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VIDEO: CNN's Christiane Amanpour Interviews Trevor Potter: Is President Trump "Totally Clear" Legally?
Caplin & Drysdale

VIDEO: CNN's Christiane Amanpour Interviews Trevor Potter: Is President Trump "Totally Clear" Legally?

Date: 12/10/2018

Caplin & Drysdale’s Trevor Potter, head of the firm’s Political Law Group, was interviewed by CNN's Christiane Amanpour concerning allegations of wrongdoing by President Trump. Below is an excerpt of the interview and please follow this link to view the video.

Clearly, the White House is feeling the heat. And the president has yet to announce a new chief of staff when John Kelly stands down at the end of the month. So, to try to dissect all of this and to discuss the U.S. government's accusations is Trevor Potter. He is a form[er] . . . commission[er] and chair of the U.S. Federal Election Commission. And also joining us, former federal prosecutor and writer for "The New Yorker" Jeffrey Toobin.

Gentlemen, Welcome to you both.

So, it does seem like there's this rolling sense of crisis across the Atlantic. It's been bubbling and boiling for a long time.

Let me first ask you Trevor Potter and given that you are a former official with the Federal election -- the Republican Election Commission. What does this say to you now, all of what has been dropped by prosecutors, the advice that Mueller had to the prosecutors in New York and what's going on with Trump and the payoffs to these women?

TREVOR POTTER, FORMER CHAIRMAN. U.S. FEDERAL ELECTION COMMISSION: Well, we now know that the prosecutors have a great deal of evidence, not only that these payments occurred and, of course, President Trump for a long time maintained that they didn't, but that they were done from two sources, both of which constitute illegal expenditures if they are campaign related. One is Michael Cohen himself, the president's personal lawyer, and the other is the company that owns the "National Enquirer" and corporations in the U.S. are prohibited from spending money on behalf of candidates.

So, the prosecutors say the money was spent, these two women were paid in two different ways in the middle of the presidential campaign, really at the end, in September and October of 2016. And Mr. Cohen, and this is really the important point, has pled guilty to violating the criminal laws in doing so.

So, he says that he did these things, that they were deliberate attempts to avoid the reporting and contribution limits of the federal election laws and he did so at the direction of President Trump.

So, that is what brings this right into the president's living room, is that his former lawyer is saying Trump organized the whole thing.

AMANPOUR: All right.

POTTER: Now, the president says, "That's not true. It's my word against his." Part of the question is, what evidence do the prosecutors have, we know they have some tapes, we know there are other witnesses who they have interviewed. So, that's what will play out going forward.

AMANPOUR: So, before I turn to Jeffrey Toobin, how big a deal from your perspective as a Republican former official is this? How big a deal is this for the president now?

POTTER: Well, he has the argument -- makes the argument that these were purely personal payments, they had nothing to do with the campaign. On the facts, that seems a real stretch because they were made only in the closing days of the campaign. In one of the cases this -- one of the women had made these charges years before, there was no payment then, suddenly it was important to get this done in a rush at the end of the campaign. But that's his first argument.

And his second really is that, even if these things occurred it was all Cohen's fault and not his fault. So, those are fact questions. The reality is, we have all been told that the Department of Justice has a policy of not prosecuting a sitting president.

So, the question becomes, does the department and its prosecutors wait until the end of Trump's term and then bring these charges? And of course, a corollary question of does Congress look at this and say, "Well, the law was violated whether or not there is a criminal prosecution it at this stage"?

But it's -- at some stage, going to boil down to a question of who's telling the truth here. I'm reminded of the great Watergate line, which is what did the president know and when did he know it.

AMANPOUR: Yes.

POTTER: We now are aware that the president knew a great deal about this much earlier than he said, that he was in the middle of it. So, we'll have to see whether any more information develops as a result of what we've already seen in court now.

AMANPOUR: So, Jeffrey, any more information? What do you expect to come out more and what do you think as Trevor just mention, yes, it's problematic depending on, you know, where the truth is, he suggested that, you know, the Congress has a choice as to whether to, you know, prosecute, you know, the difference between political and what the Justice Department thinks? What do you think Congress will do, particularly in the House where they now will be taking over the chairmanship of all of these committees?

JEFFREY TOOBIN, CNN, CHIEF LEGAL ANALYST: Well, I think -- you know, Trevor made a very important point, which is that under Department of Justice policy the president can't be prosecuted while he's in office. So, the issue is not going to be criminal prosecution of President Trump, it's going to be impeachment. Will Congress take some action against the president while he is in office?

And I think the answer currently is not yet. There is not enough evidence yet for it to persuade the Democrats that it is worth proceeding here because, you know, as your viewers may know, our system for removal of presidents is you have to get a majority in the House of Representatives and then two-thirds, 67 votes in the Senate. There is no way there are 67 votes in the Senate.

And as there was Republicans discovered when they had an unsuccessful effort to remove President Clinton from office in 1998, the public doesn't like impeachment efforts that go nowhere. You either have to kill the king or don't attack him.

And the Democrat I've spoken to, Nancy Pelosi, who will presumably be the new speaker, Jerrold Nadler who will be the new chairman of the Judiciary Committee, they say, "We are not proceeding with impeachment unless we can really have a strong belief that the Senate is going to really -- going to remove him from office and we are nowhere near that at that -- at this point."

So, I think there will be investigations from the House of Representatives but removal from office is really not on the agenda based on the evidence we know now.

AMANPOUR: So, you mentioned Jerrold Nadler, we do have a soundbite regarding, you know, what you just said. Let's just play and he's fleshing out some details on this issue.

(BEGIN VIDEO CLIP)

JERROLD NADLER, INCOMING CHAIRMAN OF HOUSE JUDICIARY COMMITTEE: You don't necessarily launch an impeachment against the president because he committed an impeachable offense. There are several things you have to look at. One, were there impeachable offenses committed? How many? Et cetera. And secondly, how important were they? Do they rise to the gravity where you should undertake an impeachment? An impeachment is an attempt to, in effect, overturn or change the results of the last election. You should do it only for a very serious situations. So, that's always the question.

(END VIDEO CLIP)

AMANPOUR: Can I just turn to Trevor for the moment because, I mean, that's what -- that's sort of him saying what he believes will be the perspective of the new committee that he's on.

But, Trevor, Rudy Giuliani, who's the president's personal lawyer, he's comparing these allegations are, you know, against the case of John Edwards who ran for president for the Democrats. He allegedly simply paid hush money to keep -- cover up an affair but he was never convicted of that case. And Giuliani says, "Well, that goes to prove that no crime was committed, no violation of campaign finance laws occurred." Do you agree?

POTTER: I think there are enormous differences between the two cases. There's obviously an attempt here to say, "Oh, well, it's all just election law. It's very complicated." Rand Paul said, "Well, the FEC. is said there's no problem with paying hush money," that's not accurate.

What happened with Edwards happened more than a year before the election. The primaries hadn't even started yet. There were no signed agreements for hush money. The woman involved was not threatening to go public. He had had an affair with her, they had had a child and the money was being sought to raise the child, how was the woman literally put food on the table. She had been a campaign photographer and had no other resources.

So, I think the situations are very different than here happening the month before the election with agreements that explicitly say, "We'll give you this money and you won't talk to the press," at a time when all the evidence indicates they were threatening to talk to the press and in saying, "If you don't get us the money within the next X days, we're going ahead and revealing this all publicly at the worst possible time for the campaign."

So, I think the situations are quite different, the evidence here plus there are tapes here which they weren't there, there appeared to be other witnesses here and the person of the officials of the "National Enquirer" newspaper who have been interviewed by the prosecutors. So, there's much more here.

I think you're still left with the reality though that if the prosecutors are right, if Cohen is right. if the other evidence is there and the president violated the law, he did so before he became president. So, he may be vulnerable to criminal charges but that is different than the question of whether it rises to an impeachable offense.

The prosecutors argue that one of the things this evidence tells us is the election itself was fraud because the American public was hoodwinked. It was denied information that arguably would have been really important for them to know right after we'd had all the other scandals with the Hollywood tapes and so forth if the president had these two affairs with women and had paid them hush money.

So, the prosecutors say that this went to the heart of our system because it was hiding information from voters that was relevant to them in making a decision. Again, and that is different than Congress deciding that President Trump acts constitute high crimes and misdemeanors. And I think a fair question is, does that include things that he did before he became president? Then you have to weigh against that, the fact that these involve the campaign, which made him president.

AMANPOUR: OK. Jeffrey, your reaction.?

TOOBIN: Well, I think that's -- Trevor is exactly right. I mean, the reason this is such a big deal is that on the eve of the election, when two women were about to come forward to allege extramarital affairs with Donald Trump, something that would have been a huge bombshell affecting the outcome of the election almost without doubt, this money was paid to shut them up. That certainly is a campaign expense by any rational determination.

So, the guilt of the vial -- the guilt seems fairly straightforward. What's very complicated is whether it's an impeachable offense, because that is a much more a political question than a legal question. And as Jerrold Nadler said, you know, you don't -- just because there's a technical violation of the law you don't impeach someone because that's such a major step. We've never removed a president in all of American history. Bill Clinton was impeached, Andrew Johnson was impeached, Richard Nixon was forced to resign but we have never impeached and removed a president.

So, it's obviously a very big deal. And I think the Democrats are waiting to hear everything from Robert Mueller before they make a real decision. All of these interim disclosures, you know, fit -- fill in the political situation but no Democrat is going to do anything until we hear everything that Robert Mueller, the special counsel.

[13:30:00]

AMANPOUR: So let's just ask you follow up on that, Jeffrey. Robert Mueller did over the weekend, you know, on the Friday and last week all his recommendations about Manafort and Flynn and Cohen and jail time and deals and all the rest of it. What do you - where is that in this sort of - the road forward right now? How significant is all of that as we stand right now?

TOOBIN: Well, it is significant because a lot of the developments we're talking about, the facts we're learning come out of these court filings, but what we have not seen is Robert Mueller's comprehensive picture of what really went on here. What was the nature of the relationship between the Trump campaign and Russian interest? Was there a conspiracy to affect the outcome of the election? You know, how should we view the firing of FBI Director, James Comey? Was that an act of obstruction of justice by the President of the United States?

Those are the core questions that Mueller is investigating, and we haven't heard his comprehensive answer to that. And until we do, I don't think any Democrat in a position of power is going to make a determination -

AMANPOUR: Right.

TOOBIN: - about whether to proceed on impeachment.

AMANPOUR: OK. So, you know, we learned today that the accused Russian spy, Maria Butina, appears to have reached a plea deal with prosecutors, so that, of course, is, you know, she's accused of infiltrating Republican circles to advance Russian interest. So Trevor - Trevor Potter, what all of us wants to know which is more significant or serious? Is it the Russian? Is the campaign finance violations, the allegations thereof? But I want to ask you what you make of sort of a broader indictment of the president and his methods by people who actually work for him and who he appointed as cabinet secretaries?

For instance, this is Secretary of State Tillerson - former Secretary of State speaking at this weekend saying, "so often the president would say here's what I want to do and here's how I want to do it. And I would have to say to him, Mr. President, I understand what you want to do, but you can't do it that way. It violates the law."

Discuss, Trevor Potter.

POTTER: Well, we have a person here who we know from his entire business career was used to getting what he wanted and did not, surrounded himself by people like Cohen who tried to make that possible. I don't think he's used to being told that he can't do something because it's illegal, and that's what Tillerson was saying. You look at these payments to these women, and it's pretty clear in Cohen's account that Trump said, "do this. Make it happen." And we don't know whether he was flat out told it was illegal and said I don't care, but what we do know is that these laws were broken, Cohen says at his direction.

So I think through all of this, what we learn is that - probably what we knew on election day, which is we have a president who does what he wants, and even his supporters are now saying, "well, he may not understand how government works and he may not be accomplishing everything, but at least he's connecting with a segment of the American people," which is a way of ignoring the information that has come out since the election, and it's not just these illegal payments of hush money with corporate money and so forth. The Russian side itself, it came out quite a while ago.

There - contrary to everything that the White House and president had said, there was a meeting with senior campaign officials and Russians that the emails to that said we have dirt on Hillary Clinton that will help your campaign, and the president's son said, "great, bring it on." So we've known this. We've known that there were meetings that occurred, and I think the president's reaction was to say, anyone would have taken that meeting. I think that's not true. The candidates that I've been associated with, someone like John McCain would have said, "Call the FBI. This is wrong."

AMANPOUR: Yes.

POTTER: So there is a division. Maybe it's a partisan division. Maybe it's just some people don't want to face what we already know or have made the decision that, painful as it is, there's nothing we can do about it at this stage.

AMANPOUR: So let me ask you the final question, Jeffrey, you know, Robert Mueller's successor, James Comey, the former FBI Director, has said that Americans should, quote, "Use every breath we have to make sure the lies stop on January 20, 2021," which is the next presidential inauguration day. I mean on the spectrum of extraordinary comments by former officials, where do you place that one?

[13:35:00]

TOOBIN: Well, James Comey, since he's been fired by Donald Trump has come out as a unspoken -- as an outspoken opponent of the president and someone who believes the president is a threat to the rule of law.

Comey, himself, is in a peculiar situation because Hillary Clinton supporters can't stand the guy either, because on the eve of the election he disclosed an investigation of Hillary Clinton that may have cost her the election.

So, he is an unusual figure in American life, but we are certainly at a moment where the number of people who believe the president is involved -- was involved in very serious, actually criminal wrongdoing is very high.

It is not high enough to get him removed from at office at this point, but we are very much mid-scandal, not at the end of the scandal and I, for one, certainly have no idea how it's going turn out.

AMANPOUR: Yes, and everybody is guessing. We have had a bipartisan discussion, Jeffrey Toobin and Trevor Potter, thank you so much for joining us this evening.

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