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Defend Whitaker Appointment; CNN Files Lawsuit; Dems Working Against Pelosi; Showdown over Spending. Aired 9:30-10a ET

Aired November 13, 2018 - 09:30   ET

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

[09:30:00] MIKE ROGERS (R), CNN NATIONAL SECURITY COMMENTATOR: Somebody has to have that opportunity.

Now, that said, I think this is right in line with the president's kind of impetuous, I pick that guy to do this job. I like something he said, you know, whenever, a few -- ten minutes ago or two years ago. That's what get these folks in trouble. He hasn't been fully vetted. He steps into the job. He's going to have other problems. And I'm telling you, I think, you know, Mother Teresa would have a hard time getting through the United States Senate these days for an appointment. So that scrutiny about issues that may or may not arise, they just didn't seem to pay attention to any of it.

So I think you've got to give him the chance. I mean he took an oath, like a lot of people do. Got to give him a chance to do that. I don't think you should assume up front he's going to do something nefarious.

JIM SCIUTTO, CNN ANCHOR: The president, of course, continues to attack the public -- the special counsel's investigation in public. Mitch McConnell continues to say that the special counsel needs no protection via legislation. Do you believe that there should be bipartisan legislation? There are some Republicans -- it's -- there's even a bill co-sponsored by a Republican to do just that.

ROGERS: Boy, I just -- I feel uncomfortable with legislation. Do I think that the investigation should move to its conclusion? Absolutely I do. And it should go -- nobody should step in front of that thing in order to get it derailed. I don't think that would be a right or appropriate.

Do you need a bill before something happens? Boy, I get -- I just worry that this becomes the new political tool in the future for every appointment on every issue. And I think that's a very dangerous precedent.

I don't think it's wrong for them to tee it up, to have some hearings, to bring them down and say, do you fully intend to allow this investigation to go forward. All of that to me is legitimate oversight. Passing a bill to do it, I just, again, I get a little bit worried because this, as I said, this will be a new political tool in the tool box to pick on whoever is in there, Republican, Democrat, doesn't matter, Green Party. Somebody will use it in the future for nefarious purposes.

SCIUTTO: OK.

Let's move to international affairs. The president, of course, just returned from France. And public disagreements with the French president while he was there, which he continued this morning in a series of tweets. I don't want to get too caught up in the tweet drama here. But beyond the public disagreements, the president has made substantive moves that have genuinely concerned European leaders. One is pulling out of an intermediate nuclear forces treaty with Russia without consulting the Europeans.

Separate from social media, is there a crisis in the relationship between the U.S. and its European partners because of substantive issues such as that?

ROGERS: I don't know if it's a crisis, but there sure is some trouble. And, you know, if you remember, on his way to Russia, the last time he went and got into a bit of trouble, he insulted everybody along the way. So, you know, talking about their NATO -- meeting their obligation to spend money on defense, other trade issues. I mean it was -- it was really a -- candidly a demeaning way to approach your allies in a time when we needed our allies most. And so I do think that that has stirred trouble.

You know, I think Macron may have crossed the line by trying to do this in an event that was supposed to be about World War I soldiers who have given their full devotion to their own countries, our country included. I think that was wrong. But I -- in some way, all of this behavior seems to bring out the worst in people, and I think it has, to this point where you have now France and the United States --

SCIUTTO: Yes.

ROGERS: Two great countries kind of going at each other on the throat, this is not helpful to anybody. You know, we've got bigger challenges out there that we are going to have to work together. By the way, including trying to curtail Iran.

SCIUTTO: Yes.

ROGERS: You need France. You need the rest of Europe. So I do worry that the president doesn't put any value on those alliances that I think are incredibly important for promoting peace around the world.

SCIUTTO: America's oldest ally, as we say. It goes right back to the Revolutionary War.

Mike Rogers, thanks very much.

If you've been watching, CNN reported just a short time ago that CNN is suing the president and several White House aides for revoking the press credentials of our colleague Jim Acosta. Just after this break, we're going to be joined by one of the lawyers who's going to be arguing this case for CNN. Please stay with us.

(COMMERCIAL BREAK) [09:38:17] HARLOW: All right, again, this just in to CNN. CNN is taking action after the White House banned our chief White House correspondent Jim Acosta. That happened on Wednesday after the press conference with the president where Jim was trying to ask questions. His press credentials subsequently taken away by Secret Service. And this morning CNN is suing the president and a number of other members of the administration.

SCIUTTO: Joining us now is attorney Ted Boutrous. He is the counsel for CNN in this lawsuit, along with Theodore Olson. Ted has argued multiple cases before the Supreme Court, federal courts as well.

Let me ask you first, just to help our viewers understand the grounds for CNN's suit against the government, both under the First and Fifth Amendment. Let's start with the First Amendment, freedom of the press. Explain CNN's argument here.

TED BOUTROUS, COUNSEL FOR CNN IN LAWSUIT: Thank you for having me.

CNN's argument is very straightforward, that the First Amendment is meant for the press to be able to act on behalf of the American people and the public in getting information. And here, when the White House revoked Mr. Acosta's press pass, it's clear it was based on the content of his reporting, the fact that he was asking tough questions and has been doing that. The -- President Trump and the White House has repeatedly challenged and attacked CNN and Mr. Acosta. And it's really a classic First Amendment viewpoint content based discrimination against speech. And we can't have the White House or government officials arbitrarily tossing people out of the White House or other government facilities just because they don't like what they're saying or what they're reporting.

HARLOW: Right.

BOUTROUS: That's what happened here. That violates the First Amendment.

HARLOW: And there is some precedent for this when you look back to 1977, the case of Robert Sherrill, the district -- the D.C. Court of Appeals ruling in his favor. Can you walk us through the Fifth Amendment, the due process argument here?

[09:40:02] BOUTROUS: Yes. The -- you're absolutely right, the Robert Sherrill case talked about both the First Amendment and due process. And the D.C. Circuit said in a case involving the denial of a White House press pass, that before the White House rejects credentials, it needs to give due process, because of the important First Amendment issues at stake. So the court said there either has to be notice, written decision explaining why the credentials have been denied or revoked, and an opportunity to be heard. And, of course, that didn't happen here. Mr. Acosta was just blocked and his pass was taken away when he went to report at work. And that's his workplace. When you're the chief white House correspondent for CNN or another news organization, you go to work every day at the White House. So it really is damaging and harmful. HARLOW: And to be clear, Ted, CNN sent a letter to the White House on

Friday, right, asking for an explanation, asking for the pass back. That -- you know, that preceded what we're seeing this morning.

BOUTROUS: Exactly. CNN tried to work this out, requested that the pass be restored. Mr. Acosta was denied a day pass in France, even though the French government allowed -- would have allowed him to go cover President Trump's appearance at a cemetery. But the White House has basically just been ignoring these requests. So we really had no choice but to sue. We didn't want to have to go to court. We wanted to just report the news. Mr. Acosta wants to report the news. CNN wants to report the news.

So that's what the courts are for. The First Amendment and the Fifth Amendment arguments, the due process arguments are very strong. We're asking for emergency relief because every day that this pass has been revoked is a First Amendment violation and it's irreparable harm in the words of the law.

SCIUTTO: Brian Stelter, to be clear, the case is intended to be not just about one reporter or even one news organization.

BRIAN STELTER, CNN CHIEF MEDIA CORRESPONDENT: Yes, and that's a really important piece of this. Acosta happened to be targeted last week. But the president has threatened to revoke other credentials as well. And if we can ask Ted this question, I mean, Ted, what would happen if there's a temporary or permanent relief, would it apply to other reporters as well? Would it apply to the entire White House press corps?

BOUTROUS: Yes. That's a great point and a great question because, as you said, President Trump said this could happen to other reporters. And it really is the bigger principle here. And so we're advocating a legal principle that there should be a fair process, that there can't be discrimination based on the fact that President Trump or anybody in the White House doesn't like questions. Those principals are important to get -- to get enforced here to protect other reporters, other news organizations across the spectrum, whatever their questions are, whatever their viewpoint is and again the public, the American people, because the reporters are there to get information so the public can know what's happening so they can -- the public can make decisions about how to govern themselves. So it really is a much bigger question than Jim Acosta or CNN.

HARLOW: Right.

And I think, Ted, we should remind our viewers, this is not about politics, right? This is about constitutional rights. Your co-counsel representing CNN in this case is Ted Olson, who represented President Bush in Bush v Gore and won that case for President Bush.

BOUTROUS: Exactly. And Ted Olson and I both -- we come from different political viewpoints, actually, even though we've been partners for 30 years. But that's the whole point. The First Amendment is meant to allow all viewpoints, so everyone. So this ruling will protect everyone in the press and, again, every citizen, no matter what their political affiliation, so they get as much information as they can get so they can govern themselves exactly. This is not a political issue. It's a First Amendment issue that is really important to our society.

SCIUTTO: Ted, help us understand the timeline here because you're applying for a temporary restraining order.

HARLOW: Right.

SCIUTTO: In other words, a judge to make an immediate decision to temporarily give those credentials back. But then you have the larger issue, the court case here. How long could that play out? Is it uncertain? Could it be weeks, months? How long should we expect?

BOUTROUS: Let me walk you through the timeline.

So today we're in the filing, going through the paperwork. The case will get assigned to a judge. We've asked for an immediate hearing, either today if we can do it. We gave the White House notice this morning, or as soon as possible tomorrow to get a temporary order that would immediately restore Mr. Acosta's credentials.

Then the way the process works, there's a -- it has to be within 25 days a hearing on what's called a preliminary injunction, which is another temporary but longer order. And at that point if we prevail and the White House is still fighting it, then you go on to a trial on the merits and a hearing on the merits so that can unfold over a period of months or even longer. But that's why we need immediate relief because, as you know, every -- news is happening every second, every minute in the White House.

SCIUTTO: Yes.

BOUTROUS: You never know what's going to happen. And every day that a reporter can't be there covering the news, they're injured and the public is deprived of important information.

HARLOW: And, Brian Stelter, before we go, it is very rare for a news organization to sue the president. As Ted laid out, this is not a step that CNN wanted to take. They tried to sort it out with the White House. In 1971, "The New York Times," for the Pentagon papers, 1981, CNN versus the White House and networks for press access to the pool but we really haven't seen a lot of this.

[09:45:07] You asked the president when he was running about this.

STELTER: Yes, about whether he would do this because back during the campaigns, he banned a few different news outlets, actually about half a dozen, from his campaign rallies, "BuzzFeed," "The Washington Post," "The Daily Beast," he said they weren't allowed in.

So in a phone interview in June 2016 I said to him, OK, hold up, if you're elected, are you going to keep doing this? Are you going to kick reporters out of the White House? Here here's what he said then?

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: All I want to do is be treated fairly, Brian.

STELTER: If you are elected, will you try to revoke the press credentials of media outlets at the White House?

TRUMP: No, it's a different thing. In my case I'm a person running for office. I rent these large arenas. I rent them. And so I have an option. When I'm representing the United States, I wouldn't do that.

STELTER: OK.

TRUMP: But I would let people know if somebody's untruthful.

(END VIDEO CLIP)

STELTER: So, two years later, obviously a change from the president. He has talked privately about wanting to do this. He has threatened to do this. But until last week he hadn't actually taken this step. You'll recall last week, last Friday he was asked, when are you going to let Acosta back in. He said, I don't know, but I might do this to others as well. He mentioned April Ryan out of the blue.

So this is a problem not for CNN, but it's an entire problem for the press corp. It's a problem for reporters across the country. And that's why this lawsuit may end up being so meaningful.

SCIUTTO: Thank you, Brian Stelter.

HARLOW: Thank you, Brian.

STELTER: Thanks.

SCIUTTO: You know we're going to stay on top of this.

HARLOW: And to Ted as well. Thank you.

We'll let you know the White House response as well when we get it.

Back to Capitol Hill. Pelosi pressure. Congress is back on The Hill today. Can she rally the support she needs to take over that speaker spot?

(COMMERCIAL BREAK)

[09:51:02] SCIUTTO: This morning, a new dynamic on Capitol Hill as the House and the Senate, both back in session. For Democrats, they will have to decide whether to vote for Nancy Pelosi as House speaker once again. With small but vocal up-start opposition to replace her in the works, can she get her party to rally around her once again?

HARLOW: Yes, it's an important question. At the same time, plenty of critical business remain for the current Congress, like avoiding a government shutdown, funding the government before the year's end.

Let's go to Phil Mattingly, who makes a rare appearance getting up out of bed early for us this morning, our congressional correspondent.

Good morning to you.

So let's start with -- let's start with Pelosi. I mean she herself recently called herself a transitional leader.

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes, and that's a crucial word and one she's actually, if you've paid attention to her words, she's moved away from over the course of the last couple of days, which is an interesting note of itself.

Look, there's no post-election grace period here for the new members. They're going right into the frying pan and the fire over the course of the next couple of weeks. And the reality is this, a lot of them, ten total that were elected, pledged that they would not support Nancy Pelosi on the floor.

Here's kind of the baseline you're looking at right now. Right now Nancy Pelosi, who has been the head of the Democratic caucus in the House for the last 16 years is the odds on favorite to be the next speaker.

Here's what's also true. Nancy Pelosi, currently, does not have the votes in the Democratic caucus to be the next speaker. Remember, when this gets to the House floor in January, when the start of the new congress, she is going to need a majority of the entire House. At the moment, that's 218.

Here's what's going on behind the scenes, an intense battle. Guys, if you've paid attention over the course of the last couple of days, you've seen a litany of potential future Democratic chairman putting out statements of support. Outside groups like Emily's List, one of the most powerful and moneyed women's groups that help support a lot of these candidates come out and support Nancy Pelosi. Unions come out and support Nancy Pelosi.

Nancy Pelosi is where she is for a good reason. She's considered one of the best at that job for a good reason. She's putting that at into play right now, trying to put a lot of pressure on these Democrats, both incumbents and the newly elected Democrats who haven't made up their minds yet to come to her side, to support her, to give her the requisite number of votes. That's going to continue over the course of the next couple of weeks. But the reality is, she still has a fight on her hands. She doesn't have the numbers yet guys.

HARLOW: Yes.

SCIUTTO: So there's a spending deadline during this period of time. I mean there's been talk even of tying a bill to protect the special counsel, Robert Mueller, to a spending bill. Is there a chance of a shutdown looming?

MATTINGLY: Yes, to be blunt, absolutely. And not necessarily over the Mueller protection bill. Certainly Democrats like Chuck Schumer, the Senate Democratic leader, has said that that is in play. That's something they want considered. That's something Senate Majority Leader Mitch McConnell has said he doesn't believe is necessary. His staff believes that it might not even be constitutional. The bigger issue though in terms of a shutdown is the wall. The

president's wall. Right now Republicans are working behind the scenes trying to get the funding boosted from $1.6 billion, where it's at right now, up to maybe $5 billion. But keep in mind, while the Republicans still control Congress for the course of the next month and a half or so, Democrats, they still need Democratic votes in the Senate to move anything forward. If the president draws a red line, if Senate Republicans draw a red line, we are absolutely headed for a shutdown. That's the negotiation that's going on behind the scenes right now and that, guys, is still very much an open question.

HARLOW: What strikes me, Phil, is the challenge that the Democratic Party is going to face now in terms of getting and whether they will get, you know, the majority on the same page when it comes to big issues like health care and, you know, you know, Medicare for all or issues like immigration and the whole cry for -- from some for abolish ICE, right, during the campaign. Now how do you get them to coalesce on these big, big critical issues?

MATTINGLY: I think when you talk to top Democratic aides right now, they're talking about -- I don't want to say low hanging fruit. They want to talk about things that they feel like the caucus can absolutely support. They want to talk about things like infrastructure, which, obviously, is bipartisan. They want to talk about things like new ethics rules and perhaps campaign finance. Those are the issues they feel everybody can get around.

I think the more interesting element here is, you look at this freshman class, guys, they aren't ideologically homogenous. They aren't far left.

HARLOW: Right.

[09:55:01] MATTINGLY: They aren't all Alexandria Ocasio-Cortez. They are absolutely a piece of that, but that's not everybody, and that's something that Democratic leadership is going to have to grapple with throughout the course of the next Congress.

HARLOW: Yes.

SCIUTTO: Not unlike the Republican Party, the division there.

HARLOW: Yes.

MATTINGLY: Yes.

HARLOW: That's a good point.

SCIUTTO: Phil Mattingly, thanks very much.

HARLOW: So we are, of course, all over the breaking news out of California. The death toll in these tragic wildfires continues to climb. The fire in northern California has become now the deadliest wildfire in the state's history. We'll have the latest, next.

(COMMERCIAL BREAK) SCIUTTO: A very good Tuesday morning to you. I'm Jim Sciutto.

HARLOW: And I'm Poppy Harlow in New York. We're so glad you're with us.

[10:00:02 ]This morning, another high-level potential resignation from the Trump administration could be imminent. Multiple sources tell CNN