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CNN: Tension Rising at Justice Department Over Russia Probe; Trump Releases Financial Disclosure, Still No Tax Returns. Aired 8-9p ET

Aired June 16, 2017 - 20:00   ET


[20:00:10] JOHN BERMAN, CNN ANCHOR: Good evening. John Berman here in for Anderson.

It has been quite a week and it's not over yet. We have seen a man with two guns tried to commit politically motivated mass murder and thankfully failed. We're watching one of best known entertainers of all time wait for a jury's verdict that could send him to prison for the rest of his life. That decision could come any minute.

We begin, though, with new Friday night tension inside the Justice Department about the future of Deputy Attorney General Rod Rosenstein. Remember, he is the one with the power to fire special counsel Robert Mueller, and he is the one that came under attack from the president today. Who wrote earlier, I'm being investigated for firing the FBI director by the man who told me to fire the FBI director, witch hunt.

There are new developments in all this tonight. CNN's Evan Perez joins us with that.

Evan, the new question is, will the Attorney General Rod Rosenstein recuse himself from the Russia probe. What are you learning?

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Well, John, it's looking more and more like that is exactly where we're going to be, probably not in the next couple of days, but certainly as Robert Mueller starts staffing up his investigative staff, he's got about a dozen lawyers now. The real possibility is that Rod Rosenstein is going to become a witness in that investigation, because obviously he was part of the decision making to fire James Comey the FBI director, and obviously, now that is going to be wrapped into whether or not the president was trying to interfere or obstruct the ongoing Russia investigation.

Obviously, this is something that has been on Rod Rosenstein's mind. He has publicly said before that if it comes to that, he will recuse himself. We're told that that is still the state of play when he learns from Robert Mueller whether he's going to be a witness, then he's going to have to make that decision.

BERMAN: Fascinating. And, Evan, you're learning new information about tension building inside the very building at the Justice Department. What are you learning? PEREZ: Well, that's right. I think Rod Rosenstein is facing a lot of

criticism not only from the president obviously, but also from inside the department. All of this goes back to his decision to hire Robert Mueller as the special counsel. It was something that came as a surprise to his boss, the attorney general.

We're told that essentially there's a lot of criticism inside the Justice Department, because of the way he has handled this. Everybody there, including at the White House, and at the Justice Department believes that everything got worse the minute that Rod Rosenstein decided he need to bring in a special counsel.

There is now a parade of people inside the administration who had to hire outside attorneys. Everybody believes that the story has gotten worse and the investigation essentially has intensified because of that decision. This is something that is getting a lot of criticism inside the Department of Justice.

BERMAN: Certainly a lot of activity in the investigation we are just learning about today.

Evan Perez, thank you so much.

More now on the president's statement on Twitter. CNN's Jim Acosta traveled with the president in Miami, joins us now from there.

Jim, what's the White House saying about what the president wrote and what the president meant?

JIM ACOSTA, CNN SENIOR WHITE HOUSE CORRESPONDENT: Well, John, when you call the White House and I called a White House official earlier this morning, they are referring all inquiries on this to the president's outside counsel, Marc Kasowitz. We did talk to couple of sources with that office earlier this morning.

And with respect to the president's tweet about being under investigation by the guy who was part of the decision to fire FBI Director Jim Comey, we're told by sources with the outside counsel's office, that the president was referring to the Deputy Attorney General Rod Rosenstein and that he was also venting his frustrations this source said with what he perceives to be these unfair, illegal leaks coming from the Justice Department.

But speaking of attorneys, John, the president has added another legal heavy hitter to his outside counsel team. He hired John Dowd, a prominent attorney, to be a part of that legal team that is going to be working on this case for the president outside of the White House.

BERMAN: John Dowd famous for the doing the report on Pete Rose, that had him banned from Major League Baseball, a well known attorney.

Jim Acosta, we're also learning new information tonight about the president's finances. What can you tell us?

ACOSTA: That's right. The financial disclosure form for President Trump came out late today, just some of the numbers to run through for you, $288 million in income in the past year, according to this financial disclosure form.

But some interesting tidbits, John, about some well known properties that are owned by the president. He brought in $19.8 million from his club in Bedminster, New Jersey. We spent a lot of time covering the president out there lately. $37.2 million from his club in Mar-a- Lago, just up the road in West Palm Beach. And then also, $19.7 million from that new hotel in Washington, the Trump hotel in Washington where a lot of people connect with the president, mix and mingle.

So, no question about it, John, the president is racking up a lot of money from those very high profile properties that we cover all the time, go figure.

[20:05:03] That that publicity also generating some income from the president. But one thing we're not getting from this financial disclosure, John, is the tax returns. We have not received the president's tax returns, the White House is still refusing to release those tax returns.

We have been asking the question lately, where are the tapes with respect to those recordings that the president talked about possibly having from the inside the White House. And to that question, where are the tapes, not nearly as all of the question, where are tax returns? We still don't have those, John.

BERMAN: You know, Jim Acosta, a lot of people noting Mar-a-Lago, making more money, the president's making more money from Mar-a-Lago while he's sitting in the White House than he did beforehand.

All right. Jim Acosta in Miami, thank you so much.

I want to bring in our panel right now: Maggie Haberman, Errol Louis, Matthew Rosenberg. In Washington, Jason Miller, Kirsten Powers and Matt Lewis.

Maggie, first to you. Look, I'm old enough to remember when the news was the president was considering filing Robert Mueller as the special counsel.

MAGGIE HABERMAN, CNN POLITICAL ANALYST: So many days ago, it was like four.

BERMAN: It was like, yes, three or four days ago. Now, the talk is about the future of Rod Rosenstein, the deputy attorney general. Will he recuse himself? Will the president force him to move out?

How serious is this?

HABERMAN: Look, that tweet this morning was incredibly pointed. It was a missile shot at the deputy attorney general. I -- my understanding with the people who have spoken with the president about this over several weeks, is he realizes that it's going to be very hard for him to actually actively remove Rod Rosenstein himself, I don't think he's going to have an easy time getting anyone through Senate confirmation, at this point. I think that they are aware of that.

I do think that he is, to some extent, trying to make life as miserable as possible, and uncomfortable as possible. And again, this is just again based on people who have spoken with him and their sense of what this is. Whether that's going to work, I don't know. I think that Rod Rosenstein is a career Justice Department person who is going to be focused on preserving what he can about this case.

There is a question of whether he's going to recuse himself and he is thinking about that. There has been some discussion at the White House about, you know, attention focused on the number three in the line of succession.

So, there are a lot of questions. I would be very surprised, just, again, at the moment, things can obviously change. But I would be very surprised if the president actively right now tried to remove Rod Rosenstein. He is however being encouraged to by some of his supporters outside the White House, and sometimes he has a way of looking around until he gets the answer he wants to hear.

BERMAN: Rod Rosenstein, not some holdover, a guy was forced upon him. I mean, the president nominated him for this job.

Hey, Jason Miller, I want to bring you in here. You obviously are a supporter of the president, worked in the campaign, worked on the transition, yet, earlier this week, that eon ago when there was a notion that may the president wanted to fire Robert Mueller, you said it would be bad idea genes. In other words, it's a bad idea to fire Robert Mueller.

Another pair of bad idea genes to try to force out Rod Rosenstein?

JASON MILLER, CNN POLITICAL COMMENTATOR: Well, I think, really, where the bigger problem is right now isn't so much with Rod Rosenstein. But I think it's the broader issue of leaks coming from the Department of Juice. We saw Attorney General Sessions bring this up during his testimony earlier in the week, saying that there were several ongoing investigations.

We saw the statement last night from Deputy Attorney General Rod Rosenstein, talking about leaks that people are seeing outside the media. I think that's the bigger existential issue that the Department of Justice is dealing with at the moment. I think, look, I think from the president's aspect, he's probably frustrated that there seems to be a daily set of leaks that are coming out.


BERMAN: I appreciate what you're saying, Jason, but that's not what the president was saying this morning when he seemed to go directly after the deputy attorney general there. He seemed to be addressing the investigation specifically.

I'm being investigated for firing the FBI director by the man who told me to fire the FBI director. There's not a single mention of the word leak in that sentence. I'm asking you simply, if it's a good idea, bad idea to pressure the deputy A.G. like that?

MILLER: I don't think the problem right now is with the deputy A.G. Of course, I'm not privy to some of the inside conversations and what's going on. But I think ultimately the bigger picture going on this week, at the beginning of this week and even at the end of the week, this is a PR fiasco dealing with Russia. Now, this is becoming a legal fiasco dealing with the Comey firing.

At the end of the day, I believe that the president will be absolutely exonerated on all fronts. He can go forward with what he's trying to do with his agenda. But I think what you're seeing right now is probably a White House that's quite frankly pretty ticked off at some of the coverage that they're seeing surrounding this investigation.

BERMAN: Matt Rosenberg, let me bring this into your discussion right now. Maggie alluded to this before. Jeff Sessions already recused himself. Deputy General Rod Rosenstein may recuse himself or be forced out, who know? That leaves who in charge? Rachel Brand. What do we know?

MATTHEW ROSENBERG, NATIONAL SECURITY CORRESPONDENT, THE NEW YORK TIMES: She's not a prosecutor. She doesn't really have a background prosecuting or investigating criminal cases. She wasn't a Trump appointee. She served in the Bush administration. I don't think she's an ideologue of any sort. And I imagine that President Trump would inevitably be as unhappy with her as he was with, is or with Rod Rosenstein, because it's Mueller who's running the investigation, and it's Mueller who he seems to be unhappy with, ultimately --

BERMAN: She's going to have the same problem with Rod Rosenstein has right now, you know, not of her own making. And she'd have to deal with that. It would put her in a bad situation.

ROSENBERG: A special counsel is independent, who's -- you know, they kind of loosely oversee them, but not on day to day.

[20:10:04] So, it doesn't really matter who has that job. In the end, you know, the president will probably be unhappy about this. Now, look, can the person in that job in human resources affect them in different ways? I'm sure they can.

BERMAN: Errol, another fascinating thing that Evan Perez was reporting was inside Justice Department, between the fourth and fifth floors right there, between attorney general's staff, the deputy attorney general's staff, there's infighting there. In that reporting, if you look back, it sort of seems to make sense right now, right? I mean, Jeff Sessions did not know that Rod Rosenstein was going to appoint an independent counsel. So, the president gets mad at Jeff Sessions for something that Jeff Sessions is mad at Rod Rosenstein for. That's a tough place to be.

ERROL LOUIS, CNN POLITICAL COMMENTATOR: Well, absolutely. And then there is, you know, look, there could be a legitimate issue here, about having written this memo about why James Comey should be removed, how do you now oversee this continuing investigation when it starts to touch on that very subject, a partial recusal, a complete recusal, the office politics of an agency.

Let's keep in mind it's still in the middle of a transition and trying to sort of get its act together and get fully staff.

BERMAN: Kirsten, I want to bring you in to this discussion right now. Kirsten Powers right now, because the White House has explained to Jim Acosta and Jeff Zeleny that one of the reasons that the president is saying what he's saying, these statements he's making on Twitter, is he's trying to take this into his own hands, make this a political fight aside from the legal fight.

Smart strategy?

KIRSTEN POWERS, CNN POLITICAL ANALYST: Well, it sort of seems like his only strategy that he could possibly have, because if he is found guilty of obstruction of justice, you know, his problem is going to be a political problem, it's not going to be a legal problem, because the Justice Department has a policy, now they could change it. But, you know, right now, their policy is to not indict a president, if that would be so inflammatory for them to indict a president.

And so, it would become a political problem, to go over to Congress to basically decide whether or not they're going to impeach him over obstruction of justice. So, what he has to do is he has to win that political fight and he has to delegitimize this investigation. And so, that's probably what he's up to. You know, it doesn't, you know, I think, would I advise him to do it? I don't know. But I do kind of see what he's doing.

BERMAN: You can see the lawyers on his team --


BERMAN: -- perhaps cringing a little bit every time they read something like this.

POWERS: Right.

BERMAN: All right, guys. Stick around.

Matt Lewis, when we come back, we're going to ask you if the president's political support may start to crumble based on all this, because next, one influential senator's warning that the president may be getting ready to get rid of the special counsel, Robert Mueller, and the deputy attorney general. We will get the panel's take.

And later, a surgeon for Congressman Steve Scalise's on how terribly wounded his patient was when he arrived at the hospital. The words he used were imminent risk of death. We have details when 360 continues.


[20:16:29] BERMAN: Breaking news, growing tension inside the Justice Department. Officials telling CNN's Evan Perez the Deputy Attorney General Rod Rosenstein could end up recusing himself from the Russia probe because of his role in the firing of FBI Director James Comey.

Today, California Democratic Senator Dianne Feinstein, who sits on the Intelligence and Judiciary Committees, put out a statement that sounded a lot like a warning. She wrote, I'm growing increasingly concerned that the president will attempt to fire not only Robert Mueller, the special counsel investigating possible obstruction of justice, but also Deputy Attorney General Rod Rosenstein, who appointed Mueller.

Senator Feinstein goes on: The message the president is sending through his tweets is that he believes the rule of law doesn't apply to him and that anyone who thinks otherwise will be fired.

Back now with the panel.

Matt Lewis, I want to bring you in here.

Now, people might look at this and say, sure, Dianne Feinstein, liberal senator from liberal California. She's been pretty restrained when talking about this investigation up until now. She's been sort of a calm reassuring force, saying she hasn't seen any evidence of collusion up until now. Now, she's issuing a very strong statement which seems like she's giving a stern warning to the White House.

MATT LEWIS, CNN POLITICAL COMMENTATOR: That's right. Look, there may not be any collusion, but there could be an Arkansas land deal that turns into a president perjuring himself, like was the case with Bill Clinton. You know, a lot of times these things get out of control. There was a study a few years back that said we each commit three felonies a day inadvertently, and you start poking around at Jared Kushner and Paul Manafort, you never know what you're going to come up with.

You know, look, the question is, nothing happens unless Republicans right now, unless Republicans are willing to take a stand, though, in the House, that's the question, I have encouraged in my column with "The Daily Beast", I have encouraged Republicans to go ahead and say, look, if you fire Mueller, we are just going to reinstitute the independent counsel and get Mueller back, and so just go ahead and pre-empt that, don't even think about doing it, Mr. President.

But I honestly don't think Republicans are going to take that kind of stance. I think that it's going to, for Republicans in Congress, I think it's going to take electoral loss or the fear of electoral loss for them to actually change.

BERMAN: I will say, I was on with Congressman Lee Zeldin, a Republican supporter of the president earlier this morning, when this tweet came out, the statement from the president going after Rod Rosenstein. He looked physically uncomfortable that he was being asked about it. It does put his supporters, Republicans in Congress, in a very top position.

Matt Rosenberg, I wanted to bring you some of the reporting in the "New York Times" today, the idea that the transition, the Trump transition is now being asked, people who worked on it, to save documents preserved any records right now.

What's the significance of that, the sort of spreading out of this investigation?

ROSENBERG: Well, you know, I think it's -- they understand that there's an investigation, that the president can tweet that this is fake news, it's a witch hunt, but the people around him understand they need to preserve documents. There's a real investigation.

And there's also five names in that letter and that would suggest that they are aware that five of their people are under investigation. We have seen reports on most of these people. We never really had confirmation. You know, it would be Michael Flynn, the former national security advisor, and Paul Manafort. But also, there was Manafort's business partner, Mr. Gates, who was not previously known to have been part of this investigation.

Now, we don't know the story of this thing in the DOJ, but it is something that's in this letter.

BERMAN: Exactly, you see how far this is going and more and more names coming up.

Jason Miller, you worked on the transition, so I have to ask you, have you been contacted by investigators?

[20:20:03] Have you learned anything about the documents that people on the staff that you worked on has been asked to preserve?

MILLER: Well, John, you already know from public reporting that the letter has gone out to everybody who worked on the transition team. And I think that, you know, quite frankly, I think it's a little disingenuous to go and ask me a question like that when I'm not sure if you've asked someone who worked for Loretta Lynch or any of the Clinton people --


BERMAN: I think it's a reasonable question. Again, they were asked -- contacted can mean anything. You know, the transition members were asked by transition lawyers to preserve documents today. I wasn't trying to be disingenuous. I was just trying to find out how far this has spread within the Trump transition, this request.

MILLER: Well, as has been publicly reported, there were letters sent out to everyone who worked on the transition team. That letter has been published publicly and I think it's pretty clear.

And I think also, as Matt just pointed out a moment ago, it's also very specific as to really who it was asking about. But again, I think one of the things with the leaks are, I think there's an important thing I want to go back to for just a moment, is one of the things, when these stories come out, it's not just that there might be erroneous reporting or leaking of classified info, one of the other problems with the leaks is that they're putting out little process details to try to make it look like there's a big scandal.

So, for example, it's been out there for a while, of course, that anybody who worked on the transition team, or anyone involved, that they would sent out things asking for certain documents. But then when they go and leak out as they did last night, that here was this letter or something that's supposedly went out, and try to build a news cycle around it, I think too many folks rushed to try to make that a sensational aspect when that's old news. That's already been out there and reported on for a while now.

BERMAN: Maggie?

HABERMAN: Yes, I think that -- I mean, to disagree with Jason, on one point, I think that, A, he should not assume and no one should assume that they have any idea where the information is coming from and who the sources are. I always think that's a bad idea.

I think that Jason has an overall -- we did have a new name which is Rick Gates, Paul Manafort's deputy. Although what I'm not clear on and I think it is still unknown is, as far as I'm aware, whether he is actually a target of this or whether he is being looked at in connection with Paul Manafort, because essentially whatever path Paul Manafort walked, Rick Gates was usually walking right behind. So, it might be part of a package deal.

I do think he's right that in general, there is essentially not a huge amount of new information that we have learned over the last couple of months. And to your point about what Dianne Feinstein said, there is no evidence of, again, anything that we know of, we are not privy to all the investigations. I do understand why the White House and all attenuated people involved are frustrated.

BERMAN: But again, Errol, last question on this, you know, it is the president in some cases who pushes this forward with statements like the ones he made today.

LOUIS: And it's not just statements. I mean, these statements have real impact. I mean, how does Rod Rosenstein show up for work on Monday and sort of cement and control the loyalty of his staff members.

Look, we always compare this to Watergate and the Saturday Night Massacre keeps being brought up. There's the possibility of a slow rolling one, in which people that the president finds unpalatable, or getting too close to stuff that he doesn't necessarily want to have to deal with, get removed or are made so uncomfortable that they choose to leave and what we have then is a Justice Department that's really under quite a lot of pressure.

BERMAN: All right, guys. A lot of what we're discussing right now cries out for some legal advice. So, next, we're going to get some and focus on the claim that the president who -- he said he's being investigated for possible obstruction of justice, would not be committing the very same crime by firing investigators.

Later, we'll update you on the search for missing sailors after a collusion at sea between a U.S. Navy destroyer and a Japanese merchant vessel.


[20:27:37] BERMAN: With the president writing that he's under investigation and campaign figures being told to preserve documents and the president's lawyer lawyering up, there's no shortage of material for a legal team, including this, the president supporter Newt Gingrich, first seen praising Robert Mueller and then seen disparaging Robert Mueller, is now weighing in on what special counsel Mueller is investigating, namely whether the president obstructed justice.

Today, he denies not just that the president committed the crime. He denies that any president even could.


NEWT GINGRICH (R), FORMER HOUSE SPEAKER: Technically, presidents of the United States cannot obstruct justice. The president of the United States is the chief executive officer of the United States, if he wants to fire the FBI director, all he has to do is fire him.


BERMAN: The speaker, you may remember, led impeachment proceedings against Bill Clinton, passing two articles, including one accusing him -- wait for it -- of obstruction of justice.

I want to bring in our legal panel right now. Laura Coates, Page Pate, Matt Whitaker and William Otis.

Page, first to you, look, the FBI director does serve with the pleasure of the president and can be fired any time. But do you agree with what you heard the former speaker say that the president cannot technically obstruct justice?

PAGE PATE, CNN LEGAL ANALYST: I do not agree with that, John. I mean, Newt Gingrich is correct that the president has the legal and constitutional authority to fire the FBI director, the attorney general, the deputy attorney general, anyone in the executive branch.

But if a president acts with corrupt intent, if he's doing it for a bad purpose, then he's stepping outside of his role as president and he's doing it as Donald Trump private citizen. And I think that's what we have here -- we have a president who's acting with a bad motive, with corrupt intent. So, regardless of the position that the man holds, if he's trying to influence the investigation, for some reason that's personal to him, some friend of his, something other than the best interests of the United States, I do believe that is a crime and I think he can be prosecuted for it.

BERMAN: If he is working with, you know, corrupt intent. That is what is being investigated right now.

PATE: Right, exactly. BERMAN: Laura, the president today, you know, tweeting that he's under investigation, essentially calling out the deputy attorney general. Does that hurt his case? Does this digital trail as it were hurt him when it comes to the idea or the investigation of obstruction of justice?

LAURA COATES, CNN LEGAL ANALYST: The majority of his tweets undermine his credibility and frustrate his lawyers and with good reason, because every time he talks or indicates that perhaps he is confirming the existence of an investigation, or that he himself is the subject of an investigation, he muddies the waters and puts himself right squarely under the magnifying glass, not only of the media and the public, but of the Department of Justice.

So his comments clarifying or confirming that he may in fact be the subject, frankly are not so out of bounce if true. Because remember, his own statements, his own conduct and actions, including the firing of FBI Director Comey, has put him under the suspicion of the FBI and special counsel. And so it would be appropriate to investigate him.

BERMAN: So, Laura, one other question. There seems to be a lawyer arms race right now. Robert Mueller has hired a bunch of well- accomplished attorneys. We learned today the president has brought on John Dowd, who led the investigation of Pete Rose for Major League Baseball, now part of the president's private legal team.

COATES: Well, you know, you throw a rock in Washington, D.C. and you probably hit six lawyers first of all. I hope I'm not one of them. But you do have that happen. And the idea here is look, White House Counsel and the Office of Legal Counsel, people may be confused, they are not private attorneys who represent people in their personal interest and their personal matters. Their role is to protect and advise and guide the actual office holders and the office itself.

And so when you have that contrast between what their role as White House Counsel versus private counsel, it is necessary for people to protect their own private interest. And frankly, it should not strike anyone is odd, but there may be a conflict between what is good for perhaps Pence versus what's good for Jared Kushner or Donald Trump. Each of those lawyers has to protect each particular person. And it's often essential although very, you know, crowded to protect everyone by having separate attorneys.

BERMAN: And everyone is well within their rights to hire a private attorney in this type of situation.

Matthew Whitaker, one of the issues today, the big issues we have been reporting on, the Deputy Attorney General Rod Rosenstein, will he recuse himself from his oversight over the special counsel investigation, might he be fired? Look, you know Rod Rosenstein right now. What do you think is weighing on him? Do you think he might step aside? Is this the type of decision you see him making?

MATTHEW WHITAKER, EXECUTIVE DIRECTOR, FOUNDATION FOR ACCOUNTABILITY AND CIVIC TRUST: Well, what I see going on is he knows that he is a potential witness to the obstruction of justice case, if it exist. Now, I know that some of my fellow panel has believed that that is a fact. I'm not sure we're there yet because Rod knows that he is a witness, he wrote the memo that was the basis for firing Jim Comey at the time.

And so he is, I know, wrestling with that right now, because I'm sure he doesn't have clear visibility as to whether or not Director Mueller is actually investigating that yet and he knows that if that happens, then it's going to -- he's going to have to recuse himself.

And I don't think ultimately that this president is going to fire Rod Rosenstein, who -- he and I served as U.S. attorney together in the Bush administration. But Rod is certainly under a lot of pressure right now. And quite frankly, I think he's one of the reasons that this investigation is kind of spinning out of control. The appointment of Bob Mueller in the first place, well, a good pick for that, I don't think was not necessary appropriate under these circumstances as we know them.

BERMAN: And I want to get to that --


BERMAN: I want to get to that just a second with William Otis. But first, Mathew, I just want to make one thing crystal clear here right now, the reason he could be a witness, part of the issue, and the president brought this on himself when he told Lester Holt the reason I fired the FBI director was Russia. You know, Rod Rosenstein can be called and asked, did the president tell you he was going to fire the FBI director because of Russia or was it because of your memo about the Clinton administration? He could be asked that and ultimately forced to answer, correct?

WHITAKER: Yes. And the first question I would want to ask is who asked you to write this memo?

BERMAN: Right.

WHITAKER: And, you know, was it the attorney general? Was it the president? I mean there's a lot of questions surrounding that memo in the first place. Now, I agree with the substance of that memo. I think Jim Comey stepped out of bounds in his role of director of FBI, but you're right with those questions.

BERMAN: So, William Otis, to you, you actually agree with the last point that Matthew was making right there, that Bob Mueller may not be the best pick as a special counsel because of his relationship, well- known relationship with James Comey, the two guys are friends. Do you think Robert Mueller should step aside and why?

WILLIAM OTIS, FORMER SPECIAL WHITE HOUSE COUNSEL: Yes, I do think he should step aside. It's not that he's anything but a man of integrity, the problem is that the ethics rules that govern the Department of Justice say that if a prosecutor or an investigator has a personal relationship with a potential witness that calls into question his partiality, then he has to step aside. As you correctly pointed out, Mueller and Jim Comey have a personal relationship that goes back a long way. They were arm in arm when they confronted the then White House Counsel for President Bush, Alberto Gonzalez about whether a particularly broad surveillance program should be continued. In other words, Mueller and Comey became friends at the formative moment in Comey's career, and the thing for which he's best known. That being the case, I think the ethics rules dictate that Mueller step aside.

BERMAN: It is interesting because Mueller was hired to investigate Russia initially and the possibility of collusion, but it shows where this investigation is going, that this is become a challenge.

[20:35:03] It might be that when he was hired by Rod Rosenstein, he wasn't even considering the possibility that the FBI director would be investigating obstruction of justice, William. Is that the problem here?

OTIS: I think that is one of the problems when you have a special counsel. And one of the reasons that special counsels are problematic and that Congress did not renew the law that authorized an independent counsel like Ken Starr was, was that a special counsel has in effect a pre-selected defendant and then you follow the evidence to it. The way an ordinary prosecutor is supposed to work ethically is you follow the evidence and find the defendant at the end of the evidence rather than at the beginning. And that is a problem in this case.

BERMAN: So Page Pate, you do not see that as a problem? Why?

PAGE PATE, CONSTITUTIONAL LAW ATTORNEY: No, I don't see that as a problem for several reasons. One, simply having a relationship with a potential fact witness in the case does not mean that there needs to be a new special counsel or that Rosenstein needs to recuse himself. I think we just need to let the investigation proceed. Everyone was pretty comfortable with Bob Mueller when he was first chosen a special counsel because of his integrity and now people are questioning that integrity simply because he may know one of the witnesses.

I think if you'd go through that process, every time there's -- say one of the prosecutors who may know a potential witness will never going to complete this investigation. I think it's way too early. I don't think there's any risk of a real conflict, even though some people may see one here.


BERMAN: Quick last word, Laura, very quick.

COATES: If I can just say, the fact they were arm in arm is a bit disingenuous, their personal relationship was derived from a professional setting. They were both people who are part of the Department of Justice and executive branch. They were not coming out of a frat house and developing a friendship that way. Therefore, they're professional colleagues that it continues to this day does not undermine his ability to be objective.

BERMAN: All right, guys, a lot to think about. There will be more time to discuss all of this. Thank you so much.

An update on Congressman Steve Scalise's condition, today, we learned when he arrived at a hospital after being shot Wednesday, he faced imminent risk of death. That's a word from one of his surgeons. What they're saying now, next.


[20:40:51] BERMAN: A glimmer of good news tonight for Congressman Steve Scalise and a frightening perspective on just how serious his injuries are. One of his surgeons said today he faced a "imminent risk of death" after being shot Wednesday morning while practicing for the Congressional Baseball Game. He is still in critical condition in the intensive care unit, but doctors today say they see signs of some improvement. CNN's Ryan Nobles is outside the MedStar Washington Hospital where the congressman is being treated.

And, Ryan, you also have some new information about the shooter. What can you tell us?

RYAN NOBLES, CNN CORRESPONDENT: Yes, that's right, John. CNN learning from law enforcement sources and from Congressman Mo Brooks that there was a list found on the shooter after the shooting took place on Wednesday. That list included the names of a number of members of Congress. Some who were on the field at the time, among them Mo Brooks. None of the victims were on that list, John. At this point, law enforcement sources tell us that they're not ready to call this an assassination list, but this is obviously a key part of their investigation going forward.

BERMAN: It's got to be chilling for the people who were on that list, Ryan. What can you tell us right now about the condition of Congressman Steve Scalise?

NOBLES: Well, he's still in critical condition, John. And we heard today from the head of trauma here at Washington MedStar Hospital Center who told us definitely that he was very much at the risk of dying when he arrived here on Wednesday, that he was facing serious injuries, he required multiple surgeries to stop the bleeding and now he has a long recovery ahead. He is still considered to be in critical condition, but as you said before, his -- he is definitely improving. He's heading in the right direction. There could be setbacks, but overall they feel hopeful that he'll make a full recovery.

BERMAN: A lengthy hospital stay and more surgeries imminent?

NOBLES: That's what it looks like. And they said that even if he's in the hospital for a long time, after he gets out of the hospital, it will require months and months of rehab. But Dr. Sava said today that he envisioned a time where he'll be able to walk again perhaps even run, which is remarkable when you consider the extent of his injuries. He was shot in the pelvis with a high caliber rifle, bones are broken, significant organ damage. The fact that he's still alive right now is really just an amazing feat by all of the people that were there to rushed to his aid on that faithful day, on Wednesday. BERMAN: Very promising news given the word that he was in imminent risk of death when he arrived at that hospital. Ryan Nobles outside the hospital. Thanks so much.

So while Congressman Steve Scalise faced a personal health battle, his colleagues in the Senate now have broader health care work to do. Senate Majority Leader Mitch McConnell told President Trump that there could be a vote on repealing and replacing the Affordable Care Act Obamacare by the 4th of July recess. But there is one problem, other than the Republican law makers crafting it, no one really knows what's in the bill, especially millions of people who will be affected by it. CNN congressional correspondent Phil Mattingly on Capitol Hill with the latest.

Phil, no public hearing schedule, no CBO score, only a handful of Republicans know what's inside. What's the strategy here? Why do the people inside that room feel like this is the best way to handle it?

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Well, John, it's a bad look and that's not just Democrats saying that, that's Republicans inside the Senate conference right now acknowledging that they don't have enough information and they want more information. And some saying explicitly, they don't like the process. But one thing is for sure, this is deliberate. This is exactly what Senate Majority Leader Mitch McConnell wants to do here. And here's why.

Look, there are incredibly divisive issues inside the Republican Party in terms of how to move forward on this, whether it's the Medicaid expansion from the Affordable Care Act, the structure of the tax credit, the Obamacare regulations that conservatives want to do way with. These are all very difficult intraparty issues.

The reason they're doing this behind closed doors, shield their members, allow them to get these issues on the table, fight them out behind the scenes so you're not seeing it all play out in public like what happened in the House bill. I have heard this repeatedly from several senators, several top Senate aides saying we don't want to repeat what we saw in the House, a very divisive process, a very difficult process. That's why it's behind closed doors. It's subject to a lot of criticism. But they believe if you talk to Senate leadership that this is the only way they can get to 50 votes they need, John, to actually move this forward.

BERMAN: You know, it might not be the right way to pass the bill. But it might be the only way to pass the bill.

[20:45:01] What are you learning tonight, Phil, about opposition?

MATTINGLY: Ramping up. There's no question about it. We learned today there's a seven figure ad by going in targeting crucial senators, and states like Nevada and West Virginia. The types of senators that are right now are sitting on the fence could very well go one way or the other.

Democratic groups really starting to try and push forward on this. There's a recognition that because this was all done behind the scenes, they really haven't had specific issues, specific build text -- specific provisions to target. And so they're trying to go all out right now knowing that the clock is really ticking on when Republicans could actually vote on this.

Also another interesting development today, seven governors, bipartisan governors all from Medicaid expansion states, including three Republicans, two, one from Nevada, one from Ohio, who have senators in the Senate that are crucial players in this in the Republican Party, sending a letter to Senate leadership saying they have serious problems with the House bill specifically on the Medicaid piece, kind of throwing up a flare here, saying be careful what you do with Medicaid.

John, I can tell you I know for a fact that these senators are very cognizant of what their governors are saying, they know what those governors can say and do to them back home if they diverge from where they want them to be, those are the things you need to keep an eye on, but of course the next couple of weeks.

BERMAN: And of course, you know, last week at this time or few days, I can't even remember timing anymore, we learned that the president in the close door meeting called the House bill mean. And of course remember this is the same bill that he had a Rose Garden signing -- it's not a signing ceremony, on a passing ceremony on.

What effect are those having comments having right now on the senators and their staffs?

MATTINGLY: Yes, it looked like a signing ceremony, which is a little bit odd, one-third of the way --

BERMAN: Right.

MATTINGLY: -- through the process. Look, from a technical perspective or practical perspective, what he was saying is something senators are trying to address. They're adding more money to the bill, they're making the tax credits more robust to try and address lower income individuals, older Americans as well they're keenly aware of the CBO score that show 23 million people would be -- 23 million fewer people would have insurance over the course of the next 10 years.

But I think the key issue here is what it means for the House bill John when it comes back. House lawmakers want to lean here, they voted for this. Now it feels like the president is under cutting them. That's a big problem something I've heard repeatedly since his comments first came out, John.

BERMAN: A lot of work to do. Phil Mattingly, thank you so much.

Coming up, we have some breaking news. A U.S. Navy Destroyer collides with a merchant ship off the coast of Japan. What we know about the crew of the USS Fitzgerald, next

(COMMERCIAL BREAK) [20:51:11] BERMAN: Some breaking news tonight. According to the Japanese coast guard, seven U.S. sailors are missing after a navy destroyer collided with a merchant ship off the coast of Japan. This is the USS Fitzgerald. You're looking at pictures of it right now.

CNN's Dianne Gallagher joins me with the very latest. Dianne, what do we know about the ship and its crew at this hour?

DIANNE GALLAGHER, CNN CORRESPONDENT: And John, of course right now the most important thing is the crew. According to the Japanese coast guard, citing the U.S. Navy, there are seven people missing and one injured. At this point though, the U.S. Navy is only confirming that the entire crew is not accounted for.

Now, we are expecting the Navy to give us an update any minute now. The Japanese have already started medical evacuations of the most critically injured. You can see we have some video of this and still frames. They're showing us of these rescues. Very intense moments.

They're working to get them to hospital on land as soon as possible. It's an emergency situation. It's changing by the moment. Now, the Navy had set up a hotline for families to call. They are communicating pretty rapidly on Twitter.

As far as the destroyer itself -- the USS Fitzgerald has damage to its star board side, both above and below the waterline. Fitzgerald is taking on water, John, but the Navy says that the crew was working to pump the water out of the hold.

BERMAN: All right, Dianne Gallagher, thanks so much for being with us.

Joining me now is CNN military and diplomatic analyst retired Rear Admiral John Kirby who served on surface vessels over the course of his Navy career. Admiral, thanks so much for being with us.

We're getting a word right now that seven sailors are unaccounted for at this point. You know, this is some time now after this incident. What kind of operations do you imagine are underway right now to try to find them?

JOHN KIRBY, CNN MILITARY ANALYST: Well, as I understand, the number seven is the Japanese reporting injuries. I don't think that I've heard that in terms of unaccounted for. I know the Navy is trying to do an accountability of every member of the crew right now.

As I understand it, at least before coming on with you, that's not -- that work is not done. So look, I mean, first of all, you do have injuries, that can be expected with a collision of this magnitude. You can see how significant the damage is.

It wouldn't surprise me that in the early hours that they would still be trying to make sure they have accountability of everybody. I hope that everybody ends up turning up safe and sound, those who are unaccounted for. But you have to make sure that you've done a complete muster so that you know where everybody is. BERMAN: What is one of the issues here? So that some people might be quartered, you know, underneath the water line or some of the cabins or some living areas below, might they have been there during the collision?

KIRBY: Sure. Right, I mean this -- you can again see for the damage, the collision happened at some rate of speed. So there's significant damage to the ship both above and then we know we have some below the waterline damage. That could -- that kind of impact could close off work spaces or even boarding spaces -- living spaces where sailors might have been working or sleeping. And they just can't get to them right now or they don't know how they're doing. You know, whether they're conscience or not.

It could be that you had sailors go into the water. And that's a terrible thing to think about. But it's a possibility that you could have lost some sailors overboard with a strike of this magnitude.

BERMAN: In the vessel, we understand is taking on water right now. What kind of situation does that make it for the people are still trying to deal with this?

KIRBY: So as soon as you have a collision like this, they sound the alarm and everybody goes to their duty stations for these kinds of emergencies. They're going to be focused on three things. One is obviously the safety and well-being of the crew and making sure they get everybody the help that they need. Number two, they're going to be trying to stem the flooding and that's what you are seeing -- you can see water being pumped over the side there. They've obviously doing de-watering.

The Navy does this very, very well. They're very well trained for this. The fact that the ship is not foundering, in other words not sinking, tells me that the below waterline strike, obviously that's not -- you don't ever want to see that.

[20:55:07] BERMAN: Right.

KIRBY: But it's not overly significant. It's not going to, you know, it's something they can manage. The third thing you're going to do is look for, you know, a fire. And so you can see there's fire hoses flake (ph) down on the deck. They're going to want to make sure that, you know, that if the collision causes any fire that they can put that out too.

BERMAN: It's great to have your expertise for this, Admiral. Look, with all the technology out there today, it sounds strange that this type of collision would happen. is it?

KIRBY: Yes John, it is extraordinarily unusual for a navy warship to have a collision at sea, even with something as small as a fishing boat. These things are very rare because the navy has a full watch up on the bridge, you know, that are trained to make sure that the ship is in safe water all the time. It is even more rare for a collision of this magnitude --

BERMAN: Right.

KIRBY: -- with a ship that big, because you know they're going to be looking out for it. You know, they're going to have a radar signature. This is -- they're going to do a full investigation. I would expect that there will be disciplinary action taken as a result to this.

BERMAN: We can learn a lot more about what causes. Admiral Kirby, thank you so much.

KIRBY: My pleasure.

BERMAN: Coming up on the same day the president writes about being the subject of a witch-hunt of an investigation, reports of tension within the department running that investigation and the possibility that the deputy attorney general could recuse himself. The implications of all this, ahead.


BERMAN: Right, the breaking news tonight, rising tension at the Justice Department and concern the president will swing the acts at the top officials investigating him.