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ANDERSON COOPER 360 DEGREES

President Trump Says Up to 15,000 Troops Cold Be Sent to Border to Deal with Caravan; President Trump Doubles Down on Birthright EO. Aired on 8-9p ET

Aired October 31, 2018 - 20:00   ET

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


[20:00:13] ANDERSON COOPER, CNN HOST: Good evening.

The president of the United States today doubled down on the notion that he can redefine who's an American citizen, which is enshrined in the Constitution, with just a stroke of the pen. Before we go any further, we should point out he cannot. More on that in a second.

He also said he may order as many as 15,000 active duty troops to the border with Mexico. That's 1,000 more than are deployed in Afghanistan. The reason, he says, is the threat from a group of poor Central American migrants, now about 1,000 miles away and coming on foot to seek asylum.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: It's a dangerous group of people. They're not coming into our country.

(END VIDEO CLIP)

COOPER: What the president said there on the South Lawn, the fact that he said it on a way to a campaign appearance in Florida is no accident. Both the migrant caravan and citizenship question are hot button issues, of course, for his base. With just six days to midterm election, he's chosen to make them the twin pillars of his closing argument to voters, which of course he's entitled to do. He's even entitled to push hot buttons and he's even entitled I suppose to make stuff up, because keeping them hop honest, that is exactly what he's doing.

What he's not entitled to do is escape scrutiny over what he's saying and what his choice of issues might say about his priorities as chief executive or he is a human being. Because today, even as he raised the specter of a foreign invasion to the kind of level requiring more than a division's worth of military firepower, funerals were being held in Pittsburgh for three of the 11 Jewish Americans slaughtered by a gunman who was driven by anti-Semitism and hate and anger over those very same migrants the president has been focusing on.

Joyce Fienberg was buried, her funeral today, this morning. Irving Younger and Melvin Wax this afternoon.

The president did tweet about Pittsburgh today, but not about those three individuals, just mentioning the other eight killed, but instead about how warmly he was received: Melania and I were treated very nicely yesterday in Pittsburgh. The office of the president was shown great respect on a very sad and solemn day. We were treated so warmly. Small protest was not seen by us, staged far away. The fake news stories were just the opposite. Disgraceful.

In a subsequent tweet, he spoke highly of a local Republican congressman and told people to vote for him. Again, no mention of the victims by name or otherwise or even acknowledgement of their funerals. Instead, he made news by ratcheting up the caravan scare talk and the troop numbers he believes are needed to meet this alleged threat.

(BEGIN VIDEO CLIP)

TRUMP: We have about 5,000. We'll go up to 10,000 and 15,000 military personnel on top of border patrol, ICE and everybody else at the border. Nobody is coming in. We're not allowing people to come in. If you look at what happened in Mexico two days ago with the roughness of these people in the second caravan that's been forming and also, frankly, in the first caravan, and now they have one forming in El Salvador, and we are thinking very seriously immediately stopping aid to those countries because, frankly, they're doing nothing for the American people.

Immigration is a very, very big and very dangerous -- a really dangerous topic. And we're not going to allow people to come into our country that don't have the well-being of our country in mind.

(END VIDEO CLIP)

COOPER: Now, keeping them honest, whatever you may think about immigration policy and border enforcement, there simply is no good evidence the caravan is a danger to this country, imminent or otherwise. The president, as you know, has claimed there are, quote, criminals and unknown Middle Easterners in the caravan.

He's also suggested that ISIS members could be in it. What he's never done is offer any specific evidence. When pressed last week, he said this.

(BEGIN VIDEO CLIP)

TRUMP: There's no proof of anything. There's no proof of anything. But they could very well be.

(END VIDEO CLIP)

COOPER: Yes, no proof, but they could be. That was a week ago Tuesday. Today, still offering no evidence. The president said as many as 15,000 American troops could be needed immediately to meet the threat, as he paints it, which happens to be about 1,000 miles away from the nearest U.S. point of entry.

We'll talk shortly about the deployment and how one retired marine and homeland security official sees it. He's a former Trump administration official we might add. We'll also talk about the president's claim which he restated today

about citizenship.

(BEGIN VIDEO CLIP)

TRUMP: You don't need a constitutional amendment for birthright citizenship. I believe that you can have a simple vote in Congress or it's even possible in my opinion this is after meeting with some very talented legal scholars that you can do it through an executive order. Now, I'd rather do it through Congress because that's permanent. But we can certainly do it through -- I really believe we can do it through executive order.

(END VIDEO CLIP)

COOPER: Well, keeping them honest, the president did not name those legal scholars nor did Press Secretary Sarah Sanders when asked about it today.

(BEGIN VIDEO CLIP)

[20:05:04] SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY: There are a number of people that have commented on this. Lindsey Graham made comments on it yesterday and a number of others have spoken about it.

(END VIDEO CLIP)

COOPER: No real answer there on who advised the president.

But here's what the legal minds who drafted the 14th Amendment had to say. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.

Now, we're going to take on both of the issues that he's raising separately, but we're going to start with CNN's Jim Acosta who's at a Trump rally in Florida.

Has the president been talking yet, I imagine he has or will be about the 14th Amendment or the troops at the border?

JIM ACOSTA, CNN CHIEF WHITE HOUSE CORRESPONDENT: Not yet on the 14th Amendment, Anderson. You did mention a few moments ago that as he was leaving the White House he did talk about that, stating once again that he thinks he could have an executive order that could alter or change the 14th Amendment, birthright citizenship in the U.S.

But we should point out in the last several minutes, he's been going off on, again, this caravan of migrants, many of them women and children heading to the U.S. border with Mexico. And as you mentioned, even though there are hundreds, maybe even a thousand miles away, the president once again saying there are rough people in that caravan. At one point, he said just a few moments ago, quote, they aren't angels. But, Anderson, this is something the president has been teeing up to

his voters over the last couple of weeks. But it seems in this final stretch in this last week before the midterm elections, he's really drilled down on what he really wants to do with the voters heading to the polls come next Tuesday, and that is enrage them, fill them with rage about immigrants and these folks who are trying to head up to the border for a better life in this country.

We should point out just as this rally was getting started, he also mentioned what happened in Pittsburgh, his visit to Pittsburgh. He defended his trip there but slammed the media's coverage and once again referred to the press as the enemy of the people.

COOPER: Jim Acosta, Jim, thanks very much.

As I mentioned, we're going to take on the troops to the border issue and the birthright citizenship issue separately. We're starting with the troops.

And David Lapan, he's a former Trump administration spokesman at the Department of Homeland Security. He's worked for Republican and Democratic presidents. He's also a retired marine and author of a tweet a lot of people have been talking about.

It reads: A military strained by 17 years of war and sequestration doesn't need this. Service members who repeatedly spent long periods of time away from home don't need this. And the U.S. doesn't need its military to defend against a group of unarmed migrants, including many women and children.

David, thanks very much for being with us.

Politics aside, just from a military standpoint, the president is now saying he could send up to 15,000 active duty personnel to the border to deal with this caravan. Does that make sense to you from a military perspective?

DAVID LAPAN, FORMER DHS SPOKESPERSON: It doesn't on a couple of levels, Anderson. One, this issue about very dangerous people, again, no evidence that that's the case. Certainly, many women and children involved. Are there males involved? Certainly.

But if you're making the case that some of these people may be dangerous -- well, one, the Customs and Border Protection folks that work the border every day are used to dealing with people who are potentially dangerous. Two, the law doesn't allow for active duty military forces to even interact with these migrants. So what kind of security are active duty forces providing from these potentially so- called dangerous people?

The other thing again, as I mentioned in the tweet, we've asked a lot of our service members, men and women and their families over the last 17 years. This is not a needed deployment where we need to pull them away from their homes, their families and their regular jobs and their training to send them down to something that's not really a national security threat. COOPER: It seems like the image that the president is creating is one

of potentially 15,000 active duty military personnel. We're not talking about National Guard, we're talking about 15,000 active duty personnel, you know, armed with bayonets at the ready at the border to repel these, quote unquote, invaders.

Is that how they would actually be used? Or would they just be in support positions, which is I think in the past how they have been used?

LAPAN: Yes and no. So, let me -- it's an important point, Anderson. The two previous times that large numbers of U.S. military forces have been sent to the border during the George Bush administration and during the President Obama administration, in both instances they were national guard troops, not active duty forces. There's a difference in the law in how active duty forces, again, are allowed to operate versus National Guard troops.

So by sending active duty forces, you are in effect because of the law not allowing them to conduct activities that would put them into contact with these migrants. So there is no security presence brought by those individuals, certainly no bayonets.

[20:10:05] There will be some that are armed, mostly for purposes of self-defense. But again, it's certainly not how it's being portrayed. They will be there in support roles providing logistics, providing helicopter and vehicle support, engineering and logistics type support. They are there completely in a support role to the border patrol.

COOPER: Secretary Mattis today when questioned about the decision to send troops to the border said, quote, we don't do stunts. I mean, is this a political stunt by the president? You know, Mattis is obviously in a tough spot. I mean, his job is to obey orders from the president.

LAPAN: So, you know, my belief is that Secretary Mattis is looking at this as a lawful order from the commander in chief. And as the secretary of defense, he and his department are going to carry out that order to the best of their abilities. I guess the point I would make is can the U.S. military undertake this mission and do it successfully? Yes. Should they do it? I would say no.

COOPER: It's interesting to hear the president also earlier today talk about cutting off all aid to El Salvador or other nations that many of these people are coming from. It really flies in the face -- I mean, I've talked to officials who work on the front lines of this issue currently who have said what we need is almost a marshal plan for some of these countries to -- if we want to stop people from coming, we need to basically help the security situation in these countries so that they don't have to leave and make this journey.

LAPAN: That's absolutely right. It's counterproductive to talk -- talk is one thing. It certainly would be counterproductive to cut off aid or to put these poor countries at further disadvantage. I mean, that's part of the reason that individuals are leaving those countries. It's the poverty, it's the violence, it's those factors that if we're not able to support those countries and create conditions where the residents feel comfortable and safe staying in their countries, they're going to continue to come north.

So, it is in our best interests to continue to support them. That's things -- that is something that we've done in the past. We did that actually when I was at homeland security. Then Secretary Kelly convened a conference specifically to support the Central American countries and look at both from a security standpoint and from an economic standpoint how to best support them to hopefully stem the need for people to leave those countries and come to the U.S.

COOPER: David Lapan, appreciate your expertise. Thanks for being with us.

LAPAN: Thanks, Anderson.

COOPER: On the birthright citizenship issue now, and Mr. Trump's notion of eliminating of what appears to be written in the constitutional bedrock the principle that if you're born in this country, you are a citizen of this country, period. The president believes he can alter with legislation or even executive order, something the Republican speaker of the House, Paul Ryan, tried to put the kibosh on just yesterday.

(BEGIN AUDIO CLIP)

REP. PAUL RYAN (R-WI), SPEAKER OF THE HOUSE: You cannot end that with an executive order. We didn't like it when Obama tried changing immigration laws via executive action. Obviously as conservatives, you know, we believe in the Constitution. You know, as a conservative, I'm a believer in following the plain text of the Constitution and I think in this case the 14th Amendment is pretty clear.

(END VIDEO CLIP)

COOPER: As you saw earlier, the president quoting unnamed legal scholars signaled he believes otherwise. Earlier he tweeted that Speaker Ryan should mind his own business. Paul Ryan should be focusing on holding the majority rather than giving his opinions on birthright citizenship, something he knows nothing about.

We have two legal views from Kansas secretary of state and Republican candidate for governor, Kris Kobach, and CNN chief legal analyst, Jeffrey Toobin. I spoke to both of them earlier today.

(BEGIN VIDEOTAPE)

COOPER: Jeff, the president doubling down on this, saying that he can move this by executive order. Can he?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: No, he can't. He can't do it by executive order and he can't even do it by legislation. Conservatives have been talking for decades about the need to follow the text of the constitution. Justice Scalia called him a textualist. The text here couldn't be more clear. If you're born in the United States, you're a citizen, regardless of who your parents are. It's a settled issue and it's not complicated.

COOPER: Kris, the text is all persons born or naturalized are subject to the jurisdictions thereof are citizens of the U.S. and of the state wherein they reside. Where is, though -- where is that not correct? Where does that not apply to aliens?

KRIS KOBACH (R), KANSAS SECRETARY OF STATE: The key is and subject to the jurisdiction thereof. As Jeffrey knows, all words in the Constitution have meaning. You can't read words out of the Constitution.

And so, the question is what does "and subject to the jurisdiction thereof" mean?

[20:15:02] And if you look at the debates in 1866 and 1867 in the Congress, which drafted the 14th Amendment, if you look at the statements of Howard Jacobs and Lyman Trumbull, who are the two principal drafters, they said it means owing no allegiance to any foreign power, owing allegiance only to the United States. And that would mean that a person who is here temporarily or certainly a person who is here illegally does not have -- owes allegiance to another power. In other words, is not subject to the jurisdiction of the United States.

So, those words have meaning. It was never intended to be if you're born here and no other criterion is met, you get to become a citizen.

COOPER: Kris, your critics point out the fact that the voter law that you tried to pass in your state was actually ruled unconstitutional by a federal judge, a George W. Bush appointee. So, your critics say, are you really a legal scholar? I know you did go to Yale law school and I couldn't even get in. Not that I applied. I couldn't get in if I had.

But, you know, your critics say that you're not an expert on the Constitution either. In fact you were ordered to go to like six hours of extra classes on the law by this federal judge.

KOBACH: Look, I taught constitutional law at the University of Missouri to 15 years. It is often the case, in cases like this that are very controversial and where there is some gray area in the law that a judge will have an opinion and that judge will be overruled and then the Supreme Court will rule as well. I think Jeffrey would agree that just because you have a district judge who doesn't agree with you on a case doesn't mean that you've not going to see a different decision come out of the court of appeals.

That case is being appealed. And the position that the judge took that a state cannot require voters to prove citizenship when they register, that argument was rejected by the ninth circuit about ten years ago.

TOOBIN: Kris, just the notion -- Kris has devoted his career to stopping black people and poor people from voting. I mean that's been your goal for decades.

KOBACH: That's an outrageous accusation.

TOOBIN: Completely true.

KOBACH: An absolutely outrageous accusation. So if you like photo ID, you're trying to stop people of color from voting? That is outrageous.

TOOBIN: Absolutely.

KOBACH: By the way, when this question is polled, the vast majority of African-Americans approve of photo ID. So apparently they're trying to do what you're saying I'm trying to do. That is outrageous and such a horrible accusation.

TOOBIN: It is a completely true accusation because, Kris, your whole career -- that's why you had this phony voter suppression commission that was such a preposterous joke established by the president that it disbanded because it couldn't prove your claim that voter fraud is a problem in this country. Your problem is that some people vote for Democrats and you want to stop that by establishing voter requirements.

COOPER: Let's not go down this --

KOBACH: I'm glad we're having a respectful argument here. This is so good for the viewers to have this.

COOPER: Well, Kris, let me ask you, when President Obama signed that executive order issuing DACA, many Republicans, conservatives, including you, were up in arms about it. I certainly understood that position.

Why would you be up in arms about President Obama doing things by executive fiat but the idea that President Trump can do this by executive order is fine?

KOBACH: Because when President Obama did it he was going directly contrary to federal statute at 8 USC 1225. He was ordering ICE agents to let go into the country individuals that the federal statute said they had to place into removal proceedings. So, you can't use executive power in a way that contravenes and is against federal statute.

In contrast, what President Trump is talking about doing is something that is not directly contrary to any federal statute. It would be an interpretation of a federal statute, but there's nothing in the federal code that directly refutes or contradicts such a regulation.

COOPER: Wouldn't it be altering the 14th Amendment? Isn't that something -- I understand, you know, you can agree or disagree with what the meaning of the words of the 14th Amendment are, but isn't it something that Congress are the ones that have to change? It can't be done by executive order? KOBACH: And that is why I said it will undoubtedly go to court. When

a president passes a regulation or Congress passes a statute and you argue that maybe this isn't consistent with the 14th Amendment, you might read it the way Jeffrey does. I read it the way I believe the drafters of the 14th Amendment intend it. Then you go to court and the courts will tell us what the actual meaning of the phrase "subject to the jurisdiction thereof" means.

So, it will certainly go to court no matter what.

TOOBIN: We agree on that.

COOPER: Jeff, if the president, though, were serious about changing this, and I have no reason to believe he's not, isn't the way to do it to get Congress involved and legislate this change? I mean, how much of this is about politics in six days, seven days before an election?

TOOBIN: I mean, the one argument that Kris, I think, has a legitimate point is the reason, President Obama did what he could about the Dreamers is that he couldn't get a law through Congress.

[20:20:08] President Trump can't get a law through Congress outlawing birthright citizenship so he's trying to go around Congress here. He's not just going around Congress, he's going around the Constitution.

And I don't think there is any way any court, Democrat, Republican, conservative, liberal, would give the president the time of day that he could do this on his own.

COOPER: Kris Kobach, I appreciate your time.

KOBACH: And that is your opinion.

COOPER: Jeff Toobin, as well. Thank you, gentlemen. Appreciate it.

TOOBIN: All righty.

(END VIDEOTAPE)

COOPER: Well, a lot more ahead tonight, including the question you can't help but ask about the president's red meat diet for voters. Namely, do his supporters care if what he's saying isn't true? That's next.

And later, what we're learning about a shadowy and frankly just plain attempted smear against Russia special counsel Robert Mueller. Whatever it is, it's now the subject of a criminal investigation.

(COMMERCIAL BREAK)

[20:25:11] COOPER: As we mentioned, the president is in Florida making another campaign stop before the midterms. And as we detailed at the top of the program, he's making the final days all about one issue in particular, immigration. As we also detail at the top of the program, he's been making things up, saying things that are demonstrably false but he knows that immigration is the reddest of red meat for his supporters. Polls certainly show that.

So, the question is do his supporters even care if what he's saying isn't accurate.

We sent Randi Kaye to the rally to find out.

(BEGIN VIDEOTAPE)

RANDI KAYE, CNN CORRESPONDENT: In Ft. Myers, Florida, thousands lined up for Donald Trump's rally, and for so many here, immigration is their top issue.

REBA FISHER, TRUMP SUPPORTER (voice-over): When you watch that caravan and you see them carrying the flag from their country, that is called an invasion.

KAYE: That so-called invasion isn't one at all. In fact the caravan of migrants is nearly 1,000 miles away from the U.S. border, and Mexican officials say they expect many of them to stay in Mexico. So, the president's announcement of sending troops has been met with deep skepticism, but not here.

FISHER: Hey, why wait until the last minute?

KAYE (on camera): So not a campaign stunt in your opinion?

FISHER: Oh, god, no.

KAYE: If they're weeks away from arriving, why announce this troop deployment now just before the midterm election?

PAUL BLUST, TRUMP SUPPORTER: Would you rather be safe than sorry? Would you not rather have warning to get out of a hurricane's way if they know it's coming?

KAYE: So you don't think the timing is suspect at all?

BLUST: No, no.

KAYE: You don't think it's a campaign stunt?

BLUST: Not at all. Not at all.

KAYE: Adding another 5,200 troops to protect the border when the caravan is like 800 miles away. Why now?

DENISE RASZKA, TRUMP SUPPORTER: Why not now?

KAYE: Well, we're just days away from the election. You don't think it has anything to do with that?

RASZKA: I don't think so.

KAYE (voice-over): And it's not just the caravan of migrants that has these supporters fired up. It's also the president's false claim that he can end birthright citizenship, the 14th Amendment, through executive order.

(on camera): Do you believe Donald Trump when he says that he can change the 14th Amendment with just an executive order?

GARLAND HARRIS, TRUMP SUPPORTER: I think he can. I think it will go to the Supreme Court, though. But I think he has the right to.

KAYE: Even though his own speaker of the house, Paul Ryan, says that he can't do it with just an executive order? It has to be a constitutional amendment and be voted on by Congress and the states?

HARRIS: I think Ryan is absolutely wrong.

KAYE (voice-over): Neither he nor anyone else we interviewed thought the president's play on birthrights was a campaign ploy.

(on camera): He's making it sound like he alone can just get rid of it. Doesn't that sound like a stunt to you, just so close to the election?

STEVE GRUD, TRUMP SUPPORTER: I'm not going to say it's a stunt. This whole thing -- the whole politics today is what it is. So, the rules have changed. I think he's read the rule book.

CLAUDETTE AZAR, TRUMP SUPPORTER: There are legal authorities on both sides of this question who are researching this in depth before the president does this. While this idea has been floated by the president, and I think it's a wonderful idea, I do think that he's not going to go off and do something on his own. He's going to have legal authorities on both sides.

KAYE: But he's already stated it as fact that he can get rid of it.

AZAR: Has he signed it yet? No. He has not signed it yet. He has floated the idea, which is well supported in Middle America.

KAYE (voice-over): Randi Kaye, CNN, Ft. Myers, Florida.

(END VIDEOTAPE)

COOPER: Let's continue the discussion. Two views now. Joining us is former Republican presidential candidate, Rick Santorum, and "USA Today" columnist, Kirsten Powers. He's CNN political commentator. She's a CNN political analyst.

Kirsten, you hear the supporters of the president. You very clearly see why the president is quadrupling down on immigration issues six days before the midterms.

KIRSTEN POWERS, CNN POLITICAL ANALYST: Right. Well, so these are issues that correspond with what Donald Trump believes and his base believes. So, you know, you certainly can say he is doing some of these things to gin up support during the midterms which in itself isn't a problem, it's something presidents do.

I think the thing that I would say is different is when you utilize troops and send them somewhere, versus just rhetoric of making promises that will make your base happy. Then there's the separate issue that just a lot of what he's saying about this caravan is just actually false.

COOPER: Senator Santorum, is it appropriate to use troops in this capacity at this stage?

RICK SANTORUM (R), FORMER U.S. SENATOR, PENNSYLVANIA: Well, look, you have a large group of people heading to the border and the president has an obligation to make sure that the border is secure. And what he's doing -- you know, if he wait -- people say, well, he should wait to see what happens. Well, you know, if you're going to deploy troops, you've got to prepare and put a plan together and have people on the ground for a while in advance of anything that's going to happen.

So, look, the number, I don't know. I mean, I think you would work with ICE, and you would work -- excuse me with the customs and border patrol and figure out what the right number is. But the reality is using troops on the border is something that's been done before and I think it's a responsible action.

ANDERSON COOPER, CNN ANCHOR: Right, National Guard troops, though, twice before --

SANTORUM: Right.

COOPER: -- and in support positions but not active duty military personnel. Do you view this as an invasion, Senator?

SANTORUM: Well, look, I view -- if someone tried to come into the country illegally, I don't know if I'd use the term invasion, but it's certainly people who have -- at least some of them have been very clear, they're going to do what they can to get over this border.

COOPER: Many will probably apply for asylum.

SANTORUM: They crossed into Mexico illegally, why would they not cross into the United States illegally?

COOPER: Kirsten, I mean, certainly many will apply for asylum and to what we've seen happened in the past --

KIRSTEN POWERS, CNN POLITICAL ANALYST: Yes.

COOPER: -- and many will be frankly rejected. This administration has changed the parameters under which asylum can be granted.

POWERS: You know, well, invasion implies something very hostile and this is not a hostile act to seek asylum. It's not a hostile act to try to flee a country where you're not safe. So, you know, the way that these people are being cast as villains when, in fact, they're people that are in a very bad situation and trying to get to a better situation.

And so, I think the way the President has been describing it and the way some Republicans have been describing it is despicable, frankly. And we've seen this before. I remember this very same argument about the diseases, which we've been hearing was made about the unaccompanied children and we were all going to be disease ridden because these children came into the country. And of course that didn't happen. And so every time it's the same arguments, and there's no basis for them.

COOPER: Senator Santorum -- I'm sorry, go ahead.

SANTORUM: No, go ahead.

COOPER: Well, no, I'm wondering, do you -- you know, there have been some Republicans who have sort of expressed concern that this is -- that the whole birthright citizenship issue has sort of taken them off in some races from what they want to focus on.

Do you think it's actually -- I mean, certainly the people Randi Kaye have talked to certainly support the President in this notion. Do you believe that it's appropriate to alter the 14th Amendment or override it with an executive order?

SANTORUM: Look, I think unlike your previous guest, Mr. Toobin, who said one of -- I mean, called a candidate for governor of Kansas, basically called him a racist on national television, which was one of the most outrageous things that I've seen on any television network. I mean, that was just ridiculous what Jeffrey just said.

This man have, you know, Harvard law -- Harvard graduate, Yale Law School, you know, taught constitutional law, and has -- as many people do, have a different opinion of him as to whether there is a legitimacy with respect to birthright citizenship.

And, look, there are a lot of people in this country who have concerns about it. And you know, whether it's birth or tourism where people, you know, literally come to this country and stay a few weeks just to have a child and then go back or whether it's people who come here illegally and have a child, these are all legitimate questions that the court has not ruled on.

And to suggest that someone who might have a different opinion than your -- than Mr. Toobin a racist is, is, again, we're -- this is where we go off the rails here. We just got to -- you got to say, "OK, you know, you might be wrong. I think the court is going to rule against you." Make the legal arguments, but you don't have to call people, you know --

COOPER: I agree with that.

SANTORUM: -- racists and bigots because they hold a point a view.

COOPER: Yes, yes. It's not something I do or condone. But Senator Santorum, I mean, so many conservatives were very upset with President Obama when he used executive orders, particularly on DACA.

SANTORUM: Yes. COOPER: And I understand that concern, I understand that argument. If you argued that and you're concerned about what Obama did, wouldn't the same just from an intellectual standpoint from -- wouldn't you be concerned about what the President is suggesting?

SANTORUM: Yes. As a matter of fact, I do think they're different issues. I think that the DACA when it's clear, the Congress had, you know, was very clear in the legislation. I think that the 14th Amendment is not as clear as the legislation was either way.

I think when -- you know, executive orders are supposed to supplement what there's general agreement between the Congress and the president in interpreting the law consistent with what the Congress or in this case the constitution believes.

If there is controversy, you shouldn't use executive orders. That's why I opposed DACA and I would not support the President's attempt to change this using an executive order. But again, you know, I'm being consistent. I think we see a lot of people who are being inconsistent when it comes to the use of executive power in this particular case.

COOPER: Senator Santorum, Kirsten Powers, I appreciate it. Thank you.

As you've seen President Trump's 11th hour campaign swing began in earnest in Florida. Coming up, I'll talk to CNN's John King about where the President is going in the days ahead and also where he's not and what that might mean as well

(COMMERCIAL BREAK)

[20:38:50] COOPER: Six days and counting until the midterms and President Trump has a jam-packed campaign schedule in front of him. Here's a look at the map of planned rallies. There is supposed to be 11 of them in eight states right up until the voting next Tuesday.

John King has always has his finger on the pulse of -- on what's perceived to be the motives of the President and where he's going to be going, what's important for the President and the Republicans and what may not be. John?

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: Anderson, starting in Florida tonight, the President putting his overwhelming focus in the final days on Senate races. And Republicans say, guess what, that's smart.

We currently have the Republicans favored to hold control, 49 seats now to 45 for the Democrats. The yellow you see here are the toss-up states, that toss-ups include Florida. This is a highly contested race. Bill Nelson, the Democratic incumbent, Rick Scott the current governor now running for senator as a Republican, they're a little bit queasy in this got campaign about the President coming in the final days, but he wanted to come to Florida and he is going. A big test tonight, can the President sway the vote in Florida.

Let's look at a couple of other stops for the President. He is going back to Missouri. Republicans say if we can take this state, there's no way the Democrats can capture control of the Senate if we take away another one of their incumbent, Claire McCaskill. This one is personal to the President as well. It's a state he won big. He thinks it should have a Republican senator.

[20:40:04] One more in the Midwest, Indiana, the home state of the Vice President, the President going back here again. And then again, this is again a very close race to incumbent Joe Donnelly. But Republicans they think they have Donnelly on the ropes. They think with the President in the final days putting pride for the Vice President that they can get over the top here. Again, if a Democratic incumbent is losing, forget any Democratic odds of retaking the Senate.

One more, we talked about this one before. The President is going back to Montana. He's been there three times. This one is personal because of, remember, the White House talked to the President wanted to make the head of Veteran Affairs, the Democratic incumbent, Jon, blocked it. This one is -- Jon Tester blocked it.

This one is fascinating to me, Anderson, because as of now, Republicans think Tester is going to eat this one out. They thing it's pretty close. Can the President make the difference in that state? That's a big one to watch.

Just one more, Tennessee, the President will be going back to Tennessee. Phil Bredesen the former governor running against Republican congresswoman. This is Bob Corker seat, he is retiring.

There's new polling in this race. Let me bring it up for you hear and you can see it here. Marsha Blackburn's status, improving in recent days. A dead heat with Bredesen on top at September. Blackburn ahead now, Republicans think that red state coming back to its roots. She has been tracking the President's immigration message. Keep an eye on that one as well.

COOPER: It's so fascinating in Montana help preserve personal animus or, you know, affects the political race. Where the President is not going is obviously also part of the story.

KING: It is part of the story. Number one, he's not heading into any big House districts say up in the northeast in any suburbs. No way. Also some Senate races, though, where the President has been where he's not going back in the final days.

He is not going back to Nevada. He was out there just a week or so ago helping Dean Heller. I talked to Senator Heller yesterday, he said he appreciate if the President was up here in the northwest part of the state. The Republicans don't want him anywhere near Vegas. They're afraid they're drive up Latino turn up.

The President also is not going back to Arizona, even though this is a dead heat between Kyrsten Sinema and Martha McSally. Let's look quickly at the new numbers in these states, because if you walk through them, you've ask -- you might ask why not bring the President back. Look at this, McSally down 7 in September, it's closer now. She's down 4. Republicans think though this race could go their way. They don't want the President -- they're afraid if he comes in and does birthright citizenship, does border wall, it could antagonize Latino population just as much as it turns out to Trump base. That's one of them there.

Let's look at Nevada. This one has been consistently one of the closest races in the country. Senator Heller, again, grateful the President was out there, but in the final days, this one is so close. They want to fight it on their own right. They don't want the President coming in to disrupt the race there. I do want to say this, though, even where the President is not going, Anderson, let's just look at this.

In these three key races, in Arizona, the President's approval rating is up 8 points since September. In Nevada, it's up 4 points. In Tennessee, it's up 9 points. Even though the President might not be welcome here and here in the final days, his improving standing is helping those candidates.

Republicans are now favored to keep the Senate, maybe even add one, two, as many as three seats in part because the President's standing is up that's why he'll focus on the Senate in the final days.

COOPER: That's going to be fascinating election day. John King, thanks.

KING: Thank you.

COOPER: With me now, CNN Political Director David Chalian and Chief Political Analyst Gloria Borger.

Gloria, you hear John layout where the President is and isn't going. The question is, does he have enough time and the right issues in the right states?

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, look, he's going to the places that he won and that he feels comfortable. And he's going back to the culture wars, which are really good for him. Issues like birthright citizenship, which you've been talking about earlier in the show.

And so what I think they've done, Anderson, is they basically given up on the House because, you know, moderate suburban districts, Republican suburban districts don't like all this talk of birthright citizenship and so he -- you know, he's given up on it.

And what he's doing is he's focusing on the Senate, on the places where John pointed out, you know, and you were talking about Montana. He'll be there four times. And he's -- and Arizona and Nevada, they don't want him because he could hurt them with independent voters, he could drive up Latino turnout. They don't want him.

So where is he going? He's going to Florida, which is close, and he thinks he can help. He won that state. Missouri, a state he won by 20 points. He's going to go. So, you know, it makes sense for them, but the key tell here is, he's not thinking about the House.

COOPER: David, I mean, what do you think the current thinking in Republican circle? Is this about how the President has handled this campaign? I mean just today, he's at odds with Speaker Ryan on birthright citizenship.

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Right. It all depends if you're a Republican working on Senate races or you're a Republican working on House races. As Gloria is describing, two totally different universes.

COOPER: Why is that so -- why are those so different universe?

CHALAIN: Because the terrain where the battle for Senate control is taking place, Anderson, is in Trump country. You have five Democratic incumbent senators in states running for re-election that Donald Trump won by double digits. John pointed some of them out, Missouri, Indiana, Montana, North Dakota, West Virginia. This is Trump country. And so, that's where you see the President going to try to have the best possible effect, drive up that base turnout.

[20:45:04] So in those races, the Republicans are fine with his messaging here around birthright citizenship or even picking a fight with the establishment, the outgoing speaker, Paul Ryan.

But in the battle for the House, which you've got to remember, Democrats need 23 seats, 25 Republican-held districts right now are ones that Hillary Clinton won in 2016. You've got suburban college educated independent voters that are going to make up the decision about which party controls the House, and those are exactly the voters that have been trending away from Trump, so this kind of messaging at the end here is not at all welcome news for them, neither was it a week-long conversation about his tone and rhetoric with the pipe bombs and the synagogue massacre.

COOPER: But, Gloria, I mean its understandable people would be and certainly I'm skeptical of any polls given what we saw in 2016.

BORGER: Yes.

COOPER: I mean people don't necessarily say who they're going to vote for or they don't admit, you know, what candidate they're voting for. If they say they're voting for one person they might vote for somebody else. I mean, why should anyone believe? Why should the Democrats be so confident?

BORGER: Well, you know, Nancy Pelosi last night said, "Yes, we're going to win." I think the numbers in the House, if you look at what they need to take, 23, you look at the number of districts Hillary Clinton won, you look at moderate suburban Republican districts that where women are a very big issue here and, you know, women -- these women in these suburban districts, even Republican districts, disapprove of Trump by a large margin. You can see why Democrats are optimistic.

What they're not saying, Anderson is they're saying we're going to win. Nancy Pelosi said we're going to win. OK, that's dangerous, but they didn't say by how much. Is it going to be a wave? Is it just going to be a small victory?

You know, I think at this point Donald Trump would say that a small victory in the House is -- would be OK because he kept it from becoming a tsunami. And I think he would take credit for that.

What he wants to do is take credit for adding to his seats in the Senate and the way he is doing it is with his tried and true culture war issues, including today announcing it's not going to be 5,200 troops at the border, it's going to be 15,000 troops at the border.

COOPER: Yes. Gloria, thank you, David Chalian as well. What appears to be an attempt to take down Robert Mueller has failed. We'll sort out what we know about this strange story next.

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[20:51:08] COOPER: A smear campaign against special counsel Robert Mueller has fallen apart even before it began. Now, it's a strange and kind of twisted story complete with made up claims, far-right conspiracy theorists, a fake company and a phone number that belonged to someone's mom. CNN Senior National Correspondent Alex Marquardt reports.

(BEGIN VIDEOTAPE)

ALEX MARQUARDT, CNN SENIOR NATIONAL CORRESPONDENT (voice-over): It was first teased in a tweet, an apparent hoax being sold as a supposedly scandalous story about to break about Special Counsel Robert Mueller. The person behind the tweet, Jacob Wohl, is a 20- year-old far right online personality who in the past has been accused of fraud.

The alleged report then appearing on the right-wing website Gateway Pundit known to peddle conspiracy theories. It was a document claiming allegations of sexual assault against Mueller from an unidentified women. Comments below from gleeful readers saying, "We believe the victim." and "LOL, time to rub it in." But just hours later, the site took the document down and said it was investigating both the allegations and their contributor, Jacob Wohl.

(BEGIN VIDEO CLIP)

BRIAN KRASSENSTEIN, EDITOR, HILLREPORTER.COM: It appears that they are trying to maybe smear the media, ourselves, Robert Mueller and maybe the Me Too movement.

(END VIDEO CLIP)

MARQUARDT: What has emerged is a dark and sloppy operation now just a few days before the midterm elections. Wohl it seems linked to a group calling itself Surefire Intelligence, which was trying to get the dirt on Mueller.

Some, like the New Yorker's Jane Mayer, noting that the photo of a supposed managing editor at Surefire Intelligence on LinkedIn bore a striking resemblance to Wohl himself. And when the company's phone line is dialed, it redirects to a voicemail for Wohl's mother.

The tail growing even more bazaar after reporter started receiving e- mails from Lorraine Parsons who said she had worked with Mueller in the '70s. Now, the law firm has said it had no record of her being employed there. In her e-mail, Parsons' claimed she had been offered tens of thousands of dollars to make up a sexual allegation against Mueller.

It's unclear whether Parsons even exists. But Mueller office referred the matter to the FBI, which is investigating the alleged offers of money to various other women for bogus stories. Like Law Professor Jennifer Taub who said she received this e-mail from a supposed researcher at Surefire Intelligence.

(BEGIN VIDEO CLIP)

JENNIFER TAUB, PROFESSOR, VERMOUNT LAW SCHOOL: It seemed really creepy. It begun by addressing me as, you know, "Dear Professor Taub, we understand you'd some encounters with Robert Mueller." And it went on to offer me money to have a phone call with this stranger about those encounters.

(END VIDEO CLIP)

MARQUARDT: Reporters and self-appointed internet sleuths also started investigating, including Brian Krassenstein, a vocal critic of President Trump who received this threatening text message, then minutes later and a call.

(BEGIN VIDEO CLIP)

KRASSENSTEIN: With an angry tone. It was, "Brian, drop this. You're hand over your head. Don't follow the leads. Don't talk to Lorraine Parsons."

(END VIDEO CLIP)

MARQUARDT: When asked about his ties to Surefire, Wohl told CNN, "It sounds like a kooky Russiagate conspiracy theory."

(END VIDEOTAPE)

COOPER: And Alex Marquardt joins us now. So I understand there's a press conference tomorrow where supposedly some kind of evidence against Mueller will be presented?

MARQUARDT: That's right, Anderson. There's another name in all of these saga. Jacob Wohl and Surefire Intelligence have been linked to a Republican lobbyist named Jack Burkman. And it's Burkman who's going to be holding that press conference tomorrow in Arlington, Virginia, during which he claims he will reveal a woman who he says has been sexually assaulted by Robert Mueller.

Now, Anderson, this is not the first time that Burkman has pulled a stunt like this. He helped perpetuate conspiracy theories after the murder of Democratic staffer, Seth Rich. And back then earlier this year, he organized a press conference where a supposed witness not only didn't show up, but then called in, only to not give any real information. So that might be a preview of what we could expect tomorrow.

COOPER: All right, Alex Marquardt, thanks very much.

I want to check in with Chris to see what he's working on for "Cuomo Prime Time." Chris?

CHRIS CUOMO, CNN ANCHOR: Boy, oh, boy, did you see the video the President just put out?

COOPER: No.

CUOMO: Remember the Willie Horton ad?

COOPER: Yes.

CUOMO: Remember what that was about? This is a Willie Horton redux in, in no small irony they use all this footage in the ad from Fox, which of course is the place that Roger Ailes created and he's the guy who came up with the Willie Horton ad.

[20:55:14] And it paints the people who are coming across the border as the worst of the worst, literally a marauding hoard directly from the President of the United States. But really to be honest, I haven't seen anything like it in a long time.

We're going to take people through the video. We're going to ask people to give their take on it who are running for office as Republicans right now, and I'm going to ask the head of the DNC, the head of the Democratic Party, Tom Perez. Did they hand Trump this immigration issue? Have they said enough about what he's doing on this?

So that's where we are tonight, friend. Happy Halloween, by the way. I love the mask, handsome, intelligent anchor. Good choice, good choice.

COOPER: Yes, it's my Dr. Drew look.

CUOMO: He wishes.

(CROSSTALK)

COOPER: Chris, thanks very much. Coming up next, the latest on a somber day in Pittsburgh. We'll take you there.

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COOPER: More funerals today in Pittsburgh, funerals for people killed in last Saturday's massacre, funerals for people who live good and decent lives. 75-year-old Joyce Feinberg was buried today, a widow, a grandmother, former researcher at the University of Pittsburgh. Irving Younger who was 69, he was a greeter at Tree of Life Synagogue. Also 87-year-old Melvin Wax, like Irving Younger, he dedicated fan at the Pittsburgh pirates.

More funerals, of course, are set for later this week. The news continues. I want to hand it over Chris Cuomo.