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Florida Officials Racing to Finish Recount by Deadline; Kirstjen Nielsen to be Asked to Resign Soon?; Interview with Rep. Denny Heck (D), Washington. Aired 10-10:30a ET

Aired November 13, 2018 - 10:00   ET

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

[10:00:00] JIM SCIUTTO, CNN ANCHOR: Good Tuesday morning to you. I'm Jim Sciutto.

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

This morning, another high-level potential resignation from the Trump administration could be imminent. Multiple sources tell CNN that the secretary of Homeland Security, Kirstjen Nielsen, is expected to be shown the door any time now, largely over border issues and immigration, which the president has made the centerpiece of his midterm push.

SCIUTTO: Speaking of the midterms, Democrats are celebrating another big win, this time in Arizona. Kyrsten Sinema is the winner of the U.S. Senate seat being vacated by the Republican Jeff Flake. That flip means that Dems will hold at least 47 Senate seats in the next Congress. A number of other high profile, high stakes races still undecided. Still being counted. Looking at Georgia and Florida.

Perry Bacon joins us now. He's senior political writer at FiveThirtyEight.

So let's pick through some of these outstanding races first here. Florida, you got dueling lawsuits here from both sides. In your view, are there enough potential votes that could come through in a recount or haven't been counted yet to change this from red to blue?

PERRY BACON, SENIOR POLITICAL WRITER, FIVETHIRTYEIGHT: I'm not sure the exact number, but I do think at this point, looking at the number of votes outstanding and had in the leads Rick Scott and Ron DeSantis, the Republicans, have. I think they're the favorites, probably pretty heavily, to come out ahead of these recounts in Florida. Either Republicans will probably hold on in Florida.

SCIUTTO: OK, Arizona, a pickup for the Democrats there. Didn't look so good on election night. In fact it looked like it was going to go red. Had been in the past. Often a very red state in the Senate. How important a win from the Democrats' perspective there?

BACON: It's big for two reasons. The first is in terms of the Senate math. If the Democrats are going to end up losing two seats, they'll be down from 49 now to 47. But 47, 46, all these matters. Think about how close that Kavanaugh vote was, or think, you know, if Trump nominates someone like, you know, Kris Kobach, or someone like that, every vote in the Senate is really very important. So that's significant.

Second thing is I have been covering politics for a long time. You've always thought of like a state like Ohio is the big swing state, but right now you look at the map. I think Democrats are better in the campaign in Arizona in 2020 than Ohio. This is a big win. If they could put -- if the Democrats can put Arizona sort of on the board for 2020 for the presidential race, it looks like Ohio is off the board. Florida maybe is becoming more Republican, too. So the Southwestern area where Democrats can make up for getting probably weaker in Florida and weaker in Ohio.

They can do Arizona, Nevada, maybe Texas. It's a region where the Democrats can get stronger, and both Beto and Sinema did very well in 2018.

SCIUTTO: Virginia, Pennsylvania as well. Final question on the governor's race in Georgia. It looked like that was coming to a conclusion with Republican Kemp having a pretty significant lead, one that would be very unlikely to be overturned in a recount. But a federal judge stepped in, telling the state to take another look at provisional ballots there. How significant?

BACON: It is significant. We're talking about I think 27,000 provisional ballots. The margin I think here is something like 20,000. So the numbers are close, but I don't think that -- you know, depends on how the count goes and things like that. I think Kemp is probably still favored to win and to -- you know, Abrams could get Kemp below 30 percent so they can still trigger a runoff, but I do think Kemp will end up coming out ahead in the next few days and I think he'll end up winning this race.

I think on some level, Abrams is not contesting the race, who wins. She contested also the idea that, you know, all these things Kemp did that she did not like in the campaign itself. This exact match program, some idea that he was stopping voting from other ways. So I think it's the broader issue. But I don't think she'll end up winning this race.

SCIUTTO: Perry Bacon, FiveThirtyEight, thanks very much.

BACON: All right, another potential big shakeup for the president's cabinet. It's a big question this morning. Multiple officials predicting the president could ask Homeland Security Secretary Kirstjen Nielsen to resign within days. Those officials cite the president's frustration with her over her handling of immigration and border security. Of course, his signature issue.

Let's go to the White House. Our reporter Sarah Westwood joins us.

And look, she was brought in by Chief of Staff John Kelly. He has been such a staunch defender of hers, but you know, we have heard the reporting of the president's blow-up at Kirstjen Nielsen and now we're hearing she may be on her way out the door? SARAH WESTWOOD, CNN WHITE HOUSE CORRESPONDENT: That's right, Poppy

and Jim. Her relationship with Chief of Staff John Kelly may not be enough to keep her around for the long term. Sources are telling CNN that President Trump could ask his Homeland Security secretary to step down any day now. And our colleague Kaitlan Collins is reporting that Nielsen herself expects she could be fired at this point and any moment.

And Trump has vented his frustrations with the way she's handled two of his top issues. That's immigration and border security as you mentioned. And that's really put Nielsen in a difficult position because on the one hand she's been vilified by critics of the administration who see her as the face of Trump's most unpopular immigration policies like family separation, while simultaneously disappointing the boss who has perceived her as insufficiently tough when it comes to immigration.

[10:05:13] More Cabinet shakeups after the midterm elections are not that unusual historically speaking. We do know that the president has been itching to get rid of his Homeland Security for weeks now, although we should say that the president is prone to changing his mind when it comes to issues of personnel, so nothing is set in stone when it comes to administration departures.

We also don't know who may be under consideration to replace Nielsen should she leave the administration.

HARLOW: Yes. You know, you've had four. You will have had four different Homeland Security secretaries in two years. And the "Washington Post" is quoting some names out there about who it may be. But we'll see how this all goes down.

Before you go, Sarah, look, the president in a series of tweets this morning attacking French President Emmanuel Macron after he was just side by side with him on that trip to Paris. Everything from his -- Macron's approval rating to questioning the defense of our European allies. Why?

WESTWOOD: That's right. The president is clearly fixated on the fallout from that tense trip to France. Already this morning, he's tweeted five times about French President Emmanuel Macron and France. He's demanding trade concessions. He's going after Macron on domestic vulnerabilities that he has. And after three days of negative coverage of the president's decision to skip a visit to an American burial ground in France, the president is coming out once again defending that choice by claiming the Secret Service told him he was not allowed to drive the couple of hours outside of Paris to get to that cemetery.

But clearly a trip that started with a misunderstanding over defense spending and ended with Macron delivering remarks that many interpreted as a rebuke of Trump's embrace of nationalism. That is something that the president is clearly still focusing on, Poppy.

HARLOW: OK, Sarah Westwood, thanks for all the reporting from the White House this morning. SCIUTTO: With us now, CNN Political Commentators Robby Mook and Alice

Stewart.

Alice, if I could begin with you. There've often been talk in the Trump administration of moderating voices around him. Particularly on national security. And you would often hear Nikki Haley, you would hear Jim Mattis at the Pentagon. You would hear Kirstjen Nielsen at DHS. Haley of course on the way out. The relationship with Mattis perceived to be souring. Not as close as it was in the past. And if Nielsen leaves, who would remain as moderating voices on those issues?

ALICE STEWART, CNN POLITICAL COMMENTATOR: Well, that question remains to be seen. I think if anything, Jim, what we've seen in this election, the president feels emboldened. He looks at the results of this election as a tremendous victory for him with regard to how some things played out. And I think he's going to use the more go it alone policy and he's clearly -- as we all know, he was going to move some people out of certain spots.

Jeff Sessions, I don't think they -- the dust settled before he was gone. Kirstjen Nielsen, I'm sure, is just a matter of time. I'd like to think that he relies on the good counsel and guidance of General Mattis. I think he is a sound voice, and the Chief of Staff John Kelly is someone that I trust there for guidance and recommendations on these issues, but the president certainly feels emboldened by these results and I expect him to do more listening to his own conscience as opposed to advice.

SCIUTTO: What was it -- in your view, tremendous victory as Democratic gains in the House edge up towards 40, the high 30s at this point, and with the Senate races, Jon Tester's race, Sinema's race going blue, there have been some expectations of them possibly going red that night.

HARLOW: Yes. Yes.

SCIUTTO: Do you think that that's a credible claim for the president to call the midterms a tremendous victory for him?

STEWART: Not when we lose the House. That's not a victory. A loss is a loss. The fact that we are maintaining control of the Senate, I think, is critical, but when you lose the House, you lose it. And there's no two ways about it. And looking at the numbers, I'd like to think we're going to hold steady, but we knew this was going to happen. We had a lot of factors. You know, certainly history going against the party in power is one, as well as a lot of retirements that we had on the Republican side.

And Democrats did do a strong job of fundraising, which was a big factor, but at the end of the day, I'd like to think this is going to be a wake-up call for Republicans to really work together and work across the aisle to get things done, and really see some accomplishments out of the next two years as we head into 2020.

HARLOW: Amen to working together all around. Regardless of party. Robby, do you think what we saw last night in Arizona, a very graceful

concession by Martha McSally, the fact is the Republican Party in Arizona resisted any temptation they may have had from the president on down to go on the attack, to call out fraud that didn't exist, for example, in the Arizona election.

Is that a lesson in civility for all of us in how to handle close elections and how to maintain Americans' confidence in the system?

ROBBY MOOK, CNN POLITICAL COMMENTATOR: Yes, and I also don't think it's a coincidence that Martha McSally, you know, had such a distinguished record of service to this country, that she takes the vote very seriously, that she takes an accurate vote seriously, and that she did resist the kind of lies -- outright lies that we're seeing in Florida and other places.

[10:10:11] You know, the Republican Party has gotten in a terrible habit. We saw it start in Florida in 2000. And it's getting worse now. That you can just create fantasies and lies to spin your way to winning and to stop counting votes.

I mean, what's so alarming to me in both Georgia and Florida is the Republicans are fighting to stop counting votes. And that's not how this works. And more and more Americans are voting early. More and more Americans are voting by mail. I think that's part of why the actual results in this election have felt slow to come because a lot of states don't count those ballots right away. And we're disenfranchising people because of how they choose to vote, and that's wrong.

SCIUTTO: Including military members serving overseas.

HARLOW: That was such a good point that Jim made yesterday.

MOOK: Exactly.

HARLOW: They have 10 days, right?

SCIUTTO: Yes.

HARLOW: So if they're calling something on election night, you're not counting them.

SCIUTTO: No question. I guess, and maybe we don't have a lot of time, but for both of you, it strikes me, and Poppy and I were talking about this earlier that you can say that both parties learned something of a lesson in these midterms.

HARLOW: Yes.

SCIUTTO: That perhaps the president's rhetoric on a lot of issues, immigration, et cetera, drove voters away in some districts that have gone his way in 2016, and on the Democratic side, that some of the more progressive candidates disappointed, lost, Gillum in Florida, for instance, where someone like a Sinema who had a progressive past --

HARLOW: Right.

SCIUTTO: -- but ran intentionally towards the center came out ahead.

Do you think that's a fair balance of the lessons to be learned, Alice?

STEWART: I think every state, and certainly every congressional district is different because we look at the more progressive candidates certainly in Georgia. Stacey Abrams looking like she's not going to win there, as well as Beto O'Rourke in Texas not winning, and certainly Gillum, as you mentioned, in Florida. So every state is different. Every voter is different. And at the end of the day, I'd like to think overall we can have a more civil tone. But voters in my view, they're going to vote for the candidates that represent their views and values.

HARLOW: Right.

STEWART: And let's hope as we get out of this, a more civil tone.

HARLOW: Really, quickly before you go, Robby, I was struck by Jennifer Rubin's column this morning in "The Washington Post," conservative columnist. She wrote at the end, she talked about, you know, the offenses of the president. She's been very critical of him. But then she said these offenses are part of a bigger picture of a failing president and a party incapable of breaking with him. Trump is cracking as is the Republican Party.

Now Democrats obviously will be eager to jump on that. But is there a lesson for Democrats in terms of where they jump, where they pounce, how they use subpoena power, et cetera?

MOOK: Yes, it's a great question. I think Democrats need to be very careful moving forward. I've actually been really impressed with what I've seen from the House leadership. Their focus on the voters and their lives. And voters don't want to be ripped off. They want a government that is honest and straightforward. And so the focus has been on getting the truth out there and exposing where the Trump administration has been wasting money or where officials including Donald Trump are enriching themselves by using their offices.

And I think that's where we need to focus. I think talk of impeachment and so on is premature. Let's let Mueller do his job and let's focus on being a voice for the voters and a defender for them and their tax dollars and the integrity of their government. We're going to do just fine.

HARLOW: All right. Robby Mook, Alice Stewart, nice to have you. Thanks.

SCIUTTO: Thank you.

STEWART: Thanks.

MOOK: Thanks. HARLOW: Still to come, one state set to argue in federal court the

appointment of attorney -- acting attorney general Matthew Whitaker violated federal law, but the Justice Department is expected to come out today with a legal opinion to defend that appointment.

SCIUTTO: Plus, white supremacists are celebrating Republican midterm victories, claiming those wins will make it easier to push forward their own agenda.

And the deadliest, most destructive wildfire in California's history is intensifying. 42 people now dead. Dozens still missing. Their fate in question. We're going to take you live as the desperate search for survivors continues.

(COMMERCIAL BREAK)

[10:18:31] HARLOW: Happening today, CNN has learned the Justice Department is expected to issue a legal opinion that will defend President Trump's appointment of Matthew Whitaker as acting attorney general. This as some congressional Democrats continue call for Whitaker to recuse himself from Robert Mueller's Russia probe due to his past critical comments about the probe.

Let's talk to a congressional Democrat about that. Denny Heck of Washington joins me. He sits on the House Intelligence Committee.

Good morning, sir. It's nice to have you. And let me begin with whether you join some of your fellow Democrats in Congress who say Whitaker must recuse himself from the Mueller probe. Do you believe that he can adequately oversee it?

REP. DENNY HECK (D), WASHINGTON: I think Matthew Whitaker's appointment was unconstitutional, illegal, and just plain wrong. It's unconstitutional because he's not been subjected to the confirmation process. It's illegal because he violated the AG succession statute, and it's just plain wrong because we are learning now things about his background that should have absolutely been exposed during the vetting process. Absolutely. He should recuse himself. Because he's frankly not qualified to be the attorney general.

HARLOW: So, Congressman, let's pick that bit by bit here on the law, on the constitutionality of it, two points that I would make. The Federal Vacancies Reform Act of 1998 lays out that the president can appoint someone to a position like this if they've served in that department for at least 90 days, which he has. And then when you look at precedent here, you have a Supreme Court case dating all the way back to 1898. And that's U.S. v. Eaten, right, where the Supreme Court decided that a temporary appointment to a principal office was constitutional.

[10:20:03] Where do you see a violation of the law here?

HECK: So let's look at precedent, Poppy. Matthew Whitaker is the first person to head a federal agency, I believe, in our nation's history, who had not been subjected to the vetting process and confirmed by the Senate for another position. There is an underlying statute I think that works also with respect to the succession for the AG's office. But here's the message, Poppy.

The president can't have it both ways. When Director Mueller was appointed special counsel, he specifically mentioned the appointment clause in the Constitution saying anybody with that kind of authority had to be confirmed by the Senate. He can't have it both ways.

HARLOW: Yes. Which is not factual, and he may be being hypocritical, but that aside, the question comes down to what the law is. And I wonder if you are willing to risk a government shutdown to fight Whitaker's appointment. You say it's unconstitutional. That's pretty serious.

HECK: I didn't know that we were at an either-or and --

HARLOW: Well, let me ask it this way. Because we heard Senator Chuck Schumer say over the weekend that there is enough support to add that to must-have legislation, which would be, for example, you know, funding the government.

Do you think Democrats should do that? Is it -- are you supportive of going that far if necessary to shut down the government if you don't have legislation to protect Mueller attached?

HECK: So you're presuming that if the legislation is attached to it, the president won't sign it. I believe there's a majority support in the House and the Senate to support Bob Mueller completing his investigation.

HARLOW: So you're -- you're saying it's not an either-or, but should Democrats be willing to go that far if it comes to that? Willing to come -- to not funding the government?

HECK: So, again, that's not a question that's before us at all. The question that's before us is whether or not Matthew Whitaker should be in that position or recuse himself. And whether Bob Mueller should be allowed to complete his work. And I think our efforts in the short term ought to be on doing what we can to assure him that he can go ahead and complete his work.

HARLOW: Let me ask you about the potential for Articles of Impeachment against the president come January when Democrats take control of the House. This struck me, what the likely incoming chair of the House Judiciary Committee, Representative Jerry Nadler of New York, what he said about that. Listen.

(BEGIN VIDEO CLIP)

REP. JERRY NADLER (D), RANKING MEMBER, JUDICIARY COMMITTEE: You don't want the country torn apart in a sense that half the country says for the next 30 years we won the election, you stole it. So one question before you do an impeachment is, do you think that the evidence of such terrible deeds is so strong that a large portion of the opposition vote base, of the president's vote base, will be convinced by the end of the process?

(END VIDEO CLIP) HARLOW: Is that an important warning for Democrats? Do you agree with him?

HECK: I think Jerry's sentiment reflects that of a significant number of House Democrats. What he didn't say there, I'm sure he's said on other occasions is, we all eagerly await the conclusion of Director Mueller's work at the special counsel's office. That will be an important and significant predicate for any deliberation or direction that we take, while we're simultaneously going down the path of upholding our Article I constitutional responsibility to provide a check and balance to the president.

HARLOW: Given your position on the House Intel Committee, and the potential use of subpoena power here. You have said that it will be used sparingly and carefully. Is there a risk for members of your party to overreach here in a way that alienates America?

HECK: If we proceed as each of the chairs of the relevant committees of jurisdiction have indicated, which is to say that we use subpoena power sparingly and carefully, then I think there is no risk whatsoever. I think that Chairman Nadler, Chairman Schiff, and chairman Cummings have all said essentially the same thing.

We can walk and chew gum at the same time. We've got a lot of things to get done on behalf of the American people at the end of the day.

HARLOW: Yes.

HECK: We need lower prescription drug prices, we need to protect people with pre-existing conditions. We need to create good jobs and infrastructure to set a long-term platform for economic growth. We need to do those things. We also need to be holding the administration accountable where appropriate. We can do both those things.

HARLOW: And finally, leadership for the party. Nancy Pelosi, you have spoken glowingly of her. You've said, you know, she takes her work exceedingly seriously. You've been a supporter of hers. Do you support Nancy Pelosi's bid for leadership?

HECK: I do. And furthermore, I'm not sure why it's even a question. I think it's a moot point. There's nobody running against her. Nancy Pelosi has a significant majority of the members of the House Democratic caucus, period.

HARLOW: You think she has the votes. There is no question in your mind.

HECK: She has a significant majority of the members of the House Democratic caucus. Of that, there is no question whatsoever.

HARLOW: Congressman Denny Heck, we'll see how this all unfolds and if she does has those running against her. We appreciate you being here. Thank you.

HECK: You're welcome, Poppy. HARLOW: All right. So the Camp Fire, this is the deadly fire in

northern California, is now the deadliest and the most destructive in the state's history.

[10:25:08] We're going to have a live report from one of the hardest hit areas next.

(COMMERCIAL BREAK)

HARLOW: All right. This morning, a grim search in northern California. Soon cadaver dogs will arrive in the city of Paradise. This as the Camp Fire has become the deadliest wildfire in the state's history. At least 42 people have died in that blaze.

SCIUTTO: Many of those deaths in the town of Paradise. This home reduced to ashes.