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Do Trump's Actions Amount To Obstruction Of Justice?; Seven Navy Sailors Found Dead After Ship Collision. Aired 6:30-7a ET

Aired June 19, 2017 - 06:30   ET



CHRIS CUOMO, CNN ANCHOR: -- when everybody could have been asleep, 24 stories.

ALISYN CAMEROTA, CNN ANCHOR: And maybe those numbers will change.

CUOMO: Hopefully, we'll stay on.

All right, so the real question, legal question, important question for people following the Russia probe vis-a-vis the president is, do any of his actions amount to obstruction of justice, not investigated versus probed and what's tweeted versus what's known. We have two brilliant attorneys that are going to argue the obstruction point and help you understand what is and what is not next.


CUOMO: All right. So the latest wrinkle in the investigation with Russia and the probe is the president's legal team insisting the president is not under investigation for obstruction of justice. The president tweeted otherwise on Friday, that he was upset and wrote, quote, "I'm being investigated for firing the FBI director."

[06:35:03]So forget about that back and forth. Forget about the semantics. What about the actual issue? Is there any potential obstruction of justice by the president here? Is it even possible?

There are certainly two sides to this. We have brilliant minds, CNN senior legal analyst, former federal prosecutor, Jeffrey Toobin will be arguing the position yes, there is, and Harvard Law School professor emeritus, Alan Dershowitz, who says no, there's not.

I will play the role of silent judge on this, but I do have an impressive gavel. Jeffrey Toobin, you start. Why do you believe you could see obstruction in the president's action? You have a minute.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: No one is above the law. That's the message of Watergate and American history at its best. The principle here is that obstruction of justice is just a law like any other and the president is bound to follow it.

In 1974, the House Judiciary Committee voted articles of impeachment against Richard Nixon on the grounds that he obstructed justice by using the FBI improperly. I don't know if Donald Trump is guilty of obstruction of justice, but I do know the facts that are public now suggest that an investigation is entirely appropriate.

Think about the context here. The FBI was looking at Michael Flynn, a grand jury was impanelled and Donald Trump went on a mission to stop that investigation. He approached the FBI director, James Comey, repeatedly and including in the famous Valentine's Day meeting he said let it go, let it go.

And he knew, one could argue, that he was doing the wrong thing because he told everyone else to leave the room when he approached Comey. And when Comey didn't stop the investigation, he fired him. That to me suggests an investigation for obstruction of justice is entirely appropriate.

CUOMO: So Professor Dershowitz, what is your response?

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: I come not to praise President Trump nor to defend his policies, but to defend the Constitution. The president of the United States should not be subject to criminal prosecution for merely exercising his constitutional authority in the absence of any specific statute to the contrary.

The president has the right to fire the director of the FBI and the president has the power to tell the director of the FBI who to investigate, who not to investigate. My source for that, Director Comey who testified to that as well.

So this is not the Nixon case. This is the Bush case. Bush pardoned Weinberger at a time when Weinberger might have been pointing a finger directly at Bush. Nobody suggested obstruction of justice.

Some years ago a great lawyer stood up and opposed expansion of espionage statutes to cover what Hillary Clinton did. He talked about the dangers of expanding statutes. That great lawyer was Jeffrey Toobin. He should be saying the same today about not expanding obstruction of justice to cover constitutionally authorized presidential actions.

CUOMO: Respond.

TOOBIN: It's -- that is not what the Constitution says. There is no right to obstruct justice. It is true the president can fire the director of the FBI, but that act can be evidence of a broader obstruction of justice. For example, my favorite law professor that loves hypotheticals, what if Donald Trump said to James Comey, I am going to fire you unless you give me $100,000? Is that constitutionally protected?

CUOMO: Are you citing one of the exceptions to it which is corrupt intent, bribery as one of the witness tampering, do you believe those are --

TOOBIN: That's precisely what this investigation is about, is whether there was corrupt intent. Can the FBI -- can the president go to James Comey and say I am going to fire you because you're a catholic? That power is not unreviewable. CUOMO: Jeffrey's point is, can he fire, yes. Can he fire for bad reason and still have the protection of the executive? Your answer?

DERSHOWITZ: Yes, the president's motive should not be probe if the president acts properly. When President Bush pardoned Casper Weinberger, nobody looked into his mind. Walsh, the special prosecutor, said he did it to end the investigation. That's part of his power.

CUOMO: But is pardoning a different level of authority than what we are seeing exercised right here pardoning as seen almost as absolute. He could pardon himself.

DERSHOWITZ: Of course. Not only that, but he could fire anybody in the executive --

CUOMO: Even for the bad reason?

DERSHOWITZ: Pardon for the bad reason. What's the reason between pardoning for a bad reason and firing for a bad reason? Once we start looking at bad reasons, we're in to Stalin and Barea, when Barea told -- the head of the KGB told Stalin show me the man and I'll find you the crime.

[06:40:07]What we see here is an attempt understandably by bipartisan Democrats to find a crime against Donald Trump.

CUOMO: Is that what's going on?

DERSHOWITZ: That's what the Republicans did against Hillary Clinton. Lock him up was the same kind of attitude --

TOOBIN: It's simply not the case. That this is just like a pardon. A pardon is an absolute power and there is no motive, and the motive is irrelevant.

DERSHOWITZ: You're defeating your own case. If the motive is irrelevant for a pardon, why is the motive relevant for firing?

TOOBIN: Obstruction of justice as part of a pattern which includes trying to stop investigations, trying to stop the NSA director, trying to get the NSA Director Rogers and the head of National Intelligence, Coats, all of that is part of a larger pattern. It's not just the firing. Alan, you're focusing exclusively on the firing. It is part of a larger pattern of activity that includes the firing.

DERSHOWITZ: I don't disagree with that, but remember the president had the power to simply say to the director of the FBI, do not investigate my friend, Flynn. That's a terrible law. The Constitution should be changed, but under the current Constitution and under the absence of a special prosecutor statute, the president has the unlimited authority to do that. Just like you can't prove the president's motive for pardon, you can't probe his motive for firing.

TOOBIN: Now you're back to the Watergate problem. DERSHOWITZ: Here is the Watergate issue. What Nixon did was hush money which is bribery, destroying tapes and telling his underlings to lie. Any president should be indicted for that, but you cannot indict and should not indict a president simply for exercising his constitutional authority.

CUOMO: You seem to be having it both ways. You are saying that you can indict them for some crimes but then you're also arguing you can't indict them for anything.

DERSHOWITZ: No, no. I'm not arguing (inaudible) you can't indict him for simply exercising his constitutional authority. If he goes beyond that, if he bribes, destroys evidence, if he tells anybody to lie, of course, he's subject to prosecution.

CUOMO: How can you say you can't go after him for exercising authority, but then you say well, you can if exercising his authority means --

DERSHOWITZ: No, no, no. It's unqualified, but he cannot -- it's not part of his authority to bribe. The very act of taking money is independently a crime. The very act of lying to the FBI is independently a crime. That's not constitutionally protected. Pardoning is, firing is, and directing the FBI not to investigate is.

CUOMO: Do you accept that premise that, while you could check the president's authority, you're not in the right category of behavior to do so right now?

TOOBIN: No. I think -- you know, Alan is running into -- you're describing Watergate differently than what Watergate really was. The smoking gun tape of June 23rd, 1972 --

DERSHOWITZ: Lied to the FBI, commit a crime.

TOOBIN: No, no. It was using the FBI to stop the Watergate investigation --

DERSHOWITZ: By lying to them. That was the crime.

TOOBIN: What difference does it make? It's still corrupt intent. It's misuse of the FBI.

DERSHOWITZ: If President Nixon said, tell the FBI to stop this investigation, there would have been no crime. Maybe impeachment, but no crime. It's the lying that made it a crime.

TOOBIN: No, it's not that. It's the misuse of the FBI for corrupt reason. It's telling the --

CUOMO: Final question before we have our closings. Do you think it's wrong for the special prosecutor to look into this matter?

DERSHOWITZ: Absolutely not. It would be perfectly OK, but I think it would be better for Congress to look into it because we need new laws. We need laws to prevent the president from having the power to fire the director of the FBI, to end the investigation.

We need statutes that specifically prevent the president from doing that. Obstruction of justice is too big and all liberals and civil libertarians fight against expansion of those statutes except when Donald Trump is in the eyes of the target.

CUOMO: Final statement for the audience.

TOOBIN: When the Watergate committee voted to impeach President Nixon, it was on precisely these grounds, misuse of the FBI can be a corrupt obstruction of justice. That's what this case is all about. The pardon power, the power to fire the FBI director is not unlimited. It is subject to the laws of obstruction of justice.

And that's what Mueller is trying to determine, whether there was a corrupt intent to stop an FBI investigation. He's investigating appropriately. I don't know if the president is guilty or not, but Mueller is on the right track and we should all let him do his work.

[06:45:02]DERSHOWITZ: If you allow corrupt intent to be the basis for firing a president who engaged in constitutionally protected act, today will be directed against Donald Trump. Yesterday it was directed against Hillary Clinton. Tomorrow it will be directed against other people.

We don't want that kind of a vague open-ended, accordion-like criteria to be used. The difference between Watergate and this, in Watergate there were three specific categories of criminal conduct, lying to the FBI, destroying evidence, paying hush money.

Here we have no independent criminal conduct alleged against the president. Everything alleged against him is constitutionally protected. We do not want to live in a country where one party can go after the elected official of the other party by using vague terms like corrupt intent.

CUOMO: Gentlemen, thank you very much. Well argued by both. I didn't have to use my heavy --

DERSHOWITZ: I can't lose, because if my student does better than me, I get the credit.

CUOMO: You can't lose. The people will decide.

TOOBIN: You're a wimp, Cuomo.

CUOMO: I'm the judge, not the jury. You're right, I am a wimp.

CAMEROTA: That was excellent. I popped the popcorn and watched with rapid attention. Thank you both, Gentlemen.

So military investigators are preparing to tackle some very tough questions after these seven Navy sailors were killed at sea. How did a Navy destroyer and a freighter collide? What went wrong here? We have all of the latest from the scene.



CUOMO: The U.S. military and Coast Guard now investigating a deadly collision between a Navy destroyer, "USS Fitzgerald" and a container ship as the U.S. Navy identifies seven sailors who were killed. We have CNN's Alexandra Field live at the USS Fitzgerald's home base in Japan -- Alexandra.

ALEXANDRA FIELD, CNN INTERNATIONAL CORRESPONDENT: Chris, Yokosuka is one of the U.S.'s most strategically important naval bases. These are seven sailors who were sent here to serve two or three-year tours of duty. They won't be seeing their way homes. We have learned their identities now.

The Navy confirming that they come from all across the country, from Maryland all the way to California. The youngest just 19 years old. The oldest 37 years old. All of them dying in what would have otherwise been a routine operation for the Navy aboard a guided missile destroyer, which collided in the early morning hours of Saturday morning here locally in Japan with the container ship some three times its size.

We're now told by the commander of the Seventh Fleet that the bodies of those seven sailors were found in the flooded sleeping compartments below deck when divers were sent down to search for them. Listen to this.


JOSEPH AUCOIN, VICE ADMIRAL, COMMANDER OF THE U.S. SEVENTH FLEET: You can't see most of the damage. The damage is mostly underneath the waterline and it's a large gash near the keel of the ship. So the water flow was tremendous. So there wasn't a lot of time.


FIELD: The rest of the ship's crew is being credited with keeping the ship from sinking. Originally this was a search and rescue mission. Those seven sailors were reported missing. It then turned out that their bodies were later found inside the ship.

In those early hours, President Donald Trump did tweet saying that his thoughts were with the families of the sailors aboard the USS Fitzgerald. Hope was being held out that the sailors would be found alive.

No further word publically from the president or the White House since the Navy has confirmed the deaths of those seven sailors and their identities. An investigation will now be conducted by the Navy. The Coast Guard also looking into this now -- Alisyn.

CAMEROTA: OK, Alexandra, thank you very much for the reporting there. Let's bring in our guests. We have CNN Pentagon correspondent, Barbara Starr, and CNN military and diplomatic analyst, Rear Admiral John Kirby. Barbara, what's the latest from the Pentagon? Is there any sense of how this happened?

BARBARA STARR, CNN PENTAGON CORRESPONDENT: Well, I think there is a lot of bewilderment because this just doesn't happen. That's what you keep hearing. This doesn't happen. The Navy doesn't have these kinds of catastrophic collisions at sea. What we're learning is how catastrophic it really was.

I mean, think of what this crew was facing. It was dark. They had been in a collision. Water is pouring into the ship, both beneath the waterline. They have damage above ground. The container ship and the Navy ship hit exactly where the berthing compartment was and where communications were.

The ship lost communications on board, dark, trying to struggle to survive, to save the ship and can't even communicate properly with each other. It was a catastrophe that just really befuddled everyone now, how it happened, but it will be fully investigated.

CAMEROTA: John, just help the rest of us to understand. Aren't there radar systems on board, collision avoidance equipment that should have been sounding alarms or doing something?

REAR ADMIRAL JOHN KIRBY, CNN MILITARY AND DIPLOMATIC ANALYST: Well, there are a fabric of sensors that a surface ship will use in navigating in open water to preserve the safety and security of the ship. Yes, there are surface search radar systems on board. The investigators will take a very hard look at those radar systems and make sure that they were operating properly.

There's also the human eyeball. You'll have lookouts posted fore and aft on the ship and you're going to have watch standers on the bridge where the ship is driven from who also will be looking out. Now it's nighttime so things don't always look quite the same at night at sea that they do during the day. There's a whole suite of sensors and capabilities.

CAMEROTA: So then what went wrong in your mind?

KIRBY: I don't know. I don't know. We ought to be very careful, Alisyn, not to get ahead of this investigation or speculate. Obviously something went wrong. I suspect a lot of things went wrong. I suspect they will find that there were decisions that were made minutes before the collision and probably decisions that should have been made that weren't that they'll be taking a look at. They'll interview every relevant witness, look at every piece of equipment. They'll do a complete forensic analysis on this.

CAMEROTA: And Barbara, I mean, obviously, both of you are underscoring how despite this tragedy, there was a herculean effort on board after this happened to save more lives and, in fact, you've also pointed out that the Japanese allies rushed to help us.

[06:50:01]So there are all sorts of stories of bravery and heroism around this, but again, it's just haunting to think of the lives that were lost, those young people, 20 years old there in their berthing compartments. Barbara, that leads us to this past week. It was a bad week for the U.S. military.

STARR: Alisyn, there are no words to describe. It was terrible. That's the word that comes to mind. I don't think you can really fathom. First, the loss of these seven lives on board the USS Fitzgerald. That was towards the end of the week.

Earlier in the week in Afghanistan, two insider attacks on U.S. personnel there, three U.S. military killed, seven wounded. Plus the seven lost at sea on the Fitzgerald, others on board that ship injured.

Twenty military families plus facing a week that no family should have to face in their loved one's service and sacrifice to the nation. As Alexandra pointed out, we did see a tweet from the president about the Fitzgerald, but right now a lot of silence, many people feel I can tell you, from political leadership here at the Pentagon.

The U.S. military mourns as a family. They mourn publicly. They mourn as a family. There are private condolences to the families, but not a lot of public word -- Alisyn.

CAMEROTA: John, what about that? Does the president need to say more?

KIRBY: I think it's important for all our political and military leadership to offer thoughts and prayers and condolences when things like this happen. It's important for the rest of the force to hear from their leaders that they understand the sacrifices that are being made and the grief that is being endured.

I do think it's important. I agree with Barbara on that score. I also agree with Barbara that it was a tough week. I would also offer this, though, as tough a week as it was, and we've got families grieving, the military is going to strap it on this week. They have a lot of hard work to do in a lot of difficult places and they're going to get after it.

CAMEROTA: Understood. John and Barbara, thank you very much -- Chris.

CUOMO: All right, so the British Prime Minister Theresa May is confirming that that van attack near a mosque in London is a terror attack. We have the latest from the scene next.