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George Conway Calls Appointment of Acting AG Illegal; Officials Give Update on Deadly California Bar Shooting. Aired 4:30-5p ET

Aired November 8, 2018 - 16:30   ET



[16:34:06] JAKE TAPPER, CNN HOST: Welcome back.

A noted conservative attorney once considered for a major position in the Trump administration is today slamming President Trump for appointing Matthew Whitaker as acting attorney general.

In a new op-ed he co-authored, George Conway, who also happens to be the husband of Trump counselor, Kellyanne Conway, calls the decision illegal and unconstitutional, writing, quote, because Mr. Whitaker has not undergone the process of Senate confirmation, there's been no mechanism for scrutinizing whether he has the character and ability to even handedly enforce the law in such a position of grave responsibility. The public is entitled to that assurance especially since Mr. Whitaker's only supervisor is President Trump himself and the president is hopelessly compromised by the Mueller investigation.

Let's discuss some strong words there, Margaret Hoover.

MARGARET HOOVER, FORMER WHITE HOUSE STAFF FOR GEORGE W. BUSH: Right. So you constantly -- this reads like a legal brief. Very easy to understand. It's a very clear-cut case, right?

[16:35:00] If you're a principal officer, you directly report to the president of the United States, advise and consent, that's check and balances, has to apply, the Senate should be able to weigh in, has to be able to weigh in in order for checks and balances to play out.

TAPPER: So, that's the argument. That's the merits of the argument. What about the author? That's what I'm interested in right now.

HOOVER: I mean, I'm honestly fascinated by this right now. I can't imagine if my husband wrote this and I was working in the White House, how I would feel about it. But you would --

JOHN AVLON, CNN POLITICAL ANALYST: You can actually imagine that.

TAPPER: You guys actually have -- like, I can see that happening, theoretically.

AVLON: Yes, that could happen.

TAPPER: Yes, I guess, I can't imagine myself working for Donald Trump. That's the only place that -- where the parallel doesn't play out.

But you have to -- I think the flip side is trying to think through what the counterargument is and this is through the Vacancies Act, the president can -- they have to have legal argument on their side. What is a White House counsel going to say? They're going to say, through the Vacancies Act somebody has to be able to serve in that position.

AVLON: That's Rod Rosenstein. That's Rod Rosenstein. But he intentionally bypassed Rod Rosenstein to get a hard partisan in to pursue his own agenda which is containing the Mueller investigation. What this does is beyond the salaciousness of the he said/she said of it, it sets up a real legal argument for a suit to be filed to resolve this. It may not work out the way the president wants.

ALICIA MENENDEZ, CO-HOST, PBS "AMANPOUR & CO.": But even before you get into the legal weeds, just step back and this is Whitaker trying to manifest to the secret and most perverse way. I mean, he's on the record saying there's a scenario where Sessions is forced to recuse himself and then, I don't know, they appoint someone, this guy, and then I come in and you put a stranglehold on us by not giving us the resources financially to do the investigation that it requires.

That is one of the few ways in which he can influence this investigation. He can also limit the scope of it. He can choose once the report -- yes, he cannot make the report public. So, I mean, this is a whole new ball game.

TAPPER: And instead, Whitaker he worked for, former Trump campaign staffer Sam Clovis who has been interviewed by Mueller's team. He called Mueller's appointment fishy. He called it ridiculous. He suggested Mueller is overreaching.

I mean, the thing about president Trump is you give him credit for, it's all transparent.


TAPPER: It's all right there.

HERNDON: It's a Twitter search away, right? The lengths to which this has been the person who has been on record saying how they feel about this investigation and the fact that they wanted it closed down is something that was plain for the eye to see. And so, the fact that they still went ahead with this just another example of President Trump and this White House really flouting a rule and guidelines and flouting things that have been norms for a long time.

And even more so than that, doing it with a kind of arrogance for the population to say that this is what -- we know that they have wanted to constrain the Mueller investigation and they are doing so in front of the --

TAPPER: So, last week when CNN and NBC and then Fox refused to air had a commercial, was that last week? Whenever it was, it was so offensive even Fox wouldn't air it. Now, we have people on Fox talking about how unqualified Whitaker is. Judge Napolitano, take a listen.


JUDGE ANDREW NAPOLITANO, FOX NEWS ANALYST: With deference and respect to what the president is trying to do, he has every right to have whoever he wants run the Justice Department, he's chosen someone who does not qualify under the law to be the acting attorney general.

UNIDENTIFIED FEMALE: So he's really not --


TAPPER: I mean, and --

AVLON: Judge Napolitano.

TAPPER: Who generally --

HOOVER: That's who wants to be the next AG of the United States of America.

TAPPER: Come on, come on.

HOOVER: You audition on Fox News with this White House.

TAPPER: He couldn't take a pay cut, a pay cut.

AVLON: Yes, please. But, you know, when Fox hosts who Trump listens to apparently more than the intelligence community, go after his picks it leaves a mark and he seems to be making a similar argument to Conway. This is so apparently what it is, and that's why, you know, people with legal pedigrees, even on Fox, are saying, look, this guy didn't resemble the best and the brightest. This is a pure political play to pursue the president's agenda, and that demeans the Justice Department, as well as potentially setting us up for a constitutional crisis.

TAPPER: Do you think, by the way, that the Senate, the 55-Republican vote Senate would not confirm Matthew Whitaker? I think they probably would confirm him.

MENENDEZ: I think it's hard to make that judgment. I do think something that's interesting that's coming out of this is the fact that you finally see Republicans like Senator Flake coming forward saying he wants to advance legislation with Senator Coons.

TAPPER: To protect Mueller, to protect Mueller.

MENENDEZ: To protect Mueller. We've been asking when that was going to happen.

HERNDON: Yes. I'm just really skeptical of that. Flake represents an outgoing wing that have party and we know that the base of this party still very much with the president, and that's reaffirmed on Tuesday. And so -- so I think looking forward, the question of would the Senate confirm Whitaker, all signs point to yes and all signs point to Republicans never say no to Trump.

AVLON: But the most important thing to look for is whether the legislation that Thom Tillis and Chris Coons and Cory Booker and Lindsey Graham put forward to protect Mueller will go forward.

TAPPER: Let me interrupt because the Ventura County Sheriff's department and other officials in Thousand Oaks are updating. Let's listen.

UNIDENTIFIED MALE: You'll refer to the ME's office for those names. Those are the only comments that I have. I want to introduce to you Paul Delacourt, the assistant director of the FBI in the Los Angeles office.

[16:40:09] He has a couple of comments.


As the captain said, I'm Paul Delacourt. I'm the assistant director in charge of the FBI's Los Angeles field office. We're working closely with the Ventura County sheriff's department on this investigation, in support of their lead in this shooting incident.

I first want to offer condolences to the families of the victim and the family of Sergeant Helus who responded to this incident. The FBI is here to support Ventura County. To that end, at the request of Sheriff Dean, the FBI Los Angeles evidence response team is processing the crime scene here behind me, as well as the subject's vehicle and home on Newbury Park.

We're going to pursue the leads from that evidence wherever they take us to identify any possible motivation, paint a picture of the frame of mind of the subject, identify any potential radicalization or any associates. At this point, we do not have any indicator of other associates or there are no other threats to the Los Angeles area.

I can't imagine the stress -- I can't imagine what the families are going through. I appreciate your patience as we work through in a painstaking fashion the evidence recovery and crime scene analysis. It will be ongoing here for several days, and -- and just want to once again pass on our support to the Ventura County sheriff's department on behalf of the law enforcement community who has rallied a number of resources here to assist in the investigation in any way they can.

Thank you.

UNIDENTIFIED MALE: I would like to introduce Congresswoman Julia Brownley.


I just have a few words to say. I'm the congresswoman who represents this area, and -- and I want to thank Ventura County sheriffs. I want to thank the FBI. I want to thank the ATF. I want to thank law enforcement from so many counties in the surrounding area coming here to help us.

I think the partnership has been extraordinary with the quickest response possible. And I just want this community to know that our hearts break. We are a community in mourning, and our thoughts and prayers are with the families who have lost loved ones, and we're here to support you and to help you in any way that we can.

UNIDENTIFIED MALE: Now I would like to introduce special agent in charge of the Los Angeles ATF office, Bill McMullan.

BILL MCMULLAN, ATF SPECIAL AGENT IN CHARGE, LOS ANGELES FIELD DIVISION: Good afternoon. My name is Bill McMullan. I'm the ATF special unit in charge of the Los Angeles field division.

On behalf of the men and women at ATF, I would also like to send our condolences to the victims and family members who are trying to get through this tragedy together as they get through the healing process. I would also like to recognize the leadership of Sheriff Dean and the entire Ventura County sheriff's department as they were going through the same emotions, but somehow finding the strength to bring together all the state, local and federal agencies who responded here to work together as one team and make sure the public is safe.

ATF agents responded immediately when this incident occurred last night, throughout the night have worked side by side with our state, local and federal partners. We will continue to do that until this investigation is completed.

At this point, I'll turn it back over to the sheriff's department for any questions. Thank you.

UNIDENTIFIED MALE: If you have any questions we'll direction them to the right person up here. We'll try to answer as many questions you have.


UNIDENTIFIED FEMALE: Can you speak up?

UNIDENTIFIED MALE: I didn't. He said that he saw a procession of uniform officers going inside. I didn't see them. I don't know why they were going inside there. I'm sorry.


UNIDENTIFIED MALE: They are still processing the car, the evidence that they have obtained both in the car and the residents inside -- they are still processing the car. They are also processing the residence as well as the bar. The items that are taken out of there, we're not disclosing that at this point.

UNIDENTIFIED MALE: Director Delacourt, if you could just address in the few hours that it has been, though it has been some time this morning on why this took place. Can you offer any sort of explanation at this point where you have an understanding as to how we arrived where we are now? PAUL DELACOURT, ASSISTANT DIRECTOR, FBI LOS ANGELES FIELD OFFICE:

Well, as you suggested, it's only been a few hours. It would be premature for me to speculate on the motivation but I can assure you that we will follow all the leads that are developed through witness interviews, evidence recovery, the forensic evidence, any digital media that we recover, and we will be sure to paint a picture of the state of mind of the subject and do our best to identify a motivation.


DELACOURT: So I've seen those reports but I don't have any familiarity with his medical history or medications.

UNIDENTIFIED MALE: Can you give us an idea of the scope of the resources that your office is going to use in this investigation?

DELACOURT: So the FBI has -- Los Angeles Evidence Response Team on scene now. We're being -- going to be supplemented by Evidence Response Teams from other field offices around the country. The resources of the FBI laboratory are in route. We have victim specialists who are inbound as well to assist at the Family Assistance Center with the victim's families. We will pursue the digital trail and any other leads that we need to. We have the manpower to conduct as many leads as are necessary in coordination with the Ventura County Sheriff's Department investigation, any technical resources that they request, we will look to supply.


DELACOURT: Well, so the investigation is developing. It might be premature for me to talk about a specific timeline. I know we're working on the sequence of events as they occur but I would -- I don't want to get out in front of what the evidence in the investigation will show.


DELACOURT: Well, I don't think we can say anything definitely about the cause of death until the autopsy comes back. So at this point our crime-scene investigators are on the scene, they've had a closer look at the evidence and we will look for developments in that regard.

UNIDENTIFIED MALE: Who is in charge of the investigation?

DELACOURT: Ventura County Sheriff's Department, the federal -- our federal partners and the FBI are here to support the sheriff.


UNIDENTIFIED MALE: Are there any security cameras inside and outside --

DELACOURT: I'm sorry. Sir?

UNIDENTIFIED MALE: (INAUDIBLE) DELACOURT: It's been reported that there were high-capacity magazines

but again as for the sequence of events, I think we're going to work down some of the leads to make sure that we bring that out to you were much more precise in our analysis. Sir?


DELACOURT: In coordination with the Sheriff's Department, a number of interviews are going on but I don't want to get in front of the Sheriff's Department investigation and speak to the -- all the investigative avenues that are ongoing. Sir?

UNIDENTIFIED MALE: Are there any security cameras either inside or outside the (INAUDIBLE)

DELACOURT: So we're pursuing all the available leads and of course we will be seeking any video surveillance that is in or around the premises. We'll also be seeking any video that was taken by witnesses that were inside the crime -- inside the bar at the time of the crime. We again we've offered our digital analysis services to the county in support of their investigation.


DELACOURT: No I don't -- I don't think I can comment on that this time. It would be premature.


DELACOURT: Well, I'm sure you can appreciate the sensitivity of this situation and our need to protect the privacy of the families. I don't want the families to be learning of developments from me on television before the notifications have gone out through the Sheriff's Department or other appropriate avenues.


[16:50:21] DELACOURT: Well, so the evidence response team is in place. It's going to be a thorough and painstaking process that will take as long as it takes quite frankly. It will take some number of days. We'll make sure that we bring the appropriate resources from FBI laboratory division. They're in route, we will use all the resources that we can bring to bear and we'll pursue the appropriate interviews, analyze the evidence recovered from the various scenes, look at the forensic evidence. Of course, once again, we're doing this all in coordination and in support of the Sheriff's Department investigation. We're bringing our technical resources to bear in support of their investigation and I'd leave it to the captain to talk about the process of the investigative steps after that.


DELACOURT: I'm not going to comment on the evidence that's recovered from the crime scene at this time.

UNIDENTIFIED MALE: What similarities or differences has stuck out to you from other crime scenes such as San Bernardino or others that you've been to or studied? What sticks out here compared to those?

DELACOURT: Well, I think each one is horrible in its own way. You know, the similarities that we would draw at this point are that they are all tragic circumstances. From a law enforcement point of view, certainly we try to do some pattern analysis in order to get out in front of these type of threats to be involved with our mental health community, to be involved with state and local partners to reach out to private sector in the community to make sure that individuals that are a risk that come to our attention.

KUREDJIAN: We're going to have one more question and then we're going to have PIOs available for you individually, but we're going to have one more question then we're going to end this (INAUDIBLE).


DELACOURT: It's for you Captain on that.

UNIDENTIFIED FEMALE: When will this -- when will this are open up?

KUREDJIAN: When the scene is processed and when we are out of here and then we can open it up in a safe manner, we'll open up the roads. We've opened up the 101 off-ramp southbound at Moorpark and the on- ramp at Moorpark Road. It was previously closed. Now, the only closure is it's for residents heading southbound on Moorpark Road.


KUREDJIAN: I don't know that. I don't know that. I'm sure that's something that our investigators will be looking at. We're going to end this but we're available individually. We got several PIOs over here to the to my right, your left, to talk to you --


JAKE TAPPER, CNN HOST: All right, that's a Ventura County, California authorities giving the latest update on that horrible shooting at that bar, 12 innocent people killed. Let me bring back a couple of my law enforcement experts just to talk about what they heard. Josh Campbell, I'll start with you. The FBI Acting Director of the Los Angeles office there Paul Delacourt, you used to work for him, they just said they're going to be processing the scene. What exactly does that mean?

JOSH CAMPBELL, CNN LAW ENFORCEMENT ANALYST: That's right. So the Ventura County Sheriff's Department is the lead. This is a local investigation but it appears as though the request has gone out to the FBI to bring in all of the resources that the federal government can provide. Behind me right now at the -- inside the crime scene is a very horrific but necessary endeavor and that is to go through to process the scene. Those FBI assets will be doing just that. They'll obviously be identifying the victims that were inside. They need to account for every single round that was in there and then looked through the place for evidence.

We heard earlier that the suspect didn't have a phone on him. Could it have been dropped? Is it somewhere else? Do they -- you know, do they know the difference between a phone that belongs to a victim and one that may belong to the shooter. So that's all going on in there, Jake. I could tell you that the FBI office here in L.A. is very good at what they do. This is the same team that unfortunately in 2015 was processing the scene in San Bernardino when that happened. So, unfortunately, they're used to this, they'll go through that process. As he mentioned, it'll take several days but they'll be very thorough.

TAPPER: And Phil Mudd, they said that there is no other suspect wanted in connection with this horrific tragedy, this horrific shooting, and that the community does seem to be safe. Anything else that you -- that caught your ear that might be news.

PHIL MUDD, CNN COUNTERTERRORISM ANALYST: Sure. There's a couple things that jumped out, Jake. First, as Josh said, this is a local investigation. If it weren't, if there was a suspicion of terrorism, the FBI would take it over. If this were San Bernardino, the FBI would take it over. So you can interpret from that the supposition that the local folks don't think there's additional information.

That said, one other thing I'd take away when the -- when the FBI is talking about evidence response, you still got to look at the question as they said of associates for example, you got to look at digital data, that's phone and laptops. The FBI is very good about it. So that's about that kind of technical analysis. So that's the kind of support you can expect they would supply to the sheriff's office.

TAPPER: All right, Phil Mudd, Josh Campbell, thanks so much. And we do have some breaking news just in. President Trump making good on one of his immigration promises. The Trump Administration just announced a new interim rule to ban migrants who enter the United States at the southern border from qualifying for asylum. CNN's Abby Phillips is at the White House. Abby, what can you tell us about this move?

ABBY PHILLIP, CNN WHITE HOUSE CORRESPONDENT: Hi, Jake. Just a few minutes ago, the Trump Administration announced they issued a rule that would change the criteria for how migrants are allowed to apply for asylum at the border. The bottom line is that if they cross the board illegally, they will be prohibited from claiming asylum. They are trying to force migrants into legal ports of entry before they are allowed to claim asylum. Now, this is part of as you mentioned what President Trump says last week that he would be doing this week. It's going to be accompanied by one more move from the administration.

Tomorrow we're expecting of a potential presidential proclamation that will give us more details on who exactly this -- these rule changes would apply to. Will they apply blanket to everyone crossing the border or to people specifically from those Central American countries where the caravan is coming from. So as we learn more, Jake, we'll give it to you as soon as possible.

TAPPER: All right, Abby Phillip at the White House, thanks so much. Let's talk about it with my panel. Alicia, let's start with you.

ALICIA MENENDEZ, CNN INTERNATIONAL HOST: You already have reporting from DHS that says this is unlikely to actually be a deterrent for migrants who are coming over. The problem here is that you have detection facilities at full capacity because the Trump Administration is not willing to look into alternatives to holding people in detention. So if that is the problem that they're looking to fix, they have the solution at their fingertips. If the larger problem is that they do not like the way immigration is set up in this country, then they have legislative resources at their disposal. But the President would rather act unilaterally.

TAPPER: So it does seem like what they're trying to do is discourage Central American migrants, many of whom are fleeing violence, some of whom are just trying to pursue a better life for their families, discourage them from doing what they're doing. Which is coming through and gaining onto the land of the United States where they apply for asylum.

ASTEAD HERNDON, NATIONAL POLITICS REPORTER, NEW YORK TIMES: Exactly. That seems like what they're doing. And this seems part of a broader trend with the Trump Administration of course that has discourage almost every step legal and illegal immigration and has done so not only just about safety and security which are the things they sometimes mention but also have mentioned things like culture and that changing country and I think that's important to mention here too to put that in a broader context. But that does -- we don't have -- we don't have evidence that these are the scary folks that the -- that the conservatives are trying to make us out to be. And so, it looks like this is another deterrent but for people who might be more in need.

TAPPER: So, Astead's point is that this is -- it is legal. We've been saying this for weeks now as the President has been demonizing the caravan. It's legal to cross into the United States in a legal port of entry and apply for asylum. They want to -- they want to stop that.

MARGARET HOOVER, CNN POLITICAL COMMENTATOR: And -- but the way they want to stop them is the way the conservatives has said, you should never go back to doing it in the first place. Conservative throughout the Obama administration said President can't mandate immigration policy just by executive order, he has to -- they have to pass legislation, right? And that was the conservative hitting on this. So now, the Republican Administration, instead of being able to pass laws through a legislature which by the way used to be uniformly Republican is now unable to get a legislation passed and changing the rules through the rule making process in the first day that Jeff Sessions is gone from the Justice Department and has said, thank you Mr. Whitaker.

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: Sure. But the entire story of this administration is situational ethics. I mean, President Trump is on part to have more executive orders even with unified control than Obama had in his first term. What things to look out for here, first of all, the focus on the caravan, the alleged illegal immigrant invasion that was President Trump's closing argument. Discussion of the caravan has basically evaporated since Election Day but this is a follow through on the policy he promised. HOOVER: It's only been two days.


AVLON: But the other thing --

TAPPER: It was the invasion then, remember?

AVLON: That's right. You know, so one fix, that would not go away unless it was for political ploy which you know, I wouldn't want to be so cynical. The second thing is, let's see the details because what the supply for example to you know wet foot, dry foot, the Cuban community is or is it going to be targeted to the southern border and central American communities and Mexican Communities.

TAPPER One other thing that's interesting about this Alicia and we only have 30 seconds is that this happens on Whitaker's first day. But I don't know -- I mean, we'd heard that Attorney General Sessions was begging you know, let Friday be his last day. I think he would have supported this.

MENENDEZ: Absolutely. I mean, immigration is what brought Donald Trump and Jeff Sessions together.

TAPPER: Yes, so this isn't a Whitaker -- first day on the job Whitaker is doing this --

MENENDEZ: It's not that anything is dramatically changed.

HERNDON: This is Trump. I mean, this has been Trump since day one and this is Trump still now.

TAPPER: All right, thanks one and all. Great panel. I appreciate it. You can follow me on Facebook and Twitter @JAKETAPPER or you can tweet the show @THELEADCNN. Our coverage on CNN continues right now. Thanks for