On this “Face the Nation” broadcast, moderated by Margaret Brennan:

2024 Republican presidential hopeful Nikki Haley, former U.S. ambassador to the U.N.Former White House counsel Bob Bauer, President Biden’s personal attorney Sen. Chris Murphy, Democrat of ConnecticutCIA deputy director and CBS News senior national security contributor Michael Morell and Samantha Vinograd, former top counterterrorism official at the Department of Homeland Security, 
CBS News election law contributor David Becker, the founder of the Center for Election Innovation and ResearchJames Brown, host of NFL Today and CBS News special correspondent 

Click here to browse full transcripts of “Face the Nation.” 

MARGARET BRENNAN: I’m Margaret Brennan in Washington, and this week on Face the Nation: Presidential politics takes center stage within all three branches of government, and those politics get personal on the Republican campaign trail.

As former President Trump juggled court rulings, caucuses and Supreme Court arguments, it was the current president and the special counsel Robert Hur’s investigation into Mr. Biden’s mishandling of classified documents that led to the week’s most damaging headlines.

Although the Hur report cleared the president of criminal wrongdoing, he described Biden as a well-meaning elderly man with a poor memory, a damning characterization for the 81-year-old president.

The president responded with fury.

(Begin VT)

JOE BIDEN (President of the United States): I am well-meaning, and I’m an elderly man, and I know what the hell I’m doing. My memory has not gotten – – my memory is fine.

(End VT)

MARGARET BRENNAN: Vice President Harris went even further, calling Hur’s words:

(Begin VT)

KAMALA HARRIS (Vice President of the United States): Clearly politically motivated, gratuitous.

(End VT)

MARGARET BRENNAN: Will Democrats take on their own Justice Department?

We will talk to President Biden’s personal attorney, Bob Bauer.

GOP presidential contender Nikki Haley will join us to make her case for mental competency tests for both Biden and Trump.

And as Israel prepares to invade Southern Gaza, there is increasing concern among its allies. We will check in with Connecticut Senator Chris Murphy, one of the key negotiators of that short-lived bipartisan border bill. He’s trying to get aid to Israel and Ukraine through Congress.

Finally, as America prepares to tune in to Super Bowl LVIII, our very own James Brown will be here to tell us how things have gotten better on and off the field for the NFL.

It’s all just ahead on Face the Nation.

Good, morning, and welcome to Face the Nation.

Washington is still reeling from the White House pushback on special counsel Robert Hur’s report, and we will get to that momentarily.

But we want to begin today with the last candidate standing between Donald Trump and the Republican nomination. That is former South Carolina Governor Nikki Haley. She’s on the campaign trail in North Augusta, South Carolina, and joins us this morning.

Good morning to you.

NIKKI HALEY (R-Presidential Candidate): Thanks, Margaret, for having me.

MARGARET BRENNAN: So, Ambassador, you have made mental acuity a signature issue for your campaign for the better part of the past year.

You’re handing out paper copies now of a cognitive assessment. When do you plan to take it? And are you at all concerned that you might turn off some older voters?

NIKKI HALEY: I have no problem taking it.

And what I have said is, we need to have mental competency tests for anyone over the age of 75. I don’t care if we do it for 50 and up. But what happened with Joe Biden this week and what we’ve seen with Donald Trump is another example of why.

We have to face the reality of the fact that, when you get to those ages, you get diminished. These are people making decisions on our national security. These are people making decisions on the future of our economy. We need to know they’re at the top of their game.

MARGARET BRENNAN: This morning, NATO, the Western alliance, issued a statement responding to remarks Donald Trump made last night at a rally. And they warned it puts U.S. soldiers at risk.

Here’s what he said.

(Begin VT)

DONALD TRUMP (Former President of the United States (R) and Current U.S. Presidential Candidate): One of the presidents of a big country stood up said: “Well, sir, if we don’t pay, and we’re attacked by Russia, will you protect us?”

I said: “You didn’t pay? No, I would not protect you. In fact, I would encourage them to do whatever the hell they want.”

(End VT)

MARGARET BRENNAN: If elected, would you adhere to the premise that an attack on one is an attack on all?

NIKKI HALEY: I mean, absolutely.

NATO has been a success story for the last 75 years. But what bothers me about this is, don’t take the side of a thug who kills his opponents. don’t take the side of someone who has gone in and invaded a country and half-a- million people have died or been wounded because of Putin.

Don’t take the side of someone who continues to lie. I dealt with Russia every day. The last thing we ever want to do is side with Russia. What we always need to remember is, America needs to have friends. After September 10, we needed a lot of friends. We can never get into the point where we don’t need friends.

Now, we do want NATO allies to pull their weight. But there are ways you can do that without sitting there and telling Russia, have your way with these countries. That’s not what we want. If you notice, Russia has never invaded a NATO country. They’ve invaded Georgia, Moldova and Ukraine.

They are actually very intimidated by – by NATO. NATO allows us to prevent war. We need to always focus on preventing war.

MARGARET BRENNAN: I want to ask you about another comment that Donald Trump made that was personal about your husband, Major Michael Haley, who is currently deployed with the South Carolina National Guard. Trump said this about you:

(Begin VT)

FORMER PRESIDENT DONALD TRUMP: Where’s her husband? Oh, he’s away. He’s away. What happened to her husband? What happened to her husband? Where is he? He’s gone.

(End VT)

MARGARET BRENNAN: I know you’ve said this is disqualifying. But during his first presidential campaign, Donald Trump mocked former POW John McCain and a Gold Star family. He was still elected. You agreed to work for him. Why do you think that’s disqualifying now?

NIKKI HALEY: Well, I agreed to serve our country, and I’m proud that I got to serve our country. There’s – there’s nothing – no more higher honor than to serve the people of this country.

But what I can tell you is, look, it’s just – it’s insulting to military members. It’s insulting to military families. And the part that bothers me is, he continues to do this. This isn’t personal about me and Michael. This is about what it says to every member who sacrifices for us.

This is about what it says to every military family who sacrifices alongside of them. We can’t have someone who sits there and mocks our men and women who are trying to protect America. It’s a pattern. It’s a pattern of chaos. It’s a pattern of irresponsibility. It’s a pattern of just saying things that are – that are not helpful in strengthening America.

And this is a chance. America’s going to get to decide. We know what Donald Trump is. You could watch that whole rally yesterday, and it’ll tell you all kinds of things.

But the thing is, do you want it again? We know what Joe Biden is. You can see the press conference. You can look at the special investigation that says he’s diminished. But do you want it again? I mean, the one thing we need to understand is, for Republicans, with Donald Trump, he lost in 2018. He lost in 2020. He lost in 2022.

And if you look at after the New Hampshire election, he went on this unhinged rant. And all he did was talk about revenge. And then you look, he said anyone that supported me was barred permanently from MAGA. Then he pushed the RNC to name him the presumptive nominee. Then he lost his court case and he went on a rant again.

The problem with all of that is at no point is he ever talking about the American people. He’s never talking about the fact that we have wasteful spending and we’re $34 trillion in debt. He’s not talking about the fact that only 31 percent of eighth-graders in our country are proficient in reading.

He’s not talking about an open border, where all it takes is one to have a 9/11 moment.

MARGARET BRENNAN: Well…

NIKKI HALEY: He’s not talking about the lawlessness in our cities. And he’s not talking about anything about the wars that are happening around the world. That’s the problem. That’s what we’re facing when this decision comes down in the election.

MARGARET BRENNAN: Well, he did talk about the border. In fact, he encouraged Republicans to kill the bipartisan deal that was brokered.

And, last night, he was also talking about – at this very critical moment for Ukraine, when the Senate is this weekend debating military aid, he came out and criticized the nearly $100 billion aid package. Given what you know, would you encourage Republican lawmakers now to back this nearly $100 billion security supplemental?

NIKKI HALEY: Well, the first thing I will say is, I think that Biden and Congress have done a poor job telling Americans why they should care about Ukraine.

And so you can’t blame the American people if they say, why are we doing this? The way we need to look at it, I don’t think we should give any country straight-up cash.

MARGARET BRENNAN: That’s not what this is.

NIKKI HALEY: Because you can’t follow it. You can’t hold it accountable.

But I do think we should support Ukraine. And I do think we should give them the equipment and ammunition to win, because listen to Putin’s own words. He said, once he takes Ukraine, Poland and the Baltics are next. Those are NATO countries, and that puts America at war.

This is about preventing war. That’s the important reason why we have to support Ukraine.

MARGARET BRENNAN: I want to ask you about Israel. Half of U.S. adults polled believe that the military response from Israel in the Gaza Strip has gone too far. That’s according to the latest AP poll. That’s up from 40 percent in the month of November.

Do you think half of Americans are wrong on this issue?

NIKKI HALEY: I don’t think – I will never say that any American person is wrong. It’s not for a leader to say whether they’re wrong or right or good or bad. That’s the problem that we have in America now.

I think what’s important is just to explain and communicate why this matters. I have been in Israel multiple times. I have been on the border and seen all the threats that face Israel. But when you look at what happened on October 7, when they beheaded those people and burned those babies alive and took those girls out of the concert and raped them and dragged their naked bodies through the streets of Gaza, what did they say?

“Death to Israel, Death to America.”

MARGARET BRENNAN: That’s what Hamas said.

NIKKI HALEY: Yes.

After 9/11, did we want anyone to tell us what to do? No. We wanted to make sure that we destroyed the terrorists.

MARGARET BRENNAN: Sure, but…

NIKKI HALEY: Israel wants to destroy the terrorists.

We all care about the people in Gaza. We all do. The problem is, Hamas is holding them hostage. They always have. But, Margaret, where are the Arab countries? Where are the Arab countries, saying – going to Hamas, saying, we need to protect the people of Gaza?

Because Israel doesn’t want to do this to the people of Gaza.

MARGARET BRENNAN: They’re trying to help negotiate a hostage release, many of them, right now.

NIKKI HALEY: Well…

MARGARET BRENNAN: But are you saying you disagree with President Biden when he says Israelis have gone over the top in referring to the civilian casualties?

NIKKI HALEY: Hamas has said they’re going to do this again. Israel needs to do whatever it takes to make sure this doesn’t happen again. And that means eliminating Hamas.

They have tried working with all of the Arab countries to go and help the people of Gaza. If the – if anybody worries about the people of Gaza, ask the Arab community, why aren’t you stopping Hamas? Why aren’t you stopping Iran? They have the ability to do that. Why are you going to Israel? I have seen many turns…

MARGARET BRENNAN: You – you know there are diplomatic efforts under way to do that.

NIKKI HALEY: … everybody runs to Israel’s defense when she gets – yes, but the point is, don’t go and blame Israel for this.

I have seen many times where Israel gets hit and everybody supports Israel. But when Israel hits back, everybody condemns her. That is wrong. They went through a horrific time. You’ve got to go to Hamas. Why are we not putting the pressure on Iran and Hamas? That’s where the pressure should be. Why would you put it on the one that was hit?

That’s not what we do. We should have the backs of Israel and force the Arab countries to tell Hamas they’ve got to stop. That would end this war immediately.

MARGARET BRENNAN: Ambassador Haley, thank you for your time this morning.

Face the Nation will be back in one minute, so stay with us.

(ANNOUNCEMENTS)

MARGARET BRENNAN: And we’re joined now by President Biden’s personal attorney, Bob Bauer, a former White House counsel during the Obama administration. He’s also married to Biden White House senior adviser Anita Dunn.

Welcome, and good to talk to you in person.

BOB BAUER (Attorney For President Biden): Thank you. Glad to be here.

MARGARET BRENNAN: So, the special counsel determined no prosecution should happen in regards to the mishandling of classified information.

This was a decision in your favor, but you asked the special counsel to reevaluate what you called – quote – “highly prejudicial language.” Did anyone appeal directly to Attorney General Garland or the Justice Department on that point?

BOB BAUER: Well, we made submissions in paper on those points, but let me just take a step back.

MARGARET BRENNAN: To the special counsel?

BOB BAUER: To the special counsel, and we reiterated them again on paper to the attorney general, because this is a report that went off the rails. It’s shabby work product.

Let’s take a step back. It starts with a legal conclusion that was foregone from the very beginning. The investigation could have been concluded in two or three months. It went on for over 15 months. And so along with the legal conclusion comes this flood of characterizations, factual misstatements, pejorative comments about the president that are inconsistent with DOJ policy and norms, and that, as you see over the last 48 hours, have been widely criticized by legal experts.

This is not what prosecutors do. It is shoddy work product.

MARGARET BRENNAN: But it was the attorney general’s commitment to make this public that put this in this space. Did you ever ask the Justice Department not to make it public?

BOB BAUER: No.

MARGARET BRENNAN: Or consider doing so?

BOB BAUER: No.

MARGARET BRENNAN: No.

BOB BAUER: No.

MARGARET BRENNAN: And what did the attorney general say when you raised these issues to him?

BOB BAUER: It’s evident that he had committed to make the report public the way that the special counsel had written it. And so that’s the report that we have.

MARGARET BRENNAN: Because he did not release any additional letter or anything, did the attorney general essentially endorse this work product?

BOB BAUER: I cannot say – I won’t speak for the attorney general’s views. I can simply say that the arguments that we made about the inconsistency of this report with basic norms – setting aside the foregone, clear legal conclusion in the president’s favor, the failures of this report that we brought up did not ultimately change the outcome.

MARGARET BRENNAN: So, in terms of Justice Department policy, things are different in terms of regulation for a special counsel.

And I want to ask you specifically about what I think you’re referring to as pejorative comments. You’re specifically talking about what – the language here from Hur that the president didn’t remember when he was vice president. He forgot the first day of the interview when his term ended. When did I stop being vice president? He had forgotten the second day of the interview when his term began and within several years could not recall when his son Beau died.

Is that specifically the part that you think is pejorative?

BOB BAUER: That’s among the problems with the work product. Again, I’m taking it outside the legal analysis, which was foregone and correct.

MARGARET BRENNAN: Mm-hmm.

BOB BAUER: I’m taking it to misstatements of fact and commentary that’s totally inappropriate, including the comments that you’re referring to.

MARGARET BRENNAN: So – OK, so when you say misstatements of fact, you were in the room for this deposition over two days, five hours.

BOB BAUER: I was. Yes, I was. Correct.

MARGARET BRENNAN: Did the president have problems recalling details?

BOB BAUER: I recall from that interview a president who engaged with the questions very directly and gave his best recollection, and, in fact, I think was quite helpful to the special counsel, who, elsewhere in the report, actually cites as compelling and forceful one piece of that testimony.

Let me tell you a striking sort of vignette, as I recall it, from the interview. The special counsel opens by thanking the president for making this scheduled appointment. It could have been rescheduled, given international events. And he makes a point of saying, we’re grateful that – – knowing what else is going on in the world, that you kept the appointment.

MARGARET BRENNAN: Should it have been rescheduled?

BOB BAUER: And then he proceeds – I will address that question as well.

Then he proceeds to say, I’m going to be taking you through events that are many years ago. He flags that. So all I can ask is your best recollection.

And that is precisely what the president did. He engaged. He answered the questions. And the special counsel’s decision to cherry-pick in a very misleading way some of the references that you’re discussing here is an example of what I call a really shabby work product and completely out of bounds for a prosecutor.

I should mention also, Margaret, the special counsel rules do not exempt the special counsel from DOJ norms and policies. In fact, they specifically hold the special counsel to DOJ norms and policies.

MARGARET BRENNAN: So, what you’re talking about and letters you have released make it sound like there are indeed transcripts that you have of these conversations over the 8th and the 9th.

BOB BAUER: Yes, I’m drawing here on my recollections.

(CROSSTALK)

BOB BAUER: But, yes, there are transcripts. And as you heard Ian Sams in the press Briefing Room say, there are discussions under way, because it’s a classified document, about what could or whether will be or when released. I can’t add anything to that today.

MARGARET BRENNAN: Do you favor releasing them?

BOB BAUER: Well, it’s really a decision that has to take place within the government. It’s a classified document.

MARGARET BRENNAN: You’re the president’s counsel, though.

BOB BAUER: I’m the president’s personal counsel.

MARGARET BRENNAN: Right.

(CROSSTALK)

MARGARET BRENNAN: Would you recommend that these be made public if they indeed back up your personal recollection?

BOB BAUER: Again, there’s a process under way. I’m not a specialist in that process. And so I really have to defer to those who have to work through those issues.

MARGARET BRENNAN: OK, but – because just this past week alone, the president in public remarks mixed up the leaders of France, Germany, and he referred to Egypt as Mexico.

Does the president have any memory problems?

BOB BAUER: He does not.

I was in the interview room. And let me tell you one other vignette from the interview room. There were a couple of occasions when the special counsel, who had flagged at the beginning that sometimes he asks imprecise questions, asked questions that the president picked apart as a matter of logic.

He showed that the questions didn’t have a logical underpinning. Now, everybody in the room recognized that was the case. It showed the president was listening carefully and understood precisely what was wrong with those questions. I didn’t come away from the special counsel’s failure to ask precise questions and think to myself, he has mental acuity problems.

I just thought, he was asking bad questions.

MARGARET BRENNAN: So the vice president accused the special counsel of being clearly politically motivated. What evidence do you have to back up that assertion?

BOB BAUER: What I was concerned about in the course of this investigation is that we had a special counsel who had one eye on the foregone legal conclusions and one eye on the inevitable storm from members of his own party when he had to conclude that the president had not broken the law.

So you have to wonder, with those pressures impinging on the investigation from the outside, knowing the attacks the Republicans had levied on the law enforcement process, did he decide, we would have to ask, that he would reach the only legal conclusion possible, and then toss in the rest of it to placate a certain political constituency?

MARGARET BRENNAN: The special – the special counsel has been praised in the past by Democratic senators from his home state of Maryland.

And I know, when the president took office, he said he wants to restore the honor, integrity, and independence of the DOJ. Doesn’t leveling these charges being politically motivated do the same thing Donald Trump does when he says that the system’s rigged?

BOB BAUER: That’s not what we’re saying. Nobody’s arguing on our side, I’m not arguing that the system is rigged.

MARGARET BRENNAN: You’re saying it’s politically motivated.

BOB BAUER: We’re looking at this particular performance by this particular special counsel in this particular case.

And, as legal experts around the country are saying, it just goes off the rails. It’s a shabby piece of work. He arrived at the right legal conclusion, and then 400 page laters (sic), misstatements of facts and totally inappropriate and pejorative comments that are unfounded and not supported by the record.

MARGARET BRENNAN: The president blamed his aides, even though he also said: “I guess I wanted to hang on to some of these documents for posterity’s sake.”

Were any of his aides punished for what the president said is their fault, security clearances or anything?

BOB BAUER: I heard the president say that mistakes were made in the packing and shipping of materials during the transition…

MARGARET BRENNAN: Right.

BOB BAUER: … and he wished, looking back on it…

MARGARET BRENNAN: He had overseen staff.

BOB BAUER: … he had spent more time looking into it.

MARGARET BRENNAN: Right.

BOB BAUER: He was, of course, busy. He was continuing to be the vice president of the United States.

I don’t know that blaming his aides, other than assigning the responsibility where it lay, with the staff, is what the president had in mind. He was saying, staff was clearly involved, responsible for the packing. We don’t see presidents and vice presidents during transitions packing boxes.

But he recognizes now, when he looks back on it, maybe more involvement on his part was necessary, because it didn’t go the way he thought it should have gone.

MARGARET BRENNAN: But specific to the documents related to Afghanistan, he did say he might have hung on to it for posterity’s sake, not that an aide hang – hung on to it, that he did.

BOB BAUER: Margaret, you’re referring, to be clear – and this is, again, a result of a report that was written in a particularly shabby and shoddy way – he’s referring to a personal handwritten memorandum to the president of the United States, President Obama, his own personal handwritten memorandum that even the special counsel acknowledges was one that he would not have thought would include classified information.

He thought it was a sensitive, private document, as were all his conversations with President Obama. But that’s what it was, his own personal written memo to the president on a policy issue. And I might add, his position on that was well-known.

MARGARET BRENNAN: Yes.

BOB BAUER: Well-known.

MARGARET BRENNAN: Yes.

I’m told we have to leave it here. But, Bob Bauer, thank you for coming in…

BOB BAUER: It’s a pleasure. Thank you very much.

MARGARET BRENNAN: … and making the case, as you did.

BOB BAUER: Thank you.

MARGARET BRENNAN: We will be right back with a lot more Face the Nation. So, stay with us.

(ANNOUNCEMENTS)

MARGARET BRENNAN: We turn now to Connecticut Democratic Senator Chris Murphy. He was a top negotiator on the immigration deal that collapsed last week. The Senate is now focused on trying to pass aid to Israel and Ukraine.

Senator, good to have you here.

SENATOR CHRIS MURPHY (D-Connecticut): Yes.

MARGARET BRENNAN: I want to get to the border later. I want to talk about the pieces you’re trying to pick up here with this, what, $95 billion emergency spending bill.

Do you have any sense yet if there are 60 votes to pass all of this aid?

SENATOR CHRIS MURPHY: I think we’re going to pass the spending bill for Ukraine.

We have already moved past several procedural hurdles that require 60 votes. I think there will be 60 votes in the end. And there has to be.

On many days, Ukraine is firing one-quarter of the artillery shells that Russia is. Some days, they are only interrupting half the missiles that are being sent at Ukrainian cities. We are on the precipice of a disaster for Ukraine and for the world.

Nikki Haley is right. Putin has made it clear that, if he wins Ukraine, he is going to continue on ultimately to a country that’s going to get the United States directly involved in a confrontation with Russia.

So it has been hard to get Republican votes to support Ukraine, made very difficult by Donald Trump’s opposition to Ukraine funding, but I think we’re going to get this done in the Senate by early to mid next week.

MARGARET BRENNAN: So, on the border, the president has said the border is not secure.

You are working to try to pass this legislation. In the absence of that, should he take executive action, and, if so, what?

SENATOR CHRIS MURPHY: Well, I think there’s limited executive actions the president can take. He does not have the legal authority to shut down the border.

Our bill, our bipartisan bill, would have given him that authority. If crossings were too high on a daily basis, the president could shut down portions of the border. The asylum system is broken. He can’t fix that by executive order. It takes 10 years for people to get an asylum claim processed. Many of them don’t have legitimate claims. Only legislation can fix that. Our bill would have done that.

MARGARET BRENNAN: Yes.

SENATOR CHRIS MURPHY: As soon as Republicans realized that it was actually going to fix the border, they voted against it en masse because they want the border to remain chaotic, because it helps President Trump in his reelection efforts.

MARGARET BRENNAN: We have more in depth to talk about on this issue.

I have to take a break. Please stay here with us, Senator.

We’ll be right back.

(ANNOUNCEMENTS)

MARGARET BRENNAN: We will be right back with a lot more FACE THE NATION, more from Senator Chris Murphy, analysis on those legal developments, and a Super Bowl preview.

Stay with us.

(ANNOUNCEMENTS)

MARGARET BRENNAN: Welcome back to FACE THE NATION.

We continue our conversation now with Connecticut Democratic Senator Chris Murphy.

You are optimistic that this massive security supplemental will pass this week, but there is pressure within your party to add some strings on when it comes to Israel aid. Why is it that the White House appears to be so powerless to rein in Benjamin Netanyahu when they are clearly uncomfortable with how he’s waging this war?

SENATOR CHRIS MURPHY: Well, I think we saw an important development last week. The White House released a letter in which they made clear that if we approve new aid to Israel, they are going to make sure that it is used in compliance with U.S. and international human rights law. And I think that’s incredibly important. Right now the level of civilian casualty inside Gaza is unacceptable and it does not accrue to the national security goals of the United States, nor Israel, because it is going to essentially keep Hamas in business inside Gaza and around the region as they use this grievance structure as a means to continue to recruit.

So, I do think that that clarification will be important. I think the president’s willingness to speak up a little bit more strongly about the way in which this campaign is being conducted will likely have a change in the operational pace. And I think it’s incredibly important for the United States and for Israel for Hamas to be defeated, but for there to be a dramatic reduction in the number of civilians that are being killed.

MARGARET BRENNAN: To your point, the White House sent a group of officials out to Michigan to meet with Arab Americans there who are very upset with – with how the president has communicated specifically. CBS has a recording of one of the conversations the deputy national security adviser had. He said, “I do not have any confidence in the current government of Israel.” He also said the administration has left a, quote, “very damaging impression” as to “how much the president values the lives of Palestinians.”

Should there be more strings attached to this aid package you’re about to vote on?

SENATOR CHRIS MURPHY: So, the president does believe deeply in the importance of preserving life inside Gaza and has continually pressed for more humanitarian aid to get into Gaza. There would not nearly be the number of shipments coming in today if this president wasn’t pushing hard for change.

But, yes, there are many of us who believe that it is very important for us to make clear with this aid package that if Israel’s going to use these dollars to perpetuate this campaign inside Gaza, it has to be done in a way with less civilian life being lost. I think that’s important to members of Congress. I know that’s important to this administration.

MARGARET BRENNAN: And they are going to speak more about that?

SENATOR CHRIS MURPHY: I think you will clearly hear the president – my guess is that, based upon what the president said last week, that you’re going to hear the president continue to stand up for a campaign that defeats Hamas –

MARGARET BRENNAN: Yes.

SENATOR CHRIS MURPHY: But is done in a way that is much more respectful to civilian life.

MARGARET BRENNAN: I want to ask you about the president. As you know, he has mixed up the names of the French and German leaders, he referred to Egypt as Mexico. Adam Smith, who is the ranking Democrat on the House Armed Services Committee said on Friday, Biden does not have the normal strength to go out there and campaign. I think we have the sound bite.

(BEGIN VC)

REP. ADAM SMITH (D-WA): He does not have the normal strength to go out there and campaign, you know, to do rally after rally and conversation after conversation. I’d rather have someone who’s good at the job and not great at the campaigning than the other way around. But it’s going to be a challenge to go out there and win that campaign.

(END VC)

MARGARET BRENNAN: Do you agree with him?

SENATOR CHRIS MURPHY: I don’t. I mean Joe Biden’s the only person who’s beaten Donald Trump. And there is absolutely a corollary between being good at the job and being good at explaining to the American people why you should be re-elected.

Listen, I’m somebody that worked intimately with the president, right? I worked with him on the bipartisan gun bill. He was involved in every step of that process. Not only constructing the bill, but winning individual Republican votes. It would not have passed if not for Joe Biden.

And what has happened since we passed that bill? A 12 percent reduction in urban homicides in this country. There are literally thousands of people alive in this nation today because Joe Biden is incredibly competent and he’s incredibly effective. And this partisan – and this partisan hit job by somebody that is looking for a better –

MARGARET BRENNAN: That’s a Democrat we just played.

SENATOR CHRIS MURPHY: By a better – no, I’m talking about the special counsel.

MARGARET BRENNAN: Yes.

SENATOR CHRIS MURPHY: Who’s looking for a better job in the next Trump administration is not going to dissuade Americans who actually see what the real-world impact on their lives is of Joe Biden’s administration.

MARGARET BRENNAN: But you know there is a difference here that we’re talking about. Your fellow Democrat was talking about the ability to go out there and campaign. You just acknowledged a failure to communicate on a very important issue in regard to Palestinian lives. Is there a problem here?

SENATOR CHRIS MURPHY: There’s – there’s not a problem. This president is going to be able to sell a record that is extraordinary. Unemployment at record lows, factory construction booming. Crime, down. Inflation under control.

And he is also somebody that has been the only one member of our party who has effectively beaten Donald Trump in a general election. So, I know that he is ready for this campaign. I have seen how effective he has been up close and personal. And I’m not going to let my constituents be distracted by a special prosecutor who’s trying to gain favor within the MAGA movement.

MARGARET BRENNAN: Senator Murphy, good to have you here.

SENATOR CHRIS MURPHY: Thank you.

MARGARET BRENNAN: We’ll be right back.

(ANNOUNCEMENTS)

MARGARET BRENNAN: We’re joined now by former CIA Deputy Director Michael Morell. He’s also CBS News senior national security contributor. And Samantha Vinograd, a former top counterterrorism official at the Department of Homeland Security and she’s here as a CBS contributor as well.

And we want to note, Sam served in the Obama White House in the National Security Council. And although she has left government, she’s a senior adviser to the Biden Institute at the University of Delaware.

Good to have both of you here.

MICHAEL MORELL (Former CIA Deputy Director): Good to be here.

MARGARET BRENNAN: Mike, I want to start with you.

The items that were in President Biden’s possession had markings TSSCI classification, top level classification. The House Intelligence chair has said that Biden and Trump have basically the same level of documents inappropriately in their possession. Is that a fair comparison?

MICHAEL MORELL: It’s – it’s actually difficult to make a comparison for all sorts of reasons. I think what we can say is that President Trump had more documents than President Biden, although the difference was not huge. We can say that both of them had confidential secret and top-secret information. We can say that both of them had what’s called restricted handling information which requires special care because it’s a higher sensitivity. I think we can say that both of them had what’s called formerly restricted data information, which is information about U.S. nuclear weapons. That information for President Biden was dated, quite dated.

MARGARET BRENNAN: Back to the ’80s, I think.

MICHAEL MORELL: Back to the 1977, 1979. So, both of them had sensitive information.

MARGARET BRENNAN: And is it damaging? I mean that sounds risky, but I mean, Sam, you have exposure to this. And people say oh there’s over- classification these days.

SAM VINOGRAD (Former Top Counterterrorism Official, DHS): Sure. But let’s keep in mind, this is not happening in a vacuum. Our partners and our adversaries are watching what was in that special counsel report and our partners who do share with us valuable intelligence that includes their sources and methods can take assurance in the fact that this president, unlike his predecessor, self-reported having this information and advised his team to do exactly the same.

Now, our adversaries got very unique insights into some endemic and significant vulnerabilities in the executive branch’s processes for tracking and storing classified information. And that is why it is incredibly important, in my opinion, that they announce a new effort to review how classified information is tracked and archived to avoid this happening again.

MARGARET BRENNAN: Because it happened with Biden, Trump, and Mike Pence. But you just heard, Mike, the president’s lawyer say, these were just personal mementos in terms of that handwritten letter in regard to Afghanistan, but what does that say? What does that signal to men and women who aren’t commander-in-chief but have to show up to work and would be held to account for having these kind of documents in their possession?

MICHAEL MORELL: You know, I’m not going to pass judgment on Mr. Hur’s decision to prosecute or not prosecute, right? What I – what I can say is that the senior officials in the government have a responsibility, greater responsibility than anybody else, to manage the classified information properly. Because if they don’t, it sends a signal to everybody else that maybe you don’t need to do that as well. So, historically, senior officials who have mishandled classified information have been held accountable both by the Department of Justice and when the Department of Justice declines, as they did in this case, they’ve been held accountable by their agencies at very senior levels.

MARGARET BRENNAN: Which in this case there isn’t any recourse –

MICHAEL MORELL: There isn’t somebody to do that, right?

MARGARET BRENNAN: There’s no one higher than the president.

MICHAEL MORELL So, I think –

SARA VINOGRAD: Sure. He – he did say that he accepted responsibility.

MICHAEL MORELL: Yes.

SARA VINOGRAD: And I think that the proof in the pudding here is going to be –

MARGARET BRENNAN: For not overseeing his staff.

SARA VINOGRAD: Yes. And I’ve – I’ve been involved in transitions, Margaret. I’m not here to defend the president or not defend the president. What I’m here to say is that, as a factual matter, the vice president was not packing boxes.

Now that said, the president does have a responsibility to ensure that this does not happen again. And that is exactly why I think that he should announce a review of the executive order that currently governs the classification, storage and declassification of materials. I think that he should announce that he’s appointing a senior official to oversee the processes involved.

And as the report details, there were significant shortages in the resources available to the office of the vice president to ensure that classified material was treated appropriately. And it is on the president now to show this country that he is taking stepping to rectify that situation.

MICHAEL MORELL: There’s a – there’s an example that – that is close to the president. John Deutch, when he was the director of CIA, during his entire time as director was putting classified information on an unclassified laptop. That was connected to the internet. Putting that information at risk. When that was discovered, there was a referral to the Department of Justice. They declined prosecution. Just as in this case. It came back to CIA for an administrative review. George Tenet held him accountable. He indefinitely took away his security clearance.

MARGARET BRENNAN: In order to send a signal.

MICHAEL MORELL: In order to send a signal to the workforce that everybody’s got to take the management of classified information seriously.

SAM VINOGRAD: And I think the president does need to send that signal. I think it is difficult to compare John Deutch with a sitting president, but I agree with you that it is important to send a signal. As an employee at the White House, I had to sign a nondisclosure agreement, I did – had various ethical obligations and otherwise. And for the men and women at the National Security Council right now, they need to understand that their president values classified information as much as they do. And that’s why I do think he needs to be on record announcing steps to avoid this happening again.

MICHAEL MORELL: And I take –

MARGARET BRENNAN: Should he have apologized?

SAM VINOGRAD: I think that he did acknowledge that he did ultimately hold the responsibility for there being a mishandling of information when he was vice president.

MICHAEL MORELL: You know, I’d say that needs to go a little bit further. So, I agree, 100 percent, that we need a new policy for how this is done at the end of administrations. A hundred percent. I think he needs to go a little bit further in the apology. I think he needs to say, I should not have had this material, I put national security at risk. I apologize to the American people for that. I apologize to the intelligence community, in particular to those CIA officers who put their lives at risk to collect some of it. There was CIA material in here. And it’s not going to happen again. And I’m going to make sure of that by making changes. A more full- throated apology.

MARGARET BRENNAN: I think it’s an important perspective on the merits of the issue itself putting the politics aside, so I appreciate both of you for sharing your experience with us.

We’ll be back in a moment.

(ANNOUNCEMENTS)

MARGARET BRENNAN: For more on the legal cases against former President Donald Trump, we’re joined now by CBS News election law contributor David Becker, the founder of the Center for Election Innovation and Research.

David, good to have you here.

It has been a really busy week on the presidential legal front.

DAVID BECKER: Yes.

MARGARET BRENNAN: But it started with a really important decision from the D.C. Circuit that a former president does not have immunity from criminal prosecution. Donald Trump says he plans to appeal this to the Supreme Court of the United States. Do you expect them to take this case up?

DAVID BECKER: Well, I think it’s an almost certainty that he will appeal. The deadline is tomorrow, is Monday. And then I think the Supreme Court is unlikely to take this up. It is a very strong opinion. These are three judges on the D.C. Circuit, often thought of as the second highest court in the land. They were appointed by two different presidents of two different parties and it’s a per curiam decision, meaning they’re speaking with one voice unanimously. And they very clearly struck down this idea, and it’s a somewhat extreme position, that a president of the United States has blanket, comprehensive immunity for any criminal acts they might have done. And it’s a very, very strong opinion that I think a large majority of the Supreme Court is going to find compelling.

MARGARET BRENNAN: Which will be significant?

DAVID BECKER: Yes.

MARGARET BRENNAN: For them even to say that, that’s the law of the land here.

But Donald Trump has repeatedly argued to his supporters, as you know, that everything he says is rigged, but on this, he says it will hamstring presidents. “Without total immunity, the opposing party can extort and blackmail the president by saying, if you don’t give us what we want, we’ll indict you for things you did in office.”

Is there any truth to that?

DAVID BECKER: Well, first of all, they addressed that in the opinion, the D.C. Circuit does. And they applied this balancing test and they really thought that the executive branch as a whole, not a particular president but the executive branch, and the public have a right to expect accountability from the president. But then, even more so, it kind of indicates a lack of understanding about how the justice system works particularly in the criminal context.

In all of these cases that Trump is facing, whether they’re federal, like in Florida, or in D.C., or whether they’re state-based, like in New York and in Georgia, these were grand juries that were convened, prosecutors had to present evidence before a grand jury of citizens and they returned these indictments in each of these cases.

And then, even after that, the prosecutors face a very heavy burden beyond a reasonable doubt of proving to a jury of his peers that he committed these acts. Can you imagine how prosecutors have a weight on them when that happens? This is an independent investigation. There is no interference from the political class on these kinds of things. And they’re going to end up having to prove their case before a jury. And you can imagine what would happen if a jury exonerates President Trump in any of these cases and how that might be a political windfall for them.

MARGARET BRENNAN: You’ve just done a very good job of explaining how the system works. But for those who are only hearing the political slogans what they see is that Joe Biden is not being prosecuted by the Justice Department for classified – mishandling of classified information. Mike Pence wasn’t either. But Donald Trump is, specifically because he also went to efforts to not hand over those documents to law enforcement when they asked for them to be returned.

DAVID BECKER: That’s right.

MARGARET BRENNAN: For those who see this as unequal justice, like, how do you respond?

DAVID BECKER: Well, I think this week was a really good indication of how the Justice Department acts as independently as it does. We heard earlier that clearly the Biden administration is not happy with the release of the Hur report on the investigation. And if they really had as much power over the Justice Department as former President Trump alleges, that would have been released. It clearly was.

Also, I think, ironically, we have to note that one of the four charges against former President Trump in D.C. is interference with the Justice Department. He was alleged to have interfered with the Justice Department, try to get them to investigate an election where everyone agreed there was no fraud and it was legitimate.

And so I think it, again, represents kind of the politicization of this idea that anything that happens against the other side is good. Anything that happens against our side is bad. But here we see both President Biden and former Vice President Pence were treated very similarly. And former President Trump was treated differently mainly because he withheld those documents even when he was requested to, and he did not open his doors to the investigators to take a look at them.

MARGARET BRENNAN: And you can read the indictments to see the details of specifically the length he went there.

But in the – you were in the courtroom at the Supreme Court this week as they were debating this case that came out of Colorado in regard to the 14th Amendment and keeping Trump off the ballot because of an alleged role in insurrection. The impression seems to be the justices will rule against the state of Colorado. Is that what you walked away with?

DAVID BECKER: I think that’s likely to be the case and it could even be unanimous. I think what we saw, it was – it was such an illuminating argument. The nine justices were really having a discussion amongst themselves. And what they all seemed to be troubled by was the idea that a single state could make a ruling on this, even after an evidentiary hearing as Colorado had, and that they could basically set the qualifications of a president, just one state for all 50, or that multiple states could come up with different ideas of qualifications. And for the presidency in particular, it’s the – it’s the most unusual election we have. It’s the only one that has lectors and electoral votes.

MARGARET BRENNAN: Yes.

DAVID BECKER: So, I think it’s likely the court’s going to rule that he can remain on the ballot.

MARGARET BRENNAN: All right, David Becker, always great to have you.

DAVID BECKER: Thanks, Margaret.

MARGARET BRENNAN: We’ll be right back.

(ANNOUNCEMENTS)

MARGARET BRENNAN: Super Bowl LVIII kicks off tonight right here on CBS. And earlier we got a preview from host of the “NFL Today” and CBS News special correspondent James Brown.

(BEGIN VT)

MARGARET BRENNAN: You are covering your 12th Super Bowl as I understand it. And you’re right there in Vegas. The league was hesitant about putting a team in that city. Why and how does it change things?

JAMES BROWN (“The NFL Today” Host): Well, quite clearly and succinctly, it is the gambling capital of the world. And the league worked diligently, assiduously, to maintain the integrity of the game with no influence that way. The Supreme Court has made gambling legal. It has always been a part of the game, but the legal has been decidedly focused on keeping it separate.

MARGARET BRENNAN: I know you have followed for years the concerns, the very real health concerns, related to concussions and injuries. The NFL commissioner, Roger Goodell, said in his press conference the league has made a lot of progress on lowering injuries, but admitted they still have a lot more work to do. How are they managing that?

JAMES BROWN: The old-school football game was a tough, brutal game. Defenses did not play. Significant changes since. $1.2 billion by the league and the settlement with the players going towards retired players and their medical needs. $320 million this year. Significant progress in terms of concussion research. Rules on the field. Officials are serious about watching how well the game is played properly. You may get one warning, a second one and you’re out.

And I think most significantly, the medical community has the last say. If a player is injured on the field and they determine that player to have suffered a concussion, the coaching staff has no say in the matter. The medical staff runs the show. And there is concussion protocol that the player has to go through for a week, ten days, two weeks, whatever it is, until they meet a baseline to allow them to go back into action.

MARGARET BRENNAN: So, that sounds like there’s improvement. One thing you and I have spoken about in the past, and I know you feel passionately about this, was the challenge in regard to diversity in the NFL. The last time I spoke with you, you said the track record was pitiful. Do you think it’s improved?

JAMES BROWN: Considerably improved. Not enough. And to the credit of the commissioner, Roger Goodell, Troy Vincent, his executive vice president of football operations, they continue to push. There is about a 51 percent increase in terms of diversity across the league. In the leadership positions, the C-suite positions, we’ve got more folks of color and women who are running the show there because excellence and success is not unique to one given group of people. And I’m glad to see that that’s starting to take place.

MARGARET BRENNAN: J.B., has that diversity impacted how some of the players feel? I know you had said in the past it was kind of getting to them.

JAMES BROWN: You know what, the players are seeing significant progress. As a matter of fact, right here in Las Vegas, the Raiders have the second female president running the organization. Miss Sandra Douglass Morgan, an African American, a woman of color, actually biracial. She’s running this organization. Amy Trask was the president for the Raiders a number of years ago. So, the Raiders have really set the bar high for a number of teams.

I look at the Denver Broncos. There is a significant number of women who are in the ownership ranks of that organization as well.

And then when you look at the assistant coaching ranks, since 2013 there’s been a 30 percent increase in the number of assistant coaches who are people of color. So, the players are seeing that progress and they’re very thankful because many of them would like to go that route in the future as well.

MARGARET BRENNAN: Great points. J.B., thank you.

(END VT)

MARGARET BRENNAN: And you can see J.B. on “The NFL Today” starting at 2:00 p.m. CBS’s all day coverage of the Super Bowl begins right here on CBS next after a quick break.

That’s it for us today. Thank you for watching. Until next week, for FACE THE NATION, I’m Margaret Brennan.

(ANNOUNCEMENTS)

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