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AT THIS HOUR WITH BERMAN AND MICHAELA

FBI Combing Through Thousands of Emails; Amid the Criticism of FBI Director, Rep. Steve Cohen Calls for Director's Resignation; Former A.G. Alberto Gonzales Offers Advice to Comey; . Aired 11-11:30a ET

Aired October 31, 2016 - 11:00   ET

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


[11:00:00] CAROL COSTELLO, CNN ANCHOR: It will be ultimately cool.

Andy Scholes, thanks so much.

And thank you for joining me today. I'm Carol Costello.

AT THIS HOUR with Berman and Baldwin starts right now.

KATE BOLDUAN, CNN ANCHOR: Hello, everyone. I'm Kate Baldwin.

JOHN BERMAN, CNN ANCHOR: And I'm John Berman.

Happy Halloween. Hope you like our costumes, Tom Brady and Giselle, a brief diversion in the breaking news.

In just a few minutes, Donald Trump will speak in Grand Rapids, Michigan. I wonder what he will talk about. You can see right there, someone dressed up as Hillary Clinton, outside handing out bumper stickers.

We believe that at this moment, federal investigators are scouring thousands of e-mails belonging to top Hillary Clinton aide, Huma Abedin, to see if they are relevant to the investigation into Hillary Clinton's private e-mail server.

Now Hillary Clinton left just a few moments from White Plains, New York, on her campaign plane for Ohio. Not seen in this picture, Huma Abedin. She is not traveling with Secretary Clinton today.

Now the e-mails in question were discovered weeks ago by the FBI as part of a separate probe into Abedin's estranged husband, Anthony Weiner, the former Congressman who was accused of sexting with an under-aged girl. But FBI Director James Comey did not disclose the discovery until Friday. That was just 11 days before the election.

BOLDUAN: Since then, 100 former federal prosecutors and Justice Department officials, including Eric Holder, have been criticizing James Comey. Harry Reid has accused him of violating federal law. One lawmaker is calling for Comey's resignation. We're going to speak to him in just a second.

First, let's get the latest from justice correspondent, Evan Perez, in Washington. Evan, what do we know right now?

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Well, you're right, investigators are beginning the work of reviewing thousands of recently discovered e-mails belonging to Huma Abedin, one of Hillary Clinton's closest advisors. Investigators have reason to believe that at least some of these e-mails are from an account that was on Clinton's private server, including perhaps ones that were previously deleted. It's also true that some of these may be duplicates of e- mails that the FBI has already seen.

The reason why they're investigating this is because they want to know if this affects the case that the FBI thought they had already completed back in July, when FBI Director James Comey recommended no charges against Clinton.

Investigators found these e-mails a few weeks ago, stumbling on them as they were doing an investigation of Abedin's estranged husband, former Congressman Anthony Weiner. He's under investigation for allegedly sexting with an under-aged girl.

So why did this all only become public on Friday when Comey sent his letter to Congress just days before the presidential election? Well, law enforcement officials tell me that the investigators spent the past month doing a lot of work trying to figure out how big of a deal this was. Technical experts spent time cataloging these e-mails, analyzing metadata to determine that a significant numbers went through Clinton's server. Now officials tell me they saw enough in the e-mails they believe that there may be classified information and that they may have not seen them before. So that's the reason why we now are where we are.

The fact was that the instigators were operating under an existing search warrant that was limited to the Weiner case so, late night, they got permission from a judge to start the new work of going through these e-mails -- Kate and John?

BOLDUAN: That is the moment where we are right knew. So many questions still.

Evan, thanks.

BERMAN: Needless to say, the FBI Director James Comey facing heat for this decision. Senator Harry Reid, from Nevada, says Comey broke the law. Republican Congressman Joe Walsh says Comey was wrong and unfair to Clinton.

And at least one Democratic lawmaker is calling on Comey to resign.

BOLDUAN: That is Tennessee Congressman Steve Cohen, and he is joining us right now.

Congressman, thanks for coming in.

REP. STEVE COHEN, (D), TENNESSEE: You're welcome, Kate.

BOLDUAN: So resign? Why?

COHEN: The FBI has to be held to a high standard, and it is. We give the FBI director 10-year terms so they're immune from politics and can do their job. Their job is to investigate and give information to the U.S. attorneys to bring prosecutions or not. There are long-standing protocols to say that the FBI director and justice officials aren't supposed to comment on investigations because it could prejudice the investigation, it could prejudice the target of the investigation, and an election season, with it being so close to the election, it could influence the outcome of the election.

There was very little knowledge that Director Comey had at the time of what was in these e-mails. There's no reason to believe that there's anything there that shows that secretary Clinton had any intent to violate the law, which is the basis upon which he chose not to recommend or to bring an indictment this past summer. There's no reason that's changed.

But it's given Donald Trump a lot of movement. He takes an ounce and he creates a Grand Canyon and he has taken this too far. It's violated the oath. The FBI has been hurt and justice has been hurt.

BERMAN: Congressman, up until the last few days, you didn't just think that the FBI director was doing a good job, you thought he was doing a great job. You told him last month at a hearing, you said, you were a credit to the FBI, you're a credit to government service. How do you explain your --

(CROSSTALK)

[11:05:22] COHEN: Because he went too far in this one. You know, I overlooked -- and I've got a high regard for Director Comey when he was in the Justice Department. We had hearings in the Judiciary Committee back then about him going in. When Card, Andrew Card, and Alberto Gonzales tried to get Ashcroft on a sick bed to sign an order for a massive surveillance in this country, and he did the right thing because he believed it was illegal. It was illegal, and he stopped it. I had great regard for him for being a person who spoke truth to power. He did the same thing when he made the decision not to indict Secretary Clinton under a difficult political situation this summer --

(CROSSTALK)

BOLDUAN: But how do you know anything is different here?

COHEN: -- side bar. Because then -- it was not 11 days before the election. Then he did not give out innuendo that give the opposition reasons to suggest things. And when it involves Anthony Weiner, that's just like fire, putting a match on the fire. And he should have known and anybody would have known and the Justice Department knew that would produce a scandalous result and be harmful to the American process of elections, which are supposed to be fair and impartial, and not intervene by actions from the FBI director. He went too far. He went too far this summer with a side bar, but I overlooked that because I have such respect for the man. I still respect him but I think he -- (CROSSTALK)

BOLDUAN: Do you think, Congressman that -- you respect him, but you think he went too far. Do you think that James Comey is acting on political motivations? Do you think James Comey actually is trying to influence the election?

COHEN: I think he was excessively, excessively carless in making a statement that the time. And the FBI director is supposed to be beyond that, above suspicion.

BERMAN: What -- what if, Congressman --

(CROSSTALK)

COHEN: -- above suspicion

BERMAN: What if, Congressman -- our justice correspondent, Evan Perez, just reported, that the FBI believes it saw enough in these e- mails to think that there might be some classified information in them, and also they saw enough to think they may not have seen them before? So if those two things are true, should they be investigating, and if they are investigating, shouldn't the FBI director alert Congress?

COHEN: No. I think they should investigate, no question about it, but I don't think he should have notified Congress because that's a public disclosure, and 11 days before the election, that's going to have an effect that FBI director supposed to not have. Justice -- you have a jury trial. There are certain things you have, side bars, you go in camera, you talk to the judge. You don't talk before the jury. In this circumstance, there's a jury. It's the American public. America is the greatest democracy in the world and a free election system, un-intervened in by government officials and particularly law enforcement things, folks, it's what holds us up around the world. We look more like eastern European nation or a Latin American country with the chief law enforcement person coming out and making statements that can affect the results of an election.

BOLDUAN: So Congressman --

COHEN: That's why I spoke up. Because it's wrong and it's not American.

BOLDUAN: You are not, at least in this interview, going as far to say that you think he's being politically motivated. You think he's being excessively careless.

COHEN: Right.

BOLDUAN: Using words he used in the past. You respect him, but he went too far here. Are you going too far calling for his resignation when you've been so complimentary of his work in the past?

COHEN: I don't believe so. I think this is sure a turning point in our American history with a presidential election that -- the basic problem of the FBI director comes to the fore to see if he has the courage and the intestinal fortitude, even if he has certain thoughts, to hold that comment to himself. The FBI director is not a public figure. He's not supposed to be somebody who attracts or distracts from elections or controversies. And Director Comey's supposed to be an investigator who reports to the Justice Department and not somebody who comes out and makes news himself. He's gone too far.

BERMAN: Congressman, can we get a yes or no answer on this, do you think this could cost Hillary Clinton the election?

COHEN: I think it could, yes.

BOLDUAN: Congressman Steve Cohen, thank you so much. We appreciate your time.

COHEN: You're welcome, John and Kate.

BOLDUAN: Thank you.

BERMAN: All right joining us now to discuss, CNN political commentator, Errol Louis, and CNN legal analyst, Paul Callan.

The Congressman saying he thinks this could cost Hillary Clinton the election. Where are we right now? We're 72 hours after the fact here. The polls actually haven't really seemed to move all that much --

(CROSSTALK)

BERMAN: -- engage here. It's a little early for that.

ERROL LOUIS, CNN POLITICAL COMMENTATOR: One poll suggested that 63 percent of Americans told the ABC/"Washington Post" that they don't think this is going to affect their vote one way or the other. We know something like I guess about 10 percent of the vote is already in because of early vote. I think where we are is in the middle of turmoil and, fortunately, it seems like we were going to be froze within turmoil absent new revelations either from the FBI or WikiLeaks, which is scheduled to dump a few thousand more e-mails this week just to make things little a more complicated. I think folks are going to have to make up their minds, with same way the early voters are, with all of the information that you are now, everything you know about candidate's policies, their character, the accusations they've been weathering. You go in and make the best decision you can. And that's -- I think it accounts for this deeply unsatisfied feeling so many voters are reporting to the pollsters ,that they don't know enough, they don't like what they're hearing, they're not sure why information is coming at them, and it's coming from sketchy sources that might evolve the Russians, WikiLeaks, Julian Assange, or the FBI director. It's tragic in a way. In this season, where American political institutions have come under such fire, one of the most respected ones, the FBI, thrown into the mix.

[11:11:10] BOLDUAN: When you look at the latest kind of where they are in terms of the investigation, which is we don't know basically anything. I mean, Evan Perez just came out -- the letter went out on Friday. There is a little bit more we're learning. Evan reporting, overnight, they did get a warrant to look into these e-mails. What did the FBI need to present -- what to do investigators need to present to a judge in order to secure that warrant?

PAUL CALLAN, CNN LEGAL ANALYST: They had to submit evidence that would suggest that there was either reasonable cause or probable cause to expand the scope of the search. So, obviously there is something that suggested to a federal judge that it's OK to search Anthony Wiener's computer and whatever other sources may be out there that we don't even know about.

But we have to be clear that that doesn't mean there is enough evidence to suggest that there is criminality on the part of Hillary Clinton or anybody else who's a subject of an investigation.

And, Kate, one of the things that I think disturbing former prosecutors like myself and defense attorneys around the country, as well obviously as Congressman Cohen, is that when you have a public announcement by the head of the FBI in the middle of a partially completed investigation, it may send a message that the person under investigation is possibly a criminal. And frankly, a lot of the investigations reach the exact opposite conclusion, that there's not enough evidence to support criminal charges.

And to inject that piece of information into the presidential election, I happen to agree, is disgraceful. And I think it's such an offense by a head of the FBI that it warrants his resignation from that position.

BERMAN: Quickly, Paul, all the e-mails, more than 600,000, do you think they'll be able to get through enough of them in the next eight days to say anything before election day?

CALLAN: No, there's no way they'll get through it. And my bet is, by Inauguration Day on, what, January 20th, they probably will still be in the midst of this investigation. So this is a long-term investigation. And I don't think we're going to see results until after the first of the year.

BOLDUAN: This could be it. Exactly what we know right now could be what we know.

With that in mind, what's the political risk for the Clinton campaign kind of starting to go after the head of the FBI right now? This is someone who if Hillary Clinton would win, she's going to work with.

LOUIS: Well, not necessarily. The FBI director serves at the pleasure of the president. The last FBI director --

BOLDUAN: He's three years into a 10-year term.

LOUIS: The last FBI director to be removed was William Sessions, removed by Bill Clinton, as a matter of fact. I think there's experience in Clinton-land about what you do in a case like this.

To be clear, in 1993, there was just sort of a run-of-the-mill have venality where Sessions was accused of just taking FBI helicopters to personal events and things like that. But, it can be done.

We have a system where the FBI, in particular, and the director, they have such power and such prestige, they exist in a system where they're confirmed, you know -- they are nominated by the president, confirmed with the advice of the Senate, they answer to the Justice Department. There's a framework to control that power. And he has sort of stepped outside of that framework.

(CROSSTALK)

BERMAN: Forgiving the politics, what about the politics now. When you're going after the FBI, when you made a choice as a campaign and have allies like Steven Cohen and others attacking and calling for his resignation, isn't there a political risk?

LOUIS: There's a political risk that people may say hey if it's Hillary Clinton's words versus the FBI director, I'm going with the FBI director. At this point -- look, we see Republicans kind of gravitating and sort of coming home to Trump to a certain extent. Democrats are doing to do the same. That's what happens in the closing days of an election. I don't know that this really sort of is going to stir that basic dynamic, that undertow that they spent millions of dollars in the last year sort of setting up. I don't know if the Comey situation can stop the dynamics of the election.

(CROSSTALK)

[11:15:12] BOLDUAN: More of a question now than it was, let's say, Thursday or Friday morning.

BERMAN: We're going to take a break.

Errol Louis, Paul Callan, thank you for being with us. Appreciate it.

BOLDUAN: Thanks, guys.

BERMAN: Next, James Comey's old boss, former Attorney General Alberto Gonzales, he has called this a mistake. And he offers up some advice to his protege. He's going to join us for a really fascinating interview.

BOLDUAN: Plus, new this morning, the Clinton campaign going nuclear with their version of one of the most famous political ads in history.

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UNIDENTIFIED CHILD: One, two, three --

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BOLDUAN: Hillary Clinton heading to Ohio this morning. What she is definitely not leaving on the tarmac, new questions about her e-mails coming from the FBI director himself. That's Director James Comey is also facing questions this morning after announcing the new review of the FBI's investigation into her e-mail servers.

Former Attorney General Eric Holder, he says that Comey violated a long-standing Justice Department policy and tradition, in an op-ed piece that he wrote, when Comey sent the letter to Congress late last week.

[11:20:05] BERMAN: All right. This morning, he spoke with just a few minutes ago, we spoke with another former U.S. Attorney General, Alberto Gonzalez, also former counsel to former President George W. Bush and author of the book "True Faith and Allegiance." This is his take.

(BEGIN VIDEOTAPE)

BERMAN: Mr. Attorney General, when you fist saw the letter that James Comey wrote to Congress, just give us your general reaction.

ALBERTO GONZALES, FORMER U.S. ATTORNEY GENERAL: I didn't understand it. I didn't understand what he was saying. What he was trying to say. I didn't understand the purpose. To me, it was very inconsistent with the protocols that presently exist at the Department of Justice. And again, I think like most current DOJ officials and former DOJ officials all -- you know, all of us somewhat perplexed about what the director was trying to accompli here.

BOLDUAN: You say inconsistent. How unusual is this move when you take it in the time frame that we're looking at right now, eight days before the election?

GONZALES: Well, of course. You typically do not comment on investigations, ongoing investigations and of course that protocol was breached this past summer when Director Comey gave that press conference talking about the investigation. And maybe it is because of that reason that precedent that was established in the summer that he felt that he had to say something about this, about reopening this investigation and looking at additional facts. But again, you don't comment on investigations because commenting on the investigation may jeopardize the investigation. And that's the box he's put himself in because people are now calling for information for release about the e-mails and what's going on here. And of course, that may jeopardize the investigation. And the paramount priority seems the pursuit justice.

And so, Mr. Comey, if really interested in protecting the institution of the Department of Justice and pursuing justice, despite whatever political pressure may be put to bear on him, he should not release anymore information.

BERMAN: So you think he should just go mum now for the next eight days until Election Day? Nothing else?

GONZALES: Well, in the normal situation, I would say yes. We are in a very unusual situation. And it may be that in order to protect the integrity of this election that he may need to say something else about what is -- in relation to this investigation. And that's, again, very, very unfortunate because in doing so, he may in fact jeopardize the investigation. And that's a very unfortunate place to be.

BOLDUAN: When you look at it, I mean, obviously what you know the process, is there any chance though even though in a regular investigation he wouldn't comment, you would recommend staying mum, is there any chance that this is cleared up or wrapped up in eight days that are left in this election?

GONZALES: It could be. Of course, the damage may have been done in terms of -- many voters will have voted in early voting, and so it's going to have some kind of impact, rightly or wrongly. It won't have impact on some voters, but I think it may have on some kind of voters. It's possible, depending on what's going on. I'm sure there are serious discussions ongoing right now about what to do and about what to say.

And you know, the FBI director's going to be criticized for whatever direction he goes. He would have been criticized if he decided not to say anything about this, as an initial matter, but that's the job of, you know, these kinds of individuals. When you're the FBI director, attorney general, you're going to have to make some hard decisions where you're going make mistakes or criticized. And you have to do what you believe is right. And I worry that in this particular instance, he has made an error in judgment in releasing this letter which really says nothing.

BERMAN: So you talked about it being inconsistent with the practice of speaking during an investigation. What about the consistency with this policy of not going public with investigations or talking about indictments within 60 days of an election?

GONZALES: Well, of course, again, that's because often times an indictment cannot be resolved within 60 days before an election. And so people are sort of left out, voters are left without incomplete information about potential criminal behavior of a candidate. And that's why that policy exists.

That policy exists also -- really relates to the decisions made by U.S. attorneys in the field, where U.S. attorneys, you know, if they're think about doing something like this, they need to consult the justice with the senior leadership at department to make a decision as to whether or not to move forward or not. Of course, here we have a different situation where you have the head of the FBI apparently confirming with the attorney general about what to do.

But, in my judgment, it's a very wise policy but, at the end, of the day, you know, it's not going -- if you delay the announcement, hopefully it's not going jeopardize an investigation. It's not going to jeopardize the pursuant of justice and voters will have the opportunity to make, to vote on Election Day without information that may, in fact, be incomplete or untrue.

[11:25:10] BOLDUAN: A lot of folks are obviously speaking out after this letter was put out on Friday, including former Attorney General Eric Holder. He said this in an opinion piece, he wrote, "He, James Comey, is a man of integrity and honor, I respect him, but good men make mistakes. In this instance, he has committed a serious error with potentially severe implications. It's' incumbent upon him or the leadership of the department to dispel the uncertainty he has created before Election Day."

Do you agree with Eric Holder?

GONZALES: Well, which part of that? There's a lot included in that statement.

BOLDUAN: This is true.

GONZALES: Again, based upon what I observe and not what I know for sure, it appears that this was an error. To throw out this kind of letter without more information, without really knowing what the facts are with respect to these additional e-mails, I think was a mistake. As I said, as a general manner, you would not comment on an investigation. And so -- of course, I worked with James Comey when he was my deputy, when I was the attorney general, and you know, he is a man of integrity, but we all make mistakes in these positions. And you know, hopefully when you make a mistake, you can identify the mistake and correct it and move on.

BERMAN: Can we ask you, just in closing, Mr. Attorney General --

GONZALES: Sure.

BERMAN: -- you brought up the fact that you worked with James Comey. And there is a famous incident that happened in a hotel room, hospital room, with John Ashcroft and what not, but give us your sense, your impressions of James Comey as a man, what you know about the FBI director?

GONZALES: Well, I think he is a person that, you know, he does what he thinks is right, then he doesn't deviate from that. And he may be wrong. You may be firmly convicted of something, but you could be firmly wrong. And from my experience is, is that, you know, once he takes a position, he digs in, and he's not going to move from it, whether or not he's wrong or not. And whatever political pressure may be put to bear on him, he's not going to move from. And, you know, there are virtue in that, but there is also danger in that.

BOLDUAN: Do you think -- point-blank, do you think any politics are at play here for Director Comey?

GONZALES: I don't know. You know, again, because he is operating within a very political White House. And this is true for every White House, of course, because the president of the United States elected. But, you know, there's always politics going to be involved. The question is, is the character and the integrity of the men and women of the Department of Justice and how they react to that, how they respond to that political pressure.

BERMAN: Mr. Attorney General, thanks so much for being with us. Appreciate your time, sir.

BOLDUAN: Thank you.

GONZALES: Thank you for having me.

(END VIDEOTAPE)

BERMAN: Quite a lot to say from former attorney general. Very interesting.

BOLDUAN: Yep.

BERMAN: Why is he here? That's what one person asked when Donald Trump sat in the front row of an aids Benefit years ago, even though he apparently hadn't donate a dime. A scathing new investigation into Trump's philanthropy.

BOLDUAN: And we're going show you some live pictures from Grand Rapids, Michigan, where Donald Trump will be speaking next hour. And to paraphrase Bruno Mars, even the color red gets the blues. With eight days left, the Trump campaign is hoping to pull off the exact opposite. We're going to take you to the map.

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