hero, you said those comments were offensive, ridiculous and a disqualifier as commander in chief.
I get that you don't like the nastiness.
RUBIO: Yes, I was running for president against Donald Trump.
TAPPER: Right. No, but...
(CROSSTALK)
RUBIO: Because we were in a campaign.
TAPPER: But Major Haley...
RUBIO: I mean, Kamala Harris basically said...
TAPPER: Yes.
RUBIO: Kamala Harris basically suggested Joe Biden was a segregationist, and then she became his vice president.
TAPPER: All right, we're out of time.
I want to ask you who you got tonight, the San Francisco 49ers and Kansas City Chiefs.
RUBIO: I want the 49ers to win so we know -- we can get rid of these conspiracy theories about Taylor Swift.
Never in my life have I been motivated by anything other than football. But this time, I just -- I think, if the 49ers win, it's perfect. It gets rid of all those conspiracy theories. But I think the Chiefs are probably going to win.
TAPPER: All right, Senator Marco Rubio, thanks so much. Have a great Sunday. Good luck on the Senate floor.
RUBIO: Thank you.
(END VIDEOTAPE)
TAPPER: President Biden is angry at the special counsel for commenting on his age and memory.
Former Deputy Attorney General Rod Rosenstein joins me next on that and the cases against Trump.
And Democrats doing damage control. I will ask Congressman Ro Khanna if it's working.
Stay with us.
(COMMERCIAL BREAK)
[09:23:07]
TAPPER: Welcome back to STATE OF THE UNION.
Tomorrow marks a key deadline for Donald Trump to ask for this the U.S. Supreme Court to intervene after that federal appeals court ruled this week that he does not have total immunity from prosecution.
But, as Trump gears up to fight that legal battle, President Biden seems to be in the legal clear, at least for now, over his own classified documents investigation this week.
Here with me now is former Deputy Attorney General Rod Rosenstein, who worked closely with now-special counsel Robert Hur during the Trump administration.
Thanks for joining us. I appreciate it.
Let's start on the decision to not charge President Biden over the classified documents found in his Delaware residence and garage and elsewhere. This comes after Donald Trump was charged in his own classified documents case.
You know Robert Hurricane. He was your deputy at the Justice Department. Do you agree with his decision that Biden should not be charged, it was not a prosecutable case?
ROD ROSENSTEIN, FORMER U.S. DEPUTY ATTORNEY GENERAL: Yes, Jake.
And it's -- most people haven't read the entire report. And I don't blame them. It's 345 pages, about 1,400 footnotes. It's very dense and well-reasoned. And I think, if you read the whole report, you will conclude that Rob reached a reasonable decision that, given all the circumstances, that prosecution is not warranted.
TAPPER: One of the circumstances includes, Robert Hur wrote -- quote -- "We also -- have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning elderly man with a poor memory" -- unquote.
Now, that's, to be clear, not the only reason he did not decide to prosecute, but Hur does describe at length Biden's -- quote -- "hazy memory" and -- quote -- "diminished faculties" and alleges he could not remember specific years when he was vice president or the specific years when his son Beau died.
Now, the former attorney general Democrat Eric Holder says the report -- quote -- "contains way too many gratuitous remarks and is flatly inconsistent with longstanding DOJ traditions" unquote.
[09:25:06]
ROSENSTEIN: Jake, I think not.
And the reason for that is there are really two issues here. The first issue is,what are the factors you consider in making a decision whether or not to prosecute? And Rob is clearly within Department of Justice precedent and principles in the way he went about making that decision.
The second issue is what you release in the public. And the problem here with -- that's really baked in the special counsel model is that it's not really the function of a prosecutor to publicly announce the reasons why they're not prosecuting.
And so when you layer that into the process, it can result in unfortunate consequences. The Donald Trump report, I think, got people upset in the same way that this one did. Lawrence Walsh's report about Iran-Contra elicited some of the same responses.
When you conduct a criminal investigation, some of the information that you uncover and some things that you evaluate don't necessarily put the subject in a favorable light. And, ordinarily, that's not publicized. And I think that's a good thing.
It's unfortunate that the special counsel process results in public reports that expose things that otherwise would remain sealed in Department of Justice files.
TAPPER: Right, but, to be clear, the attorney general had made it -- had stated that whatever was found would be released publicly. And even if he hadn't, Congress would have used its Freedom of Information Act powers to get the special counsel report.
It was going to be made public no matter what. And Robert Hur is a smart guy. He knew that.
I want to read from a memo you wrote in 2017 in which you criticized James Comey's infamous press conference in which he criticized Hillary Clinton's handling of classified e-mails, even as he declined to prosecute her, a similar circumstance, although he wasn't a special counsel -- quote -- "Derogatory information" -- this is you writing -- "Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously.
"The FBI director laid out his version of the facts for the news media as if it were a closing argument, but without a trial, it is a textbook example of what federal prosecutors and agents are taught not to do" -- unquote. By going to the lengths he did to critique Biden's age and memory, even as he was clearing him of a crime, how do you differentiate between what Robert Hur did that you say is OK from what James Comey did that you say is not?
ROSENSTEIN: Jake, there are several significant differences between those two examples.
One is, most fundamentally, that Jim Comey wasn't the prosecutor. He was the head of the FBI. His job was to ensure the police collected the proper evidence, submitted it to the prosecutors. And, ultimately, it's up to the prosecutors in the Justice Department and the attorney general to make a decision about what information is released.
Rob Hur was the prosecutor. It was his job to make that decision, to make that recommendation to the attorney general, who, as you acknowledged, has previously committed to make this report public. That's one difference.
The second difference is the special counsel regulation. In the ordinary case, Hillary Clinton was not investigated by a special counsel. There was no procedure to make those reasons public. Here, it's baked into this regulation.
Now we sit, Jake, 25 years down the road. That regulation was passed by Attorney General Reno in 1999. Now we have 25 years of experience. I think it's worthwhile to sit back and ask whether or not this is the right procedure. Do we really think that we ought to have prosecutors writing reports for public release of everything they discover and all the reasons for not prosecuting?
Or is there a better way to do that without having all the embarrassing information come to public light?
TAPPER: Donald Trump, of course, is charged in the January 6 case with conspiracy to defraud the United States, obstruction of and conspiracy to obstruct an official proceeding and conspiracy against rights, in this case voting rights.
What do you make of those charges in the January 6 case? How worried should Donald Trump be about that case in particular?
ROSENSTEIN: Jake, I'm not in position to comment on that.
All I know about that case is what I read in the media and what I see in the indictment. Donald Trump, like every criminal defendant charged by the Department of Justice, is presumed innocent unless and until proven guilty in court. So, like everybody else, I'm waiting to see what develops of that trial.
TAPPER: Another thing that Robert Hur wrote about is, he distinguished between the Biden case on handling classified documents and the Trump case and noted -- now, I'm paraphrasing here, but along the lines of, Trump's case is much worse because Trump didn't cooperate, and Biden did, and Trump urged people to lie and obstruct justice and destroy evidence, and Biden did not. Was that appropriate of Robert Hur to do?
ROSENSTEIN: I think so, Jake.
And you identified the controversial elements of the special counsel's report. It's a very long report, 345 pages, and has a lot of information in there, other reasons why prosecution would not be warranted. And one of them is the history and experience of prior presidents and potentially vice presidents as well taking home classified documents.
[09:30:06]
And the point that Robert anticipated there was people would ask, what distinguishes this case from the allegations against former President Trump? And the answer was that President Biden fully cooperated and turned over the documents.
Now, I don't know whether the allegations against President Trump are true or not, but it is a distinguishing factor. And it's perfectly appropriate for prosecutors to consider a suspect's cooperation, a suspect's truthfulness in making a determination about whether prosecution might be warranted.
So, that's an issue that's covered actually in great detail in the special counsel's report.
TAPPER: Tomorrow marks the deadline for Donald Trump to ask the U.S. Supreme Court to pause the ruling from the D.C. Court of Appeals. The D.C. Court of Appeals, as you know, ruled that he does not get blanket immunity for his actions on January 6 just because he was president at the time.
How do you think the U.S. Supreme Court will rule? Should Trump or any former president have blanket immunity from prosecution for acts they committed while president?
ROSENSTEIN: My view about this, Jake -- I participated in several investigations of sitting presidents, the Whitewater investigation at the early stages in the 1990s and then the Russia investigation.
And my view of it was that we need to conduct thorough investigations, no matter who anybody is in the United States, and then we reach a decision point. And if we decide that it's appropriate to move forward and bring charges, then we have to address that issue, the issue of whether a sitting president is immune from prosecution.
The issue raised in this case, of course, is what, if any immunity does a former president receive? And that opinion, of course, the D.C. Circuit has already ruled 3-0 in favor of the government. We will see whether the Supreme Court takes that case. But it is a relatively novel proposition, and it would be interesting to see how the courts ultimately rule on it.
TAPPER: Before we go, you're a lifelong Republican. George W. Bush nominated you to be a U.S. attorney. You worked under Donald Trump. You dealt with him firsthand.
Do you have any issues with the idea of him being president again?
ROSENSTEIN: Well, I was also the longest serving U.S. attorney under President Obama, Jake, so I think that's an important consideration as well.
I never get in the business of recommending or announcing who I'm supporting for president, and I don't intend to depart from that tradition now.
TAPPER: All right, Deputy Attorney General Rod Rosenstein, thanks for joining us today. I appreciate it, sir.
ROSENSTEIN: You're welcome.
TAPPER: Is the White House retooling its 2024 campaign strategy? My panel, including progressive Congressman Ro Khanna, weighs in next.
(COMMERCIAL BREAK)
[09:36:44]
(BEGIN VIDEO CLIP)
BIDEN: I'm well-meaning, and I'm an elderly man, and I know what the hell I'm doing.
KAMALA HARRIS, VICE PRESIDENT OF THE UNITED STATES: The way that the president's demeanor in that report was characterized could not be more wrong on the facts and clearly politically motivated, gratuitous.
(END VIDEO CLIP)
TAPPER: Welcome back to STATE OF THE UNION.
Democrats scrambling after the special counsel report released Thursday highlighted one of President Joe Biden's biggest political weaknesses, questions by voters over his mental fitness.
My panel joins us now.
Congressman, let me start with you.
Is this an issue that the president needs to handle differently, take on more directly, and respond in any way differently than how he is now?
REP. RO KHANNA (D-CA): Well, the president has said that age is a fair issue. I have seen the president twice in the last two weeks. I have had a conversation with him. He's completely mentally sharp when we were discussing the Middle East.
But here's the reality. Dean Phillips has been making this an issue for the past three months, and we have an electoral process. And the president won overwhelmingly in New Hampshire. He's winning overwhelmingly in South Carolina. He's winning because he's delivering results.
So, when you say, is it an issue, he said, yes, it's an issue. Let the democratic process play out. And he's winning. He's lowering prescription drug costs, bringing manufacturing back. That's what people care about.
TAPPER: And I have to say, it's not as if President Trump is not getting confused on the stump himself.
ALYSSA FARAH GRIFFIN, CNN POLITICAL COMMENTATOR: Well, exactly. There's a question of mental acuity and age on both sides.
But the conundrum of 2024 is that Republicans are running the one person who could lose to Joe Biden, and Democrats are losing -- running the one person who could lose to Donald Trump. Neither of these are popular candidates nationally. And, in fact, it's basically going to come down to a handful of swing states, who is the least off- putting for voters in November?
That's what we're dealing with. The enthusiasm -- the lack of enthusiasm with Biden is very real, but also the number of people who could never support Donald Trump is also very real.
TAPPER: How do you think Democrats should deal with it, Adrienne?
ADRIENNE ELROD, DEMOCRATIC STRATEGIST: Look, I mean, I think Democrats are dealing with it the way that President Biden's been dealing with it, which is talking about the fact that age equals experience equals getting results done.
I mean, President Biden went out there on Thursday night and made it very clear, he wasn't -- if he was not mentally strong, we wouldn't be able to pass four major economic bills, we wouldn't be able to put the first black woman on the Supreme Court. There's so much that he has done and accomplished, and you would not be able to do that if you were not mentally stable and competent.
TAPPER: And, Scott, we should just note, this isn't -- I know people out there think this is just the media or just Republicans or whatever, but, like, it's not.
There's an ABC News poll out this morning found that 86 percent of the American people think he's too old, Joe Biden, to be president, including 73 percent of Democrats. Now, for whatever reason, they don't think that, at least not now, about Donald Trump.
SCOTT JENNINGS, CNN SENIOR POLITICAL COMMENTATOR: Yes, I'm not a mathematician, but 86 percent is a lot.
And, I mean, look, a lot of Americans are having this conversation at home right now. Is it time to take the keys away from dad? The difference with the Bidens is, they're doing it with the president of the United States. I think we ought to pray for the Biden family. This is extremely difficult times for them.
The press conference was a disaster. Everybody knows it. He's losing to Donald Trump, who he says, Biden says is a threat to democracy; 86 percent of people think he's not up to this. He's not going to serve another five years.
[09:40:05]
So the real question is, who are we voting for? And, of course, the answer is, this is -- this has really come down to being about Kamala Harris right now.
TAPPER: Well, this is the Republican calculation.
FARAH GRIFFIN: Well, and the challenge here is, Democrats' chief message is basically, democracy is at stake. And I actually agree with that with Donald Trump being president again, yet they're running a historically unpopular president whose numbers rival Jimmy Carter's in terms of unpopularity.
And then they have this age issue. It's really hard to communicate to voters that our democracy is on the line, but we're running the weakest candidate.
TAPPER: So today's the Super Bowl.
KHANNA: Forty-Niners.
(CROSSTALK)
TAPPER: You're a 49ers fan, I'm sure.
So, historically, presidents give interviews to the network that is airing the Super Bowl. I mean, I'm old enough to remember Barack Obama sitting down with Bill O'Reilly for a Super Bowl interview. Now, last year, FOX aired the Super Bowl, and the Biden people were able to say, that's not a real news network. We're not going to do it.
OK, fine. But, this year, it's CBS, and he's still not doing it. Isn't the White House signaling with that decision, like, we're afraid of putting him out there?
KHANNA: Well, look, I would tell any politician, including presidents, to take the interview at the Super Bowl. It's the most popular thing. People care much more about that than politics.
But my view has always been that, when the president is out there, he's at his best. When he was out there recently with this kid who had his student loans forgiven, he was at his home. He was empathetic. They need to do more of that. I mean, have him out there. Have him debate in the general election. I don't think Donald Trump will.
My conversations with him, he is fully capable of making the argument. And it's not just that we're running on democracy. We're running on a president who's delivered what Donald Trump said he would do. Donald Trump said, the Midwest has been hollowed out, manufacturing jobs are going offshore.
Donald -- Joe Biden is bringing them back. Joe Biden is bringing down the price of gas. Joe Biden is fighting for the working class. When that economic contrast becomes clear, he will win.
The final quick point, he's winning where it matters, in the actual elections.
JENNINGS: Every single...
TAPPER: Yes.
JENNINGS: ... public interaction Joe Biden had this week was worse than the previous one. Can't remember the names of the presidents of the countries at the press conference, communing with foreign leaders who have long since passed.
TAPPER: Yes.
JENNINGS: Every -- how can you say keep going out there when every iteration of this fails every time?
ELROD: But, Scott, can we also talk about the previous two speeches that President Trump, former President Trump, gave over the last two days, where he made multiple gaffes?
He confused world leaders. He in the past month confused Nikki Haley and Nancy Pelosi. He gave this bizarre rant about magnets at a rally recently. I mean, you cannot...
JENNINGS: Is that the standard you aspire?
(CROSSTALK)
ELROD: President Biden's gaffes are minor in comparison to Trump's.
And Trump's also basically signaled that Russia should start World War III last night. Far more dangerous.
TAPPER: We're going to -- yes, and we're going to talk about Trump more in the next panel.
But, very quickly, Scott, there is an issue here about the special counsel investigation and it being released publicly. Even though it was -- it let Biden off the hook, it cleared him, but it was very critical. And there are a lot of Democrats who are upset that Hur wrote that, and a lot of Democrats upset that Garland appointed special counsel Hur.
And I want to read this from Politico: "Joe Biden has told aides and outside advisers that Attorney General Merrick Garland did not do enough to rein in a special counsel report stating that the president had diminished mental faculties. Hur's explanation for not bringing charges, that Biden would have persuaded the jury that it was a forgetful event, upended the presidential campaign and infuriated the White House."
There's also leaks coming from the White House that Garland will not be back for a second term, a second Biden term, should there be one. JENNINGS: Understand, in not inviting someone back for a second term
when they already have the job means they are threatening to fire the attorney general of the United States because he is not doing enough to interfere in the special independent counsel helping Joe Biden get reelected.
That is what's happening. This is an alarming -- I was under the impression that meddling in the DOJ, the sacred and independent DOJ, was a major problem.
FARAH GRIFFIN: It's giving Donald Trump...
TAPPER: Do you have confidence in Attorney General Garland and do you have any issues with these leaks coming from the White House?
KHANNA: I think Merrick Garland is a person of integrity. I don't think he should be undermined.
I think it's common in a second term for people to have different Cabinet members, but this is not the time to do it. I do think the special counsel's gratuitous mention of Beau Biden, whatever you think of the rest, but to talk about someone's dead son, and not -- and to put that in, I mean, what is this country coming to that we're politicizing that?
Jake, you know people who have grief. I mean, people deal with that differently.
TAPPER: Yes.
KHANNA: Some people remember the exact date. Some people block it out. And that was totally uncalled for.
TAPPER: It's actually interesting you bring that up, because a very conservative woman I know, a Gold Star mom who is not a Biden supporter, asked me for Robert Hur's e-mail, because she was so infuriated by that.
Even though, again, she doesn't like Biden, she's not going to vote for him, she thought that was so gratuitous.
Stick around. Trump is ending up distracting from Biden's challenges, and we're going to talk about that next.
(COMMERCIAL BREAK)
[09:49:02]
(BEGIN VIDEO CLIP)
TRUMP: Where's her husband? Oh, he's away. He's away. What happened to her husband? What happened to her husband? Where is he? He's gone.
NIKKI HALEY (R), PRESIDENTIAL CANDIDATE: If you mock the service of a combat veteran, you don't deserve a driver's license, let alone being president of the United States. (END VIDEO CLIP)
TAPPER: Welcome back to STATE OF THE UNION.
Well, President Trump just guaranteed Nikki Haley's not going to drop out of the race any time soon.
Adrienne Elrod, I am old enough to remember a Republican Party where going after somebody's husband serving abroad would have been disqualifying.
ELROD: Yes. Yes, absolutely. And so am I, Jake.
I mean, it's absolutely unbelievable that any voter, any MAGA voter would still stand by Donald Trump when he says this. I agree with Nikki Haley. This is one of the few times I'm actually going to agree with Nikki Haley on this.
But let's remember he has something against members of the military. He criticized John McCain very actively and criticized his service, criticized him for being a war hero. And he's clearly got something against members of the military, which we saw play out again last night.
[09:50:05]
FARAH GRIFFIN: Well, and the crazy thing is, not a single prominent Republican is going to come out and say anything other than Governor Chris Sununu saying that this is ridiculous. You're attacking a military family and somebody who's deployed to Africa as we speak.
But also yesterday was this insane rant that Donald Trump went on, essentially saying he would not invoke Article 5 of NATO and that he would let Russia essentially invade Europe. And that's...
TAPPER: He said he encouraged them.
FARAH GRIFFIN: He encouraged it.
That is a stunning policy statement from a man who very many times behind closed doors did suggest the U.S. shouldn't be in NATO. So that is something, that's a policy issue that needs to be talked about by the Biden...
(CROSSTALK)
TAPPER: Doesn't this bother you, him going after -- I mean, Major Michael Haley is not with his wife because he's serving his country in Africa, I mean, where they're fighting terrorism.
JENNINGS: Yes, he's an asshole.
(LAUGHTER)
JENNINGS: I mean, this is like...
TAPPER: You're talking about Trump, to be clear.
(LAUGHTER)
JENNINGS: Yes.
I mean, this is -- of course, this is priced into his candidacy. It's not the first time he's been an asshole. It won't be the last time he's been an asshole. But that's what it is.
Now, some people like it. And I know people are going to slough it off as, oh, this is just a tough political campaign. The man is serving the United States in uniform overseas. So it's a below-the-belt shot against someone who is not going to beat him for the nomination.
That's the thing here. Joe Biden's doing everything he can do to hand this election to Donald Trump. And his response to that was to go after a guy who's serving America and to say, oh, I'd encourage countries, I'd encourage Russia to invade our allies.
That was the response? The political ineptitude alone isn't enough to be upset about. But, more than that, it's...
(CROSSTALK)
KHANNA: It's the cruelty and coarseness that Donald Trump is inflicting on American culture that actually is going to be one of the lasting legacy damages to the kids.
I mean, it used to be in this country you used to have a debate between two candidates. They used to attack each other, say they were totally unethical, and, at the end, there would be the softball question, and they'd praise the other person spouse and family
TAPPER: Yes.
KHANNA: I mean, that used to be the norm.
And he's totally undermined that norm. And I think, 20 years from now, we're going to be paying the consequences.
ELROD: No, I mean, I think, again, we -- at the end of the day, I think voters, especially those key swing independent voters in a handful of states who will decide this election, are going to look at Joe Biden's economic policies, his very strong record as president, contrasting that with Trump, who not only is trying to start World War III, but is criticizing military families.
The first thing he did when he was president in 2017 was enact a Muslim ban. The list goes on and on and on. The contrast could not be more clear.
TAPPER: What is also weird about this is, like, he was in South Carolina, Trump, insulting a member of the South Carolina Army National Guard who would, I'm sure, in his heart prefer to be with his two children and his wife, who's running for president, but signed an oath and is serving his country abroad. And a South Carolina audience applauds that?
FARAH GRIFFIN: Well, it shows how much the party has changed under Donald Trump.
Republicans, unfortunately, want to hear this, it sounds like, based on the fact that he is double digits ahead of Nikki Haley in South Carolina. But, at the end of the day, thinking about a general election, Donald Trump has a massive women problem.
He cannot -- he is losing women Republican voters. So, to go after a popular former two-term South Carolina governor who's a military spouse is just political malpractice.
TAPPER: All right, thanks, one and all, for being here. Really appreciate it.
We will be right back.
(COMMERCIAL BREAK)
[09:56:40]
TAPPER: Could Republicans lose another seat in the U.S. House?
Join us Tuesday night for our special coverage of the New York special election to replace former Congressman George Santos. That will start at 8:00 p.m. Eastern here on CNN.
Next week, join me to unpack some of the most outrageous political scandals of the modern era in my new original series for CNN, "UNITED STATES OF SCANDAL." That premieres a week from today, Sunday night, at 9:00 p.m. on CNN.
Thanks for spending your Sunday morning with us.
"FAREED ZAKARIA GPS" starts next day.
I will see you tomorrow.
