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Reconsidering Memo Release; Mueller Hasn't Met Threshold for Interview; McCabe's Role in 2016 Election; Dow Up Triple Digits at Open; Trump Calls for Unity and Pushes Agenda; Mixed Messages on Alleged Trump Affair. Aired 9:30-10a

Aired January 31, 2018 - 09:30   ET


[09:32:02] JOHN BERMAN, CNN ANCHOR: So we could really just be minutes away from the release of this memo from Republicans on the House Intelligence Committee, which alleges abuses by the FBI in the early stages of the Russia investigation. The president says 100 percent he will get this out. But you know what? At this point, it's his decision.

So let's talk about this and much more. Joining us, CNN legal analyst Paul Callan and CNN's senior law enforcement analyst Tom Fuentes.

Tom, you know, to you, an assistant -- former assistant director of the FBI. "The Washington Post," we just heard from Josh Josy (ph), reports there was a big meeting at the White House with the FBI Director Christopher Wray, the Deputy Attorney General of the United States Rod Rosenstein pleading with the White House not to release it. What does it tell you that they went to the mat on this and what does it tell you that the White House is not going to heed their warnings?

TOM FUENTES, CNN SENIOR LAW ENFORCEMENT ANALYST: Well, hopefully, John, what it tells us is that they believe that the type of material that's in that memo should remain classified, should not be released to the public, because it may reveal sources and methods, which is the main purpose of classifying documents in the first place.

However, you know, the classification process in general is not supposed to be used merely to classified information which may be embarrassing. And that's -- and that's the question here. Is the material in there just so embarrassing, let's say, to the Democratic Party or the Obama administration at the time, that that's why the Democrats don't want it released, the Republicans do want it released? This whole thing has gotten highly politicized. And it's very, very unfortunate because in the middle of this, of course, is the FBI.

POPPY HARLOW, CNN ANCHOR: But these -- but these are two Republicans going to the White House --

BERMAN: Right.

HARLOW: Rosenstein and Wray --

BERMAN: Right.

HARLOW: Both Republicans and appointees of this president, Tom, going to the White House and, as John said, going to the mat on this one.

FUENTES: Well, it's hard to say that Rosenstein's a Republican. He was originally appointed by Obama. So, I mean, you have -- supposedly there's --

HARLOW: He was a registered Republican.

BERMAN: He's a registered Republican.

HARLOW: He's a registered Republican.

FUENTES: Well, yes, but in that role, they're supposed to check their allegiance. That's the whole criticism of McCabe and Strzok and the others is that they were still so one-sided that they biased the investigation. So I --

BERMAN: And he was appointed by George W. Bush originally, held over in the Obama administration and that --

HARLOW: Yes, but, OK.

FUENTES: Well, but holdover is, you know, is operative.

But in any event, we don't know what's in the memo. We don't know if it's merely embarrassing or if it does reveal critical information that shouldn't be released.

BERMAN: Right.


BERMAN: Paul Callan, to you.

The other major development overnight. You know, CNN learning that the president's lawyers are now saying that they don't think the special counsel has met the minimum standard for the president to testify. And they're basing this on a 1997 case involving Mike Espy (ph), former agriculture secretary for Bill Clinton. The standard they're looking at here says that you have to prove that the president's testimony is important to the on-going grand jury investigation and must demonstrate why this evidence is not available from another source. That doesn't seem like a very high bar. And they're arguing that the special counsel hasn't met it?

PAUL CALLAN, CNN LEGAL ANALYST: No, it's not a high bar. As a matter of fact, it exists all over the country. That's why you don't see district attorneys and governors brought in on routine state investigations.

HARLOW: Right.

[09:35:07] CALLAN: You have to show, we've interviewed the lower level people, and he's got critical information that they don't have. Now, obviously, in this case, the president has an abundance of critical information. He was meeting with people in the Trump Tower by himself or with limited numbers of other people in the room many times during the campaign. So he has information about and relevant to the investigation. So I think he meets the Espy test, even if you apply it in this situation.

HARLOW: So you're saying it's a flawed legal argument? It's not going to hold any water?

CALLAN: I think it's -- I think it's a completely flawed legal argument.

Now, on the other hand, I also think the president can refuse to testify.


CALLAN: And I think he's being very cagey about it. You notice he says, I would love to testify and I would love to testify under oath, but I have to listen to my lawyers. So he's going to use the defense ultimately, if he doesn't testify, my lawyers told me not to do it and I have to follow their advice.

HARLOW: All right, so, Tom, back to something pertaining to the FBI and protocol and what you do when you're given information that may be pertinent.

"The Washington Post" has what -- I mean what could be an explosive report about Andy McCabe, right? And what it says is that he was notified three weeks -- you know, sometime in late September, early October, about these potentially Hillary Clinton e-mails on Anthony Weiner's computer and then sat on it for three weeks, didn't do anything about it for three weeks. It's unclear if this went up to Comey, the director, or not. We just -- we don't know at this point.

What should McCabe have done the minute he was alerted to this and does it smell fishy to you?

FUENTES: Well, to be honest, it does sound very suspicious. You know, the whole thing with Anthony Weiner's computer really came to the FBI from NYPD. The New York City Police looking at and investigating the texting that he was doing with a minor is what led them to that investigation and to get their hands on his laptop in the first place. When they came across these e-mails, they contacted the New York office of the FBI and said, look, we've got what appears to be classified information on here from Anthony Weiner's wife, Huma Abedin, that pertains to the whole Clinton e-mail investigation. So they turned over the computer to the FBI.

And then the concern there is that when that computer was sent to FBI headquarters, how long did it take for them to really start taking a hard look at it, given the sensitivity of it that was expressed when Director Comey at the time said he was reopening the case based on possession of that computer.

HARLOW: Right. And the thinking is it could have come out a lot earlier had McCabe acted on it, I suppose. And this was -- ended up being just days before the election.

All right, appreciate it. Tom Fuentes, nice to have you. Paul Callan, thank you very much.

FUENTES: Thank you.

HARLOW: So what a difference a day makes. A huge selloff for the market yesterday. Not so much this morning. Look at that, the Dow up almost 250.

BERMAN: Alison Kosik joins us now.

Alison, you know, what's behind the fall and now this bounce?

ALISON KOSIK, CNN CORRESPONDENT: I think it was a bit of a temper tantrum for the market for two days and now you're seeing a big bounce back this morning. You're seeing the Dow open 243 points higher. This is after seeing a drop in the Dow of 540 points over the past two days.

Look, I think what you're seeing is investors buying on the dip. Nothing more. Nothing less. There is a lot making investors nervous and it's getting the attention because we've only seen the market go up, up and up. So now you're seeing investors focus on higher interest rates. That's causing a concern. They're paying attention to companies. That deal yesterday -- talks about between Amazon, Berkshire Hathaway and JP Morgan, that made investors nervous when it came to health care companies.

But I think what you saw yesterday and the day before, not a prolonged trend for the markets at this point.

Poppy. John.

BERMAN: All right, Alison Kosik, thank you so much. We will keep our eye on that.

The president didn't talk about Russian meddling in the State of the Union Address. No surprise. But he says he was focused on unity. What did Democrats think? We'll ask one, next.


[09:43:03] BERMAN: All right, it is the morning after, the morning after the State of the Union Address. The president pitched a sort of bipartisanship. But are Democrats buying this unity message after a year of attacks?

HARLOW: Joining us now is Democratic Congressman David Cicilline of Rhode Island. He sits on the Foreign Affairs and Judiciary Committee.

It's nice to have you. Thanks for being with us.

I'm sure you were up late. Obviously, you were up late. We were all up late watching this. You were there.

And here's your response to the State of the Union. You wrote the president's speech was long, myopic, uninspiring and predictably negative. We're going to assume -- safely assume -- that was your glass half

full analysis.

BERMAN: I think half empty.

HARLOW: Half empty analysis. I didn't sleep. I told you that.

What's your --

REP. DAVID CICILLINE (D), RHODE ISLAND: I've had a good night's sleep now.

HARLOW: What's your glass half full analysis? Meaning, did you see anything positive in the president's remarks?

CICILLINE: Well, I mean, you know, I was disappointed. The president spoke a little bit about unity, but then he gave a speech that was very divisive. And I think, you know, Americans have learned, we have to distinguish between what Donald Trump says and what Donald Trump does. And so, for example, he talked about the opioid crisis and how terrible it is for families and has put forth a budget that provides no funding to respond to the crisis. He talks about how he loves our veterans and yet he hasn't provided resources for the Veterans VA Choice Program. He spoke about a number of issues, workforce training, and yet he proposed a budget that has deep cuts in workforce training.

So, you know, what I had hoped the president would focus on is what I think many Rhode Islanders worry about is, how are they going to support their families? They're working two and three jobs. They're not making enough money. And so raising family incomes, reducing the costs in people's lives and making sure that they're prepared for jobs in the 21st century, better wages, better jobs for a better future. The president, I think, spoke on a lot of issues that are very divisive to describe --

BERMAN: Can I ask, though --


BERMAN: Can I ask though -- can I -- and you said there were some things he mentioned but he didn't go far enough. You wished he had done more. Is it right when he does bring up things that you all agree on. I think, for instance, every Democrat, every human on -- you know, in America can agree that the fact that African-American unemployment is low and falling, right? I think you could agree that's something to applaud. Yet, when the president mentioned that, the cameras showed many Democrats not moving at all, not applauding. Shouldn't we all cheer that?

[09:45:07] CICILLINE: Well, I mean, again, you have to think of the context. It's still the case that African-American unemployment and Latino unemployment is much higher than white unemployment. So I think, you know, you always have to look at the context.

But, look, it's hard to take the president seriously when you look at the behavior of this administration over the last year. I mean you can utter the words, you can read a teleprompter, a speech that someone's written for you. But to authentically communicate that you're serious about those issues, you have to have some credibility and a track record.

BERMAN: Right.

CICILLINE: And I think it was hard for people to believe the sincerity of many of those claims. It was really about bragging about the things he perceived as accomplishments rather than setting out a real vision for the country moving forward.

HARLOW: All right, let's get you on this, because you've been very vocal in your support for former FBI Deputy Director Andy McCabe. And, as you know, he stepped down surprisingly early this week. And now "The Washington Post" is reporting that the inspector general, who's looking into the handling of the Clinton e-mail investigation, says that when McCabe was notified that there may be additional Hillary Clinton e-mails between her and Huma Abedin on Anthony Weiner's laptop, that he essentially sat on that for three weeks. That he found out in late September, early October, before the election, and sat on it, did nothing.

The question this morning is, was he slow-walking this investigation leading up to the election, and that would matter a lot? Do you have any concerns given this new reporting about how McCabe acted?

CICILLINE: Well, I think the inspector general will make that determination. But the reality is, we know that what --

HARLOW: Right, but I'm asking you --

CICILLINE: No, no, well, I am --

HARLOW: Hold on, congressman, because I'm asking you --


HARLOW: As someone who's been effusive in your praise.

CICILLINE: Yes, yes, I've --

HARLOW: You said that he is someone who has been accused of bias improperly, et cetera. So knowing this reporting, and "The Washington Post" is generally pretty spot on in its reporting, do you have concerns about it?

CICILLINE: Well, I was just about to finish my -- answering your question.

We know the review actually took place. And the fact is, those e-mails were already in the possession of the FBI. So there was nothing new. So if he slow-walked it, obviously that's something that needs to be addressed. But it didn't affect anything.

We know, at the same time, however, the FBI was -- had an ongoing investigation of the Trump campaign and its potential collusion with Russia, which wasn't disclosed at all. So those -- that's very concerning to me.

But, look, this is part of an ongoing effort to undermine the investigation by Robert Mueller and his team.

BERMAN: But the attorney -- the attorney -- the inspector general -- I don't believe anyone thinks that the inspector general review is an effort to undermine anyone, right?

HARLOW: Right.

CICILLINE: No, no, no. No, no. My point is that those --

BERMAN: So this --

CICILLINE: But those e-mails were, in fact, reviewed. They had nothing new. So if they slow-walked them, that's obviously something they're accountable for.

But let's not lose sight of the underlying fact. There was nothing additional. When the review was conducted, they realized they already had those e-mails. So this --

HARLOW: OK, but they didn't know that yet.

BERMAN: But I can tell you -- but, congressman --

HARLOW: They didn't know that.

BERMAN: If I were a Democratic member who wanted Hillary Clinton elected, I'd be mad that they did slow-walk it.

HARLOW: Right.

BERMAN: I think you could make a compelling case.

CICILLINE: I agree with you. I --

HARLOW: Of course.


CICILLINE: Which is why they shouldn't have slow-walked it. If, in fact, that's the case, the IG will make that determination. All I'm saying is, there's nothing in that action that resulted in keeping secret anything that the FBI didn't already have.

But what I think is the larger question is this ongoing effort, separate and apart from this IG report, which we're seeing again today to undermine and set the stage for the firing of Rod Rosenstein and Robert Mueller and an effort by the Republicans in Congress to really undermine this ongoing and very serious investigation. That, I think, is really the story of the day.

HARLOW: We're waiting for this memo to see if it's going to be released and we'll --


CICILLINE: Yes, I mean, don't forget, this is a memo that was prepared by a partisan member of Congress, a Republican member, who was determined to be so partisan that he was removed from leading the investigation.

HARLOW: Well --

CICILLINE: It purports to give a summary of documents he's never even read.

HARLOW: And then when (INAUDIBLE) --

CICILLINE: I mean think about that. It's like doing a book report that you've never even read the book.

HARLOW: Well, OK, well, you just didn't -- all right, we have to leave it there. You just didn't finish that -- and then went under -- underwent an ethics committee review and then was placed back -- back on the team.

CICILLINE: Not to lead the investigation. He's not leading the investigation.

HARLOW: OK. Like --

CICILLINE: He recused himself because he had demonstrated his partisanship. And so he's written a document based upon his assessment of underlying classified documents that he acknowledges he's never even read. Think about that.

HARLOW: Right, and the Democrats have written their version and we hope -- you know --

CICILLINE: And Mr. Schiff has read the underlying documents. He's ready the underlying classified materials.

HARLOW: OK, we've got -- we have to leave it there.

CICILLINE: That's the difference.

HARLOW: Congressman, thank you, Cicilline, we appreciate it.

CICILLINE: My pleasure. Thanks for having me.

HARLOW: OK. Switching gears in a major way.

BERMAN: Yes, I would say.

HARLOW: Awkward turn. Porn star Stormy Daniels now denying that she denied the alleged affair with the president. Are you confused? So are we. Next.


[09:54:01] BERMAN: All right, this morning, new questions and, frankly, not a whole lot of answers provided by the adult film performer who allegedly had an affair with Donald Trump. Just hours after her manager released a letter denying that Stormy Daniels had ever had any sexual relationship with then Donald Trump, not yet the president, Stormy Daniels sat down with Jimmy Kimmel and seemed to deny the denial.

HARLOW: If you're confused, that's OK. So is everyone. So are we.

Our MJ Lee is with us.

What is going on?

MJ LEE, CNN NATIONAL POLITICS REPORTER: Well, I will say this is a new strange twist in what is already a pretty bizarre story. Just to give you the quick recap. Remember that "The Wall Street Journal" reported that Stormy Daniels, this porn star, and Donald Trump had a sexual encounter back in 2006 and that in 2016 Michael Cohen, Donald Trump's lawyer, formed an LLC and then used that LLC to pay Stormy Daniels $130,000 to keep her quiet about this alleged affair.

[09:55:01] Now, yesterday, Stormy Daniels' publicist put out a statement from Stormy Daniels and let me just read what it said. Quote, the fact of the matter is that each party to this alleged affair denied its existence in 2006, 2011, 2016, 2017 and now again in 2018. I am not denying this affair because I was paid hush money as has been reported in overseas owned tabloids. I am denying this affair because it never happened.

So, OK, this seemed to be an outright denial of the affair. But what had everyone talking yesterday was that the signature that was on this statement from the publicist, it didn't actually look like signatures from some of Stormy Daniels' past signatures. I'm not a handwriting expert, but you look at the two and they do look different, at least at first glance. So raising the question of whether this new statement yesterday from Stormy Daniels was actually from Stormy Daniels.

Now, she went to Jimmy Kimmel -- went on Jimmy Kimmel, I should say, last night. He asked her about this signature mystery and here's what she said.


JIMMY KIMMEL, HOST, "JIMMY KIMMEL LIVE": Did you sign this letter that was released today?

STORMY DANIELS: I don't know, did I?

KIMMEL: Wait a minute. That you can say, right?

DANIELS: But that doesn't look like my signature, does it?

KIMMEL: It doesn't look like your signature. So you're saying perhaps this letter was written and released without your approval? Do you know where it came from? Do you have any idea?

DANIELS: I do not know where it came from. KIMMEL: You do not know where it came from.


LEE: A pretty frustrating interview there. And what is clear is that she clearly is not speaking freely, John and Poppy.

BERMAN: Is she's playing games? I mean she's playing games. Whether it's because she's got some nondisclosure agreement, whether it's because she wants to extend this moment, who knows, but she is clearly playing games here.

MJ Lee, great to have you with us. Thanks so much.

HARLOW: Thank you.

BERMAN: As we speak, the White House is reviewing the controversial Republican memo alleging FBI abuses. It seems like a near certainty it will be released and very, very soon. We're all over it.