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Cruz and Trump Fight; South Carolina Governor Endorsement; Apple Protests Judge's Order. Aired 2-2:30p ET

Aired February 17, 2016 - 14:00   ET

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

[14:00:08] POPPY HARLOW, CNN ANCHOR: Hi, everyone. Top of the hour. I'm Poppy Harlow, in today for my good friend Brooke Baldwin. This is CNN's special coverage of a critical moment in the race for the White House.

ERIN BURNETT, CNN ANCHOR: And, Poppy, I'm Erin Burnett, in Greenville, South Carolina, today.

Tonight on CNN, just hours from now where I'm standing, Republican candidates will face voters answering their questions in a town hall right here on CNN. This comes as an all-out war has erupted between the frontrunners, Donald Trump and Ted Cruz. Minutes ago, Cruz revealing Trump has sent his campaign a cease and desist letter demanding he stop running this ad.

(BEGIN VIDEO CLIP)

TIM RUSSERT, "MEET THE PRESS": Would President Trump ban partial birth abortion?

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: Well, look, I'm - I'm very pro-choice.

RUSSERT: But you would not ban it?

TRUMP: No.

RUSSERT: Or ban partial birth abortion?

TRUMP: No. I would - I am - I am pro-choice in every respect.

(END VIDEO CLIP)

BURNETT: Of course, Donald Trump has changed his mind on this. He says it's very misleading on the Planned Parenthood claim. Cruz said this to say, though, about any further legal action that Trump may threaten to take.

(BEGIN VIDEO CLIP)

SEN. TED CRUZ (R), PRESIDENTIAL CANDIDATE: To Mr. Trump, you have been threatening frivolous lawsuits for your entire adult life. Even in the annals of frivolous lawsuits, this takes the cake. So, Donald, I would encourage you, if you want to file a lawsuit challenging this ad, claiming it is defamation, file the lawsuit. But if Donald Trump files the lawsuit that he threatened in this letter, that lawsuit will be frivolous and it will result in both Donald Trump and any lawyer that signs his name to the pleadings being sanctioned in court for filing frivolous litigation.

(END VIDEO CLIP)

BURNETT: All right, Donald Trump releasing this statement in response, because this truly is political kabuki theater, everybody. Here is some of what he had to say, and I'll quote him. "Ted Cruz has already had one of his ads pulled off the air concerning Senator Rubio because it was totally false. Additionally, he was forced to apologize to Dr. Ben Carson for fraudulently stealing his votes in Iowa and was embarrassed by his phony voter violation form. He's a liar and these ads and statements made by Cruz are clearly desperate moves by a guy who is tanking in the polls watching his campaign go up in flames finally explains Cruz's logo. If I want to bring a lawsuit, it would be legitimate. Likewise, if I want to bring the lawsuit regarding Senator Cruz being a natural born Canadian citizen, I will do so. Time will tell, Teddy."

All right, I want to go straight now to our political director, David Chalian.

All right, the only problem is that this -

DAVID CHALIAN, CNN POLITICAL DIRECTOR: I like the Teddy touch.

BURNETT: This is not a reality show. This is real. This is real. The Teddy touch was pretty funny, OK, but this is truly escalating into something we have not ever seen before. Unprecedented a fair word?

CHALIAN: Yes, I mean, listen, we're three days away from what may be one of the most consequential contests in this nomination season because - we're on the precipice here now of whether or not Donald Trump can take his big New Hampshire victory, solidify it with the stamp of approval from South Carolina, which has always been a proving ground on the way to the nomination. And if he can do that and his opponents can't stop him here, he is going to be off to the race. That's why the stakes are so high. That's why Ted Cruz today, Erin, goes out like the layer that he is to prosecute his case point by point against Donald Trump, the frontrunner, and Marco Rubio, both of whom have been slamming him.

BURNETT: They both have. They've sort of been on the same side of this. Was as interesting in what that could perhaps portend down the line. OK. And on that front we can confirm now Nikki Haley, the governor, very wildly popular governor of this state, South Carolina, is going to endorse Marco Rubio before the primary. This is an endorsement that had been coveted by everyone, Jeb Bush, Ted Cruz, even Donald Trump.

CHALIAN: Yes.

BURNETT: Marco Rubio getting the big win here. Is it going to move the needle?

CHALIAN: Well, listen, I think endorsements overall are usually overrated.

BURNETT: Yes.

CHALIAN: This is a big one, though, and you want it. A, she's going to be on everyone's short list, whoever's the nominee, as a potential vice presidential candidate, right?

BURNETT: That's right. Right.

CHALIAN: So she's got a big national following. There's no doubt about that. But here's why it's so important for Marco Rubio. Two reasons. One, it didn't go to Jeb Bush, who's the other candidate that she met with this week when George W. Bush was down.

BURNETT: She met with his whole family, right? I mean -

CHALIAN: She met with all of them. And so -

BURNETT: Yes, she did. Yes.

CHALIAN: The fact that it didn't go to Jeb Bush is a big win for Marco Rubio in and of itself.

BURNETT: Yes.

CHALIAN: But also because this is now part of the Marco Rubio bounce back from that bad debate performance in New Hampshire -

BURNETT: That's right.

CHALIAN: To placing fifth place in New Hampshire. This and now helps him sell the narrative that the entire campaign is back on course and that coalescing of the establishment that he was hoping would have happened in New Hampshire before that bad debate performance, it was stalled. Now he can make the case it's building that way again.

[14:05:02] BURNETT: All right, so what happens though? Because you look here at the state of South Carolina, with all of this nastiness going on, Donald Trump by far the frontrunner. But, again, when you add up the, I haven't yet decided, I'm still thinking about its, you have more people in those categories than you do supporting Donald Trump.

CHALIAN: True.

BURNETT: So - and, of course, you've got Marco Rubio trying to gain traction, hoping to steal votes from Jeb Bush. But does an endorsement like this really change the narrative, change votes?

CHALIAN: My guess is, not many.

BURNETT: Yes.

CHALIAN: I think it helps Marco Rubio sell his own narrative of where his campaign is at, more than it actually takes undecides and moves them into - BURNETT: It gives him a momentum.

CHALIAN: Exactly. It gives him that discussion.

BURNETT: OK.

CHALIAN: Listen, Donald Trump is dominant here right now. They - I don't think one statewide popular gubernatorial endorsement is going to up end the nature of the race the way it is here right now. But, remember, Donald Trump is dominant against two other guys, Cruz and Rubio, who are very close with each other. I don't mean personally, I mean in the polls. They are very competitive for that second spot.

BURNETT: Yes.

CHALIAN: So, Marco Rubio, now, this is all about him being able to chisel away at Ted Cruz, I think -

BURNETT: That's right.

CHALIAN: More than it is Donald Trump.

BURNETT: And to be fair, the one person who pretty much knew he wasn't going to get that endorsement was Donald Trump -

CHALIAN: She said so.

BURNETT: After she - she gave the critical State of the Union rebuttal which criticized his immigration policy.

David Chalian, stay with me.

I want to go to Dana Bash with more on this breaking news.

Dana, what can you tell us?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Hi there. Well, first of all, you can see, Marco Rubio is speaking behind me. We are now in Aiken, South Carolina. I am told that the formal announcement endorsement is going to come later tonight at 6:00 p.m. in Chapin, South Carolina. He hasn't mentioned it. Obviously, it's not for him to do. But it seems to me that he has an extra spring in his step and he certainly had one coming into this event, which just started a few moments ago.

And as you were just discussing with David Chalian, this is a very, very big event in this primary for - within the Republican field because she was such a sought after endorsement. She is incredibly popular among Republicans here in South Carolina. And Jeb Bush really wanted the endorsement. But Marco Rubio has been working on it incredibly hard, I know that from sources, for a long time behind the scenes. And, you know, whether or not this is going to make a big difference in terms of, you know, him actually being able to overtake the clear front-runner, Donald Trump, that's unclear. But what matters right now is the race for second, third, and fourth because Marco Rubio, Jeb Bush, and Ted Cruz are really bunched up in those positions. And if Marco Rubio can overtake Jeb Bush in a significant way, it will not only be very good for Marco Rubio, it will be kind of a seismic event potentially for Jeb Bush with regard to his ability to go forward.

BURNETT: I guess that's the big question, right, is this something that really could be a death knell for him in a state where he must do so well? Even more bad news for him perhaps than even good news for Marco Rubio.

Dana, what's your understanding, though, as to why she chose the make this endorsement? Because I know there had been speculation, everyone wanted her to endorse, but that she would wait. That she would not come out and endorse. What made her decide to come ahead, ahead of this primary, and do it?

BASH: Not sure exactly what the reason is, but just in talking to some of her advisers leading up to this, it wasn't entirely clear whether she would endorse but it certainly was not a shut door, the idea that she was going to endorse. Look, she is a very astute politician. Nikki Haley understands the power of her endorsement and understands the power of South Carolina vis-a-vis this Republican presidential race. And, you know, look, she has been weighing in in a way that we saw when she gave the response to the president's State of the Union Address, not by name, but made very clear that she didn't think that the approach that Donald Trump was making was the right thing to do. And, frankly, Marco Rubio, if you kind of look at Nikki Haley's record and look at the kind of Republican she is, Marco Rubio is the most in line with her. Again, it's going to be a big disappointment for the Jeb Bush campaign and potentially - potentially a big boost for Marco Rubio, that she decided to throw her endorsement behind him.

BURNETT: All right, Dana Bash, thank you very much, with Marco Rubio on what has become a very big afternoon for him.

Joining me now, Brent Nelsen, a professor of political science at Fuhrman University right here in Greenville, South Carolina, where we are this afternoon.

OK, so, Brent, what's your gut reaction as to the significance of Nikki Haley making a decision to do an endorsement before the primary, when a lot of people thought maybe she wouldn't, and making that choice for Marco Rubio?

BRENT NELSEN, PROFESSOR, FURMAN UNIVERSITY: I think this is really significant. I'm not sure I agree entirely with David. I think what is really happening right here is one of the establishment candidates is beginning to emerge from the three. That is Rubio, Kasich and Bush. And with this endorsement of Marco Rubio, I think that really puts the ball in his court. He's the one carrying the elite message forward opposed to the Trump and Cruz.

[14:10:12] BURNETT: Now, you know, Marco Rubio has called Ted Cruz a liar. Donald Trump has called Ted Cruz a liar. In a sense, it's politics as usual. But we don't always hear words like "liar" thrown about. Ted Cruz saying Donald Trump is sleazy. I mean it has become incredibly nasty. And today Ted Cruz saying to Donald Trump, sue me. NELSEN: Yes.

BURNETT: If you want to sue me for this negative ad. What's the feeling here on the ground about how negative it is? Is it turning people against any of these guys or not?

NELSEN: Well, remember this is South Carolina. We have rough politics down here. And these candidates, I think, are just absorbing some of the nature of the political system here. But it's rough, and, yes, there are a lot of accusations. I think we expect this. We've seen this in the past many year -

BURNETT: You don't think it's a turn off, I don't like how these people are talking to each other or I don't -

NELSEN: Sure, I think for some people it's going to be a turn of, but a lot of people in South Carolina are very angry at the establishment. And if they see Marco Rubio as the establishment, they might like somebody criticizing him. But right now I think what you're seeing is this competition between Trump and Cruz and - because they know that there's really only one ticket out for the non-establishment candidate. And there's probably only one -

BURNETT: Oh, so you really think there's only one ticket out for the non-establishment?

NELSEN: Yes, I think if Trump wins big here, I think it's going to be very difficult to stop him anywhere in the country. Now he has to get, you know, more than 30 percent of the vote. So that's a big if. But if he wins big here, I think he's going on to the nomination. And Cruz is paddling really hard. If Rubio beats Cruz, then I believe that Senator Cruz is probably finished.

BURNETT: And - and is possible? I'm just looking at the latest CNN poll here. The poll that we put out last night. Trump was at 38 percent. Ted Cruz was in second, 22.

NELSEN: Yes.

BURNETT: So far behind, but a solid second versus Marco Rubio, who was only at 14. So, you know, that's - again, that's one poll, but that is a - that is a big margin.

NELSEN: Yes, some of the polls have Cruz and Rubio really close, even tied.

BURNETT: Fair.

NELSEN: So the - you know, we're not sure about the polls. They - they're all over the board, especially for the candidates towards the bottom. But, again, if Rubio can beat Cruz, he is the man. And I really don't think that Bush or Kasich can continue. And we might really then have a two-person race, Trump and Rubio, anti- establishment against more establishment.

BURNETT: Yes. NELSEN: And that will be the split in the Republican Party.

BURNETT: Which is fascinating because they sort of - they've been on the same side of the Ted Cruz issue. So, you know, what that portends for down the line could be very interesting.

NELSEN: Yes, that's - that's true.

BURNETT: Well, thank you very much. It was very nice to see you, Brent.

NELSEN: Thank you.

BURNETT: And a reminder, because I'm in Greenville, South Carolina. I'm here because starting in just a few hours the Republican candidates will be answering questions directly from voters right here in South Carolina. Ben Carson, Marco Rubio, Ted Cruz are tonight. Donald Trump, Jeb Bush, John Kasich, tomorrow night, 8:00 Eastern, right here on CNN.

Poppy, back to you in New York.

HARLOW: Quite a lineup. Erin, thank you so much. We'll get back to you in just a moment.

A lot of other news to get to, though.

In the fight to replace Justice Antonin Scalia on the Supreme Court, one expert says President Obama should bring back this woman, this famous former justice, Sandra Day O'Connor. Why? And why he says it is politically very savvy to do that. We'll talk about that next.

Also, the FBI wants Apple's help in cracking the iPhone of the San Bernardino terrorist. Apple says no. What's behind their argument? Are they standing up for privacy or standing in the way of learning facts about a terrorist?

Also, the pope like you have never seen him before, getting angry, shouting down a man in the crowd. What set hill off? We'll tell you, next. We'll be right back.

(COMMERCIAL BREAK)

[14:17:48] HARLOW: All right, a legal battle revving up between the FBI and Apple. A judge ordered the tech giant to help the agency unlock an iPhone. An iPhone just like all of us have that frankly even the FBI can't get unlocked. It's the one, though, used by the San Bernardino terrorists, you see right there. The FBI says it can't figure out the password to get into Syed Farook's phone. It needs that password to get the information they say could help their terror investigation. This order has pitted consumer privacy against national security. A heated debate now in the public. Even New York Police Commissioner Bill Bratton weighed in.

(BEGIN VIDEO CLIP) COMMISSIONER WILLIAM BRATTON, NEW YORK POLICE: I think the terrorist threats and criminal threats threaten their customers much more, being quite frank with you. And this is the crux of the issue. We need to get this issue resolved. The profit motive under the guise of protecting the interest of their customers over the interests of government to protect the lives of those customers.

(END VIDEO CLIP)

HARLOW: So here's the big question at the center of all of this. If Apple is forced to unlock the device, what does that mean for all of us and our privacy, the millions of iPhone users? And where is the legal line? Let's break it all down with Lance Ulanoff, chief correspondent, editor at large for Mashable, and CNN legal analyst Paul Callan, also the senior trial council at Callan Legal.

Thank you both for being here. Before we dive in, Lance, to the - to the technology behind all of this, Paul, when you look at this legally, what are the chances that the FBI could force Apple's hand and do a hack that they haven't even done yet? A hack they say is too dangerous to do because it opens up the door for the hackers, the bad guys, to get information from these phones so very quickly. Can the FBI force Apple's hand?

PAUL CALLAN, CNN LEGAL ANALYST: Well, they've picked the strongest possible case they could have, and I'll tell you why. First of all, the phone belongs to a known terrorist.

HARLOW: Right.

CALLAN: The terrorist act is over.

HARLOW: Who's dead.

CALLAN: Who's dead. The phone also belongs to the county. It doesn't even belong to the person who's dead and the county has said you can have the phone, FBI. So there are no privacy rights in the phone.

They go and they get a federal court order from a judge and they prove that there may be evidence in this phone necessary in an important terrorism investigation. So the judge now issues an order saying to Apple, I order you to - and this is what's very interesting about it. A lot of people think Apple's being ordered to give up the code. Well, there is no code because Apple has said there's no code that we currently have that will permit us to unlock this phone. So they're being ordered to design a code -

[14:20:28] HARLOW: Create an entire new operating system.

CALLAN: Well, yes, a new code to let them get into this phone. And Apple is saying, if we do that -

HARLOW: Yes.

CALLAN: That code could be used on millions of other phones and violate the privacy of our customers. HARLOW: And, throw it to Lance. You're the expert. Is that true?

LANCE ULANOFF, CHIEF CORRESPONDENT & EDITOR AT LARGE, MASHABLE: Well, more or less. More or less. I mean what they want is a piece of software that's like a firmware update that they can attach to the phone that will basically allow them to run what's called a brute (ph) force, kind of a brute force password description process where they're running through every single number that's possible. Why do they need that? Because the phone may have what's set up after 10 times wipe all - after 10 attempts to log in unsuccessfully -

HARLOW: Yes.

ULANOFF: Wipe all the data. Now, they don't even know if that's set up that way, but they want to make sure because -

HARLOW: Sure, they don't even want to risk it.

ULANOFF: Right, they don't want to risk it.

HARLOW: So - so I want you guys to listen to - I mean the White House is weighing in on this. This is huge because this could set a legal precedent going forward. It could open up potential hacks for many, many millions of users. Here's what Josh Earnest said at the White House about it today.

(BEGIN VIDEO CLIP)

JOSH EARNEST, WHITE HOUSE PRESS SECRETARY: They are not asking Apple to redesign its product or to create a new back door to one of their products. They're simply asking for something that would have an impact on this one device. And, you know, again, for the merits of that argument and why the Department of Justice has concluded that that's important, I'd refer you to them. Obviously, the Department of Justice and the FBI can count on the full support of the White House as they conduct an investigation to learn as much as they possibly can about this particular incident. The president certainly believes that that is an important national priority.

(END VIDEO CLIP)

HARLOW: OK, Lance, twofold question here.

ULANOFF: Right.

HARLOW: One, is he right in saying it only affects this one phone? And, two, there's this word "backdoor" being used a lot. And Apple points to that as, that's sort of translation or the FBI points to that as Apple saying it's translation for sort of a negative word, a nasty term in tech speak.

ULANOFF: Yes. Yes. I - well, let's start with "backdoor." I mean that's the terror - the sort of the - the scariest prospect for every iPhone user in the world because it means that if any - at any time law enforcement says we need to access this phone, they can open a door on - a virtual door on the back and get in. Just law enforcement. And no - every single tech company has stepped forward. They don't want to do this. They don't want to build a back door.

Now, this thing that they're building is very different. It is a piece of software. In fact, the FBI, in its request, which was very technical, made it very clear that they wanted this built specific to this phone. The problem is that once you build this software and you prove that you can build the software that can basically hack a so- called unhackable phone, the requests will never end. That will be the beginning of many, many requests because, one, you've proven that Apple can build this software and that it works.

HARLOW: And it will get in the hands of the wrong people.

ULANOFF: Well, that's certainly a possibility. Now, just keep in mind what they've said, though. If it's built for this unique phone, getting it into the hands of other people may not work. But, again, I wouldn't put it past hackers to reverse engineer it and figure it out.

HARLOW: So, Paul, I mean the Obama administration has been pleading with Congress to try to force Apple to create this, quote/unquote back door. Eventually the Obama administration has sort of thrown up their hands and said, all right, we're not going to be able to get this through Congress to combat Apple's encryption. I'm interesting in legally where the fight go from here. I mean, to me, this seems like the perfect fight to go up to the Supreme Court?

CALLAN: Oh, I think it absolutely is. It's a very important fight. I was talking to a prosecutor - a homicide prosecutor today for analogies to what is similar going on in other areas. Do you know right now a prosecutor can force a cemetery to exhume a human body, right, to do a second autopsy. A prosecutor can force surgery to be done on you if you have a bullet in you and that bullet is evidence that you were involved in a murder. So there are lots of situations where the state can compel a private individual to get involved in giving up evidence in unorthodox ways.

But this case is different in one way. Apple is being forced to create a code that doesn't exist. In other words, to go to work for the FBI to create this way to get around the ten strikes and all of the stuff gets erased rule that exists with the cell phones.

HARLOW: Yes. It - we'll be watching very closely. It is fascinating. And we'll see what kind of legal precedent is set. Paul, thank you so much. Lance, appreciate your time.

ULANOFF: Thank you.

[14:25:02] HARLOW: A lot coming up. Next, more on our breaking news, a huge endorsement for this man, Marco Rubio. It's an endorsement so many people were after in that key state of South Carolina. That's ahead.

Also, a political battle is heating up in the fight to replace Supreme Court Justice Antonin Scalia. Why my next guest says former Justice Sandra Day O'Connor would be the president's perfect nominee, next.

(COMMERCIAL BREAK) [12:29:55] HARLOW: As President Obama chooses his replacement for Supreme Court Justice Antonin Scalia, he is also scolding Senate Republicans who say they will block whomever he nominates, but some are now calling the president a hypocrite, pointing back to 2006. That is when then Senator Obama supported the filibuster against confirming conservative Justice Samuel Alito.