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Judge: Former White House Counsel Must Testify But Can Invoke Executive Privilege "Where Appropriate"; Subpoena Indicates Fed Interest in Giuliani's Business. Aired on 8-9p ET

Aired November 25, 2019 - 20:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[20:00:12]

JOHN BERMAN, CNN HOST: A federal judge hands President Trump a major defeat, gives impeachment investigators a big boost, and sends a clear signal to anyone who is thinking about testifying but holding back for now. Looking at you, John Bolton.

John Berman here in for Anderson.

Late today, District Judge Ketanji Brown Jackson ruled the former White House counsel and Mueller star witness Don McGahn must comply with the House subpoena. And though her decision permits McGahn to exert executive privilege at appropriate moments, it also makes very clear there is no basis for the White House claim that McGahn is absolutely immune from being compelled by Congress to testify. Absolute immunity is not a thing, she writes, at all. Presidents are not kings, she adds.

So it is a very busy night. There is also new reporting about acting White House Chief of Staff Mick Mulvaney's role in the Ukraine affair. That and a subpoena linking Rudy Giuliani to new and broad federal investigation of his associates and apparently now his company.

Plus, what the lawyer for one of the associates says that could implicate Congressman Devin Nunes, top Republican on the intelligence community, in effort to get dirt on Joe Biden. Oh, yes, and the president fires his navy secretary and the navy secretary fires back.

We begin, though, with the court ruling and CNN's Jim Acosta live for us at the White House.

Jim, what has the White House reaction been so far?

JIM ACOSTA, CNN CHIEF WHITE HOUSE CORRESPONDENT: Well, John, this ruling applies to the former White House counsel Don McGahn. As you were just saying, a few moments ago, it might as well apply to the acting Chief of Staff Mick Mulvaney, might as well apply to the former national security advisor, John Bolton.

But the White House is saying not so fast. Stephanie Grisham just put out a statement in the last couple of minutes saying essentially that this decision contradicts longstanding precedent established by administrations on both political parties. We will appeal and are confident that the important constitutional principle advanced by the administration will be vindicated.

This constitutional principle that the administration is advancing is that essentially they can say no to anybody testifying up on Capitol Hill. And what the judge said in that ruling is, no, that's not the case. The judge pointed to the case of Harriet Miers during the George W. Bush administration, essentially saying that Don McGahn could be to Capitol Hill and say that executive privilege has been asserted here.

But, John, obviously, this applies to not just Don McGahn who, by the way, his attorney says, you know, if this ruling is not stayed by a judge pending an appeal, his client will testify. But more importantly, I think more crucially in all this, Mick Mulvaney's attorney is saying this evening, John, that his client will not be participating, will not be testifying no matter what this ruling says.

And so, the White House is back to the Trump administration, back to where they've been in all of this which is the position of stonewalling.

BERMAN: It is interesting. Don McGahn's attorney specifically said if it is not stayed, he will testify. That's very specific language and we'll talk about why that significant because he could have said something else. We'll get to that in just a moment.

What does this mean for the list of other White House officials who have defied the subpoenas?

ACOSTA: Well, you know, I talked to a legal source very close to this case who said, you know, listen, this absolutely applies to Nick Mulvaney and John Bolton and this is the game that has been played throughout all of this, John. You know this all too well. The White House has been gambling on one thing. And that is if they say no to these officials testifying on Capitol Hill, that Democrats will make the political calculus that they're not going to risk this dragging out in court for months and months because they don't want it dragging into the next general election cycle which we're in the midst of that right now.

And so, the White House is essentially saying, OK, we're going to stick with that strategy. The problem because, if this moves very quickly through courts and this McGahn ruling is upheld at higher levels, at that point, the White House might have no option but to make sure that Mulvaney and John Bolton testifies.

But I think, John, this -- I think this is really the lynchpin to all of this. What you're hearing from a lot of people, not just the Republican Party but also the Democratic Party. Sources are telling us that the Democrats may not have a case. They might have a case to impeach the president in the House where they have the numbers but not necessarily in the Senate.

And if they want to have anything but a partisan impeachment process, they may need John Bolton, they may need Mick Mulvaney to testify in all of this. And that's why it may get sorted out in the courts in the weeks to come. The question is whether or not it sorted out in any kind of reasonable amount of time, John.

BERMAN: All right. Jim Acosta at the White House for us tonight, thank you very much.

We have our own lawyers on hand to dig through this. CNN chief legal analyst Jeffrey Toobin, who's former federal prosecutor. As is CNN legal analyst, Jennifer Rodgers. Also a man had Don McGahn's job in the Nixon administration, John Dean also joins us.

Jeffrey, I want to read a little bit of this ruling. Put it on the screen. Judge Jackson writes: With respect to senior level presidential aides, absolute immunity from compelled congressional process simply does not exist.

As the kids would say, absolute immunity is not a thing.

How stark of a ruling is this?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: It's really -- it was such an extraordinary claim by the White House, that not only doesn't Don McGahn or any White House official have to, you know, protect individual conversations with the president, the White House argued they don't even have to show up. They are absolutely immune from congressional oversight.

Judge Jackson could not be more explicit as that passage illustrates. There is no such thing as absolute immunity. Now, however, the complexity here is that that what is covered by executive privilege remains somewhat ambiguous. But does Don McGahn if this ruling is upheld, have to show up and answer at least some questions? Absolutely.

BERMAN: And the judge goes on, John Dean, to say it's not just a lawyer. It's not just a domestic policy adviser. Not just a foreign policy adviser. Any White House employee is covered by this ruling.

So, if you are John Bolton watching this tonight, what do you think he thinks about this, John?

JOHN DEAN, CNN CONTRIBUTOR: Well, he's got to be doing some serious thinking about it because he is directly involved. And he could easily volunteer to come forward. He could easily say based on this ruling, I am now going to go testify. I'm no longer a White House employee. I think I have things to say that are unrelated to the executive privilege.

He could claim -- he is an attorney. He knows there's a crime-fraud exception to any of his conversations, where if he has knowledge of criminal activity, he can go in and testify about it. So, if he wants to, he can come forward and do so without the later case that he is connected with and another judge in the same court. And he can proceed. It's an excellent opinion, incidentally, John.

It's a strong opinion. She says we've been here, done this before and we're not going to mess around with it. BERMAN: Jennifer, I want to read you another quote from this opinion.

She writes, stated simply, the primary takeaway from the past 250 years of recorded American history is that presidents are not kings. Now, that is stark. It's also right from the federalist payments, by the way. So, she's quoting, you know, high school education to the White House legal team here. What did you make of that?

JENNIFER RODGERS, CNN LEGAL ANALYST: Well, it is really about separation of powers. I mean, if you cannot as Congress oversee the executive branch, if you cannot engage in impeachment hearings and gather evidence as part of that process, we don't have co-equal parts of government anymore.

So, I think that's basically what he's saying. He is not a king. He has to be subject to in certain ways pursuant to the Constitution, the other branches, including the judicial branch, which, of course, is Judge Jackson issuing this subpoena. So, you know, they'd better listen.

BERMAN: Now, one thing, obviously, we know the White House has already said that they will appeal this case. This will be appealed. So this could drag on for some time.

But on the issue of Don McGahn, Jeffrey, you looked very careful at the language used by Don McGahn's lawyers, which Don McGahn's legal team didn't say, we're just going to see it through to the bitter end. Look, the appeals process plays itself out.

What Don McGahn's attorney said is, he will testify if the decision is not stayed.

TOOBIN: Right. And I don't want to bore people with too much civil procedure here, but what's important is that when you appeal something, usually the appeal, the underlying decision comes into effect. What's -- unless you get what's called a stay.

And that means the D.C. circuit, the appellate court says, you, White House, have a likelihood of success on the merits. You are so likely to win on appeal that we're going to hold off on this ruling. It's pretty unusual. And I think it is unusual in this case.

So what Don McGahn's lawyer William Burke means, is that unless he gets -- the White House gets a stay, and that should be known within a week or two, McGahn is going to testify. And that really changes the calendar in a very dramatic way because if he were going to wait for the appellate process to be resolved, that could be months. This is probably just a couple of weeks.

BERMAN: It's not impossible, in other words, that there is no stay, is what you're saying.

TOOBIN: I think it is likely there is no stay, which means McGahn would have to testify sooner rather than later before impeachment is resolve in the House.

BERMAN: And that gets to the political issue here. We're going to have a Democratic member of Congress on in just a second, John Dean. But the Democrats face a question here. Now that this judge has ruled as she ruled, is it worth waiting to see if they can get their hands on Don McGahn or John Bolton or Mick Mulvaney?

[20:10:06]

What do you think about that?

DEAN: I don't think they are going to wait. What is happening is the House Intelligence Committee is going forward and writing up its report which it will send to the House Judiciary Committee. This ruling was a verdict for the House Judiciary Committee which filed the action and had subpoenaed McGahn.

So I think they can keep rolling along and the issue of stay or no stay will be resolved well before they're about to wrap up their business. So, just in the normal course of things, I think this issue and that issue will be sorted out.

BERMAN: So, Jennifer, and then there is this legal issue which the judge did carve out, but didn't really illuminate in great detail, which is executive privilege. That a witness, Don McGahn, or others, could still exert executive or assert executive privilege. I guess it would be the White House technically asserting executive privilege.

But what could that cover? Do we know? If in fact in the case of Don McGahn, for instance, we already know that these issues surround whether or not the president was telling him to fire people, you know, and obstruct justice, would it cover testimony about that?

RODGERS: Executive privilege is an area, very unlike attorney-client privilege, it is not well-litigated. So, it's not very cheer what the parameters are. I think what we will see if Don McGahn shows up to testify is a lot of exertions of executive privilege, and that's really the problem, is a congressional testimony doesn't give a lot of ways to have that issue resolved immediately on the spot the way you would in a criminal trial, with a judge presiding. So that's going to be the problem, because it's an individual inquiry based on the actual question asked and the likely answer.

So, it's going to be a big mess, frankly, because we are going to have all sorts of assertions. No real way to resolve them, and I'm afraid that even if he sets in chair, the House is not going to get a lot of information out of him for that reason.

BERMAN: But in theory, it would not cover obstruction -- issues of obstruction of justice, actual exertions of a crime, right?

RODGERS: I think that's right. But again, whether it is a crime or not, it's subject to a legal analysis. And, you know, it's just -- I think it's going to be a mess. I think they're unlikely to get a lot of good information from them beyond what he testified to or spoke to Mueller's team about.

TOOBIN: I agree. However, McGahn has a lot of power in this himself. I mean, he can really decide where he wants to answer questions or not and he now barring a stay has a real opportunity to do that, if he's so inclined.

BERMAN: Jeffrey, Jennifer, John, great to have you on tonight. Thank you very much. Jeffrey Toobin, stick around. There's more lawyering to be done.

One quick note before we take a break, the Supreme Court late today gave the president a breather, suspending for now the House subpoena seeking financial records from his accounting firm. This is not a ruling but it's a signal that the high court will take up the case. An appeals court upheld the subpoena last month.

Next, another subpoena potentially connecting the president's TV lawyer, a Ukraine fixer, an alleged bag man Rudy Giuliani to a major federal criminal investigation.

And later, a closer look at why Republicans are saying things they have every reason to know simply are not true in order to please a president who believes those falsehoods as well. Is what it some are calling cult-like devotion? That and more ahead on 360.

(COMMERCIAL BREAK)

[20:17:28]

BERMAN: Another big legal development tonight, this one from a federal grand jury. A subpoena, part of a probe targeting associates of Rudolph Giuliani, Lev Parnas and Igor Fruman, his Ukraine lieutenants, and linking Giuliani through his security firm to serious potential charges.

CNN's Kara Scannell has been doing terrific reporting on this from the beginning. She's got new reporting tonight. She joins us for the details.

You know, what are you learning about this grand jury subpoena?

KARA SCANNELL, CNN REPORTER: So, John, we learned that this subpoena tells us two things about this investigation so far. It tells us that it is quite broad and that they are exploring a range of potential criminal charges. All we know to date, before the subpoena, was that Lev and Igor were charged of campaign finance violations. Now we know prosecutors are considering money laundering, wire fraud, obstruction of justice, lying to investigators.

There's a lot that we don't know. But this does show us that there is a very broad investigation and it could include a range of criminal conduct.

BERMAN: And where does Rudy Giuliani fit into that?

SCANNELL: So, it's interesting. This subpoena is requesting from the person that received it any communications of Lev and Igor, but it's also asking for any communications with Rudy Giuliani, his security consulting business Giuliani Partners, and in particular, it asks for any communications or records about actual or potential payments to Giuliani or any agreements relating to that. So, I think that really indicates there that they're looking at the

money flow, the business relationship between all of these men.

BERMAN: His name is all over it.

What did Giuliani's lawyers have to say about this?

SCANNELL: So, Rudy Giuliani's attorney, Robert Costello, he's a criminal defense lawyer, he gave us a statement where he said, I have not seen any subpoena that looks for communications for documents from Mayor Giuliani or Giuliani Partners. It would not be surprising given that two of the individuals had a business and legal relationship with Mayor Giuliani and Giuliani Partners. Of course, that relationship had nothing to do with indictment. Costello adds, all the SDNY had to do was asked us and we would have given them whatever they wanted because Mayor Giuliani has nothing to hide and did everything in a proper and legal way.

So he is saying that they still have not heard from the prosecutor's office. There have been no subpoenas or even voluntary requests for information.

BERMAN: All right. Kara, stand by, if you will. I want to bring back in Jeffrey Toobin and Jennifer Rodgers to this discussion. Jeffrey, his name, Rudy Giuliani, is all over this subpoena. So, how worried should he be?

TOOBIN: Well, I mean, to be fair, it is important to point out, a subpoena is very far from an indictment. So he is not charged with anything. And he certainly may never be.

But as the judge I used to clerk for liked to say, they don't pick these people's names out of the phone book.

[20:20:01]

And if people don't know what a phone book is, Google it or something. But, I mean, it's not -- I mean, it is not a good thing to be named in a subpoena. And the fact that his attorney is saying he hasn't seen it, that's bad news. That's not good news, because they don't subpoena targets. They subpoena other people to collect evidence about targets.

BERMAN: Jennifer, to that point, Giuliani's lawyers put out this statement saying that if the Southern District wanted this information, they could have just asked Giuliani and this business for and they would have turned everything over.

Do federal investigators typically work like that? Do they buy that line?

RODGERS: Yes, thanks but no thanks, Mr. Costello. No way are they going to collect these documents from Rudy Giuliani and no way would they trust him honestly to turn over everything they're looking for.

So, you know, they're going about this the right way. And as Jeffrey said, we'll see where it takes us down the road. But If I were Rudy Giuliani, I would be worrying for sure.

BERMAN: And, Kara, we still don't know exactly what Rudolph Giuliani did for Lev Parnas' company, which is actually called Fraud Guarantee, right, that urged him -- it is. That's the name. It's a last line every time.

TOOBIN: It's -- too on the nose, as they say. Giuliani earned $500,000. We don't know doing what. Could that fill in any blanks?

SCANNELL: What's interesting is Rudy Giuliani has only said that he has done legal advice for this company for half a million dollars and he was paid in August of 2018. Now, what we've also learned is that a lawyer for a plaintiff's attorney who invested in the company, he said he's the one that paid Giuliani and it was a loan to the company of the he thought would it help credibility. It's not clear what business if any fraud has done.

And prosecutors have asked individuals who have -- were approached with this deal for any communications and information about this. So you can tell that they're really digging into this and it may not be the only business relationship that they're poking around in.

BERMAN: So, President Trump, Jeffrey, keeps on extolling Rudolph Giuliani's virtues as a crime fighter in his long career. Reflect for a moment, if you will, the epic journey of Rudy Giuliani from U.S. attorney to mayor to now friend of Lev and Igor. I mean --

TOOBIN: U.S. attorney in the Southern District of New York, which is issuing these subpoenas about him. I mean, there are former U.S. attorneys who have been prosecuted in the past, very, very rarely but never as far as I'm aware by the office that they used to lead.

Let's again be clear. He is not accused of anything. He is not -- and he certainly may never be. But this is certainly an unusual -- an unusual posture.

By the way, he's always two-term mayor of New York City, a person who led the polls for the Republican presidential primary for some time. Didn't win, but, I mean, this was a major national figure.

BERMAN: Jennifer, Rudy Giuliani, one of the things he keeps saying, he claims it's a joke, is that he's got an insurance policy in case the president turns on him. Now, again, he says he's being sarcastic but it is kind of weird, right? It does raise a whole bunch of questions of what's going on here.

RODGERS: It's very strange. And the first time he said it, maybe it was a joke and then he kept repeating it. So, you know, listen, if he actually means that he has derogatory information about the president, that is so improper on so many levels. It is unethical as a lawyer to say something like that. It could mean real trouble for the president in terms of his criminal liability.

It's just so bad on so many fronts, I don't know why Mr. Giuliani keeps saying that. But, you know, maybe someday we'll see what he means with this insurance policy if this goes far enough. BERMAN: And if it is a joke, it's frankly not a very good one.

Kara, just -- how quickly are investigators working? Do they feel compelled to do this before the election?

SCANNELL: That is an actual issue here. I mean, they don't want to repeat the situation with James Comey where he made a comment about an investigation into Hillary Clinton on the eve of the election in 2016. So they're very mindful of the election and it's interesting, because this -- you know, where would you draw the line because of all the different actors in this?

They are mindful of that. I think what we can see from the scope of the subpoena that's we've been reporting sent out to a number of donors and fund-raisers, that they are really canvassing the landscape to talk to people with this. But I think they are mindful of the election, which could mean that they either speed it up or any action occurs after that. But I think a lot of it will also depend on the evidence that they collect.

BERMAN: Kara Scannell, Jeffrey Toobin, Jennifer Rodgers, thank you all very much.

Up next, I'll talk more about this case, the McGahn ruling and more with a member of the House Intelligence Committee.

(COMMERCIAL BREAK)

[20:29:16]

BERMAN: Recapping the breaking news unfolding tonight, a federal judge rules that former White House counsel Don McGahn must comply with a House subpoena to testify before a House committee. And late word that federal prosecutors are investigating business associates of Rudolph Giuliani in what appears to be a wide ranging probe that could include criminal charges ranging from obstruction of justice to money laundering.

This according to a subpoena sent to at least one witness and seen by CNN. It means that Giuliani's business could be a subject of their investigation.

Joining me now is Democratic Congressman Mike Quigley, a member of the House Intelligence Committee.

Congressman, thanks so much for being with us.

I want to start with this ruling from Judge Jackson that White House counsel Don McGahn must testify before Congress in the impeachment probe. How significant do you see that?

[20:30:00]

REP. MIKE QUIGLEY (D), INTELLIGENCE COMMITTEE: Look, I think it's critical, not just for this case but for a future of congressional oversight. I think part of what I would tell my Republican colleagues is, do you really want to live in the world where any president has absolute immunity over any congressional oversight. I don't think you have to look too far in the future where that could be a great concern for you.

And the immediate reaction is, I think it's a message to all the witnesses who obstructed in the White House for telling them not to appear. It's time to show up.

BERMAN: Do you think this ruling gives cover to someone like former National Security Adviser John Bolton to testify in the impeachment inquiry?

QUIGLEY: I think he might use it for that, but I'm not sure why he feels like he needs it. If this was what he was described as saying, a drug deal, if Rudolph Giuliani was a hand grenade, if indeed he stiffened at that meeting and abruptly ended it. If he felt as strong as I think he does about defending Ukraine as a US ally, why would he even need a subpoena?

Look at the people who in a clear consistent, and I think most important courageous voice, spoke as one to the American people through their duly elected Congress. You know, if this is about selling books, I guess, take your time, Mr. Bolton. If this is about stepping up at a time when it mattered most, it is time to go.

BERMAN: Does this ruling give and you your colleagues any reason to think that, hey, maybe we should wait for the legal process to play out? Maybe we could and get Bolton, Mulvaney and others to testify if we wanted to?

QUIGLEY: Look, it sounds inviting and I think we can do more than one thing at the same time. Obviously, the report is being written. We're deliberating on all other matters relating to this. We continue to get these documents. I think that it leaves time and room open as this happens at the same time we're writing these reports, that we may take additional depositions, seeing what the documents are first, what they tell us and where we should go from here.

BERMAN: All right. What's your reaction to this news about Rudy Giuliani tonight? At this point, he hasn't been accused of any wrongdoing but what has been made very cheer is just, how many outstanding questions there are surrounding his involvement in all of this.

And it just seems like all roads lead to him, from him or through him.

QUIGLEY: Well, Rudy was the issue we care about most, the quarterback of the President soliciting one of our closest allies for a bribe. I think he quarterbacked it in Ukraine.

I don't know if there was a second track out there of profiteers that we apparently sent to Ukraine at a horrible time. I think it's time for that investigation to take place as well. So if you're willing to go to Ukraine and do something wrong, it's hard to imagine that you wouldn't be willing to go there and do other things for personal profit.

BERMAN: So CNN is reporting that House Democrats are focusing on multiple articles of impeachment. And some of your colleagues want to go beyond the Ukraine issue to include instances of obstruction of justice from the Mueller report, while others want things narrowly focused on Ukraine. Where do you fall, personally, on this? What do you find to be the best strategy?

QUIGLEY: I think it is time for that strategy discussion to take place. I think it's most important that we do this in the most effective manner possible. I believe the jury is the American people because that drives the forces that perhaps drive the US Senate at the same time.

It's really hard to overlook the Mueller report. It is pretty clear to me that special counsel was hindered in indicting the President for obstruction, simply because the Department of Justice doesn't allow such things in its regulations. I also think that if we don't hold this president accountable for all of this, we have to look at what took place the day after the special counsel testified. That was the day the president called President Zelensky.

When he's not held accountable, I think he goes on to higher crimes and misdemeanors, all of that being said. I think we file articles that are most effective, most appropriate no matter how the caucus debates back and forth on other matters.

BERMAN: All right. Congressman Mike Quigley, keep us posted. Appreciate you being with us tonight.

QUIGLEY: And Happy Thanksgiving to all.

BERMAN: You too. Just ahead, President Trump's Ukraine conspiracy defense scores a new supporter in the Senate.

[20:35:00]

(COMMERCIAL BREAK) BERMAN: Despite a top White House national security official who testified last week that Russia, not Ukraine, interfered in the 2016 election. She called the Ukraine theory, a Russian cover story, despite that and despite the fact that this is also the consensus of the entire US intelligence community including the CIA, FBI, Justice Department, and both Intelligence Committees, at least one Republican senator has decided to back President Trump, that maybe it was Ukraine. Here's John Kennedy.

(BEGIN VIDEO CLIP)

CHRIS WALLACE, FOX NEWS HOST: Senator Kennedy, who do you believe was responsible for hacking the DNC and Clinton campaign computers, their emails? Was it Russia or Ukraine?

SEN. JOHN KENNEDY (R), LOUISIANA: I don't know, nor do you, nor do any of us. Ms. Hill --

WALLACE: No, let me interrupt to say, the entire intelligence community says it was Russia.

KENNEDY: Right, but it could also be Ukraine.

(END VIDEO CLIP)

BERMAN: See what he did there? I don't know. You don't either. Clever, huh? So it bears repeating, there is no as in zero evidence Ukraine interfered in the election. Not only that, members of Congress were briefed that it was Russia pushing that nonsense.

Joining us now Washington Post Op-Ed Columnist, Michael Gerson, a former speech writer for George W. Bush and Republican Strategist Rick Wilson, Author of "Everything Trump Touches Dies."

[20:40:04]

Michael, I want to start with you because you wrote an op-ed in the Washington Post today in which you say "loyalty to Trump among Republicans is proved by the loosening of all other loyalties to truth, to honesty, to the national good." By this measure, you write, "Kennedy is profoundly loyal to the President."

I just think back to when I first met you in 2000 when you were a speech writer to George W. Bush. Can you even recognize someone like this in your party today?

MICHAEL GERSON, OPINION COLUMNIST, THE WASHINGTON POST: No. I mean, there's a real irony at work.

It used to be conservatives in the '80s and '90s who defended the idea of absolute truth, who criticized relativism and subjectivism. Now in Trump world, everyone can have their own truth. And that I think is an invitation to kind of appease some illogical chaos. It means that no one can have the truth at all.

BERMAN: Right. And in some cases, there aren't multiple truth, particularly like in this one, there seems to be one truth that Russia attack the US election and Ukraine did so in other words, what John Kennedy is saying is a lie. Rick, to you, do you think John Kennedy actually believes it?

RICK WILSON, REPUBLICAN STRATEGIST: Sure. John Kennedy absolutely does not believe it. He is being a mendacious, low human being. He is demonstrating that the things he has been told directly by the US intelligence community and all these senators have been briefed on very thoroughly. He knows he's lying.

He's absolutely abundantly aware that in order to defend Trump, he is telling an outrageous lie. He knows who it was. It isn't a matter of opinion. It is Russia who hacked the US elections. It is Russia who elected to support Donald Trump.

But John Kennedy, like most of his Republican colleagues, will do absolutely anything to prevent Donald Trump from being angry at him. He will do anything to feed Trump's mob, including lying to his constituents and to the American people. This is a guy who went to Oxford. He's not dumb. He's just lying.

BERMAN: Michael, you write about this in your piece today this whole Ukraine did it narrative. It's coming from the Russians. This is what Vladimir Putin wants them to say. You would think of nothing else, Republicans who have been opponents of the Soviet Union Russia for generations would want to deprive Putin of that victory. Yes?

GERSON: Yes. The most successful intelligence operations are not only destructive, they have deniability. And Putin has tried to blame his victim in a war for this interference in American elections. You can see the truth of it on the FBI most wanted list.

There are 12 Russians on that list now, who, you know, were indictment was brought against them. And I think that -- I think that people, like Kennedy, have made the choice. They're going to support the President. Now it's the President's choice, how stupid he makes them look by asking them to defend the indefensible.

BERMAN: Rick, I want to play or I want to ask you about something that Energy Secretary Rick Perry said he was asked yesterday he compared to he said something yesterday compared to what he said in 2015. Listen to this.

(BEGIN VIDEO CLIP)

RICK PERRY, SECRETARY, US DEPARTMENT OF ENERGY: Mr. President, I know there are people that say, you know, you said you were the chosen one. And I said you were.

My fellow Republicans, beware of false prophets. Do not let itching ears be tickled by messengers who appeal to anger, division, resentment.

(END VIDEO CLIP)

BERMAN: So how do you get from point B their back to point a? You know, Rick Perry, who was a guy who was respected as a governor of Texas has followed the same arc. Far too many Republicans have followed. They believe they can enter Trump's world and not experience the thing that happens to everyone. He is both corrupt and corrupting. And what they what they realize once they're deep in the mire is that it's not sufficient to just agree with him or just do what he asks.

You have to praise him. You have to describe him as a God. You have to describe him as the smartest, tallest, handsomest man in the room. He's always got to be right. And so they're, they're in this endlessly recursive pattern where they have to do this more and more egregiously, more and more, you know, with greater, greater exaggeration as to Trump's qualities.

And so now, you've got Rick Perry, essentially saying he was sent by God. It's an astounding power Donald Trump has to break people and to cause them to abandon every principle they ever embraced. BERMAN: Michael, and I do want to ask you about this because you've done some of your most thoughtful and meaningful writing about issues surrounding faith. So what goes through your mind when you hear Secretary Perry refer to President Trump as chosen?

[20:45:00]

GERSON: Well, first of all, it's a confusion of theological categories. I mean, this is a case where God is sovereign. But that doesn't mean that everyone deserves their job in government. I mean, you have to explain Mussolini somehow.

And this is a case where the role of proper role of Christians in public life is not to pronounce some to be the chosen one. It's to represent the priorities of Christ in the world. And that includes taking care of the least and the lost. And by those standards, the President has failed utterly.

Michael Gerson, Rick Wilson, thank you so much for being with us tonight. Both of you have a Happy Thanksgiving. I appreciate seeing you.

GERSON: You too.

BERMAN: Still ahead for us, more breaking news, the Navy Secretary forced out and speaking out in his first television interview, his rebuke of President Trump when "360" continues.

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[20:50:00]

BERMAN: It has been another busy night to say the least. Time to check in now with Chris to see what he's working on for Cuomo primetime at the top of the hour, sir?

CHRIS CUOMO, CNN HOST: All right, JB. We're going to take a look at what the judge's decision with the former White House Counsel McGahn means for the other people who don't want to testify or the President wants to keep from testifying will take that on. Good legal minds on that because it means more going forward than it does just from again.

Then, the man everybody is talking about, we will talk too, Senator John Kennedy. Why is he saying this stuff about Ukraine? I watched your panel on it. What is his explanation? He's here to be tested. And Ronan Farrow. Perfect timing because David Pecker, the head of the Enquirer, AMI, he's talking to New York prosecutors. What's Farrow's take on it? He's got a brand new podcast starts tomorrow. What's that about? He'll give us an exclusive taste.

BERMAN: Chris Cuomo excited to see the show, great to see you tonight. Thanks very much.

CUOMO: JB, my man.

BERMAN: All right. The Navy SEAL at the heart of a big battle between President Trump and the Navy secretary who was fired. The ousted Secretary Richard Spencer is now speaking out for the first time in a new television interview. What he said in just a moment.

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[20:55:00]

BERMAN: More breaking news tonight, the Navy secretary fired after he and President Trump disagreed over the reinstatement of a Navy SEAL has given his first television interview, calling out the President for his actions. Here's Richard Spencer with CBS News, David mark.

(BEGIN VIDEO CLIP)

DAVID MARTIN, CBS NEWS HOST: What were the ramifications of intervening in that review process?

RICHARD SPENCER, FORMER SECRETARY, US NAVY: What message does that send to the troops?

MARTIN: Well, what message does it send?

SPENCER: That you can get away with things. We have to have good order and discipline. It's the backbone of what we do. I don't think he really understands the full definition of a war fighter. War fighter is a profession of arms. And a profession of arms has standards that they have to be held to and they hold themselves to.

(END VIDEO CLIP)

BERMAN: Navy SEAL in question, Eddie Gallagher was accused of murdering a captive ISIS member. He was acquitted on that charge but was demoted after being found guilty of bringing discredit to the armed services for posing for a photo with the body which is against regulations.

The President whoever had his rank reinstated. Defense Secretary Mark Esper says Spencer was fired for going outside the chain of command proposing a secret agreement with the White House. Spencer says that was because Esper was overseas and Esper's Chief of Staff was informed.

In a new state, the Pentagon says neither Esper nor anyone on his staff was aware of Spencer's proposed deal. In his resignation letter, the ousted Navy secretary says he could not in good conscience, unquote, obey President Trump's order.

Joining me now for his take on all this retired Lieutenant General Mark Hertling. So, General Hertling, is that the message that this sends do you think that members of the military can "get away with things?

MARK HERTLING, CNN MILITARY ANALYST: That's certainly part of the message that's coming from this, John. This is going to be the gift that keeps on giving. Having sat on disciplinary boards and see how soldiers or members of the military who have committed acts of in discipline might play things. They certainly will.

They will see Chief Eddie Gallagher getting away with something. And some will say when they go before, you know, there's been 150 tritons removed from SEAL since 2011. And those who will go in the future will say, hey, wait a minute, you're taking my trident. And yet you let Gallagher get away with it based on what he did. You know, if I had a DUI or I, you know, beat my wife or I was before you for some kind of disciplinary action, you're going to take my trident, but you didn't take his.

So it will be a recurring theme. And the lawyers will have to deal with that and they should. The second thing is that this is now Gallagher is now a robe SEAL. Now there were certainly be some in the military in the SEAL force, who will say the President did the right thing by this guy. He's standing in front of the soldiers.

But I guarantee you, there are a lot of SEALs out there who are saying, hey, wait a minute, this guy has gone against our training and our values, and has interrupted our teamwork in terms of the things he's done. And this is just not good for the SEAL community.

BERMAN: What do you say to that argument specifically, though, because the President made it today, he said. He's just sticking up for the armed forces.

HERTLING: Yes. Well, he's just sticking up for an individual SEAL is what I would say. And this is a strategic issue in nature. You know, when you have all of the experts, the folks who are the leaders of the SEAL community, the leaders in the Defense Department, going to the President, and literally trying to beg him not to do this not to interfere with this action. It tells a story. And truthfully, that's the biggest concern I have.

President Trump, now I know I'm going to sound biased when I say this, but he is not smarter than the generals in these things because he doesn't understand the second and third order effects, what's going to happen to the teams inside of the organization, what is going to happen to the discipline, and the morale of the units when people think they can get away with these kind of things.

BERMAN: Is this another example you think of the President injecting himself and politics into institutions that are by nature and by design apolitical?

HERTLING: Yes, this is concerns me as well. You know, the President has injected himself and brought divisions in such institutions as the Justice Department, the FBI, the intelligence community, recently the diplomatic corps, there has always been concerned among the senior leaders of the military that he would eventually bring those same kind of divisions within the military and between civil military coordination and cooperation. That's what he's doing now.

Because there's an ongoing fight right now between the young sailors in the SEAL community saying, hey, you go get them President stand up for our own. And the older ones that are saying, this is going to have long term deleterious effects and it's not going to be good. BERMAN: General Mark Hertling, always a pleasure to speak with you.

HERTLING: Thank you, John, good to be with you.

BERMAN: And that is it for us. The news continues, I'll hand it over to Chris for "Cuomo Primetime."