[Burnett:] Tonight, President Trump calling the special counsel probe unconstitutional, tweeting: the appointment of the special counsel is totally unconstitutional, in all caps with an exclamation point. Despite that, we play the game because I, unlike the Democrats, have done nothing wrong! OUTFRONT tonight, Democratic Congressman Eric Swalwell, member of the Intelligence and Judiciary Committees. Congressman, unconstitutional?
[Rep. Eric Swalwell , California:] Yes, the way that he is acting is absolutely unconstitutional. He is not, despite what he thinks, above the law. Good evening, Erin. And, you know, he and his White House may not be able to say he's not above the law, but we in Congress should say it. Paul Ryan should say it. Kevin McCarthy should say it. Mitch McConnell should say it. And when they don't say it, they leave this president unsupervised. And when he's unsupervised, he pushes the boundaries and threatens the rule of law and our Constitution.
[Burnett:] Well, here's what Kevin McCarthy is actually saying. He's not all saying what you're saying. He's saying that, in fact, that there was no collusion, right, coming to a conclusion, I'm sorry, that of course the special counsel has not yet come to. Here's what he told our Dana Bash yesterday.
[Rep. Kevin Mccarthy , House Majority Leader:] What I'm concerned most about like most Americans, was there any collusion, there was no collusion, this has gone on for more than a year. It's been investigated in so many different manners.
[Burnett:] This is the man who, you know, if the Republicans stay in control, could be the speaker of the House.
[Swalwell:] That's right, Erin. You know, with Paul Ryan, we've seen shrinking leadership and just absolute silence. With Kevin McCarthy, we would see a parrot for the president. And he can't say there's no collusion. He and the Republicans on the Intelligence Committee have refused to look for collusion. In fact, they've done everything but take out the shovels and bury the evidence. They won't even allow the transcripts out from the investigation we were able to do. But they didn't use the subpoena power. They took every witness at their word. People who are not worthy of being taken at their word and never followed up to challenge anything they said. Hopefully, the Senate can able can do this in a bipartisan way, but if not, and we win Congress, come November, we have to tell the American people what the Russians did and what we're willing to do to make sure it doesn't happen again.
[Burnett:] You say that McCarthy would be a parrot for the president. Senator John Cornyn today over in the Senate side was asked about whether the White House is lying about the president's response to the Don Jr. meeting at Trump Tower with the Russian. Of course, obviously they had said he didn't dictate the letter. Now, of course, it turns out that he did. And as we know it was misleading and inaccurate. Cornyn says, quote, I don't know whether it is that they don't go to the trouble to learn what the facts are before they start issuing statements, but it ended up being a nothingburger, so I think it's clearly beside the point. Is it beside the point
[Swalwell:] It goes to the consciousness
[Burnett:] I mean, you know, the meeting ended up not delivering what Don Jr. thought it would, so is it beside the point?
[Swalwell:] No. It's a large part of the point, Erin, because in investigations, oftentimes, you can learn a lot about a subject's conduct for the underlying crime, not by what they did and what you know about the crime, but how they acted once an investigation was launched. And whether it was the firing of James Comey, or what we see now with the dictating of the June 9th meeting, that's called consciousness of guilt. And that may, I think, reflect on that he knew this meeting took place. And going back, Erin, to what I talked about earlier, we have the ability on the House Intelligence Committee to find out whether or not Donald Trump Jr. was in contact with his father about that meeting taking place. Because we have phone records that we were not willing to subpoena and follow up to see whether there were calls made to the candidate himself. We should have looked into that.
[Burnett:] Right. We know a call was made to a blocked number, you know, very almost immediately after news of this meeting came. But, of course, yes, they would be able to determine if that blocked number was the president's, who has a blocked number. But we don't know that, because they wouldn't subpoena
[Swalwell:] But if you don't look, you can just say no collusion I guess.
[Burnett:] So, the president tweeted he has a, quote, absolute right to pardon himself. You heard Sarah Sanders there saying, I don't know why anyone's asking whether he has the right because he hasn't done anything wrong. And, of course, Ted Cruz I don't know if you heard this tonight, but the constitutional expert Ted Cruz was asked about it, and he had 18 seconds of dead silence before he said, he didn't know, he hadn't looked into it. What do you what do you what do you say? Is the suggestion of the president pardoning himself grounds for impeachment or not?
[Swalwell:] You don't have to be a constitutional scholar to know that you can't pardon yourself. You can't be your own judge. That, in fact, was the opinion of the Department of Justice, the president's Department of Justice, back in 1974 as they considered that issue with Richard Nixon. They said no person in America can be their own judge. So that still applies today. That opinion is uncontroverted. It's disappointing that Ted Cruz can't affirmatively say that to the American people. That's what's so frustrating is we're not helpless as this president tries to roll over the rule of law. We designed, our founders designed a Constitution that puts a check on the president and we just see capitulations up and down the Republican leadership. And I don't think the American people are going to stand for that come November.
[Burnett:] Congressman Swalwell, just a few moments ago, Bill Clinton came out to try to deal with the brouhaha, the hubbub as he called it that has arisen from him saying, defiantly, that he's never apologized personally to Monica Lewinsky. He again came out tonight and said, oh, well, I did it publicly and that's good enough. Your diplomatic colleague Senator Kirsten Gillibrand said recently that with the way things have changed and the Me Too Movement, that President Bill Clinton should have resigned during the Monica Lewinsky scandal. And he was asked about this and here is how he responded.
[Bill Clinton, Former President:] You have to really ignore what the context was then. But, you know, she's living in a different context and she did it for different reasons. So I but I disagree with her.
[Burnett:] Who do you agree with? Him saying he should have stayed in office, or Senator Gillibrand saying he should have resigned?
[Swalwell:] Yes. Erin, I was 15 years old when that happened. I was raised that when you screw up and you make a mistake, you say sorry and if it's not good enough for the person you are apologizing, you keep saying sorry until they feel comfortable and you are recognizing that you made a mistake. I think the most important we can do for the Me Too Movement though is make sure that every woman in America is protected at her workplace and it's not only people in powerful positions. There's a lot of women who work for powerful people who are not regarded as powerful to the media, but they have to deal with harassment and discrimination every day and we should move quickly in Congress in a bipartisan way to protect those individuals.
[Burnett:] But the bottom line is you're saying he should apologize and she should apologize directly to her. But you're not weighing in on the resignation?
[Swalwell:] Again, I was 15. I don't think going backwards helps this movement, especially going back into the '90s. I think women deserve to be protected and women should be protected in the workplaces today and that's the most important part of this movement.
[Burnett:] Congressman, thank you for your time.
[Swalwell:] You bet.
[Burnett:] And the congressman, of course, joining us in California tonight. We are just hours away from major midterm votes. California front and center, eight states are heading to the polls in hours from now. And in California, what's called the jungle primary could be the biggest test for Democrats yet. It is what might stop them from taking control of the House. Miguel Marquez is OUTFRONT.
[Miguel Marquez, Cnn National Correspondent:] California Democrats buoyant, counting on a November blue wave and flipping several congressional seats here from Republican to Democratic. [on camera]: If a Democrat is on the ballot in November, what happens?
[Gil Cisneros , California Candidate For U.s. House Of Representatives:] I think if a Democrat is on the ballot in November a Democrat wins.
[Marquez:] But California has a jungle primary, meaning only the top two vote-getters regardless of party advanced to the general election in November.
[Marian Bodnar, Indivisible Ca39:] The fear is just that the vote gets so split that no Democrat beats Republicans.
[Marquez:] In Orange County and adjacent and astounding 45 candidates are running for just three seats. So many are well-funded, well- organized Democrats raising the prospect the Democratic vote could be split so much that only Republicans within advance to the November ballot. [on camera]: You were running in this district. Why'd you drop out?
[Phil Janowicz , Dropped Out Of Crowded U.s. House Race:] I dropped out because we had too many candidates running at the time.
[Laura Oatman , Dropped Out Of Crowded U.s. House Race:] I withdrew from the race and not only withdrew from the race but decided to get behind the strongest candidate who I believe can win.
[Marquez:] Janowicz and Oatman are two of nine Democrats withdrawing from the three races, hoping to narrow the field and improve the chances of the remaining 15 Democratic candidates.
[Political Ad Announcer:] Democrats and Harley Rouda are moving us forward. And national Democrats, the DCCC weighing in, spending millions in advertising in English and Spanish, a rarely used tactic as they try to ensure a Democrat is on the ballot in every race come November. DCCC is responsible for the content of this advertising.
[Marquez:] So worried, national Democrats are even running attack ads against some Republican candidates in all three districts, trying to dampen Republican turnout by criticizing GOP candidates for voting like Democrats.
[Harley Rouda , California Candidate For U.s. House:] We're going to have a tough primary on June 5th.
[Marquez:] Harley Rouda in California 48 is in a unique category, winning support from both the establishment DCCC and activist groups like Indivisible.
[Rouda:] All the different aspects of the party are getting behind this campaign and hopefully that will propel us to the general.
[Marquez:] Democrats here we'll need more than hope.
[Cisneros:] We can count on your vote on June 5th.
[Marquez:] Gil Cisneros in the 39th is banking on enormous Democratic turnout to make the difference on primary day.
[Cisneros:] We can get those Democrats out to vote and I think it's going to carry over. I think we're going to see good results.
[Marquez:] Maybe. Absentee ballots in the three Orange County districts so far show more Republicans than Democrats voting.
[Burnett:] A crucial day tomorrow and, Miguel, what does this do to Democratic chances in November. You heard, you know, Eric Swalwell, right, they're very optimistic, but maybe not with reason.
[Marquez:] They need every seat that they can get. There's 23 seats that Democrats need to flip in order to flip the House from red to blue. If they are locked out of two or three of these seats in Orange County, that is going to enormously complicate the math for them across the country. It all comes down to voter turnout. That's what they are relying on, and I will tell you that in a primary off year election like we have tomorrow, Democrats rarely get out and vote Erin.
[Burnett:] All right. Thank you very much, Miguel. All eyes on California those eight states tomorrow in crucial primaries. And we'll be right back.