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Trump in Growing Legal & Political Peril from Court Filings; John Kelly Leaving as White House Chief of Staff; British PM Theresa May Pull Brexit Vote Tomorrow; Can a Sitting President Be Indicted? Aired 7-7:30a ET

Aired December 10, 2018 - 07:00   ET


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

[07:00:04] JOHN BERMAN, CNN ANCHOR: Good morning, and welcome to your NEW DAY. It isn't clear that the president, any president, has been in a situation like this before.

President Trump's own Justice Department says the president directed someone to break the law and gives every indication he would be charged with a federal crime, were he not president. The incoming chair of the House Judiciary Committee calls these impeachable offenses. So the stakes this morning, they're flat-out different and bigger than the president has yet seen.

So this is what we know. Federal prosecutors allege the president instructed Cohen to pay hush money during the campaign to two women who claim they had affairs with then-candidate Trump. Michael Cohen also spoke to a Russian offering political synergy -- political synergy -- in November of 2015, but he did not take the meeting, because he already had another connection to the Kremlin.

We now know that Michael Cohen is one of at least 14 associates to Donald Trump who interacted with the Russians during the campaign and presidential transition. That's according to analysis done by "The Washington Post."

CAMEROTA: OK. And prosecutors say that Cohen also lied about those negotiations to build a Trump Tower in Moscow and discussed the project with then-candidate Trump well into the 2016 election.

But wait. There's more. Paul Manafort also lied about his contacts with the White House. Prosecutors say they have messages showing that Paul Manafort was talking to people in the administration earlier this year, even after his 2017 indictment. And he lied about his contacts with a Russian operative who has ties to the military intelligence agency that is suspected of hacking the DNC.

BERMAN: While all this is going on, there's a shake-up at the highest levels of the White House, maybe not coincidentally. The president announced the chief of staff, John Kelly, is out by the end of the month. And the person who was the frontrunner to replace him, the one that the president had his eye on, was Vice President Pence's chief of staff, Nick Ayers, who now says he doesn't want the job. So much to discuss this morning. Joining us now, CNN political

analyst David Gregory; former federal prosecutor and CNN legal analyst Laura Coates; and author of "The Threat Matrix: Inside Robert Mueller's FBI and the Global War on Terror," Garrett Graff.

Garrett, I want to start with you. People who were not here last hour did not see you lay this out, but you call this the worst-case scenario for America, approaching that. Explain why.

GARRETT GRAFF, CNN CONTRIBUTOR: Yes, what we now know from Friday is not just that Russian intelligence targeted the Trump campaign, which has been coming clear for some time now. It's that that contact was both started earlier, extended longer, and was more extensive than we realized.

As you said, at least 14 different Trump associates were involved in contacts with Russians over the course of the 2016 campaign and transition.

And the only question we are now in -- this is where I believe we're sort of already in the worst-case scenario -- and the question is how bad is it? The only question left is how extensive was that contact? How much coordination was there? And just how many Trump people were actually involved?

CAMEROTA: David, when you look at the little threads that we've all been following for the past two years, you know, take in individually, each of them are sort of head scratchers.

And then when you take them in totality, which is what happened over the weekend, where you see there where we have the graphic of the 14 Trump associates -- close Trump associates, top campaign people, top transition people, I mean, we're talking Jared; we're talking Ivanka; we're talking Don Junior. We're talking the campaign chairman.

I mean, in totality, the Russians reached out to at least 14 close associates of Donald Trump. It starts to not look coincidental. It starts to look as if maybe people on the Trump team didn't know what Russia was trying to do, but they were being manipulated because Russia was clearly doing something intentional.

GREGORY: Right. And what do we know at the time is -- about all of this? We know the Obama administration was worried about this, understood what was starting to happen, had their own internal debates about how and whether to speak out about it, but certainly, began pushing back on the Russians.

Now that's a separate debate about whether the Obama administration should have done more, and that's a very intense debate.

What about the culture within the Trump campaign? We know from the very top Trump thought a reset with Russia and a warmer relationship was a good idea, not a bad idea. He obviously underplayed business dealings that he'd in the past and was having in the course of the campaign over the summer. He talked about loving WikiLeaks; encouraged the Russian government to

hack Hillary Clinton's e-mails and find e-mails that were missing, and that the press would reward him for such. And by the way, that opposition research on a candidate, no matter where it comes from, is great stuff, and who wouldn't want to go after that?

[07:05:14] So they were open for business in the Trump campaign for those Russians who came calling. And Garrett made this point last hour. It is shocking and really inappropriate, at least that nobody in Trump's orbit said, "We don't do this. You don't allow a foreign power to start to try to influence the campaign. You don't have inappropriate contacts. It's just not what's done, because it's dangerous as well as being totally inappropriate."

So that culture is what's under examination here, at least at this point.

BERMAN: And what really is astounding this morning after the last three days, you take everything Garrett and David just said there, and on top of that, the Southern District of New York, which is a part of the government of the United States, the Justice Department, put in writing that the person who is now president was involved in a federal crime.

Let me just put it on the screen. P1-13 here. "With respect to both payments" -- we're talking about the payments made to Stormy Daniels and Karen McDougal -- "Michael Cohen acted with the intent to influence the 2016 presidential election. In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual 1. That's legal speak, Laura, for the president knew and directed Michael Cohen to commit a federal crime.

They're saying that of the president of the United States. That is crucial.

LAURA COATES, CNN LEGAL ANALYST: It certainly is. Where have you seen before somebody who is an unindicted co-conspirator? I mean, the idea that history repeats itself in rhyme seems to be here again, from the Nixon years to now, the notion that because of that Office of Legal Counsel opinion, which remember, says that they do not want to actually indict a sitting president because of the effect on executive branch of government and the American people, perhaps, they want to delay it.

What you have there was the Southern District of New York essentially saying, "OK, we understand there's a legal opinion going on right now, but you're two years out from having, perhaps, this person not be a sitting president."

And if you have your own Justice Department, not just the Special Counsel Robert Mueller team, which remember that filing that was given to the court by the SDNY was based on a case that had been farmed out from Mueller to them. So it was in direct connection, although Michael Cohen, generally, is the theme there. Mueller had to file a separate report to show people that he is not

actually a part of the SDNY. So you have somebody who's not part of this alleged witch hunt that the president keeps talking about who separately and comprehensively has now called him a felon. And you have the effect that's going to mean. And of course, that's not stopping.

And one thing that was important in that filing, as well, to talk about this issue, John, is the idea they said that, look, Cohen is not going to get any good favors from them, because he did not talk about things they had not been charged, things that had not yet been charged or had not been charged at all. So you see the writing is on the wall, and it says felon in the Oval Office.

CAMEROTA: Garrett, sometimes the biggest clue is just right there, you know, in front of our -- in front of our eyes, and you don't see it until the whole puzzle comes together.

And so I want to -- because you have followed every one of these threads so meticulously that would make the rest of our heads explode, what about Felix Sater? OK, Felix Sater, as we learned last week with this, Trump associate. He's a real-estate developer. He worked with the Trump Organization for a decade or so.

And here is his letter on October 13, 2015, to Michael Cohen. OK? And I think that it just spells out the whole mission statement. "Let's make this happen and build a Trump Moscow and possibly fix relations between the countries by showing everyone that commerce and business are much better and more practical than politics. That should be Putin's message, as well, and we will help him agree on that message. Help world peace and make a lot of money, I would say that's a great lifetime goal for us to go after."

I mean, this is the mission statement of why whenever, I think, whenever people would say, "Why is Donald Trump so interested in courting Vladimir Putin and Russia?" And it was so confusing to people. The marriage of "Let's make a lot of money, and maybe we'll solve world peace in the process."

GRAFF: Yes, Felix Sater is one of the fascinating characters in this whole saga, longtime U.S. intelligence asset, actually has some previous ties from previous cases to some of the prosecutors with those working on Mueller's team right now, and by all accounts has been cooperating with this investigation for quite some time now. Which, when you add him him to Michael Cohen, which we believe we know, 70 hours in talking with Mueller's team, they sort of have this great road map of what was taking place.

[07:10:10] One of the lines involving Felix Sater and this Trump Tower Moscow deal in the Friday court filings really is worth emphasizing, which is that it talks about how the Trump Tower deal would have been worth hundreds of millions of dollars to the Trump Organization.

Now, that is an order of magnitude or two more than a normal Trump Tower licensing deal historically would have been worth. And so there are a lot of questions coming up over the weekend about why the special counsel chose to phrase it that way, how they know this deal would have been so abnormally lucrative to do business between Trump and Moscow and what documentary evidence the special counsel possesses, perhaps from Michael Cohen or Felix Sater, perhaps from others, about just past what the business relationship would have been on the back end.

BERMAN: So it's interesting, David, because you take this is the totality, and specifically, with the idea that the SDNY thinks that the president was involved in a crime, you now have the incoming chair of the Judiciary Committee talking about all of this in just a much different way. I want to play what Jerry Nadler had to say to Jake yesterday.


REP. JERRY NADLER (D-NY), RANKING MEMBER, HOUSE INTELLIGENCE COMMITTEE: Well, they would be impeachable offenses. Whether they are important enough to justify an impeachment is a different question, but certainly, they'd be impeachable offenses, because even though they were committed before the president became president, they were committed in -- in the service of fraudulently obtaining the office. That would be the -- that would be an impeachable offense.


BERMAN: So he's not saying that he is going to open impeachment hearings. But he is saying he could, David. So take that at face value, and then add to that. That's facing this administration right now. This administration doesn't have a chief of staff.


BERMAN: John Kelly is leaving. The guy that President Trump wanted to hire to handle this won't take the job, and he's dealing with the specter of a House judiciary chair who could, if he wanted to, start impeachment proceedings.

GREGORY: Well, and I think what Nadler is saying there is I don't think we're going to jump up and down and try to impeach the president over campaign finance violations, as bald as the activity may have been, but if you start to put it together with other things that are known about the potential business relationships between the Trump Organization and Russia in an effort to undermine the election, to interfere in the election on the part of Russia, that perhaps the president and those around him knew about and actually coordinated with Russia about, I mean, that becomes a much more devastating picture.

And you still sense the caution among Democrats. Why? Because you know there's going to be a huge response from the president and his team on all of this. The question about what the president actually knew that other people may have been up to about these contacts, which is why, for instance, among other things, that -- the Trump Tower meeting with his son becomes pretty important when they came forward and said that they had opposition against Hillary Clinton. And the chief of staff piece is so important because we know it's an

impossible job under this president. And we also know how consumed President Trump has been and certainly will be once charges -- more charges are brought and a report actually comes out. That's going to be an unstable time.

BERMAN: David Gregory, Garrett Graff, Laura Coates, thank you all very much.

CAMEROTA: Thank you.

BERMAN: So we are following breaking news. There are multiple reports that British Prime Minister Theresa May is pulling the vote to exit the European Union that was scheduled for tomorrow. The European Union's top court has also ruled that Britain can unilaterally revoke its notice to leave the E.U.

CNN's Nina de Santos is live outside the Parliament in London with more. Explain what exactly is going on here?

NINA DE SANTOS, CNN CORRESPONDENT: Good morning to you, John.

Confusion reigns here in Westminster at the moment, because social media is awash with speculation citing cabinet ministers that Theresa May may well decide to delay that key vote, one she looks set to lose.

Number 10 Downing Street, though, fiercely pushing back on this, telling CNN about half an hour or so ago that vote still is planned to go ahead tomorrow evening.

In the meantime, the Labour WICS (ph), remember the opposition party has also been briefed on these Brexit documents, largely because Theresa May needs as much support as she can from all sides of the House. They have been tweeting that they're expecting an oral statement from the prime minister on this subject later on this afternoon. So we'll have to see.

In the meantime, if Theresa May does press ahead with this vote, which as I said, it looks very likely she's going to lose, the question is not so much will she win or lose but by what margin she loses.

If she manages to squeak through by losing by a very narrow margin, perhaps she can just hold onto power long enough to go back to Brussels. There's a key summit that's set to take place there later on this week and say, let's soften the language on some of the more contentious items on this sheet, in particular, that agreement over a backstop between the border of Ireland, which is in the E.U., and Northern Ireland that is still part of the U.K.

[07:15:08] That's the main sticking point for M.P.'s in this house when they vote tomorrow.

But in the meantime, the European court of justice, as you pointed out, a key adjudicator on E.U. affairs, has also emboldened those who want to stop Brexit in their tracks, largely because it's decided that the U.K. can unilaterally pull itself out of the Brexit procedure and keep its current membership terms altogether. That, of course, will focus people's minds.

But the immediate question, John, is what happens in the next 24 hours, vis-a-vis whether that vote will go ahead. Back to you, Alisyn.

CAMEROTA: Oh, my gosh, Nina. I just don't know if voters knew that they would be confronting all of these thorny issues when they voted for Brexit. Nina, thank you very much.

OK, back here, can the president of the United States be indicted while in office? That's an open question. There is legal debate about it, and we get into it, next.


CAMEROTA: For the first time, federal prosecutors are directly implicating President Trump in campaign finance law violations. This came to light in these court documents connected to the sentencing of his long-time personal attorney, Michael Cohen.

[07:20:09] The president has an interesting take on the damning documents. On Twitter he writes, quote, "Totally clears the President. Thank you!" exclamation point.

Joining us now is Neal Katyal. He's the former acting solicitor general for the United States. He's a law professor at Georgetown University.

Professor Katyal, thank you for being here. So case closed. President Trump says, totally clears the president. Is that how you see these documents?

NEAL KATYAL, LAW PROFESSOR, GEORGETOWN UNIVERSITY: No, not exactly. I don't know if someone told President Trump last Friday it was, like, opposite day or something like that, but there's no -- that makes absolutely no sense whatsoever. That is an incredibly damning document that his own Justice Department filed, essentially, against him on Friday, saying that President Trump ordered the commission of various felonies, I mean, and serious felonies.

CAMEROTA: OK. So listen, for two years, we've been having a debate here on NEW DAY, as elsewhere on the airwaves, about whether or not a sitting president can be indicted, and as you know, there are different interpretations of the rule. What is your answer?

KATYAL: So I think it's exactly the right question, and we've been debating it in kind of theoretical, like, law professor ways for a couple of years, and now we're actually getting to the point where that's the question that has to be asked. That's the question that is being asked by the Southern District of New York prosecutors right now, evidently.

So my view on this is that the Justice Department has had a strong policy that you can't indict a sitting president, but it has two ambiguities in it which are important. No. 1, what if the reason why the president won the election was the

exact felonies that -- that he's under consideration for having committed? So you know, it's one thing if you commit some crime unrelated to the presidency and you might not want to give prosecutors the power to indict.

But here, the crimes go to the very essence of how he became president in the first place. So that's one problem with the, "Oh, you can't indict President Trump" defense.

The other is there's a difference between indictment and trial. Indictment is just the formal act of bringing charges against someone, and even if the Constitution prevents the trial, because it's distracting, because the president, you know, has so many important duties he has to attend to, which is not always true with this presidency, but normal presidents who aren't golfing all the time, you know, for those types of reasons, they may not apply to a circumstance in which just the formal act of naming the president a criminal is -- is being considered.

CAMEROTA: OK. So just to be clear, you believe that a sitting president can be indicted but not tried while in office?

KATYAL: Well, I think that the weight of constitutional authority suggests that that's exactly right. Walter Dellinger has written about this extensively, and I think we'll be, you know, hearing about that.

There's one other really important point, though, here which is that the prosecutors, according to "The New York Times," have concluded that they can charge President Trump even in 2021, after he were to leave office, if he were to serve out his four-year-term. So Donald Trump knows right now --

CAMEROTA: But wait a second. Hold on. Sorry -- I'm sorry to interrupt you.

KATYAL: -- the prosecutors have him in the crosshairs.

CAMEROTA: But isn't the statute -- but the statute of limitations, if he were to win a second term, then the statute of limitations has passed?

KATYAL: Yes, so he'd have to win a second term. Now, you know, look, I don't think that he can actually say the statute of limitations can expire anyway, because "Oh, and you can't indict me during the time I'm president," because that would put him totally above the law. Ao you can't combine these two arguments.

Either the statute of limitations works like it does for any other person and -- and would be told, or you can be indicted while you're in office, but you can't kind of combine these to say, "Ha-ha, I'm now above the law entirely and I could, you know, shoot someone or something like that and serve out my two terms and therefore, let the statute of limitations expire." That seems like a bad argument.


KATYAL: I think the more important point here is Trump knows that he's facing some pretty strong criminal liability when he leaves office, one way or another. And, you know, even if the sitting president can't be indicted, he's got to know his future looks like its behind bars unless he cuts some sort of deal with the prosecutors.

CAMEROTA: All right. That's a really striking statement. It's completely antithetical to what his lawyer, Rudy Giuliani, believes. Rudy Giuliani believes that he has not committed any campaign finance law and, as evidence, he presents the John Edwards case.

Here's what he says: "The president is not implicated in campaign finance violations because, based on the John Edwards case and others, the payments are not campaign contributions. No responsible prosecutor would premise a criminal case on a questionable interpretation of the law."

John Edwards was found not guilty of those -- you know, trying to make payments, hush-money payments, or payments to a woman with whom he'd fathered a child.

[07:25:08] KATYAL: Yes, I think in my sleep, you know, I could, you now, deal with that, were I were a lawyer for the prosecutor, and Mueller has certainly got lawyers far better than me on his team.

CAMEROTA: But why? Where does it fall apart?

KATYAL: So there are lots of problems with that defense.

Yes, so one is the difference with Edwards. Edwards' whole defense was, "Look, I didn't know anything about the payments. I had nothing to do with the payments, alike."

Here you've got Michael Cohen and other evidence the prosecutors haven't brought forth yet, saying Trump directed the commission of these payments. So that's No. 1.

No. 2, the timing of the payments is totally different. Here, Trump had these two affairs in 2006, paid off these women in 2016 moments before the election, making these really -- this isn't just some ordinary campaign contribution or something like that. These are, potentially, the most significant campaign contributions ever in the history of the United States. These payoffs very well may have swung the entire election.

That's very different than payments made over a period of years, as it was in Edwards, to an individual. And that allowed Edwards to say, "Well, I was doing it to protect my wife," and things like that.

Here, the timing really smells and makes it look like much more it's about the campaign than it does about the president's personal life. And that's particularly so because one of the women, Stormy Daniels, had come forth back in 2011 and said some of this stuff; and Trump didn't pay anything then to protect his family or his wife or anything like that. You know, that -- the payments occurred right before the campaign -- or before the election, excuse me.

CAMEROTA: Neal Katyal, we always appreciate getting your perspective and expertise on this. Thank you very much.

KATYAL: Thank you.


BERMAN: So the new Heisman Trophy winner apologizing for tweets he posted years ago. This is the second time in a week that homophobic tweets are in the national spotlight, so what's going on here? We'll discuss, next.