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Rosenstein Warns GOP: Justice Department Won't Be Extorted; Washington Post: Mueller Raised Possibility of Presidential Subpoena. Aired on 8-9p ET

Aired May 1, 2018 - 20:00   ET


[20:00:11] ANDERSON COOPER, CNN HOST: Good evening. Thanks for joining us.

There's breaking news tonight. Deputy Attorney General Rod Rosenstein under nearly constant fire from the White House and now Capitol Hill where House members are reportedly preparing articles of impeachment against him fires back saying about those articles of impeachment, we will not be extorted.

He also weighed in on whether or not a sitting president can be indicted, why the president might be indicted -- and it's a big might, of course -- is that gets us to our keeping them honest report tonight and a question of collusion, multiple questions in fact as we learned from last night's leak obtained by "The New York Times", dozens of questions the special counsel Robert Mueller wants to ask the president.

The president's first reaction on Twitter was this: It would seem very hard to obstruct justice for a crime that never happened. Witch hunt.

For the record, that's not true. Legal experts point out that obstruction of justice is a crime in and of itself. You can be charged with it even if no one else is charged with another crime. We'll get deeper into the legal issues with professor Alan Dershowitz and Jeffrey Toobin in a moment.

But there was also another presidential tweet that followed that deserves some attention as well. The president tweeted, quote: So disgraceful that the questions concerning the Russian witch-hunt were leaked to the media. No questions on collusion. Oh I see you have a made-up phony crime collusion that never existed in an investigation begun with illegally leaked classified information. Nice.

So there's a lot to unpack there. We have to get this out of the way as long as he continues to say no collusion, we're going to continue to say the investigation isn't over. We don't know if the special counsel has found anything or will find collusion or coordination or obstruction for that matter.

But this tweet is a new spin on the president's off repeated refrain and the new twist is also a new misstatement of fact, no questions on collusion. Now, for the record, there are questions on collusion, multiple questions in fact.

Here are some of the questions "New York Times" published that deal with collusion.

When did you become aware of the Trump Tower meeting? What involvement did you have in the communication strategy including the release of Donald Trump, Jr.'s emails? During a 2013 trip to Russia, what communication and relationships did you have with the Agalarovs and Russian government officials?

What discussions did you have during the campaign regarding Russian sanctions? During the campaign, what do you know about Russian hacking, use of social media or other acts into the campaign? What knowledge did you have of any outreach by your campaign including by Paul Manafort to Russia about potential assistance to the campaign?

What do you know about communication between Rogers Stone, his associates, Julian Assange or WikiLeaks? What did you know during the transition about an attempt to establish back-channel communication to Russia and Jared Kushner's efforts?

Now, that's not even all the questions that deal potentially with whether there was collusion between the Trump campaign and Russia. There are more. To say there are no questions about collusion is false to the point of being laughably false.

Now, of course, the president banks on the notion that if he says something, if he repeats something, people will believe it and there do seem to be people who trust the president's misstatements of fact more than their own eyes, more than reality itself.

As for the White House, at the press briefing today, Sarah Sanders was asked about this and the obstruction question multiple times.


REPORTER: Is the White House concerned as Congressman Adam Schiff has said there's so many of the questions point to obstruction of justice?

SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY: We here at the White House tried never to be concerned with anything dealing with Adam Schiff.

REPORTER: The president has tweeted about it. He's talked about how none of these questions relate to collusion. But that's not true, over a dozen of them to do. We've talked about accuracy from the president in the past. Why is he mischaracterizing these reports?

SANDERS: Once again, I'm not going to get into the back-and-forth on matters involving the special counsel and I would refer you --

REPORTER: That's not a question involving the special counsel. That's --

SANDERS: It certainly has implications with the special counsel and I'm not going to get into a back-and-forth or refer you the president's personal lawyer.

REPORTER: To the president's tweet this morning, he said there is no question on collusion. But when you look at these specific questions about outreach by the campaign to Russia it's aren't these questions about collusion?

SANDERS: Oh once again, I'm not going to get into a back-and-forth about questions leaked or anything having to do with the special counsel, and I would refer you the president's attorneys.


COOPER: So, with the exception of a swipe at Congressman Schiff, a pretty standard repeat performance. The questions are asked. Sanders refuses to answer them, punch the president's personal attorney, says she doesn't want to get back and forth. Not exactly Trumanesque, but the White House passes the buck while the president says the buck doesn't even exist.

Keeping them honest, the buck may not stop there, but neither will the questions.

Joining me now, chief White House correspondent Jim Acosta.

So, Jim, the president certainly didn't wait long to weigh in on these possible Mueller questions.

JIM ACOSTA, CNN CHIEF WHITE HOUSE CORRESPONDENT: That's right, Anderson it's interesting to note that while the president tweeted about these things this morning. He did not answer the question. I was in the Oval Office with him earlier today, asked him if he wanted to comment on the leaking of these questions. He was given multiple opportunities to do so. He declined to do so.

So, it appears at the White House and the president prefer to have these comments put out in a tweet, in writing, so they essentially can't be questioned and when he is asked in person, he doesn't want to talk about it. So I think that's an interesting distinction to make there.

But getting back to the tweets, just to show the one that you talked about earlier.

[20:05:02] When the president said, no questions on collusion, that's obviously not the case. You mentioned several there as you went down the list, Anderson, these are obviously questions that have to deal with collusion and when the White House was asked about this earlier today, they simply didn't want to talk about it.

I will tell you though, there is a real and practical implication in all of this and that is whether or not it affects, you know, whether the president will sit down ultimately with the special counsel Robert Mueller. I was told with -- by a source close to all of these discussions -- a White House official last night who said that it could possibly complicate the potential for sitting down with Robert Mueller. They are not happy that these questions were leaked out, but at the same time they do give you a very big insight into what the Mueller investigation is going for.

They are looking at questions of collusion whether the White House that the president wants to admit it.

COOPER: And I mean, Jim, this is yet another example from the president of denying things that in reality are in fact true, demonstrably true.

ACOSTA: That's right, Anderson. I mean just because the president says it or tweets it doesn't necessarily make it true. There's obviously this tweet this morning where he said there were no questions on collusion, but, Anderson, you go back to the president's multiple misstatements about Barack Obama's birth, whether you go back to his tweets about Barack Obama wiretapping at Trump Tower, or even his repeated statements and tweets that millions of people voted illegally in the 2016 election. Remember he just said this a couple of weeks ago repeated it again a couple of weeks ago and said this wasn't a conspiracy theory.

It is a conspiracy theory and the president continues to misstate facts and twists the truth and lies in many cases, and it is a window into where he is thinking right now in terms of this Russia investigation. The thinking is I think inside the president's inner circle and perhaps with the president himself, if he can continue to work reality -- the public's sense of reality when it comes to this Russia investigation, he can convince enough people that this is not an issue.

But as you said, Anderson, we have to keep reminding our viewers, the Mueller investigation continues. There's a Senate Intelligence Committee investigation that continues and those investigations have not come to a conclusion on this issue of collusion.

COOPER: All right. Jim Acosta, thanks very much.

Now to a new reporting about a move by a group of House Republicans who, according to "The Washington Post", have drafted articles of impeachment against Deputy Attorney General Rod Rosenstein, a move being described as the last resort.

Today, Rosenstein responded to that report.

CNN's Manu Raju has more about that.

So, Deputy Attorney General Rosenstein had some pretty strong words to House members talking about impeaching him today, right?

MANU RAJU, CNN SENIOR CONGRESSIONAL REPORTER: Yes, no question. Rod Rosenstein has come under enormous pressure from House Republicans, including from powerful chairman with subpoena power to turn over thousands of documents as the House GOP targets how the FBI handle the Clinton email investigation, the Russia probe.

Now, Rosenstein has relented a number of those demands from House Republicans who have been backed by Speaker Paul Ryan. They've turned over documents, given that the Republicans access. But there are thousands of other documents of the GOP wants to see and we have learned, Anderson, that in a private meeting last month, Congressman Mark Meadows and Jim Jordan both asked to see an unredacted copy of a memo Rosenstein wrote to Bob Mueller, detailing exactly what the special counsel could investigate in the Russia probe and Rosenstein resisted, telling the Republicans, no.

Now, Republicans have been complaining for months the document -- the document production overall has been much too slow and now, Meadows and other conservatives have discussed the possibility of impeaching Rosenstein if he doesn't comply, even putting together a draft articles of impeachment. Now, when Rosenstein was asked about this by our colleague Laura Jarrett, he pushed back.


ROD ROSENSTEIN, DEPUTY ATTORNEY GENERAL: There were people who have been making threats privately and publicly against me for quite some time and I think they should understand by now, the Department of Justice is not going to be extorted.


RAJU: Now, Meadows later respond that Rosenstein should step down if he feels like he's being extorted for simply doing his job, and that's exactly what Democrats say the Republicans are up by these tactics. They believe the GOP wants to give Trump cover to fire Rosenstein and install a new deputy attorney general who would have oversight of the Russia probe, Anderson.

COOPER: He also spoke about whether or not a sitting president can be indicted.

RAJU: Yes, he did, and he was very careful in his remarks. He said he didn't want to answer this in the context of any current situation that is going on, meaning the Mueller investigation. But he said that the Justice Department has in the past reached an opinion that a sitting president cannot be indicted. Indeed, it was in actually in 1973, an opinion that was reached then and later affirmed in 2000, saying that such an indictment would, quote, unconstitutionally undermine the capacity of the executive branch to carry out its constitutional obligations.

But Rosenstein today, Anderson, said that was a decision reached by, quote, somebody in the department at that time and you shouldn't try any inference from his discussion of that opinion now, Anderson.

[20:10:00] COOPER: All right. Manu Raju -- Manu, thanks.

Joining me now, criminal defense attorney, Alan Dershowitz, author of "Trumped Up: How Criminalization of Political Differences Endangers Democracy". Also, CNN chief legal analyst Jeffrey Toobin.

So, Jeff, the claim that President Trump said that there are no questions on collusion in the leaked Mueller questions -- I mean, that is blatantly false, isn't it? I mean, there are least a dozen questions in there that are directly related to collusion and coordination.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: I would say it is not just blatantly false about the questions, because as you have pointed out several times, there are many questions in the Mueller list that deal with collusion. But the fact that the president keeps saying over and over again, there was no collusion, there was no collusion, that has not been established and in fact there are lots of evidence that collusion did take place, you know, starting with the infamous meeting in Trump Tower where Donald Trump Jr. sought to get dirt on Hillary Clinton from the Russian government. That is collusion right there, and that's just the beginning.

So, I think, you know, patience is not a virtue that we all have, but this is an investigation about collusion. There is already some evidence of collusion and we'll see if Mueller finds more.

ALAN DERSHOWITZ, CRIMINAL DEFENSE ATTORNEY: But the key is to distinguish between illegal aspects of collusion and lawful aspects, meeting with somebody to get dirt on a presidential candidate may be a terrible thing to do, but it's not unlawful. I think generally those questions have to be parsed, to distinguish between lawful but maybe bad, unlawful and criminal. That's true of the obstruction of justice as well.

COOPER: Right. When the president says that it's very hard to obstruct justice if there's no underlying crime --


COOPER: -- that's wrong.

DERSHOWITZ: Of course, Martha Stewart went to jail for essentially wasn't obstruction of justice. It was talking falsely to agents --

COOPER: By Jim Comey, by the way.

DERSHOWITZ: -- for something that wasn't a crime.

COOPER: Right.

DERSHOWITZ: So, of course, you can be convicted of that. I think he was making a slightly different point. He was saying, why would anybody obstruct justice if there wasn't even an underlying crime. It's a slightly different point and I understand --


TOOBIN: Can I answer that question?

DERSHOWITZ: Believe me, I understand the answer people will do that because they have no idea whether it's an underlying crime. I think one important point that came out -- (CROSSTALK)

COOPER: Let him finish.

DERSHOWITZ: OK, there's just one more point and that is I think the emphasis in the questions on why the president fired Comey strengthens the case for Rod Rosenstein recusing himself because there's absolutely no doubt that he will be called as a witness. If there is an indictment, if there is charges, if there is an impeachment, if there are any kind of legal proceedings relating to why the president fired Comey, the first witness has to be the man who wrote the memo justifying the firing.


ZELENY: Well, if I could just get to the point of like well why would someone lie when there wasn't an underlying crime? Here's a reason, because they're liars. Liars lie, regardless of the precise legal setting in which they find themselves. I mean, people who are compulsive liars, they lie and as Alan pointed out correctly, it is not -- there doesn't have to be an underlying -- an underlying crime.

DERSHOWITZ: But remember that lying is not a crime. It's lying to the FBI that's a crime. And there's another very interesting point. "The New York Times" has an editorial, lead editorial today in which it says, every question that Mueller is going to ask Trump, he knows the answer to it. They reiterated what Comey said. Comey says the way investigations work, you get all the information, you know what you're going to do, then you ask the question of the subject in order to give them a chance to lie. That's called a perjury trap.

And I think both "The New York Times" editorial and Comey's book raises an argument, a legal argument that Trump's people can make, saying, you're not allowed to ask him a question to which you know the answer. The object of a grand jury is to find out information you don't know, not to ask somebody a question the answer to which you know, simply to see whether he's going to commit perjury.

COOPER: But a perjury trap makes it sound like this is somebody who can't help themselves and lies just come out of their mouth and so they commit perjury. I mean, perjury trap -- you only fall into a perjury trap if you are actually lying.

DERSHOWITZ: Of course, but the reason why you're not allowed --

COOPER: You're choosing to lie.

DERSHOWITZ: Of course, that's right, but it is an improper function of the grand jury to set a perjury trap even for a guilty person.

COOPER: Jeff, do you agree with that?

TOOBIN: I completely disagree with that. You know, Donald Trump is a key witness in this -- in this investigation, perhaps the key witness. The idea that he is somehow excused from testifying because the grand jury already knows some of the information about which he'll testify it's just a preposterous idea.

DERSHOWITZ: That's not my argument.


DERSHOWITZ: My argument is that you can't ask him -- for example, if they have a witness who says I was on a call with Trump and here I have my notes and I have a tape recording, you cannot ask him the question, where you want to call with that person?

[20:15:03] I won a case like that a few years, several years ago in Massachusetts.


TOOBIN: Why not? Why can't you --

DERSHOWITZ: Because the grand jury's purpose is to get information not to give people an opportunity to commit perjury.

COOPER: Guys --

DERSHOWITZ: That's not an appropriate function of a grand jury.

COOPER: I got a break in here, if you could just stay with us. We got to get a quick break in. When we come back, we do have some breaking news now from "The Washington Post" that's just breaking, that the special counsel Robert Mueller raised possibility of a subpoena in a meeting with the president's legal team. We're going to have comments from Professor Dershowitz and Jeff Toobin on that. The latest, next.


COOPER: There's breaking news tonight from "The Washington Post" that we're just learning about, about a meeting between the special counsel and the president's lawyers back in early March, at which the S-word came up, subpoena.

Joining me on the phone is Josh Dawsey of "The Washington Post".

So, Josh, it's fascinating reporting. How did the prospect of special counsel Mueller subpoenaing the president come up between the president's legal team and Mueller?

JOSH DAWSEY, WHITE HOUSE REPORTER, THE WASHINGTON POST (via telephone): Anderson, there's been a lot of wrangling over that interview which we and others have reported, lots of meetings. We would like to take some questions in writing, we'd be willing to do this, we'd be willing to do that.

A couple of months ago, there was kind of a breakdown a negotiation and at one meeting, the special counsel's team raised the idea of a subpoena provoking an angry reply from John Dowd, within the president's lawyer who basically said you can't fool around with the president of the United States. This is serious business, and the kind of talks broke down over a presidential interview.

Obviously, now, we know Rudy Giuliani as a former New York City mayor is out taking over the legal team and as we started to talk. But the president has been reticent to do an interview after two things.

[20:20:03] First, in the raid of Michael Cohen, his long time personal lawyer, and two, seeing the number of questions they want to ask that are not about so-called Russian collusion, a potential obstruction and other business deals, meeting in the Seychelles, a whole host of issues that is also electives and consternation among the president's advisors about you can interview with a special counsel.

COOPER: Well, another interesting detail in this article is that when this meeting sort of broke down or got contentious, the Mueller team or Mueller himself said, well, look, we can give you more information about some of the topics and that that it was Jay Sekulow who wrote out those 49 questions which I -- were leaked. I assume that's the -- those are the questions that were leaked last night, correct?

DAWSEY: Correct. And my colleagues today also were able to obtain the questions that we clearly, Anderson, that's not in totality everything they could ask the president.


DAWSEY: His legal team basically was saying we want to know what you want to ask us that we cannot provide you in writing or that you don't know already, basically tell us why a presidential interview is compelled. This is the leader of the free world. They provided those 49 questions.

Now, what our experts have told us is they're likely to drill down deeper in each of those topics. They're likely to show the president emails to ask him, you know, questions of what he remembers in a meeting. And a lot of these questions are fairly open-ended, so they can lead to grumbling answers from the president and that's what some of his advisors fear could trip him up in an interview with a special counsel.

COOPER: But just to be clear, the 49 questions that the first broke last night, those were actually written down by Jay Sekulow, according to your reporting. Is that correct?

DAWSEY: Correct, they were -- they were written by the president's legal team chronicled in writing on that side after having a conversation with a special counsel Mueller and his team.

COOPER: So, it's not -- it wouldn't seem possible that it was a leak from the Mueller team if those questions were written by Jay Sekulow, it would either be by the president's legal team or by someone in the White House who somehow had access.

DAWSEY: Right. We obviously, you know, Anderson, don't discuss our sourcing on stories, but it's clear to say that the questions has been reported by "The New York Times" and by "The Washington Post", and all the additional reporting we've done are based on how the president's lawyers understand the questions today.

COOPER: Which is interesting because the president himself tweeted about it this morning, complaining about the leak itself, which now seems pretty obvious sort of at least what direction it was it was coming from.

Josh Dawsey -- I'm sorry, go ahead, Josh. DAWSEY: And you've seen some of his allies already today, you know,

accused the special counsel of leaking or making those charges. I think the special counsel has taken some pride in this investigation, having a spokesperson who, you know, does not comment and have been even critical of the president's legal team over time for what they perceived as speaking to the press inartfully.

We are obviously as reporters we always welcome everyone to speak to us and we take all leaks from all sides.

COOPER: Josh Dawsey, appreciate your reporting as always. Thanks.

Back now with professor Alan Dershowitz and Jeffrey Toobin.

Professor Dershowitz, I mean, fascinating reporting. Is it surprising?

DERSHOWITZ: Yes. Well, I think we're going is to a subpoena. I think right now, the president's legal team should have no interest in answering these enormously broad questions voluntarily. They'll get the same broad questions artfully asked at a grand jury, but at least they'll be able to challenge, A, the entire process of subpoenaing the president, they'll lose on that.

Second --

COOPER: You think that they will lose on that?

DERSHOWITZ: I think they will lose on that. I think they will win on some areas of questioning. For example, why did you fire? What was your motive? What was your reasoning? I don't think you can question presidential acts that are covered by Article II. But --

COOPER: You can't get to intent?

DERSHOWITZ: I don't think you can or motive. But I think what you can get to is what the president's most vulnerable on and that is business dealings before he became president. No court is going to deny the grand jury the power to get those questions. So, the irony is those questions that he has the best legal right to prevent are not the most important questions. Whereas the ones he has no legal right to prevent are the most -- damaging questions.

COOPER: Jeff, I mean, based on this reporting, and you know do you believe what the professor just said that that -- the subpoena seems to be where we're heading? I mean, this article, it talks about how the president is fuming about the Michael Cohen raid, doesn't want to sit down. It talks about it, you know, 20 times a day I think it says that some point in this article.

TOOBIN: Right. I think -- yes, I agree with Alan that a subpoena is coming and I agree that ultimately, the president will lose. I disagree that that the courts will limit the Mueller much in what he can ask. I think he will be allowed to ask about motive because I think it's relevant. But the larger point is, I think the president has a way of short-

circuiting this entire process and I think that's what he's going to do ultimately. We just take the Fifth, which is if you stand --

DERSHOWITZ: Oh, no. Oh, no, no, no.


TOOBIN: Can I finish, Alan?

[20:25:01] Which is, you know, the president will denounce the process, it's a witch-hunt, he doesn't want anything to do with this. There is nothing Mueller can do if the president takes the Fifth --

DERSHOWITZ: Of course, there is. He gives them immunity, number one.

TOOBIN: He's not. He's never going to give the president immunity --

DERSHOWITZ: Of course, he is. Let me tell you why he'll give the president immunity, because immunity doesn't apply in an impeachment proceeding, and no matter what Rosenstein says, you're not going to get a reversal the Justice Department suddenly say when the president is Trump, we've changed their mind, now you can indict him, now you can prosecute him.

So, he is at no risk of being indicted or prosecuted. He is at risk of being impeached and if he foolishly takes the Fifth, he gets to be asked all these same questions under immunity and all the answers can be used against him in an impeachment proceeding .

So, I have to tell you, Jeffrey, you're an A+ student, but, boy, on this one, taking the Fifth -- I'm not even going t give you your grade, it won't happen.

TOOBIN: Watch it happened. Watch it happened. He's going to denounce --

DERSHOWITZ: Come back and we'll show you this video.

COOPER: Jeff, to the professor's point though, if he takes the Fifth, wait, again, I'm not a lawyer, you're saying if he takes the Fifth --

DERSHOWITZ: Give him immunity.

COOPER: And that -- but his answers can be used against him --

DERSHOWITZ: In an impeachment proceeding.

COOPER: So, Jeff, why would he take the Fifth if that's the case?

TOOBIN: Because the Mueller's office will never -- will never give him immunity. They are not going to give him the opportunity to be excused from any kind of criminal prosecution down the road. I mean that's what immunity means is that it could never be used against you. So, the idea that the president -- that the -- you know, this central figure was is going to be excused from any kind of criminal liability --

COOPER: If the Department of Justice believes that a president cannot be indicted, then why would they -- did the Mueller team somehow fight that?

DERSHOWITZ: Moreover, it's not transactional immunity. It's use immunity. So, they could they can go after him. They just can't use the evidence they obtained or the fruits of that evidence in the criminal prosecution.

TOOBIN: I think the odds of Mueller giving the president of the United States immunity are infinitesimal. It is not going to happen. And the president can end this process overnight if he decides to take the Fifth.

DERSHOWITZ: Bad judgment. It would be his bad judgment as the lawyers who told President Clinton to testify about --

TOOBIN: Exactly, he should have taken the Fifth. See?

DERSHOWITZ: He shouldn't have taken the Fifth. He should have paid the money. He had an alternative that didn't even requirement him to take -- no president has ever taken the Fifth. I don't believe any president will ever take the Fifth, although we know as constitutional students that the Fifth is not an admission of guilt. To the American public, taking the Fifth makes you a Fifth Amendment criminal or Fifth Amendment president and that would just be something tat I don't think this president will ever do.

TOOBIN: We shall see.

COOPER: If you could stay with us. More on this breaking news after a quick break.

[20:30:44] ANDERSON COOPER, CNN ANCHOR: Breaking news tonight from the Washington Post at a meeting between the Special Counsel and the President's lawyers back in early March. The lawyers insisted the President wasn't obligated to speak with investigators. Robert Mueller reportedly had a different take instead he could issue a subpoena for the President to appear before a grand jury. Again, this is according to the "Washington Post" and four people familiar with the meeting.

Back now with Professor Alan Dershowitz and Jeffrey Toobin, also joining us, the CNN Chief Political Analyst Gloria Borger.

Gloria, you're getting some new reporting on this as well?

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Yes, you know, we've confirmed that kind of tense meeting between the special counsel and former attorney John Dowd. But also we're learning is that really now you have his new legal team in place and they are trying to figure out what to do but there is a sense among a lot of his attorneys that the President ought to stay away from this. Ought to fight this, and that the President's state of mind particularly after the raid of his personal attorney, Michael Cohen's office is I'm not going to testify so -- sit for an interview.

So, whereas the President initially was sort of all for it, I'm going to go sit with Mueller, and I can do this. Right now his state of mind is no way I'm going to do this.

COOPER: Professor Dershowitz, how long a fight could the President put up through courts to try to resist a subpoena?

ALAN DERSHOWITZ, HARVARD LAW PROFESSOR: Well, I think in general, since he is the President, the courts will defer and give him a stay and allow him to take it up through the United States court of appeals. And ultimately the Supreme Court which is more than a year even with expedited appeals but of course that gets him to a time when Congress maybe controlled of course by the Democrats. So -- but he can delay it. And again, as I said before and I think Jeffrey agrees. We may disagree on how much would haven't lose, but he will lose enough that he will have to give some testimony under the worst of circumstances without his lawyer being there with no restrictions. And he will have to at least provide some answers.

COOPER: So Jeffrey, do you agree that is one possible incentive for the President to not actually wait until the subpoena but agree to cooperate if he can get to some sort of interaction with his attorneys?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: My information is similar to Gloria's. They are just not going to put Donald Trump in front of Robert Mueller's team voluntarily. They just think that's a bad idea. I think they're right that it is a bad idea. And I think they are going to wait for a subpoena to play out.

I do agree with Alan that ultimately, the President will lose in court. And I also agree that it will take some number of months. That is a mixed blessing. I don't know exactly the political calculation on that. It is good because it sort of kicks the can down the road probably past the midterm election. It's bad because it means the Mueller investigation just goes on and on and on, including to a time when the Democrats may control the House of Representatives.

BORGER: You know --

TOOBIN: So I think ultimately, he is going it lose about whether he has to answer questions.

DERSHOWITZ: There's another --

BORGER: You know, and then there is a question, can he plead the Fifth? Can the President of the United States plead the Fifth?

DERSHOWITZ: Yes. Of course.

TOOBIN: He clearly can.

BORGER: And how would that look politically after he has been on the record saying, you know, only guilty people plead the fifth. Would he be able to get away with it? You know, his attorneys believe, quite frankly and they don't even want to talk about pleading the fifth at this point because they say, we're nowhere near that but his attorneys believe that politically, the President has succeeded in making the case that the investigation itself is not credible and the investigators are not credible and that he can take that argument and run with it through the midterm elections and at least get him through that and hopefully keep his control of the House.

COOPER: Professor?

DERSHOWITZ: Well, that might help him in the court of public opinion among his people. It is not going to help him in the courts of law. The courts of law will compel him to answer some questions, and as I've said, perhaps the questions he may be most vulnerable on, I don't know, he may have no vulnerabilities at all but he has no legal claim, no constitutional claim about his business relations, what he did before he was President. There is some possible argument that he has some executive privilege claim.

[20:35:04] By the way, he may have waived some executive privilege. If you tweet and go public and you say things, and then say, oh, I won't answer questions about that, because I have executive privilege, there is a concept of waiver. And the President may have in advertently waived some of his executive privilege by so promiscuously tweeting and speaking about many of the same issues in the public, so that could come back to bite him.

COOPER: Always fascinating, Professor Dershowitz thanks very much, Jeffrey Toobin, Gloria Borger as well.

Coming up, remember that strange letter that candidate Trump's doctor put out during the campaign about Trump's astonishing excellent lab reports and extraordinary stamina and positive test results? You'll never going to guess who actually wrote that letter according to the doctor. I know, you can totally guess. But we will tell you anyway ahead. Next.


COOPER: Breaking news tonight about one of the strangest letters maybe ever written. Dr. Harold Bornstein, you remember Dr. Bornstein, he is the President's former doctor who released a letter in 2015, saying the President Trump have astonishingly excellent lab results, extraordinary physical strength and stamina and the "If elected, Mr. Trump, I can state unequivocally, will be the healthiest individual ever elected to the presidency."

CNN's Alex Marquardt joins us now.

So Alex, you spoke to the Doctor today about that letter, what have you learned?

ALEX MARQUARDT, CNN SENIOR NATIONAL CORRESPONDENT: Yes, Anderson. We are right in to the Dr. Harold Bornstein right out here outside his office on Park Avenue and I know you'll be shock to learn that he was not the creator force behind this letter. He is now saying that if fact Donald Trump who essentially put the words in his mouth and dictated that famous letter from December 2015.

The actual quote from Dr. Bornstein, he dictated that whole letter. I didn't write the letter. Essentially what he is saying is that Donald Trump told him what to put in the letter and that he then wrote it up.

[20:40:04] Now, Bornstein is admitting to some creative license in the wording. He attributes it to what he called his dark humor and compared it to the movie "Fargo," saying it takes the truth and moves in a different direction.

He moves the truth in a different direction. Now, he says, he got the call from Donald Trump on that day in December 2015 when he was crossing Central Park, which is a few blocks away from here, in a car with his wife. Trump was telling him, dictating to him, he said, the words that he was used in that letter. And Bornstein was telling him, you can use this you can't use this. They settled on the wording, Bornstein got to the office, wrote up the letter signed it and then Trump's office came by later that afternoon, he said it, on 4:00 picked it up and there was the letter that we all then read. Anderson.

COOPER: I mean, that is bizarre, number one. It seems odd that a doctor would agree to just be dictated a letter by his patient. I'm not sure what it says about the doctor or the power Mr. Trump had over the doctor. But has the White House responded to the doctor's claim at all?

MARQUARDT: Well, they had a very close relationship. And certainly Bornstein who is no longer the President's doctor feels betrayed by the President and he says that he was very loyal to him and that over those 35 years that he didn't reveal to any of his closest friends or neighbor that he was the President's or the then candidate Trump's doctor. So he was very loyal.

No, we have reached out to the White House and they have chosen not to respond. Anderson.

COOPER: Well, I don't understand what does he feel betrayed about? Do you know?

MARQUARDT: Well, he is saying in essence, yes, yes, he comes down to this raid that was carried out here over the medical records.

COOPER: OK, which we are about --

MARQUARDT: Carried out by two of these aides.

COOPER: Right. So we are about to get into that.


COOPER: I sort of jumped the horse on that. Alex, stay with us because I do want to bring in Dr. Bornstein, saying his office was raided by the former body guard, also a Trump organization lawyer and a third "large man" who came to collect the President's medical records. He tells NBC news that this supposed raid on his office happened in February 2017 after he told the New York Times that the President takes hair loss drug propecia. The doctor used extreme language to describe said raid. Listen.


DR. HAROLD BORNSTEIN, TRUMP'S FORMER PHYSICIAN: I feel raped. That's how I feel, raped, frightened and sad.

UNIDENTIFIED MALE: And what exactly were they looking for?

BORNSTEIN: Well, medical records, pictures, anything they could find. They must have been here for 25 to 30 minutes and it created a lot of chaos.


COOPER: CNN Senior Investigation Correspondent Drew Griffin has a new reporting on this. He joins us now.

Drew, this whole thing is bizarre to say it at least, according to your source this was not a raid. What do you leaned?

DREW GRIFFIN, CNN SENIOR INVESTIGATION CORRESPONDENT: First of all, this took place more than a year ago, Anderson. We're just hearing about it now. A source very familiar with the hand off of these records saying this was nowhere near a raid. Completely has a different opinion of what happened.

What it was, was the President shortly after being sworn in saw or heard Dr. Bornstein again talking about his public, his health publicly. And the decision was made to get the President's medical records and bring them back to the White House.

The President or the President's staff assigned Keith Schiller to do that. That was the President's aide at that time. And Schiller, according to my source presented or brought a letter from the White House's physician to the doctor's office. It was accompanied by a Trump organization attorney, a man named Alan Garten and the two of these men came in person because they wanted to collect the records then.

They didn't want the records to be FedEx or faxed or emailed in anyway that they can get out. And they requested a copy of the records.

In no way did they say that this was a raid of any kind. They stayed for about 20 minutes. That seems to match what the doctor says. But they just have a completely different interpretation. This was a request for the President's medical records and those records were handed over.

COOPER: So according to your reporting, Dr. Bornstein willingly handed over the President's medical records at the end of this meeting? GRIFFIN: Yes. Now, the source says that the doctor and I will read you this, "Bornstein was making a big deal about the request. He seemed flustered and he couldn't operate his copy machine." Remember that Anderson, the original request for copy of the President's medical record, this is according to my source. But Bornstein couldn't work the copy machine.

In fact he had trouble finding all the records. The office was described to me as being disheveled. So they keep trying to talk him and get the copy machine going and finally Keith Schiller said, just give me the hard copy and we'll go. And that is eventually what took place.

[20:45:08] Those personal medical records of President Trump were given to him. The hard copies and the two of them left. It was in the doctor's right and he was right that he should have retained the original copies but he couldn't get the copy machine to work according to my source and so that is why the records were taken.

This person, Keith Schiller, the presidential aide and the attorney did not rifle through any records. They didn't do any kind of raids. This is according to my source. They just went to get the records and that is what they did.

COOPER: All right, Drew stay with us, I was to bring in Alex Marquardt back. I also want to bring in Chief Medical Correspondent Dr. Sanjay Gupta.

So Sanjay, the fact that according to Dr. Bornstein then candidate Trump dictated that glowing letter. Have you ever heard of such a thing? Is that even legal for a doctor to release something that was written by a patient? I mean, can I call up my doctor and have him just dictate a letter to him?

SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: No. I mean, I never heard of such a thing. I don't know about the legality of it. It is certainly unprofessional. It is unethical. I haven't heard of it. And we kind of anticipated or expected or not surprised by this. Not only because of the hyperbolic exaggeratory and sort of nature of the letter but also the idea that there was things like the test were very positive.

COOPER: Right, which is not something you would say about it?

GUPTA: -- is a bad thing in medicine.

COOPER: Right, exactly. I remember you're saying that -- point that out --

GUPTA: Yes, exactly.

The other thing, I just want to point out, Anderson, is that, you know, what I immediately thought of besides what was in the letter and the types of terms that were used it also now makes me question even more what was not in the letter. If specific things are being told to say put in the letter then what was not in the letter, not only with Dr. Bornstein, but then subsequently with Dr. Ronny Jackson. I was at that press briefing that he give and, you know, there was a lot of, you know, pretty hyperbolic language that was being used there as well, and that is concerning because the language aside, you need to know everything. How accurate? What do we really know about the President's health right now? It is hard to say based on this new reporting.

COOPER: And Alex, I understand Dr. Bornstein actually told then candidate Trump what he couldn't put in the letter as he was dictating it, is that right?

MARQUARDT: Yes, that's right. So essentially what we understand from Dr. Bornstein is that, then candidate Trump in 2015, as they were in this car was calling him up and giving him this very grandiose language with lots of superlatives.

Anderson, you read a couple of quotes there and it certainly sounds like something that the President would say. And so what Bornstein said was that Trump was dictating him these words, dictating him these lines and that Bornstein was saying, all right, well, you can say this, you cannot say this. And he definitely incorporated some of the language that the candidate wanted to include.

And then he sort of put it into his own wording. So he got dictation in terms of the gist and certainly some of the terminology, some of the phrasing and then he took some creative license and used as a mentioned, you know, some of his dark humor infused it into that letter. So we have this amalgamation of both of these gentlemen. But certainly the force behind it, the feeling behind it is coming from Donald Trump according to Dr. Bornstein.

COOPER: Sanjay, I want to ask you about Drew's reporting on the President's medical record. What is the procedure for a President to obtain medical records from a former doctor? How would that work exactly or frankly anybody obtaining former medical records, can you just take your medical records?

GUPTA: Yes. It is actually pretty interesting and it depends a little bit from state to state but medical records, the actually original copies are owned by the doctor, the hospital where the testing was performed. And patients can certainly get copies of those medical records and they can correct inaccuracy if things in the medical record are inaccurate but for a period of time, in New York, for example, the hospital or the doctor's office owns those records for 6 years, and then after that, they can give the entire, including the originals to the patients.

But in this case, going with an authorization, requesting medical records, getting copies of those medical records, having them then for the patients, that is normal. Whether you are the President or any other patient you are entitled to those copies of the medical records but you have to give the authorization.

COOPER: Fascinating. Sanjay Gupta, Drew Griffin, Alex Marquardt, thank you very much. On the U.S. border with Mexico tonight, more Central American migrants were brought in for asylum processing, hoping of course to be admitted to the United States. CNN has been following the so-called caravan for some time now. We have the very latest on what is going on next.


[20:53:48] COOPER: Organizers say 17 more Central American migrants have been selected for asylum processing by U.S. customs and border patrol after being part of that so called, caravan of migrants, the U.S. border with Mexico.

Most say the organizers are mothers and their children. CNN's Leyla Santiago has been with the marchers practically since the beginning. She joins us now. So what kind of movement is happening in the line for processing these asylum seekers?

LEYLA SANTIAGO, CNN CORRESPONDENT: Well, we've certainly seen more movement today than we did yesterday or in the previous days as they stood in line right up to the door before they were stopped by customs and border patrol, claiming they did not have capacity to process these asylum claims.

So today -- yesterday rather they took in a small group. Today they've taken a few small groups. We believe the total to be around 28 total migrants from this caravan now being processed. And when I say processed, that means they will now have a series of interviews in which they will have to prove credible fear before they move forward in the process to seek asylum in the United States of America, a process that can take weeks in many cases, months before they have any sort of conclusion.

COOPER: You've been with this caravan now for, I think, nearly a month now. Has anyone that you've been talking to made it into processing?

[20:55:10] SANTIAGO: Right. We actually do know several of the people who have made it. In particular we have been following one mother. She is a pregnant mother of two. She's got a two-year-old as well as a six-year-old. Her name is Gabriella.

I have seen her as she's been on a bus for more than 50 hours, as she has climbed her way up onto a freight train on a mound of scrap metal where her children have even had cuts as a result. I've seen her sleep on shelter floors for night, had problems with sickness for herself as a pregnant woman as well as her two children.

She was actually one of the first to make it in. What I was told is that the border patrol officer came out, said, we can take eight people. The organizers said, can you give us a little more clarification as to who you want? And he said in order to avoid chaos, women and children. That's when the migrants themselves chose the first eight that would go in. And from what some of the migrants told me, they said, Gabriella, go.

And so she was among the first to go inside to seek asylum. She said she is fleeing Honduras because of violence. I have spoken to her relatives today. They have not heard from her yet, so chances are -- it's a bit difficult to track for right now, but she's likely still in detention waiting for her moment to speak to an asylum officer and make her claims.

COOPER: All right, Leyla Santiago, thank you very much.

Up next, more on the breaking news that the Special Counsel Robert Mueller raised the possibility of a subpoena in a tense meeting with the President's legal team, details ahead.