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Center of FBI Probe; Bannon Pitches Legal Strategy; Trump Promotes Hannity Show. Judicial Pick Won't Endorse Desegregation Ruling; Aired 9:30-10a ET

Aired April 12, 2018 - 09:30   ET


[09:30:00] JOHN BERMAN, CNN ANCHOR: Sources say the FBI is looking for any communications between the president and his personal lawyer regarding that now infamous "Access Hollywood" tape and communications that might talk about keeping that tape from going public. The tape did go public on October 7, 2016.

Also that day, the U.S. officially blamed Russia for the DNC hacks. Thirty minutes later, "The Washington Post" released the "Access Hollywood" tape where the word heard the president brag about sexually assaulting women and getting away with it because he's famous. And then three minutes later, WikiLeaks released the hacked Clinton campaign e-mails.

Joining me now is Kim Wehle, former assistant U.S. attorney.

Kim, thank you so much for being with us. You're standing before a chart that remind us of just how much happened in such a short period of time. That is what we know. That is indisputable. I guess my question is, so what? Why might this timing be important?

KIM WEHLE, FORMER ASSISTANT U.S. ATTORNEY: So we know that the Russians interfered with our 2016 presidential elections. And so the question has -- is twofold really. Were their effort made first to -- involving the Russians to hurt Hillary Clinton's candidacy and were there effort made to help president -- now President Trump's candidacy.

Now, the "Access Hollywood" tapes are important because presumably this kind of information would hurt president -- now President Trump's candidacy. And so the question is, after this time, when we saw the Stormy Daniels payment, as well as the McDougal payment, were those an orchestrated effort to essentially tamp down the bad news about President Trump, at the same time -- or the bad news regarding Hillary Clinton was being increased in the public sector.

And this could lead to two potential criminal lines of inquiry. Number one would be violations of campaign finance laws. So to the extent to which this benefited in some meaningful way Mr. Trump's campaign, that information should have been disclosed, those dollars and those benefits. And the second would have to do with, was this covered up? If that was covered up in a way, kind of moving the money around, there could be money laundering, bank fraud questions. BERMAN: So, it's interesting, you put it all together. Again, we

simply don't know. Based on the public information, we don't know anything other than these three things happened all close to each other.

What we also now know is that the president's name was on this search warrant for Michael Cohen and also the "Access Hollywood" tapes named specifically. Would investigators -- would the FBI need more evidence than just this timeline here in order to get this warrant that names "Access Hollywood"?

WEHLE: Oh, no question. I mean so the warrant has to have probable cause to demonstrate that each of -- at each of the three locations that they executed warrants that there was evidence of a crime in each location. And given this context, it's the president's personal lawyer. We are in the midst of a massive investigation of the president of the United States or involving potentially the president of the United States. I would suspect prosecutors would produce even more evidence than they would in a typical situation where they're seeking a warrant.

BERMAN: Right.

One other piece of legal news overnight, that Steve Bannon, former senior adviser to the president, is apparently pitching this legal strategy to fight back against the Mueller investigation. His first suggestion is to fire the deputy AG, Rod Rosenstein. He also says, stop cooperating with the special counsel in any way. And then his third thing, and this is what I want to get your take on, he's saying that everyone should assert this sort of retroactive executive privilege. Any White House official or persons close to the president who've already spoken to investigators should go back and say, you know what, these conversations were all privileged. We should eliminate this testimony all together.

Any merit to that?

WEHLE: Well, you know, first of all, I don't think Steve Bannon is an attorney, so that's a really good question to ask from a legal perspective.

Now, executive privilege is something that only the president of the United States can actually assert. So it -- no witness is in a position to assert executive privilege on behalf of the president.

Number two, to the extent to which the information has already been disclosed, executive privilege at this point could be irrelevant. That is, it's utilize to say, listen, I got a subpoena, the president says, do not respond to the subpoena. I get a question, the president says do not respond to that question. So at this point, the cat's out of the bag. I'm not really sure what kind of relief Mr. Bannon is expecting to flow from this.

Now, of course, if we were ever in a court situation where somebody was actually on trial and there was information that the president thought was covered by executive privilege, there might be a question as to whether that could go before a jury. But executive privilege does not attach to Mr. Trump personally.

BERMAN: Right.

WEHLE: It's about the office of the presidency. And the court will balance the need for the information in the criminal context and then make a decision. It doesn't -- it's not a blanket protection for the president.

BERMAN: Kim Wehle, great point here. This might be more of a political argument than a legal one for Steve Bannon.

WEHLE: Sure.

BERMAN: Kim, thank you so much for being with us.

[09:35:01] On that note, political arguments, last night news personality Sean Hannity spent several minutes pumping out conspiracy theories and attacking Robert Mueller. The president really wanted everyone to watch. The question this morning is why?


BERMAN: Late last night, the president really, really wanted people to watch Fox News. So much so that he tweeted over 50.4 million of his Twitter followers to tune in. Minutes later, probably not coincidentally, Sean Hannity said this.

[09:40:00] (BEGIN VIDEO CLIP)

SEAN HANNITY, FOX NEWS: Look at the Mueller crime family. And, of course, we are now on day 329 of the Mueller witch hunt and there's still zero evidence of collusion. And then look at Mueller's merry band of Democratic donors. Couldn't find one Trump supporter to work on the special counsel case? Take a look at the side of your screens. Tens of thousands of dollars to Democrats, Hillary Clinton, Barack Obama. Not a single penny to Donald Trump.


BERMAN: Joining me now, Mark Preston, CNN's senior political analyst, and Phil Mudd, CNN counterterrorism analyst with a career in the FBI and the CIA.

Phil, if I can, I want to get your reaction to Sean Hannity calling Robert Mueller a crime boss?

PHIL MUDD, CNN COUNTERTERRORISM ANALYST: Well, I spent four and a half years by Robert Mueller. This is a storied prosecutor. One of the most legendary FBI directors. Spent 12 years as an FBI director for both President Bush and President Obama. A decorated military veteran, being compared to a crime boss, when he's investigating a man who bragged about his genitalia during a campaign, who lied about the Obama birth certificate during the campaign and said so, who's press secretary lied within 24 hours of getting into the White House, who lied about the Trump Towers being wired, who's got, what, 17, 18 women -- I lost the number of fingers to count on how many women who have said something do -- who said he did something inappropriate, who's advisers have quit because they lied to federal investigators about everything from financial fraud to their involvement with the Russian ambassador. So you've got that dirt bag telling me that one of the most storied FBI directors ever is a crime boss? You put them side by side and you tell me what we got here, John. Facts are facts.

Robert Mueller's an American legends. The president is a dirt bag. I mean, I don't know what to tell you, I'm so pissed off. I spent four years with Mueller. He's a great guy.

BERMAN: Well, I should say, Phil, you know, your statement there is about the president of the United States. That's a remarkable statement or a notable statement from someone who worked for the government.

MUDD: Oh, come on, John, he spoke about his genitalia. He made fun of a woman's face during the campaign. He made fun of a woman's menstrual cycle. What do you want me to say?

BERMAN: Mark Preston, I think it is notable that this person, the president of the United States, that Phil has taken issue with right now, promoted the Sean Hannity piece that he obviously -- I say obviously -- presumably knew was coming.

MARK PRESTON, CNN SENIOR POLITICAL ANALYST: Yes. I mean certainly, no question about it. And a couple of things here that I think that are important.

You know, there's been a lot of talk about Fox News being the mouthpiece for the administration. You know, some of that is, in fact, very true. And I think we saw that last night when we saw President Trump clearly pushing people to Sean Hannity's show in order to hear Sean Hannity push the president's message.

What I do also think is really interesting -- and, John, I'm starting to hear a lot more of this myself now as we are going into the second year of the Trump presidency -- is, of course, living here in Washington, D.C., and living around a lot of people in the neighborhoods who work in the government who have given their life and their careers to the government. And what I think you just heard Phil express right there, somebody who was a career civil servant, somebody who gave his life to serve overseas for the country, to serve in -- you know, to help try to protect the country, I think what we're starting to hear right now is an unbelievable amount of anger and frustration at the president right now by those who think -- and Phil being one of them -- who think that President Trump has been a discredit to the office, but certainly a discredit to what they've been doing, you know, day in and day out.

BERMAN: Phil, based on your previous response -- and I think I might know where this one is going -- we're getting a sense -- Jeff Zeleny reporting this morning about how allies of the president will respond to the coming James Comey interview with George Stephanopoulos and NBC and the release of Comey's. But, by the way, Comey refers, I believe, to the president as a mob boss, which is what set Sean Hannity off. So it was sort of a parallel right there. But the fact that the Republican Party is then putting out this

website saying lying Comey, we're also being told that the Republicans are coming out with ads with Democrats speaking out against James Comey. What do you make, Phil, of this effort to discredit the former FBI -- this former FBI director?

MUDD: I think what's happening here, there's a lot of focus on what's going on with the investigation. I think a lot of what you're seeing isn't specifically always related to the investigation. It's related to coloring the American peoples' views of the investigators so that if indictments come out, the president can say, look, I told you all along this was a witch hunt. Look at the indictment maybe against people in the White House. And, therefore, if the president takes action, for example, pardons people involved in the indictments, he can say, all along I told you these guys were colored, all along I told you they were Democratic sympathizers, as you saw Sean Hannity say, all along I told you they contributed to Hillary Clinton.

This is about, I think, the after action, after indictments, not necessarily setting the stage, John, to take out somebody like Robert Mueller.

BERMAN: You know, it's interesting, Mark, there have been a lot of people who have noted over the last hour since Jeff broke this news that James Comey was the deputy attorney general for Republican President George W. Bush and this is the Republican national Committee fronting this direct attack on him.

[09:45:07] PRESTON: Right. Yes, and so what we do know from Jeff Zeleny's reporting is that in addition to what you talked about, what Steve Bannon is talking about, to try to go after the investigation, you now have Jeff Zeleny with this really amazing reporting that we're seeing the behind the scenes effort right now that is taking place to discredit James Comey. We're going to see the Republican National Committee come out and do that. They're going to use a website. They're going to try to use Democrats' own words, including Hillary Clinton's own words, to call into the credibility questioning of James Comey.

But, you know what, the big question, though, John, is, how effective will this be right now? You'd have to effect -- you'd have to expect that at least 36 percent of Americans, which are the latest people in the latest CNN poll, who believe that this is a witch hunt against Trump will continue to support it. And we will see this new effort by the RNC to push that forward. The big question is, will that number grow and can Republicans convince Democrats still upset at Comey and can they convince independents to come over and also think that this investigation's a witch hunt?

BERMAN: Mark Preston, Phil Mudd, thank you for being with us. Appreciate it.

One of the Supreme Court's seminal rulings, Brown versus the Board of Education, so why won't one of President Trump's federal judge nominees say if she agreed with it?


[09:50:51] BERMAN: An eye opening moment during the confirmation hearing for one of the president's judicial nominees. Wendy Vitter is up for a federal judgeship in Louisiana and she seemed to dodge the question of whether the landmark Supreme Court ruling that desegregated U.S. schools was correctly decided. Listen to this.


SEN. RICHARD BLUMENTHAL (D), CONNECTICUT: Ms. Vitter, do you believe that Brown versus Board of Education was correctly decided?

WENDY VITTER, NOMINEE, UNITED STATES DISTRICT JUDGE: I don't mean to be coy, but I think I get into a difficult -- a different -- a difficult area when I start commenting on Supreme Court decisions, which are correctly decided and which I may disagree with. Again, my personal, political or religious views, I would set aside. That is Supreme Court precedent.

BLUMENTHAL: Do you believe it was correctly decided?

VITTER: And, again, I will respectfully not comment on what could be my boss' ruling, the Supreme Court. I would be bound by it.


BERMAN: I'm joined now by CNN legal analyst Areva Martin.

Areva, you know, we see Supreme Court nominees, judicial nominees often try to avoid directly addressing specific decisions. Is this different?

AREVA MARTIN, CNN LEGAL ANALYST: Well, I think what we see, John, is typically they avoid those decisions, particularly cases where there's a pending case, where there hasn't been a final decision made.

This question is not that difficult to answer. And it's puzzling to me as to why she didn't answer it and why she didn't say that the decision was rightfully decided. That same question was posed to Chief Justice Roberts, and he answered it in the affirmative, saying that the Brown v. Board of Education Supreme Court decision was the right decision.

So when you look at her avoidance of that question, along with the way that she failed to provide key information to the Senate panel with respect to involvement she had had on abortion issues, she makes for a very troubling candidate.

BERMAN: And just the history here. You -- the reason that Roberts and Gorsuch both did give an answer on Brown versus Board of Education is because it is this landmark case that means even more than just the judicial decision, correct?

MARTIN: Oh, absolutely. When you look at the importance of Brown versus the Board of Education, we can't really state how important it was to the entire culture of this country. It desegregated public schools. It recognized that the separate but equal policy that had been in place for decades was harmful emotionally and psychologically to millions of African-American children. So for her not to vehemently support that decision is troubling, not just to me as a civil rights attorney, but to progressives and to anyone that believes that desegregation was the absolute right thing to do in that decision.

BERMAN: And she didn't say that segregation was not -- desegregation was not the right thing to do. What she did was say that I shouldn't be weighing in on a specific ruling. And there are justices on other cases -- you said that are pending -- many of these cases that judges won't comment on or nominees won't comment on are not pending. And very rarely will you hear a Supreme Court nominee comment on Roe v. Wade other than to say that they will uphold the standing law.

Scalia would comment on Marbury versus Madison, which is obviously centuries old at this point, because he doesn't think that incoming judges -- he didn't think incoming judges should comment on specific things. But there is a school of thought that on something like Brown, there is no harm on saying, you know what, this case was correctly decided.

MARTIN: Well, and I -- and I think you're right about that, John. Unlike the Roe versus Wade case, that is controversial, and we do have people who are pro-life and pro-choice and we know the kind of division that exists in this country around abortion. You would think in 2018, we don't have those issues when it comes to issues of race and desegregation and the importance of desegregating public schools. So I would put the issue of Brown versus Board of Education in a different category than even Roe versus Wade.

Now, she did make it very clear that she was pro-life and they talked extensively during the hearing about involvement she had had with pro- life, you know, panels and speeches that she had given. But I think the Brown versus Board of Education stands by itself because we're talking about race --

[09:55:08] BERMAN: Right.

MARTIN: We're talking about racial justice. And we're talking about inclusion. And I would think any judge that's going to be fit to serve would respect and appreciate that, you know, social justice issues like this, there shouldn't be any question about them.

BERMAN: Areva Martin, great to have you with us. Thank you very much.

MARTIN: Thanks, John.

BERMAN: Big day here. Just moments from now, CIA Director Mike Pompeo, now the president's pick to become secretary of state, his confirmation hearing on Capitol Hill. Our special coverage begins shortly.


BERMAN: The spotlight was on the NHL last night. This "Bleacher Report" is brought to you by Ford. Before last night's games, every single team put out their sticks in

tribute to the 16 members of the Humboldt junior hockey team in Canada who lost their lives in that fatal bus crash, plus every player wearing a sticker on their helmet to honor them. A nice tribute.

[10:00:09] I'm John Berman. Our special coverage of the Mike Pompeo confirmation hearing begins now with Wolf Blitzer.