♪ i'll stand by you. ♪ even in your darkest hour, ♪ and i will never desert you. ♪ i'll stand by you. welcome to the second hour of 360. on the table this hour with the panel a "new york times" story breaking in the past hour that president trump's lawyers are advising he refused to sit down for any interview with special counsel robert mueller. also the democratic rebuttal to the memo. will the president let it see the light of day? also president trump's claim today that some democrats were treasonous and un-american during the state of the union address. we begin with what the president's legal team is telling him. cnn's pamela brown, gloria borger brought us the first details of this last week. pam, this "new york times" report which broke about 45 minutes ago, it tracks with what

you and gloria were reporting last week. it seems to sound a more definitive note about the line the president's legal team will draw with the special counsel. >> my colleague and i had been reporting this is the stance of the president's legal team. a week ago we reported that they believe robert mueller hasn't met the threshold to interview the president. they don't want the president to sit down with robert mueller and his team because as ty cobb, the president's lawyer, has said on the record he believes it's a perjury trap, and they want to prevent this from happening. they want to prevent any type of fishing expedition. the sources we've spoken to have said that first of all, they believe that the president shouldn't be treated like anyone else. second of all, they believe that robert mueller's team hasn't shown the evidence, the proof that they have to sit down to talk to the president to understand his state of mind. the president's legal team argues that they've handed over all of the documents that they see exactly what robert mueller's team sees for the most part, and that they see no reason for them to have to sit down with the president. now, that may not sit well with

robert mueller. but as you know, anderson, the president has been very public, saying that he wants to sit down with robert mueller's team, that he would be happy to do it under oath. but we can tell you behind the scenes, anderson, his lawyers have been saying that not so fast, that that likely is not a good idea. as one source close to the president's legal team told me tonight, he is not testifying. so that really is the stance among the president's legal team, anderson. >> is there any sense of the time line of this, when all this is expected to reach a boiling point? obviously robert mueller is not going to wait around forever for an interview with the president. >> well, it's interesting because with the president's lawyers now seemingly digging in their heels to not allow their client, the president, to do an interview with robert mueller, of course it raises the question will robert mueller issue a subpoena and try to compel testimony from the president? that is well within robert mueller's right. sources i've spoken with doubt that he would go that far, but it's certainly possible,

anderson. then it could end up in court. that is something that the president's legal team does not want to see happen. you've heard the president say that he wants this wrapped up sooner rather than later. so it's sort of unclear where this will go from here because robert mueller has made it clear to the president's legal team he wants to do a sit-down interview with the president. but the legal team has said, no, we're not going to let you do it. you haven't met the threshold. >> and the president did always have the caveat, you know, i'm listening to the advice of my attorneys. >> yeah, exactly. at the time, you know, our thinking was the president has some cover. he can come out and say whatever he wants, that he wants to sit down with robert mueller to show that he has nothing to hide. but of course ultimately, he had the caveat that he would listen to his lawyers, who behind the scenes have been telling him for weeks that he should not talk to robert mueller's team or testify because it will be a perjury trap in their view. i want to start the conversation with kirsten powers, ann milligram and

jeffrey toobin. this whole notion of a perjury trap, you find bunk? >> it's ridiculous. just tell the truth. there's no trap. i mean, you know, it's -- >> couldn't you argue it's a trap because if, you know, robert mueller has all this information from other people, it is a potential trap if the president is not telling the truth? >> well, that's right. it should be. it should be a trap if the president is not telling the truth. >> i've been trapped because i perjured myself. >> that's right. there is certainly nothing wrong with a witness saying, i've never seen that document before. i don't know what it means. i don't remember seeing that. i don't remember saying that. i mean that's totally appropriate. witnesses say it all the time. whether it's true or not, i don't know. but it is certainly appropriate to not answer questions, not remember. but lying is lying, and there's no such thing as a perjury trap. it is simply a defense lawyer's speak for a justification for a

witness they don't want to get in front of -- you know, to testify under oath. >> see, i always thought that it meant that people can't remember everything, that there's so many facts that are coming at them, and that you're asked to remember things -- i mean people would have a hard time remembering what they did last week, let alone a year ago or two years ago. is there any validity to that? >> you're absolutely right that that is a difficulty, but there is nothing unlawful about saying, gosh, it was so long ago. i don't remember. i was confused. it's -- you know, a lot of things have happened since then. the problem is lying. >> but, jeffrey, this idea of a perjury trap was popularized by democrats to defend bill clinton when he arguably perjured himself in the monica lewinsky case, right? so this was something that the left and democrats created to defend bill clinton, and that's the origin of the phrase. >> it was bogus then. >> i'm not saying it's bogus or not. i'm saying that's where this idea of a perjury trap was popularized in politics.

>> it may have been popularized in politics, but this has been a question in criminal law and criminal prosecutions. it's been said way before the clinton investigation. >> and i know i asked you this in the last hour, but having not gone to law school, i just don't get what is the harm in robert mueller just subpoenaing the president if the president's refusing? >> so as a matter of course and in every criminal investigation, you would start -- when you know someone's represented by counsel, you would always go to the lawyer first and say we want to sit down with you. it's also usually in everyone's interest to have a sort of quieter conversation before you get someone in the grand jury under oath. it's sort of the first step you would take. now, in most instances people would comply. this is of course an extraordinary circumstance, and so the president's lawyers, we know from reports, they've been trying to negotiate how long it will go for, what the terms will be. and so there is a back and forth that we don't usually see. usually you would see a prosecutor then say, okay, here's your subpoena. we'll see you tomorrow in the grand jury at 9:00 a.m. >> i tend to think if trump's lawyers had the opposite

position and wanted him to go and testify under oeath, he'd have good cause to fire them all immediately. i mean trump could have every intention of telling the truth and being completely factual, and the way he talks, the way he goes off on tangents, the way he naturally exaggerates everything, he'd be in major jeopardy. i tend to believe maybe they're hellacious smoking guns we don't know about, but the clearest shot they have at him committing a criminal offense is lying under oath. they should resist it with every fiber of their being. >> if any of them have watched any of his depositions or how he has talked in any legal setting, as a lawyer, they're going to say, you know, boss, you don't want to do this. and if it's something they can litigate, if it's something they can force mueller to litigate from a legal perspective, i would say as they're lawyers, they're giving him sound advice here, right? >> if he were a normal subject of an investigation and this were just a regular white collar case, rich's advice would be completely right.

never let this guy within an inch of prosecutors who, give his propensity for lying or exaggerating to put it more nicely. the difficulty is he's president of the united states, and he has said repeatedly that he wants to testify. and it would look terrible for him to take the fifth. so, you know, rich is exactly right that a lawyer's job is to keep him from testifying. but, you know, he's not just an ordinary subject. he's president, and if it looks like he's hiding from robert mueller, that is a political problem. >> they'll say he's the president of the united states. he's really busy. he has to watch a lot of cable tv and tweet all the time and do other important things. so you've got to show us a specific crime and why you can't get any evidence any other way. >> hasn't he sort of laid the ground work for mueller being biased and the department of justice being biased, and so i'm not going to do it, and it's not going to be fair?

>> 35% of the people would agree with that instantly. i think that is a very good possibility. in fact, i think that could even be a pretext for him taking the fifth. this is a witch hunt. they're out to get me. i'm not going to give them anything. and that -- the advantage of taking the fifth is that it ends an illegal fight. there's nothing you can go to court and force someone to not take the fifth. >> let's take a quick break. we're going to continue this discussion. also later on in the program, a former top fbi official resigns, saying why. he's taking aim at the president, his supporters in congress. he joins ahead on 360. ♪

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3 toddlers won't stop him.. and neither will lower back pain. because at a dr. scholl's kiosk he got a recommendation for our custom fit orthotic to relieve his foot, knee, or lower back pain, from being on his feet. dr. scholl's. born to move. we're talking about rich lowry called the major jeopardy for the president talking to robert mueller's team. we're also talking about the jeopardy he could face for trying to refuse to testify. back now with the panel. you were saying in the depositions of the president you've actually read when he was a citizen, he actually is better than many people think. >> i think so. i mean i think there's this sort of common perception he's completely undisciplined and he

says whatever he wants to say in the depositions, and i think he looks pretty disciplined and on point and on message in the ones that i've looked at and read. it's not to say that you wouldn't find some inaccuracies in there, but his language is much more specific and detailed. you know, it's much more to -- i would argue controlled. he also does say, i don't recall, a number of times, which as jeff points out is a good way to deal with something where you would say something that was not true. >> anne's experience and familiarity with this -- >> nixon says that on the watergate tapes. you can always say, i don't recall. but i think anne is right. he's a better witness than you think he is. when he sued tim o'brien for libel and his lawyers got trump under oath, he had to admit he had lied in other circumstances, in public, in public statements. he had not -- didn't admit that

he lied under oath. so i think trump has an understanding of the difference and the importance of, you know, of restraining himself in that setting. >> if this does go to court and ultimately the supreme court, how long would it take? would it go into the 2018 campaigns? >> boy, you're talking about three levels of appeals. it would go to a district court, the dc circuit court of appeals, and then the united states supreme court. it's hard for me to imagine that could get done in less than three or four months. >> those are the two equities, right? you don't want to put him under oath, but you also don't want to drag it out. they're hoping for this to end as quickly as possible. it's not inconceivable the obstruction phase could be over in the summer maybe, but if you have this big legal fight over whether you're going to talk or not t stretches it out. >> the fact they want to talk to the president does indicate they're at the end of some aspect of it because you wouldn't bring the president in -- >> that's right. >> -- early on in an investigation. >> that's right. remember also that mueller is subject to the department of

justice rules and guidelines which explicitly say that you do not issue subpoenas and do overt investigative acts within three months, 90 days of an election. >> james comey, he should have read that before he destroyed hillary clinton's campaign, but that's -- >> that applies to a midterm election as well. >> there are exceptions also. >> there was a pretty famous exception in 2016. >> i think mueller would follow it. >> kirsten, do you think there is political damage for the president if he does not appear before mueller? >> certainly not with his base. so the question is whether or not this is something that rises to the level of, you know, the average american caring about it. so far, it hasn't seemed to, but i don't see -- and i'm interested in what the lawyers say about this -- is how do you end this case without talking to the president? isn't it ultimately about his intent, right? how do you find out his intent without talking to him? >> well, most criminal investigations do not have the

subject -- the defendant interviewed. that's why we have a fifth amendment. most subjects, defendants, do not talk to prosecutors. you will have to, as a prosecutor -- robert mueller may well have to draw the circumstance circumstantial evidence and draw conclusions about whether the president did anything unlawful. but many investigations end before -- without hearing from the defendant. >> and it seems like he's muddied the waters so much with, you know, sort of turning this into just another political issue. oh, you know, democrats think this on immigration or republicans think that. i mean do you think, rich, that mainstream republicans will sort of buy into that idea that this is just -- this is just a witch hunt, and we don't -- of course he's not going to talk to him? >> i think that fight has substantially been won already. >> won by the president? >> right. in terms of the hearts and minds of republicans. i don't see either side on the

partisan divide budging. it's like 1917 trench warfare. absent a clean bill of health from mueller or some incredible smoking gun that no one can deny. otherwise i think people are pretty dug in. >> the question about the time line is important, i think, for a lot of republicans. i think there are a lot of republicans who want trump not to be on the ballot in the midterm elections, not that they can do that, but the more this is litigated, the more this is a big clash in the legal system between mueller and the president with the president not wanting to do an interview, the worse that is for a lot of republicans. i think it will be interesting in the wake of mag dpi's piece tonight what republicans on the hill say about this. do they nudge him to say, yeah, mr. president, we want you to speak. speak now. get this investigation over with. maybe it will help us in the midterm elections. >> if this did go to the supreme court, jeff, do you have a sense of what would happen? >> i don't think it's a slam dunk for either side. i think by and large, probably mueller would win. in the case of the united states v. nixon, nixon was forced to surrender tapes in response to a

subpoena during a trial. the clinton v jones, the paula jones case, bill clinton was forced to give a deposition in a civil case. here the criminal justice system generally says criminal cases are more important than civil. so if the president is subpoenaed by a grand jury, i think the supreme court would more hilikely than not side wit mueller. but it's not 100%. >> anne, do you agree? >> i agree that it would be a protected litigation, that this would go back and forth. but i think the equities in the end is this is a criminal investigation. the president has evidence or information that the special counsel is seeking, and at the end of the day, i think a court would order him most likely to provide it. coming up next, we're going to talk about a more immediate decision for the president, whether to allow the public to see a democratic rebuttal to the nunes memo. the president's claim is that the nunes memo vindicates him. details ahead. -if you told me a year ago where i'd be right now...

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should be simple, fast, and easy. download the xfinity my account app or go online today. still more praeking news to talk about. the house intelligence committee voting to send the democratic rebuttal to the nunes memo to the president. as well as adam schiff is calling attention to. chairman nunes' continued refusal to say whether his own memo had input from the white house. today he declined to comment saying, quote, you know the rules. we don't talk about committee business. that's despite his two recent interviews on fox news. as for the question of collaborating with the white house, which as you know chairman nunes has done before in the so called unmasking scandal, i spoke with mike quigley who challenged the chairman on it for a second time today. >> you don't want to give anybody an out because you don't

ask a specific enough question. so i try to say members of the committee, himself, his staff. every possible. prepared, reviewed, communicated with the white house about the memo. again, i was the only member he wouldn't answer questions for. he answered another member's question, and he said, i'll answer your question because i like you. so besides having my feelings hurt, he didn't answer the question, and as my colleague mr. schiff said at the very end, he had a very lawyerly answer that only responded to one small aspect of that. >> back now with the panel. joining us as well is stephen moore. there's no way to tell whether the president -- the white house has not said whether the president is going to release this or not. they say it's going to go through the same review process that the republican memo went through even though it seemed like the president early on decided he was going to release that. >> he made it pretty clear he was ready to release it. i've heard a lot of people saying, oh, there's no way the president's not going to release it because it would make him

look so bad. i just feel like i could totally see him not releasing it, right? i could absolutely seeing him saying, no, this makes me look bad, or having it so redacted that it doesn't have any kind of meaning. i mean make he will release it. maybe he'll just put it out exactly as it is, but there's nothing that he's done in the past that would suggest that he would be shamed into putting it out. >> i'm sure he doesn't want to. i think the political pressure will be pretty tough, and i think if he doesn't release it, the temptation then for someone just to leak it will be very strong. my guess would be one way or the other, we're going to see this memo, and i want to see it. i think the nunes memo raised legitimate questions. we need more information rather than less. i want to see the schiff memo as well and i want to see as much of the underlying intelligence as possible to release. >> you know, the larger issue here is nunes has basically blown up the way that the house intelligence committee has worked for decades.

you know, before nunes was the chairman, if there was a serious issue that needed investigation -- and, look, fisa reform and how the fbi goes and gets a fisa warrant is a serious issue with a lot of interesting reform ideas out there. look, the committee would do a private investigation. they might issue a report that would have redactions. you'd have a majority view, a minority view. but this whole way of staff partisan-driven memos that get leaked and then there's a twitter campaign behind making it public, that the president of the united states then leads, this entire process is insane and has really, really damaged one of the most important institutions in the house and made it operate like just another partisan committee, and it's really sort of tragic what's happened. now the democrats are getting drawn into this in the same way. >> jeff, you look so skeptical right now. >> well, it's just, you know, i think trump has won this fight because now -- you know, look, it's hard to follow this whole

debate over these various memos and, you know, whether the fisa was accurate and what the role of the dossier -- you know, the steele dossier was. it just looks like yet another partisan food fight, which in part it is. and the fact that the roots of the investigation are now seen by lots of people as a partisan food fight, that's what trump wants. and so even though i think on the merits, nunes' position is absurd, i think his memo was ridiculous and totally misleading. but most people just are going to say, oh, you know, it's just democrats and republicans fighting again. >> it is interesting that you had trey gowdy and other republicans on the hill -- trey gowdy said he's not running for re-election. but coming out and saying this has nothing to do with the mueller probe. we want that investigation to go on. >> because they're telling the truth, because it does have nothing to do with the mueller investigation. you know, i don't mean to have

disrespect for our audience or the public, but this is pretty hard to follow, this stuff. and the number of people who can keep track of the precise twists and turns and why trey gowdy was correct, that it has nothing to do with the mueller investigation, i think is pretty small. >> do you think the president should -- >> we had this conversation last week about the gop memo, and i remember exactly what i said. i'm for sunlight. i'm for transparency. i'm for openness, and i feel the same way about the democratic memo. put it out there. let the public decide, and i think that's ultimately the way you bring this to a conclusion. so i think both the republican and democratic memo should be -- >> but the real -- not to get into the weeds, but the real way to decide this would be to see the full application that the fbi put before the fisa court, right? we would see the entire application, and we would see if there was any sort of bias. so that's what you -- >> why haven't they put that out? >> we should do it. >> it's highly classified. >> that's a pretty good reason not too.

>> is it highly classified? everyone said the sky was going to fall if this memo came out, and all the information in it has been something that's in the papers. >> it's not devin nunes that's cherry picking in the sense he's not receipting the rest of this stuff. that's the decision of the doj and the fbi. >> it could also compromise prior or future investigations to put out -- if you look at the memo, it's incredibly conclusory. there are almost no facts in it. part of it that maybe there are no facts to support their allegations, which i tend to believe. but it's also done at such a high level that it really is done, i think, to not harm national security interests and to not show sort of how this information is collected. so i would love to see it. i don't think it's right to open us -- and also we wouldn't see the underlying -- >> but, rich, you're saying that devin nunes -- he didn't write it, but that his staff members were not cherry picking information. that's basically what the fbi is saying, that there were facts omitted that materially did change the fact pattern.

>> well, what i meant by that is i don't think it's nunes who is deciding, oh, i can't quote from the mccabe interview directly or i can't release the mccabe interview. it's the fbi and the doj who came up with those rules. and one reason we have this talking point that devin nunes hasn't seen the underlying intelligence itself is not because nun yesz didn't want to look at t. it's because there's an agreement with the fbi that only one member could look at the intelligence with two staffers. maybe it's for legitimate national security reasons but i think now this is obviously a big public concern and a big public controversy, and to the extent we can see more without compromising sources and methods, we should. >> i think we can all agree this is not the way to do oversight of the intelligence community is to pick one narrow issue, have your staff right a sort of partisan memo, leak information about that, and then have the president get behind a twitter campaign to release it. i mean the whole process is just

completely insane. >> the whole issue is whether or not when -- we had this discussion about whether this would be divulging some issues of national security concern and so on. you look at the memo, and nobody -- i don't think anybody can say that somehow we compromised security by releasing that memo. >> we've got a lot more to talk about including the president calling democrats un-american, treasonous for not applauding or standing unat certain points of the state of the union address. also a former fbi agent tells us what factored into his sudden departure from the bureau. samsung galaxy phones get a samsung galaxy s8 free. yahoooo! ahoooo! plus, unlimited family plans come with netflix included. spectacular! so, you can watch all your netflix favorites on your new samsung phones. whoa! join the un-carrier and get a samsung galaxy s8 free. all on america's best unlimited network.

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our breaking news, the house intelligence committee has voted to release the democrats' rebuttal to the gop memo alleging that the fbi abused surveillance laws. an fbi supervisory agent who spent more than a decade at the bureau has resigned over what he calls constant attacks on the bureau. josh campbell is his name. he writes in a "new york times" op-ed, quote, i'm reluctantly turning in my badge and leaving an organization i love. why? so i can join the growing chorus of people who believe that the relentless attacks on the bureau undermine not just america's premier law enforcement agency but also the nation's security. my resignation is painful but the alternative of remaining quiet while the bureau is tarnished for political gain is impossible. justice campbell joins us now. he's now a cnn law enforcement analyst. josh, i know you called the day that you walked across the stag

special agent badge one of the greatest honors of your life. if that's the case, why resign? >> it's a good question and i'll say at the outset i believe that the rank and file, the men and women of the fbi deserve these political attacks to stop. i think when we look within the organization at people who are trying to do their job every single day, they see these attacks, and it's puzzling. it's curious. sometimes it's actually infuriating. i'm a vessel for their dismay. some of the criticism that we've heard from within that, again, threatens our public image, our ability to do our job, and i didn't think i could speak out like i'm doing now in order to call for an end to these political attacks if i was still inside the fbi. what i mean by that is no one wants someone inside the fbi anonymously criticizing partisans. no one wants that. so i filged that the only appropriate way to do so, to defend the organization i love, is to step out and do it from the outside. >> there have been a lot of people, though, when talking

about some of the attacks president has made about -- or other political leaders against the fbi, that, you know, that it doesn't really undermine the bureau, that fbi agents are professionals. they just keep their heads down. they do their job, and it doesn't impact things -- you know, law enforcement on a day to day basis. >> i agree with all that. fbi agents are dogged people. but unfortunately they are only one part of the equation. the other part that allows us to do our job is public trust and that's something we have less control over. when an fbi agent knocks on someone's door and needs assist ants, needs information, the leeklihood that person is going to assist is correlated to their opinion of our agency. do they see us as trustworthy, as honest. ? we do a lot of work based on information from informants, people who are coming to us sometimes at great risk to themselves to provide us information. i was talking with a former colleague last week about a source that we met overseas. and someone who went to great lengths to endanger their own lives in order to meet with the fbi and provide important

information about a trim case. and when we met with this person, i said why didn't you just provide this information to your own country's law enforcement? and he said, you're the fbi. i trust you. i can't trust our corrupt officials. so what i wonder is how many of those people are going to take that risk to provide information to the fbi if this corrosive doubt about the organization continues to seep into the national dialogue. >> what do you say to those who say, look, if there are some bad apples in the upper leadership or anywhere in the fbi, that criticism is warranted, that the impending inspector general's report will answer some questions raised about potential politicization within the senior ranks of the fbi and the doj. >> i would agree with that. i would say criticism is not only warranted, it's extremely necessary. we cannot police ourselves. every fbi employee to a person would be the first to say that. fbi agents have incredible power. we have the power to deny someone's liberty in our investigation. so with that great power, we also have to have great

accountability. so i concur with that, that oversight is important. what i'm distinguishing between is criticism for the sake of pointing out those in leadership who may have done wrong and criticism that's purely political that may have that long-lasting impact on public trust. >> finally i want to ask you about the firing of former fbi director james comey last spring. in newly disclosed e-mails, fbi leaders appeared to express shock and sadness in the immediate aftermath even as the white house attempted to portray a bureau in crisis. i'm wondering the reaction you saw by the rank and file acts to remove comey? >> i'm a biased party because i had the honor of working with director comey. i'll say the support in the organization was very thorough throughout. he was widely respected, in some cases loved. i saw it on a number of different levels. at the person honored to be director comey's special assistant, i saw him interact with thousands of fbi employees and i got to see their face, how they interacted with him.

it was a very positive reception. even some of those who disagreed with him. even those people respected him and respected his position. i also got to see, as we all did in a document that was released regarding his climate survey within the fbi, and this is an anonymous document where fbi employees rate their officials so we know how we're doing. he received wide marks by those providing those anonymous surveys. i was there with him on the day that he was fired in los angeles, and i can tell you that the faces of our employees, their response, i mean it's been reported by some kind of how that day went down. but i remember it very vividly. he's sitting there addressing employees in the los angeles field office, and it was actually fox news who came first -- we had actually two televisions in the back, and the banner said, james comey resigns. and he thought it was a little bit puzzling and someone was

maybe pulling a joke on him because presumably he would know if he resigned. then cnn came on shortly thereafter and said he had actually been fired. i can tell you it was like the oxygen was sucked out of the room. the last thing is we pulled him aside. he was able to make some phone calls to determine what was going on. i said, sir, i don't know where you are kind of mentally right now, but you've only seen a small portion of the people in this field office. is it okay with you if we ask if people want to come see you before you leave, that they gather around? he said, of course. i stepped out. i talked to the head of the los angeles office and i said, don't compel anyone to come here, but if there are people that want to talk to him, to see him before he goes, they're more than welcome to come down. i can tell you in a span of five minutes, he stepped out, and the room was fall, standing room only, people applauding, some people crying. it's anecdotal, and i'm obviously a biased party, but i can tell you he was extremely well loved in the organization. i don't work for james comey. i don't work for the fbi. i can tell you that's what people thought of james comey. >> thanks very much.

busy night up next. more breaking news on who will or will not be testifying in the russia probe. also ahead, treason, a very strong word with of course deadly consequences. president trump used it today referring to democrats who didn't like his state of the union speech. he also called them un-american. details ahead. why wait months for your next vacation

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speaking today in ohio, president trump had a complaint about the reaction by some democrats to his state of the union address. take a look. >> you're up there. you've got half the room going totally crazy, wild. they loved everything. they want to do something great for our country. and you have the other side, even on positive news, really positive news like that, they were like death and un-american. un-american. somebody said treasonous. i mean, yeah, i guess why not?

you know. can we call that treason? why not? i mean they certainly didn't seem to love our country very much. >> he may have used it lightly, treason is kind of serious. the u.s. code says treason is d the penalty is often death. possibly the most famous man in america associated with treason is benedict arnold. there was the abolitionist john brown convicted and hanged in virginia for treason. but many convicted of treason were spared. the radio announcer called tokyo rose was convicted in 1949 for her radio broadcast on behalf of japan in the second world war. she was pardoned by president ford. more on all that shortly, but first still more breaking news on who will or won't be talking in the russia probe. a source close to the process telling us former white house chief strategist steve bannon

will not appear before the house intelligence committee form, risking for being held in contempt for failing to comply with a subpoena. back now with the panel. on a night we learned that president trump is likely not to testify or want to testify before mueller, also steve bannon not testifying. the reporting is apparently that his attorneys are still waiting for clarification over whether or not executive privilege can be used for things that happened during the campaign. does it make sense that he would not testify? >> i mean i think it's a frivolous legal argument that executive privilege could attach to anything before the campaign or even during the transition. you know, privileges are always construed narrowly. >> i'm sorry. it was during the transition. >> right. i mean i just -- you know, we have people who are president, and we have people who are not president, and you don't get to be cited executive privileges as far as i'm aware until the person is president. but i also don't think it's a crazy argument that you would

want -- i mean that you shouldn't at least raise it and have it resolved before he testifies. i mean i don't -- i think it's a wrong legal argument, but i don't think it's a crazy one, and i think it's reasonable to get it resolved before he testifies. >> it was also interesting because his attorneys were saying this was a direction of the white house. general kelly, chief of staff, said they did not have communication with bannon. i don't know if he was sort of, you know, just kind of parsing his words and, yes, the communication was not with bannon. it was with his attorneys or -- >> but this has been a repeated thing we've seen where people are sort of invoking the executive privilege even though the president -- >> hasn't done it. >> hasn't invoked it. it's just -- i don't know how they can keep doing this. it seems like if the president wanted to invoke executive privilege -- >> i believe general kelly said, who is this bannon of whom you speak? we don't know anyone by that name. >> it does feel like legal posturing to me as well. it feels like a move to try to -- you know, the reporting

seems to indicate he's trying to control what questions they'll ask him, how long he'll testify for, and so it feels to me like a sort of -- you know, he starts with the executive privilege piece. i agree with jeff completely on that. i don't think he'll be covered by executive privilege. and also it is the president's privilege to invoke. >> this is the part i don't understand. to your point, the white house has never invoked executive privilege on any of these cases, but you have witnesses going and saying -- it's like if i were charged with something and saying i'm not taking the fifth. i'm just not answering any of your questions in case i want to take the fifth another another time. >> this has happened. the director of national intelligence has said, we're not >> i just wrote my weekly column on this. of course it's not treason. it's a terrible use of language. but i do think the democrats have a big problem here, and i think the way they acted during

the state of the union was unseemly. it did not make americans proud of the democrats when they sat on their hands when trump would say we have a record low black unemployment rate or we're winning with isis. i think the point is the democrats are coming off as rooting against america. by the way, just to even see not just democrats but liberals in general who hate trump. even news the last couple days about the stock market falling so dramatically, it's almost like liberals were joyous about this, that people were losing money, because it cast negative aspirations about trump. i was watching tv all day and people were like, oh, you know, this proves that trump's policies are a failure. >> that's not making joy, that's saying -- >> they were triumphant about it because finally they had something negative they could say about trump. >> finally one negative thing to say about trump. i think they actually have several.

>> steve, i don't think that's what was happening. i think what people were reacting to was the fact that president trump has taken credit for something that he never should have taken credit for. he never should have taken credit for the stock market. >> the stock market has gone up 7,000 points. of course he should take some credit for it. >> the stock market was better under obama. i mean, he's not just taking credit for it, he's also asking like there was this hellscape under obama with the stock market, which is not what happened. so i think what people were reacting to was, okay, so you're going to come out and own this. i don't think people are unhappy about the stock market go up, but there are people unhappy about the stock market going down. i'm unhappy about it. we'll talk about the state of the union speech when we come back.

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of it. here's the recent past. >> the reforms i am proposing would not satisfy those who are here illegally. give small businesses the credit they need to stay afloat. each of these proposals deserves a vote in congress. [ applause ] >> rich, isn't this just what happens every time? >> yeah, i think the democrats were particularly stony. i don't think if they were like death, but they were ston yrkst. >> was that unamerican? >> you can be the president that

made texas unifying, or you can be the president like at the rally where he is entertaining the crowd. you can't be both. if he was just the unifying guy, he would be up 40%. that's pretty high in politics, but instead he's constantly stirring the pot, angering the other side, riling them up for no good reason, in part just because he enjoys it. >> we should point out these comments were off the cuff. there were the prepared comments today about the tax cuts and the economy, which is what the whole thing was about, and he clearly went off on this. >> it's not just that he enjoys it, he enjoys when people enjoy it. why do people need to hear about this? sometimes it's hateful, and i think this would fall into the hateful category calling democrat unamerican, but he's just riling his audience.

why does that rile an audience? why is this what they need to hear? >> maybe he's spending too much time thinking about north korea, and he's adopted kind of a north korean approach to how he should be portrayed, that the dear leader has to have applause at all times from all people. i mean, it's outrageous what he said. think about if another president had behaved this way. we have become so inured to his violation of norms that this becomes, oh, yeah, another crazy thing he said. it's just outrageous to say it's unamerican not to cheer. it's treasontreasonous not to c. i'm tired of being outraged at crazy things he says, but you know what? it's outrageous and we shouldn't be afraid to say it. >> i don't defend when he uses crazy language like that, but most americans, especially conservatives, don't think trump is given a fair shake by the

media. >> what does that have to do with democrats listening to a state of the union and being called treasonous? where is the connection? >> he shouldn't have said that. i think it's just as appropriate to say why did the democrats sit on their hands -- >> because that's what you do in the state of the union. >> there is a difference between policy -- look, you know, the partisans aren't going to applaud, but they didn't even applaud -- >> did the republicans get small businesses? >> i think the president is thinking north korea, and the democrats where they are right now would sit. >> to answer your question, anyone who spends time on line would know one side would accuse oe the other side of being treasonous. the difference is that the

president of the united states actually talks like a youtube comment section rather than like a traditional president. >> we have to end it there. i want to thank everybody on the panel. thank you so much for watching tonight. "cnn tonight" starts right now. this is "cnn tonight." im'm erin burnett in tonight fo don lemon. the president versus his lawyers. the "new york times" is reporting tonight that the president's attorneys are counseling him to steer clear of a sit-down with robert mueller. president trump, though, may have different plans. >> do you have a date set? >> no. i guess they're talking about two or three weeks, but i would love to do it. i have to say subject to my lwyers and all that, but i would love to do it. also breaking, the house intelligence committee voting unanimously to release the democrats' memo. it is a rebuttal to the republican document released friday, the so-called nunes memo, that trump claims