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Yates Warned White House Flynn Could Be Blackmailed by Russia; Federal Appeals Court Divided Over Trump Travel Ban. Aired 6-6:30a ET

Aired May 9, 2017 - 06:00   ET

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


(BEGIN VIDEOTAPE)

SALLY YATES, FORMER U.S. ACTING ATTORNEY GENERAL: We can't believe the national security adviser could be blackmailed by the Russians.

[05:58:41] REP. CHRIS COONS (D), DELAWARE: Her warnings to the White House were unmistakable and strong.

UNIDENTIFIED MALE: It's a real question. Who in the world went (ph) in the White House?

SEAN SPICER, WHITE HOUSE PRESS SECRETARY: If President Obama was truly concerned, why didn't he suspend General Flynn's security clearance?

JAMES CLAPPER, FORMER DIRECTOR OF NATIONAL INTELLIGENCE: The vetting process for somebody working in the White House is far, far more thorough than a standard clearing process.

DONALD TRUMP (R), PRESIDENT OF THE UNITED STATES: Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.

UNIDENTIFIED MALE: He made clear he was not talking about Muslims all over the world, and that's why this is not a Muslim ban.

YATES: I believed that any argument that we would have to make in its defense would not be grounded in the truth.

(END VIDEOTAPE)

ANNOUNCER: This is NEW DAY with Chris Cuomo and Alisyn Camerota.

CHRIS CUOMO, CNN ANCHOR: All right. We want to welcome our viewers in the United States and around the world. This is NEW DAY. It is Tuesday, May 9, 6 a.m. here in New York.

And up first, former acting attorney general Sally Yates sounding the alarm, saying she repeatedly warned the White House that Michael Flynn was vulnerable to blackmail after uncovering that he had lied to the administration about his contacts with Russia.

So why did the White House wait weeks before doing anything about Flynn? ALISYN CAMEROTA, CNN ANCHOR: We're also learning that former President Obama personally warned Mr. Trump against hiring Flynn just two days after the election in November. So why did it take President Trump 18 days to fire Flynn as his national security adviser?

Let's begin our coverage with CNN's Jessica Schneider.

Good morning, Jessica.

JESSICA SCHNEIDER, CNN CORRESPONDENT: Good morning, Alisyn.

Former acting attorney general Sally Yates laid it all out for lawmakers, saying she talked to the White House three times, warning them about Michael Flynn's misstatements. And for the first time, she filled in that chain of events that led to General Flynn's ouster as national security adviser.

(BEGIN VIDEOTAPE)

YATES: We felt like it was critical that we get this information to the White House. We believed that General Flynn was compromised with respect to the Russians.

SCHNEIDER (voice-over): Sally Yates testifying that she urgently warned the White House on three separate occasions that former national security advisor Michael Flynn misled Vice President Pence about his conversations with the Russian ambassador.

YATES: Not only did we believe that the Russians knew this but that they likely had proof of this information. And that created a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians.

SCHNEIDER: Her testimony directly contradicting the White House's muted account in mid-February.

SPICER: The acting attorney general informed the White House counsel that they wanted to give, quote, "a heads-up" to us.

SCHNEIDER: Yates explaining that she stressed to White House counsel Don McGahn that Flynn had engaged in problematic conduct just two days after President Trump's inauguration.

YATES: We told them that we were giving them all of this information so that they could take action.

SCHNEIDER: But President Trump didn't take action, waiting 18 days to fire Flynn, only after Flynn's false statements became public.

UNIDENTIFIED MALE: Michael Flynn might still be there but for "The Washington Post" report that, in effect, shamed them into getting rid of him.

SCHNEIDER: President Trump attempting to downplay pointing to former director of national intelligence James Clapper's testimony that he has seen no evidence of collusion between the Trump campaign and Russia before he retired in January.

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: Is that still accurate?

CLAPPER: It is.

SCHNEIDER: But Clapper noted that he was unaware of the FBI's investigation until it was announced publicly by James Comey in March. Hours before the hearing, CNN learned that President Obama warned Trump against hiring Flynn just two days after he was elected when the two men met in the Oval Office.

SPICER: President Obama made it known that he wasn't exactly a fan of General Flynn's which is, frankly, shouldn't come as a surprise that, given that General Flynn had worked for President Obama, was an outspoken critic of President Obama's shortcomings.

SCHNEIDER: Press secretary Sean Spicer continuing to blame Obama for the Trump administration's failure to properly vet Flynn.

SPICER: If President Obama was truly concerned about General Flynn, why didn't he suspend General Flynn's security clearance?

SCHNEIDER: But Clapper challenging that assertion, saying Flynn's high-profile position would typically require extensive vetting.

CLAPPER: The vetting process for either a political appointee or someone working in the White House is far, far more invasive and far, far more thorough than a standard clearance process.

(END VIDEOTAPE)

SCHNEIDER: And one question not definitively answered in that hearing: whether Sally Yates' warning made it from the White House counsel all the way to President Trump.

Sally Yates also says she doesn't know if the White House reviewed the information it requested from the Justice Department, since Sally Yates was fired just days later for refusing to defend the president's first travel ban executive order -- Alisyn and Chris.

CAMEROTA: OK. Jessica, thank you very much. We have a lot to discuss, so let's bring in CNN political analyst David Drucker. We also have CNN senior legal analyst Jeffrey Toobin here with us. Gentlemen, great to have you both here in studio.

DAVID DRUCKER, CNN POLITICAL ANALYST: Howdy.

CAMEROTA: How remarkable was it to hear of Sally Yates's conversation with Don McGahn, the White House counsel, when she tried to warn him?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, I mean, think about this whole scene. It was like a Cold War spy novel. This woman, the attorney general of the United States, she gets this information that the national security adviser, perhaps the single most important national security figure in the whole government, may be compromised by the Russians. I mean, it really is like John Le Carre. So she runs to the White House. She goes, has two meetings, and

nothing happens. Nothing happens. They just sort of continue with business as usual until "The Washington Post" runs the story that shows definitively that -- that Flynn lied. And then they -- then they essentially have to fire him.

But, I mean, the White House clearly just didn't want to hear what Sally Yates was saying.

CUOMO: So you don't have a huge surprise in what Yates said. This was suspected, that she'd come out. She'd put some more meat on the bones. But the shock has to be the reaction from the White House. You have the president and his frenzied tweeting about this, which just screams "doth protest too much."

But for Sean Spicer to say, "Well, this is really on President Obama." That is -- would be laughable if it weren't such a serious thing. How damning do you think it is to hear Sean Spicer say, "Really, this should have been on Obama's watch. They should have figured this out." He didn't disclose the money before then. Obama fired the guy, and they made him the most important White House intelligence official, apparently with no background check.

[06:05:07] DRUCKER: Yes. They never vetted him. They never properly looked into his background.

CAMEROTA: Meaning the Trump people.

DRUCKER: Meaning the Trump people, yes. Clearly.

CAMEROTA: Just to clarify for everybody at home.

DRUCKER: Look, let's step back a minute also and take a look at this from a political standpoint. So here you have basically the premiere foreign policy voice in the president's ear throughout the course of the campaign that's not just a policy adviser and usually for national security and foreign policy advisers will be mostly policy. They'll start to do some more politics and in front of the camera stop as you get closer to election day to show what the president's -- future president's thinking might be if he's elected and things like that.

But here, you have a guy on the campaign trail screaming, "Lock her up" and really becomes an integral part of President -- future President Trump's political show. OK, fine. But through this whole process Flynn was up to things that they had no idea what was going on.

So President Trump wins. He installs Flynn as national security adviser. And Michael Flynn continues to operate the way he had always operated. And I think what some Republicans are losing sight of, some that are so focused on the leaks, understandably in some ways, that brought Flynn down.

CUOMO: Imagine if you didn't have the leaks.

Drucker: Sally Yates did the administration a favor. Yes, she was doing her job for the country, but politically, she brought to the president's attention something that could have been very embarrassing and very damaging, and enabled him to make a change.

And what we have seen since that change is a big change in the president's posture towards Russia, towards his administration's posture towards Russia, which has gotten a big headache, in a sense, off of his plate and enabled him to put into that office H.R. McMaster, who even -- there are now reports the president isn't happy, really sort of helped reset national security strategy and the impression that Trump actually knows what he's doing when it comes to national security.

So this thing runs a lot deeper. It's all about how the president hires and fires people close to him at the White House that do not require Senate confirmation. And I really think the president should send Sally Yates a thank you note for helping him get here.

CAMEROTA: So the 18 days...

TOOBIN: Don't hold your breath.

DRUCKER: I know. Don't worry.

CUOMO: They want to talk about the leaks as a distraction, but if it weren't for those leaks in that "Washington Post" report there's a good chance Michael Flynn would still be right where he was.

TOOBIN: I think there's a virtual certainty that he would have been, because they didn't want to hear about more contacts between the Trump campaign, which Flynn was an integral part of, and Russia.

It all keeps coming back to Russia. Why were so many people in the Trump campaign with contacts with Russia? And why later did so many of them not tell the truth about it?

CUOMO: Don McGahn saying what does the DOJ care if one of our officials lies to another one?

CAMEROTA: That was what she said his response was when she tried to tell him.

TOOBIN: I mean...

CAMEROTA: What does it matter if one lies to another in the administration>

TOOBIN: I mean, that is indicative. I mean, yes, it is true that the Department of Justice does not police internal lying within the administration, but I mean, that's not a crime for two bureaucrats to lie to each other, but it seems to be, again, indicative of a -- you know, not wanting to hear the truth about what was going on with Flynn.

CAMEROTA: Well, was that -- was it hear no evil or was it just loyalty that dug the president in? I mean, that's the question this morning, is why the 18-day lag? DRUCKER: So that was always my default, is that Trump is loyal to the

people that were there for him in the beginning. And it's true that's in his business career he has shown some extraordinary loyalty to people close to him. But after watching his relationship with Bannon sort of go up and down and you know, a couple days ago Bannon...

CUOMO: A question: when you say that proposition, because we keep hearing it, such as where do you see the loyalty demonstrated?

DRUCKER: And that's my -- and that's my point. I think this is more about the president not wanting to concede fault or mistake, even though he's actually quite good at making adjustments here and there when things don't go well. He just doesn't like to admit that he made a mistake.

And Flynn, look, this is the national security adviser. This wasn't the White House usher or some low-level position. This was a major faux pas on his part. Flynn wasn't even prepared to run -- he wasn't equipped to run the National Security Council. And so it was a big mistake on his part. And he doesn't want -- he could actually use this to his benefit to say, "Based on what we've uncovered by this investigation, I'm going to get to the bottom of Russia meddling and it happened under my predecessor's watch. It's not going to happen under my watch."

But because he's so stubborn about this, apparently, he hasn't been able to do that.

CAMEROTA: Well, that leads us to what we still don't know. So there were many questions and revelations from yesterday from Sally Yates. Here is what we still don't know this morning. Was there collusion between the Trump team and Russia in terms of trying to affect the election?

CUOMO: She said she couldn't talk about it but not to take the fact that she can't talk about classified information to mean "yes" is her answer, that there is collusion.

Clapper said, once again, there wasn't. But he also said, "I didn't know anything about the investigation..."

CAMEROTA: Don't know about the FBI.

CUOMO: "... didn't come out with it until the FBI, so I may not know the facts."

CAMEROTA: So we still don't know the answer to that one. I mean, obviously, there are all sorts of congressional probes still on.

CUOMO: Right. But the president tweeted yesterday these assumptions that Clapper had once again proved that there is no collaboration. If anything, the head of -- the former head of the DNI went further to create doubt about what the situation may be. He said he didn't know not that there is no proof that he knows all the proof. It's a big distinction. CAMEROTA: We still don't know the extent of Russian interference in

the 2016 election. We don't know how classified information got out. There were lots of Republican lawmakers who are focused on that. They want to know who was doing...

CUOMO: Yates and Clapper said they didn't know how it got out, because the questioning was to them as if, you know, a little bit of a nod, "Does this have anything to do with you?"

CAMEROTA: They also said, "No." They said, "We do not share classified information with journalists."

Why the White House waited 18 days to act on Flynn. We've been discussing that. And did the White House set up Flynn's meeting?

TOOBIN: And if I can add, another thing we don't know is what was the nature of Flynn's contact with the Russians? Because that, too, is classified information. That apparently comes from national security intercepts, which is highly secret; and both Yates and Clapper couldn't talk about that.

But the underlying substance is still very mysterious and very important. What exactly was Flynn's relationship with the Russian ambassador and perhaps other Russian officials?

CUOMO: Do you think that the White House may have been working on the information that was reported from the FBI that, when Flynn talked to them, they asked him about discussing sanctions. He said he didn't. They said, "Are you sure?" And he said, "I can't remember." And on the basis of that they said, "Well, we think he was giving truthful answers. We don't expect any charges."

Do you think the White House may have been relying on that in saying it can't be that bad?

TOOBIN: You know, it's possible. You know, we have that one story about the FBI interview of Flynn. I'm not sure a leaked story about an interview from who knows what the source -- you know, a source who may have an agenda. I think there's a lot we don't know about it.

CUOMO: Because after that interview Yates did still think enough to go and have a meeting.

DRUCKER: Don't forget, that wasn't the last story about Flynn. We're not just operating on the one conversation with the Russian ambassador that was leaked. We're dealing with disclosures that he received payments from Turkey and from other foreign sources that he didn't disclose. And so he has added to this himself since then, which makes it look like there's something there.

CAMEROTA: Gentlemen, stick around. We have many more questions for you.

So coming up on NEW DAY, we should let you know that we will have Senator Sheldon Whitehouse. He is the ranking Democrat in that Senate inquiry that questioned Yates and Clapper. What did he learn? CUOMO: All right. So President Trump's own words about Muslims are

putting his revised travel ban in jeopardy once again, at least legal jeopardy. A feed appeals court is going to have to decide whether the words matter when it comes to national security. It's a complicated question. It's even hard to say. We'll take you through it next.

(COMMERCIAL BREAK)

[06:17:06] CAMEROTA: A federal appeals court in Virginia appears divided over President Trump's revised travel ban. The 13-judge panel wrestling with how much weight to give the president's campaign comments over a, quote, "Muslim ban," as they assess whether this ban is constitutional. CNN's Joe Johns will explain it all. He is live at the White House with more.

Hi, Joe.

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: Good morning, Alisyn.

Part of this boils down to a very common-sense question aimed directly at the White House. The 13 judges of the 4th Circuit testing whether President Donald Trump meant what he said on the campaign trail when he called for a ban on Muslims coming into the country.

(BEGIN VIDEOTAPE)

JOHNS (voice-over): President Trump's inflammatory rhetoric about Muslims putting his revised travel ban in jeopardy again.

TRUMP: Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.

JOHNS: Several judges pointing to the president's own words as evidence the executive order was intended to target Muslims.

JUDGE HENRY FLOYD, 4TH CIRCUIT COURT OF APPEALS: Shortly after the executive order two was signed, Sean Spicer said the principles remain the same.

JOHNS: The White House countering that the court should not question the president's national security decisions based on past statements.

JEFFREY WALL, ACTING SOLICITOR GENERAL: This is not a Muslim ban. It has nothing to do with religion. Its text doesn't have anything to do with the religion. Its operation doesn't have anything to do with religion.

JOHNS: One judge expressing concern about the future implications of using the previous comments to evaluate future policies.

JUDGE DENNIS SHEDD, 4TH CIRCUIT COURT OF APPEALS: Can we look at his college speeches? How about his speeches to businessmen about 20 years ago? Are we going to look at those, too?

JOHNS: Another noting that President Trump has never walked back his Muslim ban promise. JUDGE ROBERT KING, 4TH CIRCUIT COURT OF APPEALS: He's never

repudiated what he said about the Muslims, and it's still on his website.

JOHNS: The White House promptly removing that reference after Monday's media briefing.

SPICER: I'm not aware of what's on the campaign's website. You'd have to ask them.

JOHNS: President Trump's travel ban also a contentious topic on Capitol Hill.

YATES: I believed that any argument that we would have to make in its defense would not be grounded in the truth.

JOHNS: Former acting attorney general Sally Yates defending her decision not to enforce the first version of the president's travel ban, saying it was not based on politics.

YATES: I made a determination that I believed it was unlawful. I also thought that it was inconsistent with the principle of the Department of Justice.

JOHNS: Yates insisting she did her job by looking at the intent of the order.

SEN. TED CRUZ (R), TEXAS: Are you aware of any instance in which the Department of Justice has formally approved the legality and the policy and three days later, the attorney general has directed the department not to follow that policy and to defy that policy?

YATES: I'm not, but I'm also not aware of a situation where the office of legal counsel was advised not to tell the attorney general about it until after it was over.

(END VIDEOTAPE)

JOHNS: There's no clear timetable right now for a decision by the 4th Circuit. The 9th Circuit on the West Coast is expected to take up arguments on the travel ban next week. No public events on the president's schedule today -- Chris and Alisyn.

CUOMO: All right, Joe. Some interesting clap-back moments going on between Senator Ted Cruz and Sally Yates. Let's bring back the panel: Jeffrey Toobin and David Drucker. The heart of the matter before the court seems to be, "Look, the president said it was a Muslim ban. That's what it is. It doesn't matter what's in the executive order." Unusual basis for evaluating an action like this. How do you think it sizes up?

TOOBIN: Unprecedented. As far as I'm aware, the United States Supreme Court has never considered the campaign statements of a president or a candidate in deciding whether something is -- is unconstitutional. We've never had a president like Donald Trump. We've never had a president who talks that way about minority groups. But it is significant, I think, that it's never been done before.

Also, you have an executive order in the area of national security, where courts traditionally give a lot of deference to the executive branch. So I think this is a very hard case. I think there are very good arguments on both sides, and, you know, there are 13 judges on the 4th Circuit. Ten are now Democratic appointees. So I think things look very good in that court for the challengers, but I think the Supreme Court, where this case is very likely to be destined, may be another story.

CAMEROTA: OK. So that's the legal view.

For the political view, I mean, Sally Yates admitted that Donald Trump's campaign words were the predicate for her decision on whether or not to enforce the travel ban but, you know, obviously, people in his camp and on the right say, well, she's partisan about all this.

DRUCKER: Look, I think -- I think conservatives who support the president and are frustrated with how this went have a point in this regard, or at least this is their thinking, which is the previous president used his pen all the time for executive orders that we found unconstitutional.

And even though the courts ended up blocking some of them, because Republicans sued, his Justice Department didn't do anything about it. And so now we have a Justice Department that's stopping our guy just because of a political disagreement.

I think, though, the problem with this actually gets back to how harried and rushed the Trump administration was in pushing this through.

CAMEROTA: They didn't even alert her. I mean, she admitted yesterday that she didn't know about it.

CUOMO: An important fact. When you say she said his words were the predicate -- that's not what she said. She said they were a part of it. That what he had said were a part of it. The fact that this office was not informed was also a part of it. And an aspect of whether it was legal or not based on what the basis was for the threat was also part of it. It wasn't just a political feeling.

DRUCKER: Right. But imagine -- and imagine that they have just waited for Jeff Sessions to get into place. Imagine that they had run this through normal channels. And then you would put together an executive order that had a better basis and constitutionality to withstand judicial pressure because of what Trump had said during the campaign trail. They would have been in a very different place.

I also think the president undermined his case from the very beginning by going to war against the judiciary with claims of urgency, which clearly, he wasn't that interested in or he would have done something different, other than let this wind its way through the courts just like you would anything else. You would have gone to Congress and said, "We have an urgent national

security need. We need to pass a law which then can withstand further scrutiny from the courts." He didn't do any of that.

And I think that, even though Jeffrey is right here, it's unprecedented for campaign-trail statements to be used in court proceedings against you, the fact is what you say actually matters. Judges and prosecutors and lawyers are all human beings, and they're going to be impacted this way.

This is why juries can be sequestered. They don't want people to know things that they're going to then have to try and compartmentalize. And the president could have handled this a lot differently, had he focused on the national security implications of refugee influx, rather than Muslim bans, quote, "from Muslim nations."

CAMEROTA: But it's your feeling, Jeffrey, that this will ultimately become a reality? The travel ban in some form will pass muster?

TOOBIN: Yes. In some form. Certainly, the second go-around has a better chance of being upheld than the first one, which they have now given up on.

But this is an area, immigration, where the Constitution and laws of the United States give the executive branch almost total autonomy in deciding the policy. Now, obviously, the Constitution trumps everything. You can't discriminate against people in violation of the First Amendment in any part of the government. But when it comes to immigration, the courts traditionally give a lot of deference to the president.

CUOMO: He's got a better legal case, you would agree, than he does a political case?

[06:25:00] TOOBIN: I'm not sure about that. I mean, politically, you think the Muslim immigration is very popular?

CUOMO: I don't -- I don't know that it's popular. But I'm saying, in terms of making a case to the American people about here is a perceptible threat when it comes to refugees is in defiance of the statistics. You don't have a statistical basis. That's why they cherry-pick these one-off cases around the country to say, "Hey, look at this guy. He's an illegal, and he killed somebody; and these two guys raped somebody. Oh, wait, that didn't happen." They're cherry- picking cases. The statistics aren't there.

TOOBIN: I think you're right. I think you're right as a factual matter. That Muslim immigrants, any kind of immigrants are not a great threat to the American people, but politically, I think it's a lot more complicated.

DRUCKER: Look, politically inside the Republican Party, it obviously worked. Because even after he announced the Muslim ban, and everybody freaked out, the truth is it made him stronger with the Republican electorate. I think that...

CUOMO: There is something to demagoguery, also.

DRUCKER: Well, yes, yes.

CUOMO: He had on his website "Donald J. Trump's statement on preventing Muslim immigration."

DRUCKER: Right.

CUOMO: He was pandering to a base. But now that he's the president of a very mixed country in terms of ethnic and religious backgrounds, you can't just call all Muslims bad people and run away from them when the facts are something else.

DRUCKER: No, you can't. And I actually think that, if he approached this from a holistic manner, where he looked at the domestic terror attacks that we have experienced in the past couple of years and tried to attack the problems that led to those individuals either becoming radicalized, because they were U.S. citizens and became radicalized, or they emigrated here, were naturalized or became legal immigrants. And what did we miss in the vetting to let them in? There would be a lot of support for that if he focused there instead of on...

CUOMO: So you compare them to non-Muslim terror threats in cases that the government is looking at, which are much larger in number and degree than you have of Muslims.

DRUCKER: Right. I'm just saying rhetorically. Remember, there's...

CUOMO: What I'm saying, it's a B.S. basis, that's what I'm saying.

DRUCKER: And I'm not really arguing that. I think that the point here is you never lose points if you're a political candidate by saying, "We have a problem with radical Islamic terror." But you do lose points if you target Muslims and say that they specifically are the problem without dealing with the larger aspect of the national security part of this.

CAMEROTA: Gentlemen, thank you very much for all of the analysis.

We have another airline fiasco to tell you about. Hundreds of passengers stranded at the gates, several of them hauled off in handcuffs. What caused this chaos? We'll show you next.

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