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President Trump Claims He Has Absolute Right to Pardon Himself; Rudy Giuliani Says Trump Dictated Statement on Trump Tower Meeting; Supreme Court Rules on Same-Sex Wedding Cake Case; Aired 10-10:30a ET

Aired June 4, 2018 - 10:00   ET


[10:00:20] POPPY HARLOW, CNN ANCHOR: Top of the hour. 10:00 a.m. Eastern. Good morning, everyone. I'm Poppy Harlow in New York. And we begin with breaking news. It is a pair of breathtaking claims from President Trump this morning.

The first, that he has a, quote, "absolute right" to pardon himself. He continues, writing, "But why would I when I've done nothing wrong?" Minutes later, the president calls the appointment of the special counsel Bob Mueller, quote, "totally unconstitutional," even though it is totally constitutional. Nor is it remotely clear that the president can put himself above the law and pardon himself.

Our Kaitlan Collins is at the White House. Exactly 500 days after the president took the oath of office, and let's begin with the issue of presidential pardons. The president, his team has been talking about it all weekend and now the president is talking about it.

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: Yes, Poppy. Not exactly the message that Republicans want out there shortly before the midterms, but this is what the president is going with this morning, maintaining that he is above the law, that he could pardon himself if it came to that, saying that, "has been stated by numerous legal scholars, I have the absolute right to pardon myself," but the president adds, "Why would I do that when I've done nothing wrong?"

He goes on to talk about the special counsel's Russia investigation saying it's a never-ending witch-hunt that is led by 13 angry and conflicted Democrats.

So here, Poppy, the president is maintaining that he could pardon himself if he needed to, but he doesn't need to, and when I asked Kellyanne Conway, the president's counselor, why he believes he's above the law, this is what she had to say.


COLLINS: Why does the president think he's above the law, Kellyanne?


COLLINS: Why does the president think he's above the law?

CONWAY: Well, why would he need to pardon himself when he's done nothing wrong?

COLLINS: But he said --


CONWAY: To engage in these hypothetical exercise.


COLLINS: So there Kellyanne saying that we're engaging in hypotheticals, but it is the president himself who raised this possibility on Twitter today, that he does have the right to pardon himself, something that is actually disputed, though the president seems to say that is a fact here. And it goes on to raise the question the president is saying he has the right to pardon himself, but he doesn't feel the need to do so, but you have to ask the question, why would the president be asserting that he has the right to pardon himself unless one day he thinks he may need to exercise that power here -- Poppy.

HARLOW: And you are not engaging in hypotheticals as you said because, A, the president brought it up, but, B, the letter, that 20- page letter from the lawyers in January the Mueller's team brought up the pardon power of the presidency. Anything but hypothetical.

Before you go, Kaitlan, let me get you on the president asserting Bob Mueller's probe is completely unconstitutional.

COLLINS: Yes, even though the president himself has called on the appointment of a special prosecutor to investigate Hillary Clinton and Democrats, he now says he believes that it is totally unconstitutional that there was the appointment of this special counsel Robert Mueller here.

I should note that it was the Deputy Attorney General Rod Rosenstein, someone who is a Republican that the president himself appointed that selected that special prosecutor, Robert Mueller here, but now the president making the argument that that is unconstitutional.

Now this argument from the president, this along with him saying he has the power to pardon himself is coming after yesterday his lawyer Rudy Giuliani essentially said that the president has these sweeping powers, constitutional powers, and that even if he shot the former FBI director James Comey there is no way he could be indicted for doing so while he is still the president unless he was impeached.

Now that is a very interesting argument they are also making. They are saying that the president has the power to pardon himself, but there's no need for him to do so because if he did, then he would be impeached.

But actually, Poppy, that's not really conclusive because this Republican-led Congress has not so far established any red lines for this president, regarding the special counsel's investigation, so it's actually not clear that they would impeach him if he did that and that is a great question for Republicans on Capitol Hill today -- Poppy. HARLOW: Yes. Kaitlan Collins at the White House with all of that,

thank you very much.

Let's discuss this with CNN legal and national security analyst Asha Rangappa and Daniel Goldman, a former federal prosecutor.

Nice to have you both here. Daniel, let me begin with you and the claim by the president that the special counsel is unconstitutional. Tell me why it is -- yes, just tell me why it is completely constitutional?

DANIEL GOLDMAN, FORMER FEDERAL PROSECUTOR: It's pretty simple. These are -- the special counsel's appointment is guided and overseen by regulations that were properly promulgated by the Department of Justice after the Independent Counsel Act that Ken Starr was appointed under expired.

HARLOW: Right.

GOLDMAN: So it has gone through the proper process, and there are specific reasons when a special counsel is -- can be appointed and this falls squarely within those reasons.

HARLOW: My producer, Haley, is reminding me of a tweet from the president back in October of 2016, talking about Hillary Clinton during the election, he writes, "If I win, I'm going to instruct my AG to get a special prosecutor to look into your situation, Miss Clinton, because there has never been anything like your lies."

[10:05:07] Asha, he seemed to favor one then.

ASHA RANGAPPA, CNN LEGAL AND NATIONAL SECURITY ANALYST: Yes, he did. And interestingly the reason that we have a special counsel is precisely to maintain the independence of the Department of Justice from the kind of direction and control and interference that the president was alluding to in that tweet. So we also have a federal district court that has reviewed Mueller's mandate, this is the Manafort case, and it found his jurisdiction and scope in that investigation to be completely legal.

So the president is basically making up his own law, but there are courts and judges who are going to actually determine what the law is.

HARLOW: To you, Daniel, on the pardon power of the presidency. This was asserted initially in that letter that was sent by the Trump lawyers back in January to Mueller's team and then Giuliani talked about it all over the airwaves yesterday and now the president is saying he does have the power legally. Is he correct?

GOLDMAN: Well, it's never been decided, so it is an open question. And there is an argument that the president is promulgating that as the executive I have total power over all executive things and my pardon power is absolute, and cannot be checked by the other branches.

There are many other legal scholars on the other side who say that the president -- the Constitution requires the president to faithfully execute the laws. And that that means he must execute them in good faith, and to pardon himself would be done in bad faith. And therefore that is not allowed.

That's sort of the two different arguments on the issue as to whether he can pardon himself and I think frankly the bigger issue and the more likely scenario is that he pardons co-conspirators or family members who may have information about his own crimes. That's, I think, what we're at much greater risk of facing than whether he pardons himself, but, of course, he needs to establish his absolute power and so he goes and tweets this completely unnecessarily.

HARLOW: Preet Bharara yesterday, Asha, on "STATE OF THE UNION" with Dana Bash said there comes a point where Congress can take action as well. He said if you abuse the pardon power in a particular way, there comes a point where Congress can take action as well. The only action would be impeachment, correct?

RANGAPPA: Right. That would be the political remedy here. And that's the one that the president and his lawyers are putting out there. I think because they feel pretty confident that right now Congress isn't going to take that step. You know, this is the checks and balances system that we had, that when you have one branch that is effectively abdicating its role in our constitutional system, this is what a constitutional crisis looks like.

So we are now relying, I think, on the courts to determine the legal parameters of some of these incredible claims that the president is making, and let's remember, Poppy, this all comes back to his unwillingness to sit down with Mueller for an interview. If he can't be indicted, if he can pardon himself, then he should not fear being implicated for false statements or perjury, so there should be no reason that he can't talk to Mueller.

HARLOW: I want you both to stay here because I want you to weigh in on something else. But before that, let me go to our Shimon Prokupecz who can tell us more about the fact that there is this one line, Shimon, admission, but a very important admission in the letter that Trump's lawyers wrote to Bob Mueller. What is it?

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE REPORTER: Right. And that has to do with the Don Jr. meeting at Trump Tower in 2016. Of course, Poppy, that meeting was set up on the belief that a Russian lawyer was going to provide dirt on Hillary Clinton.

Now the controversy surrounding the purpose of the meeting, but more importantly it was the initial lies in this statement that was provided to the media from the president and also Don Jr. claiming that the meeting was about adoptions and now in this letter, this 20- page letter, the president's lawyers submitted to Mueller, they admit, they admit that the president dictated that misleading statement, despite, as you will recall, repeated denials from the White House, and his lawyers.

Now Giuliani yesterday was blaming it on poor recollection saying that this is one of the reasons why he doesn't want the president talking to Mueller about this issue. Here's Giuliani. (BEGIN VIDEO CLIP)

RUDY GIULIANI, ATTORNEY FOR PRESIDENT TRUMP: I mean, this is the reason you don't let the president testify. It's, you know, our recollection keeps changing or we're not even asked the question, and somebody makes an assumption. In my case, I made an assumption, then we corrected it and I got it right out as soon as it happened. I think that's what happened here.


PROKUPECZ: You know, and despite there, Poppy, the recollection issue from Rudy Giuliani, soon after that this was revealed that this meeting took place.

[10:10:04] And questions were posed to the White House and to Trump's lawyer Jay Sekulow about whether or not the president was involved in dictating that statement, they all denied it. Several times they denied that the president had anything to do with it.

HARLOW: Yes. Over and over again.

Thank you, Shimon, appreciate the reporting.

Asha is back with me as well as Daniel. And Asha, to you, the beautiful thing about facts is that they don't change. So there is not a recollection problem because they're just the fact. What do you make of Rudy Giuliani's argument here that because the recollection changes, the president shouldn't sit for that interview.

RANGAPPA: Well, basically Mr. Giuliani is saying that he doesn't want the president to sit for an interview because neither the president nor his lawyers can keep the lies straight. And they're not going to be able to settle on one story. And we have seen this over and over again, Poppy, with the Trump Tower meeting, every -- the story kept changing, now we know that the president actually dictated this letter when he refuted that before.

In the Stormy Daniels case, he claimed that he knew nothing about the payments there, now Rudy Giuliani has admitted he did. So, you know --


HARLOW: The thing is --

RANGAPPA: They can't keep the lies straight, basically.

HARLOW: The thing is, Daniel, to Asha's point, lying isn't illegal. And lying to the public isn't illegal. However, it can be used and has been used historically in Articles of Impeachment, right, lying to the public against Nixon, against President Clinton. Legally --

GOLDMAN: So it is not a crime to lie to "The New York Times."

HARLOW: Which is lying to the public, by the way. GOLDMAN: Right. Right.

HARLOW: That they try to say that it's, well, he just lied to one reporter.

GOLDMAN: Right. I mean, look, the Giuliani admission that we're not going to bring him in because of the shifting explanations is a truly remarkable admission. But from a legal standpoint, there is teeth to the argument that by lying to the public, you're not committing a crime. And frankly it's hard to imagine that someone who the "Washington Post" says lies nine times a day to the public, which is our president, is going to be charged with, you know, impeachment for lying to the public, but it can be used.


GOLDMAN: Yes. It can be used as evidence of his willingness and his intent to obstruct justice.

HARLOW: Intent. It goes to intent.

RANGAPPA: That's right.

HARLOW: So it can be used to make the legal argument of intent.

GOLDMAN: So -- exactly. So that if he were down the road, for example, to fire the FBI director because of the Russia investigation, a prosecutor --

HARLOW: Hypothetically.

GOLDMAN: Hypothetically speaking, the prosecutor would use the fact that he lied about the contents or the subject of that meeting that he dictated that statement to cover up that meeting as further evidence that he is trying to obstruct the Russia investigation.

HARLOW: It is an important point. Daniel, nice to have you here. Thank you. Asha, thank you as well.

A source tells CNN the president's high stakes historic summit with Kim Jong-un could be more of a meet and greet. We'll weigh in on that.

Also, a medical breakthrough, how women with breast cancer may now be able to skip chemotherapy entirely.


ANNOUNCER: This is CNN Breaking News.

[10:11:11] HARLOW: All right, we have breaking news on a highly anticipated decision from the Supreme Court. Let's go straight there. Our justice correspondent Jessica Schneider is with me.

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Well, good morning, Poppy. You know, as we're approaching the end of the term here, a lot of big cases and right now we just got one of those much anticipated cases.

This is the Masterpiece Cake Shop case. And this was the case, of course, where that baker refused to bake a custom cake for a same-sex couple saying that it violated his freedom of religion as well as his free speech. Well, they're just getting the opinion from the court now, and it appears that the court here has upheld the baker's right to refuse to make that custom cake for that same-sex couple.

Now, again, this opinion has just come down. So our crew is parsing through all of the language here, but this is an opinion that has been written by Justice Anthony Kennedy. And, of course, you'll remember that Justice Kennedy was also the justice that drafted the majority opinion in Obergefell, which granted same-sex couples the right to marry nationwide.

So, you know, going back to some of the facts of this case, this was a case out of Colorado, where same-sex couple wanted to get married, they went to a local bake shop and they asked this cake maker to specifically make a custom cake for their wedding. Well, the baker said it would violate my religious beliefs if I were to use my skills as a baker to make this custom cake for you and I refuse.

So this went through the lower court process, it also went through the California -- I'm sorry, the Colorado Civil Rights Commission and it determined whether or not this was discriminatory and this went all the way up to the Supreme Court. And the question here is, can you violate some of these anti-discrimination laws at the state level purely because of your religious beliefs? And while we're still going through some of the language here to see how narrowly this decision came down, it appears that by this ruling, yes, in fact, if you are someone like this Colorado cake maker, you can refuse to make a cake to use your artistic abilities and your skills to facilitate a same- sex couple's request.

Again, this was a very contested case because you have these anti- discrimination laws in effect in various states throughout the country, including this particular case in Colorado. But the baker here saying, look, my constitutional rights should be paramount here. I should be able to exercise my religious beliefs and not make this cake.

So, Poppy, a very big decision that we have been waiting for to come down. It has come down today. The Supreme Court weighing in on this, Justice Anthony Kennedy, he's the one who has written this majority opinion here, saying that the baker has his -- within his rights under the Freedom of Religion to not make this cake for this same-sex couple.

So, Poppy, I'm still waiting to get a little bit more of the details here, a little bit more of the language from this opinion, but a very big decision just now coming down from the Supreme Court -- Poppy.

HARLOW: Jessica Schneider, it is indeed. I appreciate you laying it all out for us. I will let you read that majority opinion by Justice Kennedy and come back to us with more as you have it. Let me bring in our legal analyst Paul Callan again with me. This is

a very significant -- you know, one of the top three most highly anticipated decisions to come from the court this term. Let's talk about the majority opinion by Kennedy in just a moment, but lay out the significance of this and the precedent that it sets.

PAUL CALLAN, CNN LEGAL ANALYST: It's very important because the Supreme Court has already ruled using the equal protection clause of the Constitution, of course, that gay marriage is a protected right now throughout the United States. So this now deals with other issues.

Can local stores and local bake shop like this engage in some act of discrimination against gay people in the United States.

[10:20:06] And what this decision is important for is that it's weighing the rights of religion, which, of course, are protected under the U.S. Constitution, as opposed to the equal protection clause which says that all citizens have the right to be treated equally under U.S. law. So you've got these big constitutional principles at play here in this particular case involving the making of a cake and a small bakeshop.

HARLOW: And we know that the Supreme Court narrowly in favor, narrowly in favor of this cake baker and, again, the argument here by the state, Paul, was that it was not about free speech, but a refusal to serve a certain class of citizens and that, the court disagreed with that. The court disagreed with that assertion and it's very notable that Justice Kennedy who was long expected to be the deciding vote in this, that -- it was a 6-2 ruling, I'm just seeing now, he was expected to be a critical vote in this, that he wrote the majority opinion because he also wrote the majority opinion in 2015 in the famous Obergefell and Hodges case on same-sex marriage.

And that line, the striking line from that opinion, was they, meaning gay couples asked for equal dignity in the eyes of the law, the Constitution grants them this right, and yet he wrote this majority opinion.

CALLAN: Yes, and of course, it's important to look that this is Justice Kennedy making the decision because he's often a swing vote between the conservatives and liberals on the court. He's -- he's hard to predict sometimes. And you've pointed out one great example of that. You would have thought Kennedy would go the other way on this decision, given his prior history. But I think what you find with these constitutional principles, it's one thing when you're talking about the state, which issues marriage certificates, saying we're not going to issue them for gay people, the court says that's an action of the government.

And the government can't discriminate against classes of people unless there is -- what they call a compelling state interest. This on the other hand is a local bakeshop and I'm sure that they probably articulate a very different standard and say, you know, the implications of this decision are less important than the other big decision involving gay marriage. HARLOW: Paul Callan, stay with us.

Joining me on the phone is our chief legal analyst Jeffrey Toobin.

Jeffrey, you and I have talked about this case a lot when the court took it up, the significance of this case on the merits, and then also the facts that Justice Kennedy came down the way he did and that he wrote the majority opinion.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST (via phone): Well, this is an enormous defeat for the gay rights movement because the question now is what are the limits in terms of religious people when they're allowed to discriminate. I mean, here we have a cake baker who says I don't want to bake a wedding cake for a gay couple. Well, what about the restaurant owner who says, I don't want to see a gay couple because it violates my religious principles? What about the hotel owner who says I don't want to rent a room to a gay couple because it violates my religious principles?


TOOBIN: The issue here was, as presented to the court, was that cake baking is such a unique, creative task, an occupation, that it was essentially like forcing a novelist to write a novel. It was like forcing a painter to paint a painting. That is the limiting principle that the court is applying here because the court said, you know, cake baking is such a unique creative process that the government can't force someone to violate their conscience.

The question is, what is the limiting principle there. And there will be future cases. I mean, this is certainly an invitation to people who discriminate against gay people from barring them from their businesses.

HARLOW: Jeffrey Toobin --

TOOBIN: I'm sorry, go ahead.

HARLOW: I just want you to weigh in on one of the key quotes thus far in the majority opinion by Kennedy. He's talking about Jack Phillips, the cake baker here. And let me read this to you and get your take. "The commission's hostility was inconsistent with the First Amendment's guarantee that our laws be applied in a manner that is neutral towards religion. Philips, the cake baker, was entitled to a neutral decision maker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which the case was presented, considered and decided." And the court held that the commission they're talking about, the Colorado Civil Rights Commission.

[10:25:03] This is the court saying that that commission showed hostility towards the cake baker on his religious beliefs -- Jeffrey.

TOOBIN: That's right. And the -- there was some dialogue, a transcript where Justice Kennedy during the oral argument was very concerned about this, that indicated that the commission in charge of enforcing the anti-discrimination law was hostile to the president -- to the baker's religious beliefs. You know, obviously, you know, no one should be hostile to people's religious beliefs, but, you know, as always, in difficult constitutional questions, this is a question of balance, of competing rights.

I mean, you do have the religious conviction of the baker, which no doubt was sincere. But we also have a principle of religious discrimination. I mean, of discrimination against gay people. And again, you have to sort through the limiting principles. There are religions that hold that interracial marriages are a violation of God's law. So can you refuse to bake a cake for an interracial couple? Can you refuse to bake a cake for two people of different religions who are marrying each other?

I mean, there are all sorts of religious principles --

HARLOW: So to that point --

TOOBIN: -- that are against the laws on the books. And the question is how much and how often and under what circumstances do people who have religious objections to laws on the books, how much do they get to excuse them.

HARLOW: So, Jeffrey, exactly to that point, of how far does this go, the precedent that this sets, what doors does it open? And what doors remain closed? Here is another part of the majority opinion that has just come down. Quote, "The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market." That also coming from Kennedy, Jeffrey.

TOOBIN: Well, you know, I think that that certainly lays out the dilemma and the problem in the case. But it is also an invitation to more cases. It's an invitation to religious people to say, well, I don't want you in -- I don't want you to do your wedding cake business, I don't want your restaurant business. I don't want your hotel business. I don't want you in my store. I don't want you and, you know, that -- we're going to see more cases. And obviously Kennedy is aware of the problem that gay people will be subjected to indignity and dignity is a favorite word of Justice Kennedy, something he's very concerned about.

But, you know, it is also -- dignity is a very vague and elastic concept. And there were a lot of people who believed that the customers of the Masterpiece Bakeshop were treated in an undignified way. To be turned away when they wanted a wedding cake. So, you know, the fact that Justice Kennedy says people who have -- you know, that we have to have respect for the dignity of gay people, well, the gay people lost this one and we'll see if they lose more of them.

HARLOW: Jeffrey Toobin, stay with me, as we go through this. I want to bring our Jessica Schneider back in. Jessica is outside of the court as this decision has just come down.

Jessica, it is a 6-2 ruling. Do you know which justices joined the majority here and which dissented?

SCHNEIDER: Well, we do, actually. You know, Justice Clarence Thomas, a staunch conservative, he actually joined the majority in the opinion. But not the reasoning. But I do want to talk, Poppy, about something that Jeffrey Toobin mentioned, the fact that this opinion, you know, will likely open the doors to a lot of other disputes like this because as we're reading through this opinion, we're seeing that the justices here did not rule on broad constitutional grounds here.

They were much more limited to saying that this Colorado Civil Rights commission really violated the baker's religious beliefs here. I mean, they really were very -- quite narrow in saying that this commission was not tolerant of his religious beliefs and that was something interestingly at oral arguments, Justice Kennedy spoke extensively on, you know, at oral argument, he seemed a bit torn here as to the rights of this baker, but also while maintaining the rights of gay couples, but then also saying we need to look at how the commission viewed this. You know, in particular in oral argument he said the blatant discrimination would be an affront --