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Grassley Sets Friday Deadline for Kavanaugh's Accuser to Say Whether She'll Testify on Monday; New Statement from Attorney for Kavanaugh's Accuser: "Multiple Witnesses" Should Be Included at Hearing. Aired on 8-9p ET

Aired September 19, 2018 - 20:00   ET


[20:00:04] ANDERSON COOPER, CNN HOST: Good evening.

Tonight, we have breaking news. Senate Republicans are falling in step, putting Brett Kavanaugh's accuser on deadline Monday to testify and Friday to say whether she will or not. They're telling Professor Christine Blasey Ford, talk to us Monday about the sexual assault allegations you're making because a vote on Judge Kavanaugh is coming soon no matter what.

There's also breaking news from her as well. A new reply from one of her attorneys saying and I quote, the rush to a hearing is unnecessary and contrary to the committee discovering the truth. The attorney Lisa Banks also says that multiple witnesses whose names have appeared publicly should also be included in any proceeding. We'll have more on that shortly.

As for the FBI investigation that Professor Ford and many Democratic members want, first, Republicans, including the president, are dismissing the possibility for two key reasons, neither of which happens to be entirely true and, of course, the truth matters because whether you believe more investigations are called for or not, and it's not our position to advocate one way or the other, what is important is to point out inconsistencies, factual and otherwise in the various arguments.

Now, Professor Ford says her life has been threatened since coming forward. Judge Kavanaugh's reputation is certainly on the line, so is the Senate, as members exercise their duty to vet a nominee for a seat for life and what could be the most consequential Supreme Court in generation. So we're keeping them honest on all of that tonight.

Senator Bob Corker's tweet last night spells it out. Quote: After learning the allegation, chairman @chuckgrassley took immediate action to ensure both Dr. Ford and Judge Kavanaugh have the opportunity to be heard in public or private. Republicans extended a hand in good faith. If we don't hear from both sides on Monday, let's vote.

That was his response after this program broke the news that Professor Ford is requesting the FBI or others to investigate her allegations before she sits down with the Judiciary Committee.

(BEGIN VIDEO CLIP) LISA BANKS, CHRISTIAN BLASEY FORD'S ATTORNEY: What we're saying is that there should be an investigation because that's the right thing to do.

COOPER: If there's not an investigation, would she appear on Monday?

BANKS: She is prepared to cooperate with the committee and with any law enforcement investigation and that has been her position and it continues to be her position. So, she will cooperate with the committee in whatever form that takes.


COOPER: Well, the FBI as you know did a standard background check on Judge Kavanaugh as they have done several times for his various appointments. However, the bureau was not aware of Professor Ford's allegations at the time. Now, the president and some key Republican senators are saying no to any further investigation. And they're giving two reasons why.

Their first argument is it's not even the FBI's job.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Well, it would seem the FBI really doesn't do that. They've investigated -- they've investigated about six times before and it seems they don't do that.


COOPER: Well, that's the president earlier today. Yesterday he said, and I'm quoting here, it's not really their thing. Senator Orrin Hatch, who was you know has already said that he thinks Professor Ford is mistaken about what she says happened to her tweeted, and I'm quoting, the FBI does not do investigations like this. The responsibility falls to us.

The president has gone so far as to say the FBI has said they don't want to investigate this. And keeping them honest, as we've been reporting, that's not the case. Nor is it true that the FBI simply does not do investigations like this. What they do not do is choose investigations based on want. Nor do they draw conclusions or make recommendations.

As for a new background investigation, which is what this would be, all it takes is the White House to ask for one which is precisely what happened in the confirmation fight over Justice Clarence Thomas. Anita Hill's allegations were relayed by the chairman and ranking member of the Senate Judiciary Committee to then President George H.W. Bush who then ordered the FBI to look into them.

One committee member then and now was Senator Orrin Hatch who had this to say back then.

(BEGIN VIDEO CLIP) SEN. ORRIN HATCH (R), UTAH: I have to say, Chairman Biden, and the ranking member Thurman, when they heard about this the first time, they immediately ordered this FBI investigation which was a very right thing to do. It's a perfect thing to do. They did what every other chairman and ranking member have done in the past. And the investigation was done and it was a good investigation.


COOPER: Now, keeping them honest, that is the same Senator Orrin Hatch who now says it is not the FBI's job to do what he once praised them for doing. Whether it is an inconsistency makes a difference is for you, not ask to decide.

However, on another Republican objection, no judgment calls required, only a look at the calendar, namely the compliant raised by Senator Lindsey Graham and others. And bringing in the FBI is a delaying tactic.

Again, Anita Hill comparison is telling. The investigation, that took just three days which doesn't mean the FBI or other investigators could complete an investigation this time in so short a period of time, but it is what happened in the past.

For more now on the breaking news and how Chairman Grassley's ultimatum is playing in the White House, we want to bring in our Jeff Zeleny.

So, there, certainly, doesn't seem to be any appetite from the White House to ask the FBI to investigate this.

JEFF ZELENY, CNN SENIOR WHITE HOUSE CORRESPONDENT: Anderson, there doesn't. And we've heard from the president for the second day in a row that he simply has no interest in doing this. He has said as you were saying, it's not their thing, but it is the president's purview to do that, because it's his nominee, after all.

[20:05:01] But the White House simply is not going to do that. Anderson, you got the feeling as the day wore long today, things are moving much faster.

We're learning tonight that Senator Grassley is planning a mark-up, which is called the beginning of debate, in his committee next Wednesday. Next Wednesday morning, so there could be a vote in the judiciary committee next Wednesday morning on all of this. Or it might be postponed, of course, depending on what happens on Monday.

But you got the sense things were moving along, and certainly more optimism here at the White House, with the sense of trepidation, they still do not know if this is another accuser out there, that is the one sort of outlier here. But do not look for the White House to budge on the FBI at all, Anderson.

COOPER: Just to be clear, when you're talking about a vote on Wednesday, a move toward a vote, you're talking about a vote on Judge Kavanaugh. Not on whether or not to have an investigation or anything.

ZELENY: Right, on Judge Kavanaugh.

COOPER: Right.

ZELENY: I mean, you know, if there would be a hearing on Monday, and there is still a very good chance there would be and he could speak, of course. The time for discussion, you know, is moving along. And Republicans want to move this along. The White House wants to move this along.

Of course, midterm elections are looming. And the president made clear again today, he said one of the reasons I was elected was because of the Supreme Court. So, they are hoping that this is going to be, you know, essentially rallying their conservative base.

At the same time, the president left a bit of wiggle room. He said if she would come forward and something new develops, we'll have to see. So, he is still trying to walk the fine line, but, Anderson, day by day, virtually every time he speaks in public, inching closer to his previous position of politics here, and with the midterm elections looming, look for this to happen soon. But then the full Senate debate, of course, is still very much an open question, Anderson.

COOPER: All right. Jeff Zeleny, appreciate it.

More now on what an FBI investigation is equipped to uncover and crucially, how the fact-finding process could and should be reconciled with the political process and the constitutional framework for it, all the Senate's duty to advise and consent.

Joining us for that is former federal judge, Nancy Gertner, who now presides the Harvard University Law School.

Judge, thanks for being with us.

If there is no nonpartisan investigation as it seems likely at this point, should Ford agree to appear at a hearing on Monday?

NANCY GERTNER, FORMER FEDERAL JUDGE: Well, on the legal issue, it is to some degree a political issue. I think that she would be -- the best for her to do would be to appear under protest. What -- people are saying that this is he said/she said, and of course it is. But there are still corroborating details, the circumstances under which she first disclosed this, to whom, what was said. Were there other people at the party? There are ways to broaden this from beyond he said, she said.

Can I say something with this FBI investigation?


GERTNER: Because it's been driving me crazy.

When I applied to be a judge, there was a lengthy, very intrusive questionnaire that asks you everyone that you had ever lived with, every place you had ever lived, and in particular, had you ever taken drugs. We knew then that if you had experimented with anything other than marijuana in your college days, it would be disqualifying. Not because you'd be a bad person but because it was a court position, a life tenured position and the FBI went into those weeds.

The notion that the FBI could not return to that when we're not talking about a weed anymore but a serious accusation is just not true.

COOPER: You're saying they could essentially reopen a background investigation or expand on the investigation that they've already done.

GERTNER: Right. And these investigations, the background checks are unbelievably intrusive. So, you go down to the details of people's lives and these are details like any other. So, there is no reason why they couldn't go back at all. Nor would it take ridiculous amount of time.

COOPER: It is interesting with background investigations, what I have done when I was college for jobs. The -- you know, you are often asked to name several people for the FBI to talk to. And then the FBI agent who is talking to those people, they then ask those people for other people who you haven't named, who they -- so they basically try branch out from the people you've suggested so that they cast a wide net.

GERTNER: Right. I mean, we apply for judgeships in our 40s and 50s. They say name every address you have ever lived and the people with whom you lived. It is a very tall order. And you do it because you're getting a life appointment.

And this is a life appointment on the highest court in the country. It seems to me that it's not inappropriate to press the pause button here, and say are there corroborating details on either side, on Judge Kavanaugh's side or on Professor Ford's side. What else can we learn about this?

Otherwise you're setting this up for a he said/she said, where the determiners of credibility are lawmakers who have already expressed their skepticism.

COOPER: Also, Judge, do you believe from a legal standpoint that if Professor Ford did come before the committee, as Judge Kavanaugh would, that others should as well? Anybody else who was alleged to have been in the room? You know, anyone who may have been told about this by the professor earlier in past years?

GERTNER: That would be the point. I mean, in an ordinary trial, you would have someone who said, x happen somebody said y happened. And then you look at all the corroborating circumstances.

What do we know that the corroborating circumstances? You rarely get to a hearing where all you know is what one side is going to say and the other side is going to say. There is no reason not to broaden this to see if corroboration is possible, or reputation is possible, refuting these accusations.

COOPER: Chairman Grassley today in his letter to the Judiciary Committee Democrats said that because Ford's allegations are, quote, in the public arena, there is no longer a need for a confidential FBI investigation. Does that make sense to you?

GERTNER: It doesn't make any sense. I mean, as I said, if a judicial candidate had said when I was in college, I tried cocaine, there would be an investigation. Or in fact, it probably would have been disqualifying.

But if someone else said, I saw him do that as we've seen with other Supreme Court nominations, there would be an investigation. Whether it is public or private, it is irrelevant. It is part of the responsibility which the president or the committee, I believe, could trigger.

COOPER: Judge Gertner, if you can, just stay with us.

I also want to bring in CNN legal analyst Jeffrey Toobin, as well as Carrie Severino, who is the chief counsel and policy director of the Judicial Crisis Network, which is supporting Judge Kavanaugh's nomination.

Jeff, both sides clearly seem to be digging in their heels here.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: That's true. And I think there's a factual matter worth putting out on the table. If she refuses to testify on Monday, Kavanaugh is getting confirmed. I mean, Jeff Flake has said that. Susan Collins has said.

If she, you know, maintains that this investigation is a sham and I'm not taking part, he is getting confirmed. Now, that may be unfair, that may not be a good thing or a bad thing. I think it's just a factual thing.

If she does testify, then I think all the cards were thrown up on the air. He may well be confirmed anyway, but I think everybody should be clear about what the stakes of her decision to come forward or not before the committee. It's up or down.

COOPER: Well, Jeff, in talking to her attorney last night, the attorney made it clear that any FBI investigation would probably take longer than being able to be completed by next Monday. Now, you can argue whether that's true or not, and made it -- she seemed to make it clear that without an FBI investigation, she didn't want to sit down and even if there was an investigation, it wouldn't be on Monday because there's not enough time.

Do you think that's essentially just kind of playing chicken here? Do you think she actually would, if there is no FBI investigation, she would still and go sit down?

TOOBIN: I don't know. I mean, I don't know what the strategy is. But I do know that there is not going to be an FBI investigation. Senator Grassley, the president, the Republican Party, this is a take it or leave it offer to Ms. Ford. I mean, that's just what it is.

She's got to decide whether she wants to testify or not. It's a hard decision. You know, it's easy for us to sit here. She is a private figure. She's got a life she wants to lead.

But everybody should be clear about what the stakes are. If she does not testify, he is getting confirmed.

COOPER: Carrie, as a supporter of Judge Kavanaugh, why shouldn't there be a continuation or reopening of the background investigation if it takes a couple days or a couple weeks. Why shouldn't there be?

CARRIE SEVERINO, POLICY DIRECTOR, JUDICIAL CRISIS NETWORK: The -- just going back to your parallel to the Hill-Thomas system, this is following precisely the proper pattern there. What was going on there was a pre-disclosure investigation. That's what the FBI is for, finding out these confidential information, talking to all the different sources while it's still confidential, so they can preserve the witness's privacy. This would have been the right thing to do for Dr. Ford.

That's not how the Democrats chose to do it. They held on to it. They sat on it for six weeks. Then they disclosed it in this final way.

After Anita Hill's allegations were made public, there was no FBI investigation. That's the phase you go to the Senate looking at it. The only reason they had the FBI do it is because you can do it confidentially.

In terms of getting someone on the record to inquire, it's ultimately the Senate who makes those judgments because the FBI amasses the information, it's the senators who decide what to do with it, how to weigh the different things. That's part of their advice and consent and that's exactly what's happening. So, it's an exact parallel of that.

TOOBIN: Carrie, that's ridiculous. You just heard Orrin Hatch say there was an FBI investigation.

SEVERINO: There was. It was pre --

TOOBIN: No, there wasn't.

SEVERINO: It was. Go back and look it up. It was before the hearings. It was before -- it was leaked. The hearings came about because the information from the very investigation was leaked to the media. Then they said fine.

TOOBIN: It was the second round of hearings.

[20:15:01] It was before the second round of hearings which was the round we're coming into.

SEVERINO: It was before that was leaked to the public, though. My point, though, is it doesn't make sense after it's leaked to the

public. The whole point of having the FBI do it as opposed to doing it by asking them and having the senators do the questioning themselves is because of the confidentiality. They can ask the various witnesses untainted by each other. They can preserve the privacy of the people involved, preserve the reputations of both involved here.

That didn't happen here. That's how it should have happen. If Feinstein in July had handed it over, like Senator Biden did, properly, then we could have had the process.

We didn't have it. Now, it's all out. Now, let's go to the next phase which is what happened there. Once it was out, they had the hearing and that's how the senators came to their conclusions.

COOPER: Judge Gertner, do you buy Carrie's argument? I mean, any FBI investigation, I mean, it's not in secret. You know, you're asking neighbors, the FBI knocks on a neighbor's door and then, the FBI -- people figure out, you're being investigated by the FBI.

GERTNER: Yes, if the argument here, if the FBI were to investigate it, it would somehow be tainted because the information has already come out, then surely a hearing without the benefit of any investigation is even more problematic. The notion here that the president could not pick up the phone and say, can you look further into this allegation, it just doesn't make sense.

And the fact that it is public, she has made it public. That would mean people would be more prepared but that doesn't disqualify the investigation any more than this hearing does.

COOPER: Carrie, I want you to respond to that.

GERTNER: Look, the allegations are vague enough. There's no other location to go to. You can't dust for prints. This is 35 years ago.

The key information here are the -- her allegations and his statements in refutation of that. That's something the senators, under penalty of perjury, this is a great way to go through that. I don't know what else you're going to find.

TOOBIN: Why should Mark Judge testify? He is the third person. He is allegedly the third person in the room.

Let me finish, Carrie.

SEVERINO: OK. Go ahead.

TOOBIN: Any reasonably serious investigation when there are three people allegedly in a room where a woman is assaulted, you would ask all three people to testify. It is crazy and irrational and indicative of how this is a kangaroo court that the Republicans are not calling Mark Judge as a witness.

(CROSSTALK) SEVERINO: Look, they're not subpoenaing him but they're also not subpoenaing her.

COOPER: Let Carrie respond and then, Judge.

SEVERINO: If she doesn't want to testify, they're not going to subpoena her either. And I think we can agree, that would also be even more relevant than what he has to say. And on top of which, look, his -- what he has said so far through his attorney is, I don't remember any of this. This didn't happen. That only goes to support Judge Kavanaugh.

If you take him out of the room, actually, I think if there's anything, it hurts Kavanaugh and helps Dr. Ford. So, I don't know why you would be complaining that he's not there.

I think if he's declining to testify, they're giving that the same respect they're giving to Dr. Ford if she chooses not to testify.

COOPER: Judge Gertner, final thought.

GERTNER: I can think of questions to ask. For example, if you want to find out about the circumstances under which she told her husband and she told her therapist. What did she say and how did she say it? And if that was long before Judge Kavanaugh was up for any post, that would have some salience here.

But all you have in this hearing room is her saying what it was she communicated. I would love to hear from them, particularly the therapist. What was said and how did she it and when?

COOPER: Judge Gertner, Jeff Toobin, Carrie Severino, thanks very much.

Coming up next, more on the political dimensions, including the Republican objections which Carrie Severino just raised over the timing over how these allegations came to light. Why Senator Dianne Feinstein did not raise Professor Ford's letter much earlier in the process.

And later, President Trump's latest complaints about Attorney General Jeff Sessions. They are like so much else in this president, kind of -- well, without precedent. Ahead, details.


[20:23:15] COOPER: Breaking news, the stand-off in the deadline in the Brett Kavanaugh nomination, Senate Judiciary Committee Chairman Chuck Grassley wanting to know by 10:00 a.m. Friday, this Friday, whether Professor Christine Blasey Ford will speak to the committee about her sexual assault allegations.

Now, a key Republican so far how these allegations came to light. Before we get into that, it does bear repeating that whatever you think of the politics of it, this is a human story first and foremost. A woman tonight is in the spotlight over if what is true, is one of the most traumatic moments anyone can go through. She did not come forward by choice, and now, she is in the kind of spotlight most of us can barely imagine. So is Judge Kavanaugh, so is the process.

As to that, Republicans are objecting to the actions of Democratic Committee ranking member Dianne Feinstein. They say she sat on the allegations for weeks, only springing them a few days ago for maximum political damage. Now, remember, Professor Ford told "The Washington Post" she thinks it happened in the summer of 1982. She said she spoke of it during therapy sessions in 2012 and 2013.

This July, she contacted her member of Congress, California Democratic Congresswoman Anna Eshoo, sending her a letter to Senator Feinstein, requesting she keep the letter confidential. She also took a polygraph which is, of course, not admissible in court. "The Post" reports it showed she was being truthful. Now, late August, she decided against going public because she believed that Judge Kavanaugh was a shoo-in. Why suffered through the humiliation, she told "The Post", if it's not going to matter?

The hearings took place September 4th through the 7th. No mention is made of the allegations until September 12th when "The Intercept" reported that Senator Feinstein was in position of that letter. A day later, Feinstein said that she received information on Kavanaugh and had, quote, referred the matter to federal investigative authorities.

Now, Republicans want to know why Senator Feinstein did not immediately forward the letter to the feds. The implication is she held back to do political damage to the nomination.

[20:25:01] However, "The Washington Post" is reporting as well on her actions. One time, some Democratic senators also wish she had come to them sooner with the allegation. The paper also reports that some of the delay may have been due simply to efforts by the senator to keep the inquiry discreet.

Still, those questions are at the heart of the political brawl now. And while some are pointing to the perils of the Republicans overplaying their hand by scheduling the vote without potentially hearing Christine Blasey Ford, there are many questions swirling around the Democrats and the timing of the whole thing.

We're joined by David Axelrod, no stranger to political chess matches, like the one playing out right now. He served as senior adviser obviously to President Obama.

With us as well is CNN political analyst, Margaret Talev, senior White House correspondent for "Bloomberg News".

David, Grassley has said, OK, Friday 10:00 a.m., that's the deadline for Ford to notify the committee whether or not she's going to testify. How do you see this actually playing out?

DAVID AXELROD, CNN SENIOR POLITICAL COMMENTATOR: Well, I think that she originally boxed them in by saying she would testify and they recognized that they would invite a political fire storm that they didn't agree to hear her and they heard from several Republicans, including Senator Collins and Senator Flake that they wanted to hear from her.

Now, I think they would like nothing better than for her not to come and not to testify. And they're making it as difficult as they can for her by saying, we're not going to do an investigation. We're not going to call any other witnesses. So it will be a he said/she said sort of situation.

And I think their hope is that she doesn't come. And if she doesn't come -- and, look, let's strip all of this clear, what this is about is raw politics.

Just as Mitch McConnell held up Judge Merrick Garland's appointment during the Obama administration, he has said from the beginning that he was going to get this done by the beginning of October. Why? The reasoning he gave was that he wanted to have full nine justices on the Supreme Court. But, obviously, there were eight justices during the ten months that he did not call a hearing or a vote on Merrick Garland.

He is worried about another date, that's November 6, the midterm elections, and the prospect that Democrats might take control of the Senate which would complicate the confirmation of any justice the president would push forward.

COOPER: Right.

AXELROD: So this is what this is all about.

COOPER: Right.

AXELROD: So what I think is going to happen is, they're not going to, that if she doesn't testify as Jeff Toobin that they will push forward and they will confirm Judge Kavanaugh and move on and take whatever political hit might come, come November.

COOPER: Margaret, I mean, did the president or his Republican allies in the Senate have a good answer for why they're in such a rush to get Judge Kavanaugh confirmed? Obviously, the Republican controlled Senate let Judge Scalia's seat go empty for more than a year I think it was in 2016 for the reason that President Obama was in office that David mentioned.

MARGARET TALEV, CNN POLITICAL ANALYST: Yes, I mean, sure. There are the public arguments about this, which is that the process is already underway, that there needs to be clarity and the Supreme Court needs to be able to do its work, all these sort of things.

But the reality is there are tremendous political stakes for both sides. And it is my expectation that that she's going to have to testify, and that all of these discussions about if she doesn't, or will Democrats boycott, are essentially to give her the space to set the terms for that testimony and to create the conditions to allow two sort of different types of testimony. She, I would expect, would be preparing two potential types of testimony for Monday. One, if it would be delayed, if there were to be a capitulation in some FBI component and the second sort of narrative or reality if she has to go forward on Monday without that.

And you can imagine sort of both sides, the Kavanaugh side and her side, scrambling to figure out who can they find who was around in 1982, or have been told about subsequently, who they might be able to sort of bring to the theater on Monday and this Friday deadline is really the deadline that becomes more important now for trying to line up who would appear on Monday.

COOPER: Yes, Justice Scalia, I mangled his name, I apologize.

David, in terms of why Senator Feinstein's office didn't bring Professor Ford's letter up sooner, is there any good nonpolitically motivated explanation for that?

AXELROD: Well, the good nonpolitical explanation was that she was asked to keep this in confidence. I actually -- the last point that you made in your opening segment there makes sense to me, which is, if you had this, you would want it to have been part of the hearing. You would want to have seen this further investigated.

I think the notion that they pulled this out of the back pocket to delay the hearing is specious, just as I think the notion that this woman would come forward and subject herself to what she subjected herself to, you know, for political reasons, is all that credible. You know, I think she was respecting her wish to remain anonymous at that point.

ANDERSON COOPER, CNN ANCHOR: You know, Margaret, it is very interesting to see the President's, you know, restraint and how he's responded. You know, this by his standards. Do you see him continuing that beyond Monday?

MARGARET TALEV, CNN POLITICAL ANALYST: Well I think it's really possible for two reasons. For one, Brett Kavanaugh comes from the Bush family's world. And President Trump has been excited about him when it seem like a slam dunk, not sure how closely wants to tie his fortune to him. And the second is down and dirty in terms of politics, both the Republicans and the Democrats can use this as a rallying cry ahead of the mid-terms the they play their cards right. The President is trying to strike the balance without crossing a line that will offend too many women.

COOPER: Margaret Talev, I appreciate it. David Axelrod as well.

So far, and could it challenge, this is the case of he said, she said as we've been mentioning, it all comes down to memory. The memories of something that allegedly happened more than 30 years ago. How that will play a factor if there is in fact a hearing on Monday. We'll talk about the science of it ahead.


COOPER: Well again our breaking news, Senate Judiciary Chairman Chuck Grassley has said 10:00 a.m. Friday as the deadline for Christine Blasey Ford's legal team request to respond to his request for her to speak on Monday to the committee under oath regarding her sexual assault allegations against Supreme Court nominee Brett Kavanaugh.

Now, meanwhile, Ford's attorney has released a statement saying, a rush to a hearing is unnecessary. The attorney also believes its quote "unfair" unquote, to have a hearing with just her client and Judge Kavanaugh and believes multiple witnesses should be included in the proceeding.

[20:35:10] If a hearing does happen on Monday or at a later date even its going to center mostly of course around memory. What each person testifies to. What they remember. It's going to be focusing on something that allegedly happen or didn't happen more than 30 years ago.

I want to talk about that with CNN legal analyst and former federal prosecutor Shan Wu and also Elizabeth Loftus, a cognitive psychologist and memory researcher who's a professor at the University of California Irvine.

Professor Loftus, when you look at the claim that Professor Ford has made, if you were involved in an investigation, what more would you want to know? I mean how reliable is a memory from 1982?

ELIZABETH LOFTUS, PROFESSOR, UNIVERSITY OF CALIFORNIA IRVINE: First of all, there is a lot of decay that happens in memory over that very, very long time. That certainly doesn't mean that she isn't remembering something awful that happened to her. The real question in this case that I have is, not whether this happened so much. But who actually did it. Because everything I've seen in the discussions of this case, one of the things I want to know is when did she attach the name Brett Kavanaugh to the episode that she is recounting from when she was 15 years old.

And I wish somebody would ask that question because I think the answer to that question is pretty crucial.

COOPER: Are you saying that -- that just not clear in the public record or that in a memory that old, in a traumatic incident, somebody can attach somebody's name who was not involved?

LOFTUS: Well, first of all, not only are there lots and lots of cases of delayed memory of sexual abuse or sexual assault. But there are also a whole other category of cases of eyewitness testimony where people have tried to identify the face of a perpetrator and they make mistakes. And the major cause of wrongful convictions in -- and let's say, the DNA wrongful conviction cases is faulty eyewitness identification. So I think somebody who ought to be investigating this case and find out, not only did this happen, which it may well have happened, but who actually did it.

COOPER: Shan, as a former prosecutor of sex crimes again, this wouldn't appear to be a criminal matter so many years later, but even as a political matter even just part of a background check, how much weight would you give on Dr. Ford's memory?

SHAN WU, CNN LEGAL ANALYST: It would all depend on what kind of corroboration there is. And certainly, I think Dr. Loftus and I in agreement that you have to have very good questioning. And actually, it kind of begs the question, that's why we need an investigation in this case is we haven't had those questions asked by professional investigators.

So I think we agree on that. I think while we disagree is the notion of taking memory fallibility in a vacuum. Because good investigator doesn't take a memory just in a vacuum. That's an academic theory and of course people's memories may be faulty. Of course an investigator might be a bad investigator and ask leading questions. The point is, what kind of corroboration is there in a case? This whole notion we hear about with he said, she said, that's really kind of fiction Anderson. In actual sex offenses, it's never just he said, she said.

Somebody else knows something. There could have been someone present, like in this case, there's a third person in the room. Someone saw them before the event, someone saw them after the event. It's never just these are the only two people and we just have to weigh one person's word against the other. It's all in the corroboration. And that's where the problem is with the idea of the false memory problems. Is that is all what kind of corroboration you have? And if you don't have any corroboration, then your not going to have a good case.

COOPER: Professor Loftus, to that notion though, corroboration, I mean it's again, its 1982. So it is unlikely there's physical corroboration. You know, there's obviously, you know, finger prints, other physical evidence. So you're probably relying on other people's memories. Which again raises the question about the fallibility of memory, no?

LOFTUS: Well, there could be some kind of other evidence. I don't know whether she kept a diary, whether she wrote in a diary, whether she produced the name of the person, the two people who she says assaulted her anywhere. Whether she -- your right, if she told someone and your question that person, there is another issue of memory here. And, you know, I very much appreciate the former prosecutor, you know, agreeing with me on some points and I agree with how many some as well.

[20:40:06] But I have seen cases where there's virtually nothing other than people's memories and there is no corroboration. And they are very, very difficult cases.

COOPER: Shan, if you were advising Professor Ford on how to deal with the judiciary committee this week, would you tell her anything different than her current lawyer seems to be advising which is not to rush into this? And again, we don't know if the lawyers are just saying that publicly and that's, you know, that's their upfront position and as a fallback they will agree to have their client testify even if there is an investigation? We don't know.

WU: Well, I would strongly advise her and her legal team make the point that we need other expert testimony. We need expert testimony about the effects of trauma on sexual assault survivors, because that explains and effects when people disclose with younger victims, they often disclose in kind of interval. Something somewhat mild first and then more detailed later. And there's obviously science and data to support why that happens in human psychology and that's really important for the senators to have so they can make an informed type questioning.

Not just be talking without understanding with the sciences behind it. And frankly, some of them might benefit some training on how to ask good questions.

COOPER: Yes, that's a good point. Shan Wu, thank you very much, Elizabeth Loftus as well. Good discussion. Appreciate it.

LOFTUS: My pleasure.

COOPER: President Trump once again is attacking his own Attorney General. What he said this time. It kind of raises the bar against his attorney general, next.


[20:45:37] COOPER: President Trump is not stopping his attacks against his own Attorney General Jeff Sessions. If anything he's increasing them. The weapon this time was an interview with in which the President unloaded, I'm quoting, "I don't have an attorney general he said, it is very sad." The President also added some seemingly new criticisms going back to Sessions' appointment. Quote, "He went through the nominating process and he did very poorly", the President said in an interview. "For good measure", he added, "he was giving very confusing answers. Answers that should have been easily answered and that was a rough time for him."

Well this of course in the wake of his quotes about Sessions in the new Bob Woodward book "Fear" where Woodward quoted a former White House aide, who said that President Trump call Sessions a dumb southerner and quote "mentally retarded". President later tweeted that he never used those terms. He denies it. But before he left this money for the Carolinas to his respect to all the flood and hurricane damage, the President piled on even further.


DONALD TRUMP, PRESIDENT OF UNITED STATES: I'm disappointed in the attorney general for numerous reasons. But we have an attorney general. I'm disappointed in the attorney general for many reasons and you understand that.


COOPER: Well all of this goes back to where he started with the decision by Sessions to recuse himself from the Russian probe now being conducted by Robert Mueller. And the regional and in the President's mind an unforgivable sin that continues to plague him. Here with me now to help sort of all this, Jen Psaki, who is communications director for President Obama and Michael Caputo a former campaign aide to President Trump who's been interviewed by the special counsels team. Michael, what do you make of these attacks on Sessions? Because from a conservative standpoint, and correct me if I'm wrong, Sessions has been executing the President's agenda in terms of judicial appointments, really well, hasn't he?

MICHAEL CAPUTO, FMR TRUMP CAMPAIGN AIDE: Well, the President has been disappointed in Jeff Sessions for quite some time now and he deserves an attorney general who serves him well like every President does. Unfortunately we have Jeff Sessions in there right now who doesn't seem really to control his department at all. When it comes down to the FISA warrants and especially, you know, responding quickly and completely to Congressional oversight. I really wish it wasn't this way, I don't think its going to change any time real soon but hopefully it will change after the mid-terms.

COOPER: Meaning you think Jeff Sessions will be removed.

CAPUTO: Well, I don't know if he will. I don't work in the White House. I think it would be interesting to hear what Jen says. And I really respect her honorable service to the presidency. I really wish that Jeff Sessions would serve our President as well as Jen served hers.

COOPER: So Jen? Does this make sense to you him going to after Sessions? I mean obviously, you know, the Mueller had their recusal on the Russia investigation looms over all of this, but I mean am I wrong? Isn't Sessions doing a lot on the President's agenda?

JEN PSAKI, CNN POLITICAL COMMENTATOR: Absolutely Anderson. And that's why many Democrats despise him and have absolutely no sympathy for him right now, even when President Trump is criticizing him, because he seen as somebody who was been a stalwart supporter of, you know, the President's agenda on the border and on anti-immigration tactics so -- and getting federal judges and pushing them through.

So these are a number of President Trump's priorities that he's been pushing through. Now it also seems clear though that President Trump has made a decision that he wants to fire him. I think that seems obvious. We'll see what happens. And he wants to lay the ground work for that. So what I heard today in his comments, were kind of suggesting that he was confused when he recused himself. That he maybe isn't up to the task. That he is ill prepared. That maybe he is a little deranged.

The entirely consistent with the reports from the recent book that came out. So I heard that. I think many people in Washington would be surprised if he isn't fired and it seems like he just setting that up for post-election.

COOPER: Michael, you know, people support Sessions, say look, his oath is to the country and not to the President. Is that fair?

CAPUTO: Of course. But as I said before, every President deserves an attorney general whose work they're satisfied with. And I think really this has come, you know, you talk about a bit of an escalation this week, a bit of an escalation today. I think it has a lot to do with the kind of slow walking response that they've had to these FISA warrants and to revealing, you know, little by little, drip by drip, these texts between these rogue FBI officials.

And now the President himself has had to order the declassification of the Carter Page FISA warrant that was dependent upon by Clinton dossier and these text messages.

[20:50:08] I don't think it -- it shows us I think that Jeff Sessions really doesn't have control over the people in his Justice Department. And I'm going to tell you, they're slow walking this stuff. And, you know, I serve in United States, if I didn't obey a lawful order, I might have ended up in Fort Leavenworth. And, you know, this is disobeying a constitutional -- a President's constitutional authority. Out here in fly-over country we might call that sedition.

PSAKI: Well that was --

COOPER: Go ahead Jen.

PSAKI: I was going to say that was a lot wrapped up there. I think we should call this what it is. President Trump does not like the fact that Sessions recused himself and doesn't have control over the Russia investigation. It is actually not a definition of an attorney general's success that the President is satisfied with their work. If it's working effectively, there is a separation. And the person is serving, as you said, Anderson, the public and justice. And this is a case where President Trump is either confused about that or he just has no respect for the rule of law. I think it's the latter, but it could be a combination of both.

COOPER: But Jen, you know, look, there were plenty of Republicans will point to Bobby Kennedy as the attorney general for his brother, even, you know, Eric Holder for President Obama and say, you know, there are politics involved and they were just many Republicans would argue those attorney generals were serving the President, not necessarily the country first.

PSAKI: Presidents do pick the attorney generals and do nominate them. That is absolutely true. And obviously those are people who had personal relationships of varying degrees. But ultimately when a person is in their job they're acting independently and they are not somebody who is being, you know, pulled like a marionette by the President or anyone else in White House.

And, you know, when I was in the White House, we didn't even talk to Loretta Lynch or the attorney general's office about many, many most issues. We didn't know where the process of where things were in investigations. The only people who talked to them about certain issues was the counsels office. And that's how it should be.

COOPER: Jen Psaki, Michael Caputo, appreciate your time both. Thanks very much.

PSAKI: Thank you.

COOPER: Last week we brought you an investigation into a bazar story a voter irregularity in the state of Georgia where one candidates name didn't appear on some ballot. That candidate filed a lawsuit to do the election over again. A judge just ruled on it. We'll tell you what the ruling says in a moment.


[20:56:35] COOPER: It's back to the drawing board and back to the voting booth in a primary election in Georgia. A judge has -- his going to order a redo of an election for a state House district because errors in voter data have called the results into question results that were very close. Our senior investigative correspondent first brought this story to us over a week ago. We're going to hear more from him in a moment.

But first, here's some of the reporting he did after the mistakes were first discovered.


DREW GRIFFIN, CNN SENIOR INVESTIGATIVE CORRESPONDENT (voice-over): On May 22nd, the only two people running for state representative district 28 in northeast Georgia, squared off in a tight Republican primary that would decide who would hold the office. State representative Dan Gasaway lost in a squeaker.

DAN GASAWAY, GEORGIA STATE REPRESENTATIVE: At the end of the day I lost by 67 votes.

GRIFFIN (voice-over): Remember that number, 67 votes. Gasaway congratulated his opponent and thought it was all over, until the next day when his wife came home from her teaching job.

GASAWAY: And said that Dan, my colleague came in and said she'd gone to vote for you last night and your name was not on her ballot, and she's in my district.

GRIFFIN (voice-over): His name wasn't on her ballot? How could his supporters vote for him if they couldn't even find him on the ballot? Turns out it wasn't just one voter. Gasaway broke out maps, overlap voting rolls, and found for each one of these dots, voters were assigned to the wrong district.

(on-camera): Let's get real specific. Your district is district 28.

GASAWAY: That's correct.

GRIFFIN (on-camera): And these people were voting for district --


GRIFFIN (on-camera): -- 10

GASAWAY: That's right. Well, I realized then we had a serious problem. I don't know how it happens, but it did

(END VIDEOTAPE) COOPER: Dew Griffin joins me now. What exact through did the judge say, Drew?

GRIFFIN: Well the judge said so many voters got the wrong ballots in this election it could have actually affected the outcome. The wrong person may have won so he's ordered a redo, a new election, and tonight we are learning that new election is going to be held on December 4th, Anderson.

COOPER: Do we know how the mix up occurred in the first place?

GRIFFIN: You know, we really don't. The only explanation is that the lines have been redrawn in this district so many times that there's some kind of screw up. That doesn't get a lot of confidence to voters in this state, in this county particularly. The county is going to do an audit of all the voters, try to figure this out. But the bigger question here is what's happening in the rest of the state of Georgia, Anderson. These redistricting lines are done in partnership with the state and right now there is no clear answer how this got so goofed up.

COOPER: It's also coming on the heels of another ruling of electronic voting machine described as sees in Georgia.

GRIFFIN: Yes, a federal case, that was a federal judge who was being asked to get paper ballots out for every voter in Georgia. And though that judge denied that request for paper ballots, she offered a scathing rebuke of just how Georgia's voting systems have been so mishandled. She discussed how the election system actually was opened up on the internet and called the electronic voting dated vulnerable voting system with no independent paper trail. She said basically the state has been burying its head in the sand over Georgia election ands voting.

COOPER: Well, Drew, thanks so much. Appreciate it.

GRIFFIN: Thanks.

COOPER: We'll keep updated on that. A reminder don't miss "Full Circle", our daily interaction newscast on Facebook. You get to pick some of the stories we cover. You can see it weeknights 6:25 eastern facebook/andersoncooperfullcircle.

The news continues right now, I want to hand it over to Chris Cuomo for "CUOMO PRIME TIME". Chris?

CHRIS CUOMO, CNN ANCHOR: Thank you, Anderson. I am Chris Cuomo. Welcome to "Prime Time".

[21:00:04] You've got till Friday. That's the new Republican ultimatum to Brett Kavanaugh's accuser. Will the President bring in the FBI? The latest judgment call under review.