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ERIN BURNETT OUTFRONT

Melania Trump Calls For National Security Aide To Be Fired; Judge Grants Hearing Tomorrow For CNN's Lawsuit Against W.H. Aired 7- 8p ET

Aired November 13, 2018 - 19:00   ET

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


[19:00:00] WOLF BLITZER, CNN ANCHOR: That starts in one hour, 8:00 p.m. Eastern. "ERIN BURNETT OUTFRONT" starts right now.

ERIN BURNETT, OUTFRONT HOST: Out front next, a top national security official headed for the door after the First Lady, in a stunning move, publicly called for the firing. Why did Melania Trump issue this extraordinary statement?

Plus a federal judge granting CNN a hearing after the network sued Trump over revoking Jim Acosta's press credentials. A lawyer involved out front.

And rising Democratic star Alexandria Ocasio-Cortez went to Capitol Hill for the first time in a first move to protest Nancy Pelosi. Let's go out front.

And good evening, I'm Erin Burnett. Out front tonight, fired CNN reporting. President Trump has decided to fire Deputy National Security Adviser Mira Ricardel after Melania Trump's public demand to do so. It's an extraordinary move and the First Lady's office issued a statement calling for Ricardel's firing. The unprecedented public statement reading in part, "It's the position of the Office of the First Lady that Ricardel no longer deserves the honor of serving in this White House." That was a public statement.

The unprecedented public slam of a senior White House staffer dropped literally moments after this. You see Ricardel smiling. She's standing just a few feet away from her boss, the President of the United States during an event at the White House. Moments after that, the First Lady drops this statement.

Now, one source is telling CNN that the First Lady's feud with Ricardel took off after a battle over seating on Melania Trump's plane during her recent trip to Africa. And the Wall Street Journal is reporting that this is deeply personal, saying the First Lady's team told President Trump that Ricardel is suspected of planting negative stories about the First Lady.

OK. Now, this top firing would be top news in and of itself, especially with the First Lady's unprecedented calling for it, but this firing may not be the only one about to add to the White House chaos. CNN reporting President Trump is unhappy with Kirstjen Nielsen, the Secretary of Homeland Security and specifically her handling of the border. And when asked today if he's calling for her resignation, this is what happened.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Mr. President, do you plan to replace DHS Secretary Nielsen?

UNIDENTIFIED FEMALE: Are you firing Secretary Nielsen?

UNIDENTIFIED MALE: Are you planning to make a staff change at that level?

UNIDENTIFIED FEMALE: Do you have any comments on female --

(END VIDEO CLIP)

BURNETT: Three times he was asked, and three times, he appeared to ignore the question. Also tonight, we are learning that the President's Chief of Staff, John Kelly, could be finally about to go. We're reporting the President is already discussing his replacement. And these folks may be among a group about to leave, it's something the President himself is expecting and seems to be proud of.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: People leave. They come in, they're here, it's a very exhausting job, although I love doing it. I must tell you. But it's exhausting for a lot of people. I'm surprised at a lot of people. They start off, they're young people, they're there for two years and they're old by the time they leave. It's quite exhausting.

But I love doing it. Everybody wants to work in this White House. We are a hot country. This is a hot White House. We are a White House that people want to work with.

(END VIDEO CLIP)

BURNETT: Only he could sell it as a hot White House. I mean, any White House is a hot White House.

All right. Jeff Zeleny is out front live at the White House. Jeff, hot White House aside, what are you learning? I mean, yes, we've got all these multiple headlines of possible firings and this unprecedented story with Melania Trump and Mira Ricardel. What's going on?

JEFF ZELENY, CNN SENIOR WHITE HOUSE CORRESPONDENT: Well, Erin, tonight the White House was hot but maybe in a different way and in a very unusual way. For all the staff shake-ups that have happened here and we have seen a lot of them, we have never seen this cross firing from the east wing of the White House from the First Lady's office to the west wing of the White House where the national security advisers are. It was very unusual to get that type of a statement from the First Lady. She does not issue that many statements at all, certainly not about, you know, the Deputy National Security Adviser. So the reality here is there has been a lot of rumors and some discontent about the Deputy National Security Adviser.

John Bolton, the National Security Adviser, brought her in. He's known her for a long time. She has a long history at the Pentagon on Capitol Hill. She apparently has rubbed a lot of people the wrong way, including the First Lady. When she was traveling earlier this year, you know, she did not -- was not pleased with what some of her staff was doing to her, et cetera.

So, the reality here, though, so many staff shake-ups. We did learn today the President is going to dismiss her, but what we don't know is what comes next. Secretary Nielsen, the Homeland Security Secretary, we are now learning tonight is going to the border tomorrow to see what's going on there in terms of the U.S. soldiers on the border. She is widely believed, you know, talking to officials here, to be the next cabinet secretary to go.

What does that mean? Will it set off a set of dominos? Will White House Chief of Staff John Kelly leave after that?

[19:05: 02] He, of course, is her, you know, mentor in many respects. She worked under him. So the question is, is this the beginning of a lot of shake-ups? The

answer seems to be yes.

One person I talked to earlier today said really the only people who seem secure of their jobs are Ivanka Trump and Jared Kushner, of course related to the President.

BURNETT: Right.

ZELENY: So, I think in the next coming weeks or so, before we hit January, a lot of new faces here at the White House, Erin.

BURNETT: All right. Jeff, thank you very much.

I want to go to Marc Short, he's the former White House Director of Legislative Affairs for President Trump. And he did sign an NDA after leaving the White House. So always important, Marc, just to note that just so our viewers understand. Paul Begala, former White House Counselor to President Clinton and Kate Bennett, our White House Reporter who has traveled with the First Lady, including on this most recent trip which seems to be at the heart, perhaps, Kate, of what is happening now.

I mean, when we say a stunning and unprecedented move, we've never seen anything like this from a First Lady, right? She could have privately gone to her husband and talked about this or demand this. That is not how she chose to do it. This woman standing next to the President today and a few minutes later, this unbelievable statement comes out from Melania Trump. What happened here?

KATE BENNETT, CNN WHITE HOUSE REPORTER: Well, I mean, I think a few things happened here. And I think, you know, it is true, historically, first ladies typically -- some of them do weigh in. Some more than others. Nancy Reagan famously did as well. They did it behind the scenes. This happened very publicly. My source is telling me this is not the first time the First Lady had expressed her displeasure about this particular staffer to her husband, that it happened many times before after this Africa trip where there was a dust-up, certainly something happened that upset the First Lady who is very loyal to her very small staff. The complaint here is that Ricardel perhaps was not treating her staff well. This thing happened in Africa. She talked about it. She wanted it fixed. She wanted the President to perhaps do something about this. That didn't happen.

Today, we got this statement. I think the charge here from the First Lady's office, from the east wing, is that there was something brewing, Ricardel was trying to plant stories or, you know, hand a leaks, you know, perhaps try to shine a negative light on the First Lady and her office. And that's the type of thing, historically, with this particular First Lady, who -- you're right or Jeff was right, is very, very quiet, doesn't release a lot of statements. That's the sort of thing that in the past has gotten her ire up and certainly we've seen these fiery moments come through her spokesperson but unprecedented for sure.

BURNETT: I mean, Marc, unprecedented and look, I mean I'm not -- we don't know 100%, but obviously, what Kate's saying is she said to the President to do this before. It sounds like he ignored her, did not respect what she asked him to do because she had to put it out publicly for him to do it. I mean, is what we're seeing is actually a riff between the President and the First Lady? Is that what this is about?

MARC SHORT, FORMER WHITE HOUSE DIRECTOR OF LEGISLATIVE AFFAIRS: No, I don't think that's what this is about. I think the First Lady is an incredibly kind and gracious First Lady and so I think there probably more to the story that comes out later, Erin. I think that the fact that she hasn't weighed in on other personnel decisions is an indication of that so this is probably something that is more exceptional.

And as you and your audience have noted before, Nancy Reagan, in fact, did fire Ronald Reagan's chief of staff. So, yes, it was not public in the way it was here, but I think you'll find out over time that this is probably an exception and that the First Lady probably had reason.

BURNETT: Paul, what do you make of it? Reason or not reason and also, of the fact that she asked her husband to do it and he didn't do it so then she put it out publicly.

PAUL BEGALA, FORMER CLINTON WHITE HOUSE COUNSELOR: I think that's what's extraordinary. First -- Kate is exactly right -- the first ladies have always had power and Marc's right that First Lady Nancy Reagan did, in fact, persuade her husband to fire his Chief of Staff, Don Regan, but to do that through the press, it suggests that this is the only way to talk to our President, that he's Chauncey Gardner from being there. That only thing had happened -- what happens on TV. And that's really dangerous for our country. You know, he's about to into a very turbulent time. He's going to look back on the first two years which we think was like Bizarro World. Those were the good old days. He has lost the Congress. He's now going to be faced with legislation on things from voting rights to minimum wage to child care to equal pay. He's going to have to deal with a Democratic Congress that's sending him bills that are very popular that he may not want to sign but might have to.

Then there are the investigations. Then there are all the foreign threats we learned today about a dozen new North Korean missile sites.

BURNETT: Right.

BEGALA: All of those threats are coming and meanwhile, he's got his own First Lady even attacking him through the press. It's unbelievable.

BURNETT: I mean, Marc, is there something to this, that this is the only way to be heard to this President.

SHORT: No.

BURNETT: I mean, he may pillory the press, for God's sake, we know that's what he thrives upon, right? That's the oxygen in the room. But yet, until we say it, it doesn't matter.

SHORT: Right. I think the reality is in this case, I think what the more appropriate action is for the National Security Adviser, if he's been directed to remove her, that it's his decision. I think unfortunately what makes this more complicated is the national security advisers actually oversees travel with the Vice President.

[19:10:05] So ideally, this is something that would have happened when John Bolton was here and it would have been his to make that decision and to take care of that action more so than the President.

BURNETT: Kate?

BENNETT: I will say the First Lady has become more and more vocal about her influence on the President. She did say in an ABC News interview in Africa that she does tell the President when she doesn't trust people on his staff and she would said -- and then she was asked, well, what happens, and she said, some of those people don't work here anymore. And you know, I think for sure, if she felt strongly -- I don't necessarily find it's a rift between the President and the First Lady. I think this is certainly the First Lady really making her case that she's very, very unhappy.

And I think it really points to that delineation between the east wing and the west wing. This east wing operates on its own, completely independently of the west wing. I mean, I would imagine that the west wing probably didn't get a heads up or wasn't able to do anything if they did get a heads up before this statement came out about a west wing staffer. So, certainly, this is something very, very new and it shows the difference between the two sides of the building. BURNETT: I mean, Marc, it is shocking. You would think that the First Lady and the President would have had -- I mean, it is shocking that it happened this way, right? You have them standing together, and then the First Lady says, fire her. I mean, you would agree with that optically, right?

SHORT: Yes. I think I -- yes, Erin, I think I said that.

BURNETT: This is mess up.

SHORT: Yes, I think I said that this is unprecedented and it's something that ideally would have happened when Ambassador Bolton was back. But, again, to suggest that this represents two different east wing and west wing not talking to each other, every staff meeting we had the First Lady's chief of staff was --

BURNETT: How does it not represent that though? If they were talking, there would be no need for this to happen.

SHORT: I think this is an exception. It's not the rule, Erin.

BURNETT: OK.

SHORT: I think the way that it's being presented is as if it was the rule. And I think that's not the case.

BENNETT: And the First Lady never has to approve anything from her tweets to her statements from the west wing. We've reported that. This is -- she's done it on her own. I specifically asked, does the First Lady need to, you know, run this by the President or the west wing before she does something and the answer I have gotten several times is no.

SHORT: And all I know is all the events that we did through alleged (ph) affairs, if we (INAUDIBLE) with Congress, we coordinated that closely with the First Lady's office and it was a very cordial and close relationship.

BURNETT: All right. Also, even when it came to the jacket, you know the one about I don't care, I mean, they had two different stories coming out about that. I mean, you know, Paul, let me ask you, though. Secretary Mattis, right, on the west wing side, right, defense secretary, was asked if he agrees with the First Lady about Ricardel, obviously important person, right? Senior official with national security and when he was asked whether she should leave, whether she should be fired, here's how he responded today.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Do you agree with the First Lady that Mira Ricardel should leave the NSC?

JIM MATTIS, SECRETARY OF DEFENSE: I don't comment on other people's staffing issues.

BURNETT: Paul, what do you read into that? Is that a slam on how this was handled or what? Obviously he would be very familiar with Ricardel.

BEGALA: I think General Mattis is a great warrior and he just proved himself to be a great diplomat. Barbara Starr has reported earlier there were a lot of negative comments from Mattis land in the Pentagon about Ms. Ricardel.

BURNETT: Yes.

BEGALA: And yet there he was -- that is the way to handle it, though, which in private. That's what extraordinary about this. I think it's great that the First Lady has influence. I really do. I'm not being sarcastic. I think she should. I think the President needs somebody who can give him unvarnished advice and truth. I think it's great.

But if you're going to go public, ma'am, this would be my advice. You have to go all the way. In other words, if you say that Ms. Ricardel is unworthy to serve our country, you better tell us why.

BURNETT: Well that's the big question. I mean, Marc, do you have any idea why? Because the other thing we've been reporting and this comes to the line of Jim Mattis, is that she was very loyal, Mira Ricardel, to the President and she would say, don't let Jim Mattis hire this person or that person, they're not loyal to you, they may be Bush people or whatever it is, right? That the President may have had some loyalty to Ricardel which perhaps Trump, his own wife, wishes.

SHORT: My experience with Mira was that she was always very professional, Erin, so I don't know what transpired in the last couple months. As I said, I do think it's obviously unprecedented but my experience with the First Lady as well is that she was always incredibly kind and gracious and for her to take this step would mean she felt very strongly about something that occurred.

BURNETT: Yes. And I will say, I think to Paul's point, Marc, would you agree that we do have a right to know. If someone's going to come out and say, unfit the serve the country, you're going to, you know, to say besmirch someone's person in there and their career in that manner, that we would all deserve to know why if you're going to put that out publicly?

SHORT: Yes, I agree with that.

BURNETT: OK.

SHORT: Yes.

BENNETT: And certainly we've reached out to get her side of the story. We have not heard that yet. But we have, of course, reached out for comment.

BURNETT: Right. And I think we all can agree it's very important for all to know if that's going to be put out there what it is. All right, thank you all so very much.

And next, a second court challenge just filed saying Trump's appointment of Acting Attorney General Matt Whitaker is unconstitutional. And Congressman Adam Schiff, my guest tonight with a warning.

Plus, a judge granting CNN a hearing tomorrow in its case against President Trump and the White House. The lawsuit was filed today after the White House revoked Jim Acosta's press pass. An attorney is out front in the case.

[19:15:10] And could it get any uglier? Democrat Bill Nelson now filing a lawsuit in the Florida recount, looking to extend the deadline.

(COMMERCIAL BREAK)

BURNETT: Breaking news, a judge scheduling the first hearing in CNN's lawsuit against President Trump. CNN suing the Trump White House after it revoked our Chief White House Correspondent Jim Acosta's press pass, the White House pulling the pass last week after an exchange with President Trump about the migrant caravan.

(BEGIN VIDEOTAPE)

JIM ACOSTA, CNN CHIEF WHITE HOUSE CORRESPONDENT: They're hundreds of miles away. They're hundreds and hundreds of miles away. That's not an invasion.

TRUMP: Honestly, I think you should let me run the country. You run CNN.

ACOSTA: All right.

TRUMP: And if you did it well, your ratings will be much higher.

ACOSTA: If I may ask one other question.

TRUMP: That's enough.

ACOSTA: Mr. President, if I may ask one other -- are you worried --

TRUMP: That's enough. That's enough.

ACOSTA: Mr. President --

TRUMP: That's enough.

ACOSTA: The folks -- pardon me, ma'am, I'm -- Mr. President.

TRUMP: Excuse me. That's enough.

ACOSTA: Mr. President, one of the question if I may --

(END VIDEOTAPE)

BURNETT: Out front now, Ted Boutrous, he's one of the attorneys representing CNN in its case against the President. And Ted, I appreciate your time tonight. So, there is this hearing now tomorrow. How significant is it? TED BOUTROUS, CNN COUNSEL IN LAWSUIT VS W.H. FOR SUSPENDING ACOSTA: It's a very significant and important hearing. We were very pleased that the court ordered it to happen so quickly. That's what we had asked for. It's a request that we've made for what's called a temporary restraining order.

[19:20:02] We're asking the judge to immediately restore Jim Acosta's press credentials because he's being -- he and CNN are being harmed every day because he's barred from doing his job. He's barred from covering the news. And so, the immediate request is for those credentials to be returned and then the case can play out going forward if necessary. So, it's an important hearing.

BURNETT: So, look, the White House has come out and said this is all a bunch of, you know, their words, grandstanding. That's what CNN is doing. Quote, grandstanding. What's your response to that?

BOUTROUS: My response is CNN did not want to have to go to court simply to cover the White House and to cover President Trump. We tried to work it out. We reached out from the highest levels of CNN to the White House and got nothing and got no response.

And this isn't about CNN and Jim Acosta, really. It's about the American people's ability to get information about its government. And one of the big arguments we make in our case is that the D.C. Circuit, the highest court of appeals in Washington, has held many years ago, regarding press credentials at the White House, there needs to be a process. You can't just take them away because you get mad at what a reporter is asking, because you don't like the content of the news. So it's a very important principle that goes far beyond this particular dispute.

BURNETT: Now, look, the President loves this sort of thing, OK? And he has in particular singled out Jim Acosta many times, right? He's called him crazy and he's also said things like this.

(BEGIN VIDEO CLIP)

TRUMP: I'll tell you what, CNN should be ashamed of itself, having you working for them. You are a rude, terrible person.

I think Jim Acosta is a very unprofessional man. I think -- he does this with everybody. Look, I don't think he's a smart person, but he's got a loud voice.

(END VIDEO CLIP)

BURNETT: Do prior comments like those about Jim Acosta play into this suit, Ted?

BOUTROUS: They -- the prior comments that President Trump has made, including in the press conference on November 7th, and many before and about CNN are also important parts of our suit, because the Supreme Court said many times that courts and government officials, no one in government can discriminate or punish people based on their viewpoint and based on what their reporting if they're journalists and that's a core part of our suit. And we argue that it's clear, the reason Jim Acosta's press credentials were taken away is because President Trump doesn't like him, doesn't like what he's reporting and that's the President's prerogative but that's what the First Amendment protects. It protects that sort of vigorous reporting that sometimes can be very irritating to government officials, but that's keeping them honest.

BURNETT: All right, thank you very much, Ted, I appreciate your time.

BOUTROUS: Thanks again for having me.

All right, out front now, our Chief Media Correspondent, reliable sources Anchor Brian Stelter along with April Ryan, White House Correspondent for American Urban Radio Networks and author of "Under Fire: Reporting from the Front Lines of the Trump White House". And April, you know, you're important in all of this. The President's called you out specifically by name for, you know, as a loser, asking nasty questions. As part of this whole brouhaha.

Brian, let me start with you, though, because this has gotten to the point of a lawsuit, OK? But you just heard one of CNN's lawyers there saying that they tried to not have it go to that point. They tried to get the press pass back. So tell us what you know about that. What did they try to do? How this get here?

BRIAN STELTER, CNN SENIOR MEDIA CORRESPONDENT: Yes. The goal was a quiet resolution. This happened last Wednesday night, the press pass gets revoked, it happened out of nowhere, the White House did not follow the established procedures in the event that a press pass was going to be taken away. So, Thursday, the head of this network, Jeff Zucker sent an e-mail -- sent a letter to John Kelly, the Chief of Staff, said this was an illegal action, you gave us no notice, we demand the credential be restored right away. That's Thursday.

Then Friday, then Saturday, nothing happened for days and days. That's why CNN eventually decided it had to go to court. This was essentially the last step in the chain, and now this court battle will begin tomorrow as we mentioned, a hearing tomorrow afternoon. CNN would like a quick response by the judge to reinstate the press credential via a temporary restraining order. We will see if that happens.

BURNETT: OK. So April, you know, CNN says this is about much more than Jim Acosta and CNN, right? And obviously the President often uses CNN as a boogeyman but they've used other news networks and other individuals, you among them. You've long been a target. You know, he's threatening to take away more press credentials when he was talking about this overall issue on Friday. He sort of brought your name up out of the blue.

APRIL RYAN, WHITE HOUSE CORRESPONDENT, AMERICAN URBAN RADIO NETWORKS: Out of the blue.

BURNETT: Didn't say he was going to take your press credential away specifically but he called you nasty and a loser, I believe. So is that a threat? Do you think you're next if this will continue?

RYAN: Well, Erin, you know, right after he talked about Jim, he talked about me. I wasn't even there and I was on his mind.

[19:25:02] He was talking because someone asked him about the press credential and if he would indeed restore it or what have you, and the President talked about Jim Acosta and then he went into this diatribe about me. I wasn't there, and then he was talking about the respect for the office and the presidency. I don't know where that comes from, just for asking a question. And you cannot, whether you're President or a principal, you cannot dictate what we ask.

We are part of the U.S. Constitution, the First Amendment. You know, part of the accountability piece where we ask questions that give America the answers. And the CNN lawsuit is critical, not just for me and not just for Jim but for others because if they have a whim at any moment to say I don't like what this person asks, because they have been upset with me since January when I asked the President, are you a racist. They've been very upset and trying to find a way to pull me out of there.

I've done nothing wrong and neither has Jim and neither has anyone else there. But if, indeed, they're allowed to do this, they could go down the road and even pull the people out that they like at Fox News if the President decides that he doesn't like them anymore. This is a dangerous game.

BURNETT: And Brian, I think to April's point, you know, some people watched that exchange with Jim Acosta and they say, well, he kept interrupting, shouldn't the President be allowed to have other people ask questions. The answer is, sure, he should. But every reporter from every network, including Fox News, tries to push and say, let me get another question, you're not answering my question. That's the way it goes and I think people need to understand that. That that is not a unique moment, far from it. That is the way it operates every day --

STELTER: Right.

BURNETT: -- with every reporter. Friendly or not, right? They try to get more questions in.

STELTER: Definitely.

BURNETT: And you do see it from Fox News reporters so I think people need to understand that --

STELTER: Yes.

BURNETT: -- to not have in any mind to confuse what respect means for the office, right?

STELTER: And I get that Acosta, you know, he has an aggressive style --

BURNETT: Yes.

STELTER: -- some people think it's off putting. Personally, I like that different reporters in the White House have different styles. BURNETT: Yes.

STELTER: That's part of a free press. That's part of how it works. And notice how the White House's explanations have shifted over the past week. First, I mean, if there was a lie about grabbing, putting his hands on an intern, obviously, he was being very respectful, he said, pardon me ma'am, as he was trying to hold on to the mic for one more question.

Sarah Sanders explanations have changed. Now she's backed away from that placed his hands on a woman line. However, the White House is continuing to say that he was rude, that he was unprofessional. But that is not the legal issue here. The legal issue is whether the procedures were followed and they weren't.

And look, I know Trump has a lot of loyal fans out there. But most Americans don't want any President choosing who gets to pick -- who gets to cover the White House. Most Americans don't want that.

BURNETT: Well they should understand it goes both ways, right? It goes both ways. April, before we go, quickly, though, Bob Woodward, obviously, now works at NBC News but Washington Post reporter. He says the lawsuit is negative.

His quote was, according to NBC News, "Trump is sitting around saying, this is great. When we engage, in Trump's strategy, we are taking his bait." A word used by the Daily Beast was the President is giddy, right, to see a headline in a lawsuit, CNN versus Donald J. Trump. Do you think the President is benefitting?

RYAN: You know, with this President, he believes any kind of press is great press, whether it's negative or positive.

BURNETT: Yes.

RYAN: But what I will tell you is, is that the President can be giddy but I really don't believe he really fully understands the ramifications of what this is about. Maybe he does and he doesn't want people to know. This is not necessarily about us. Yes, this is a lawsuit by CNN for the other -- and all the news organizations, to keep us in that room, free and unfettered, without them taking our badges because they don't like the questions.

STELTER: Right. Just follow the rules.

RYAN: What really does --

BURNETT: Yes.

RYAN: Yes, yes. Following the rules. And actually, what this really does, if they oppress and suppress us, it is about the American public not getting information, free-flowing transparent information, not from a government spin but from reporters who are doing their job, and following the U.S. Constitution. It's about the American public and their information first and foremost.

BURNETT: All right. Thank you both very much.

And next, President Trump defending His Acting Attorney General, Matt Whitaker. There's a new legal challenge tonight saying the appointment is unconstitutional. Congressman Adam Schiff is out front.

And Alexandria Ocasio-Cortez, one of the rising stars in the Democratic Party, arriving at Capitol Hill for the first time after her win and her first order of business, picketing Nancy Pelosi.

(COMMERCIAL BREAK)

[19:32:15] ERIN BURNETT, CNN HOST: Breaking news, another legal challenge to the president's appointment of Acting Attorney General Matt Whitaker. This is the second motion saying that the appointment is unconstitutional.

President Trump's response? Well, two senior administration officials telling CNN tonight, he's fighting. That Trump plans to keep Whitaker in the job four weeks, if not four months.

OUTFRONT tonight, Congressman Adam Schiff, the top Democrat on the Intelligence Committee. So, of course, that means he's slated to become the chairman of that committee in the next Congress.

Great to have you with me, Congressman. I really appreciate your time.

Do you think Whitaker's appointment is unconstitutional? Would you go that far?

REP. ADAM SCHIFF (D-CA), RANKING MEMBER, INTELLIGENCE COMMITTEE: You know, on balance, I think it probably is. I think the court, a neutral court, and I hope that's what we have, will find that it violates the requirement that a principal officer only be confirmed with the advice and consent of the Senate. There is a OLC, Office of Legal Counsel, in the Justice Department opinion that is several years old that the Justice Department may rely on. But I think that's a poor judgment, constitutionally.

The Vacancy Reform Act, which they're making this appointment under, a statute, cannot trump the Constitution and there are some pretty powerful precedent and language from current members of the Supreme Court that I think indicates strongly that this will be struck down.

BURNETT: Now, when you say they may rely on, right, you know, something they had done a couple years ago, they were expected, the Justice Department, to issue an opinion today, right, from their office of legal counsel and it was going to be a defense of this entire thing, Matt Whitaker's appointment. They didn't do that. It didn't come out. It's been delayed until at least tomorrow.

Do you read anything into that?

SCHIFF: I'm not sure what to read into it. I wouldn't be surprised if there was a debate going on within the Justice Department that, OK, yes, we can rely on a decision we made before but it looks like the decision we made before has been superseded by what we see in different opinions of the Supreme Court and in the concurring or dissenting opinions that that earlier judgment may now no longer be valid. So, that debate may be happening. They may also be trying to figure out what they're going to do about the recusal issue that is obviously a separate legal question, and in that respect, I think that issue looks far more clear cut that Whitaker has to recuse himself.

BURNETT: He has made comments before and I'm going to play those in a moment but let me ask you on this, because when it comes to that issue of the Mueller investigation, from what we know, right, we're talking about weeks here, maybe months, right, but the president does plan to appoint someone else to the attorney general position permanently. So if that's the end game, why do you care so much about Whitaker and these next few weeks or months? Do you think something so dramatic could happen in that time?

[19:35:02] SCHIFF: Well, I do. It's entirely possible that Whitaker takes action to interfere with Mueller, to hobble the investigation, tells Mueller, essentially, you cannot look into this issue or if Mueller is ready to issue a report within the next couple months, that Whitaker may make the judgment that report will not be sent to Congress or it will not be made public, so those are obviously key decisions, but also, Whitaker could serve as the back channel to Trump and his lawyers in a way that no matter who fills that job later, you can't undo the damage that is done by compromising the investigation.

BURNETT: OK. All right. So, that's a point of permanent damage that you're making.

But look, you want Whitaker to recuse himself from the Mueller investigation, at least, and you mentioned things he said. So let he just, you know, familiarize our viewers with some of those things that Whitaker has said about Mueller. Here he is.

(BEGIN AUDIO CLIP)

MATT WHITAKER, ACTING ATTORNEY GENERAL: There's no evidence of anything illegal happening in the 2016 election related to the Trump campaign and the, you know, Russian government or their associates. It was an effort by Jim Comey to get this, you know, put in place and have somebody that he's very familiar with and Bob Mueller conducting the investigation. So I don't, you know, I think it smells a little fishy.

Why don't these folks hurry up? I mean, there is -- it is not helping this administration.

(END AUDIO CLIP)

BURNETT: I mean, look, he doesn't like the investigation, he's made it clear. You know, but the Republican chairman on the Senate side of the investigation, Richard Burr, known for being measured, running a respected and thorough investigation, just said this afternoon, Congressman, quote, I didn't have any concerns with Sessions or Whitaker. So, he's saying he's fine with it. Do you really think Whitaker,

given -- especially given that he said those things would have the nerve to try to end the Mueller investigation?

SCHIFF: Well, look, you know, Whitaker made it plain that he was taking this gig as a commentator for the express purpose of auditioning for the president and it looks like it had its intended effect, that he was chosen specifically as basically what the president said he wanted, which was his own Roy Cohn in the Justice Department. And even if he's replaced later, that replacement has to go through Senate confirmation where you can exact pledges not to interfere, you can determine whether they made commitments or promises to the president about how they'd handle the investigation before taking the job. Obviously, that can't be done at this point with Whitaker.

In terms of comments from Senator Burr, who I have a lot of respect for, frankly, the only one we have seen with any consistent willingness to stand up to the president was John McCain and we lost him, terrible to lose him, but terrible time to lose him also because he had the stature to stand up to this president. I have no doubt that if a Democratic president were putting someone in place that had made comments like that about an investigation in which that Democratic president may be implicated, the Republican chairs would be screaming to the rafters right now and they should.

BURNETT: Yes, I'm sure they would be. If they're honest about that, they would admit that's true.

I want to ask you one question, Congressman, about our other top story tonight before we go. Melania Trump, right? So, apparently, she's asked her husband, she doesn't like the deputy national security adviser, Mira Ricardel. That deputy national security adviser appears with him today, moments later, this unprecedented statement comes out that she's unfit to serve the United States from the first lady about Mira Ricardel.

What do you make of this?

SCHIFF: Well, you know, that's a pretty rare step for a first lady to make a public statement that somebody needs to get fired. Clearly, there's some bad blood there.

But I do think it's indicative of the fact that Sessions may have been the first head to roll, but there are other heads that are on the chopping block. And what's more, the first family takes this job very personally. You're either with the Trumps or you're against them and if you're against them, it doesn't matter, you know, what your record is. It doesn't matter whether you're looking out for the interests of the country.

As in the case of Russia, Sessions actually was doing his job, and he was following the ethics rules. The president certainly is only about the president, but it was surprising to see the first lady also weigh in on a personnel matter to this degree.

BURNETT: As you say, an unprecedented moment to see that, the way she chose to do it.

Thank you so much, Congressman Schiff.

SCHIFF: Thank you.

BURNETT: And next, the battle royale over Florida's Senate seat just went Defcon tonight. Democrats say Rick Scott needs to recuse himself and a top adviser of Scott's campaign will respond OUTFRONT.

Plus, 125 women elected to Congress, a record, and a lot of races still too close to call. Today, though, the women arrived on Capitol Hill ready to work.

(BEGIN VIDEO CLIP)

REPORTER: Do you know your way around?

ALEXANDRIA OCASIO-CORTEZ (D-NY), U.S. REPRESENTATIVE-ELECT: Not quite yet. It's a very big building.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[19:43:33] BURNETT: Breaking tonight, a legal battle royale in the state of Florida. Democrat Bill Nelson's campaign just filing a federal lawsuit seeking to extend the deadline for the statewide recount. And in his first public appearance since the election, Nelson calling for his opponent, the Republican Governor Rick Scott, to formally recuse himself from the recount.

(BEGIN VIDEO CLIP)

SEN. BILL NELSON (D), FLORIDA: It's become obvious that Mr. Scott cannot oversee the process in a fair and impartial way and he should remove himself from the recount process.

(END VIDEO CLIP)

BURNETT: OUTFRONT now, Gail Gitcho, senior adviser to Governor Rick Scott's Senate campaign.

Gail, good to have you with me.

GAIL GITCHO, SENIOR ADVISRE TO GOVERNOR RICK SCOTT'S SENATE CAMPAIGN: Thank you, Erin.

BURNETT: So, you just heard Bill Nelson, federal lawsuit. What's your reaction?

GITCHO: Well, it just makes no sense with Chuck Schumer and with Bill Nelson asking Governor Scott to recuse himself. This is a made-up talking point by some PR person in D.C. who clearly doesn't understand state law in Florida.

What state law in Florida actually says is that there are 67 counties. Each one of those 67 counties has an elected official who is in charge of their county elections. Rick Scott has -- doesn't -- isn't in charge of any of them. So, there would be nothing for him to recuse himself for.

The argument just doesn't make sense and neither did that press conference today. It just continues to be another distractive tactic that Democrats are trying to use from actually counting the legal ballot.

[19:45:03] BURNETT: So, you're saying as governor of the state, he -- even though he is governor of the state where this is all happening, right, in those counties that he has -- it's impossible to recuse himself. You're saying it's actually impossible to recuse?

GITCHO: Well, that's correct. Yes, he's not -- the people who are in charge of these elections have been elected by the people, and they're -- they are elected by the people in those 67 counties. So, Governor Scott is not in charge of any of those.

BURNETT: So he would have no role whatsoever in certifying or allowing or anything.

GITCHO: None.

BURNETT: OK. All right.

GITCHO: That's correct.

BURNETT: Yes. So --

GITCHO: Yes, other than that, their argument makes perfect sense.

BURNETT: On the recusal, OK, so let me ask you, though. Governor Scott has had a point of view on this, right? He hasn't been an innocent bystander because he's running, first of all, and because he has used the word -- he's talked about voter fraud, said votes are being, quote, stolen from him.

Here are just a few things, Gail, that he has said.

(BEGIN VIDEO CLIP)

GOV. RICK SCOTT (R), FLORIDA: Senator Nelson is clearly trying to try to commit fraud to try to win this election.

We don't know how many more votes they're going to come up with, but this sure appears they're going to keep finding as many votes as it takes to win this election.

Bill Nelson is clearly a sore loser. He's just here to steal this election.

(END VIDEO CLIP)

BURNETT: Are you comfortable with that word? Steal? GITCHO: I'm completely comfortable. What Governor Scott has said is

exactly what's happening. We've seen Bill Nelson and his legal team file a ridiculous lawsuit yesterday that would actually ask the state to count votes that were -- that came in after the election was over.

That is a very true fact. His lawyer filed a lawsuit that wants to count -- that wants to count ballots that came in illegally. And it's not the first time this has happened.

BURNETT: Right, but -- but my understanding is if you are overseas or you're in the military, as long as your ballot's postmarked by the election day, then it should be counted, right? So they wouldn't get it until after the election. Those votes should be counted. Are you saying they shouldn't be?

GITCHO: Our side has -- Erin, our side has been very clear about this. We want every single legal ballot to be counted legally.

Bill Nelson and his legal team want illegal ballots to be counted, and I can give you several examples of that. Number one, his legal team sat in a room and asked for an illegal immigrant's ballot to be counted. That is a violation of the law.

And then this lawsuit yesterday where illegal ballots that would be brought in after the election was over should be counted toward his total as well. That is a violation of the law.

So, there's any number of examples where Bill Nelson is trying to do whatever he can to hold on to this power.

So, he has a choice. When this election or when these ballots are counted, he's going to have a choice -- he can choose to go out after his long legacy in the Senate and he can go out the way that he's trying to go out, by holding on to power. Or he can accept the will of the people of Florida, which is they elected Rick Scott.

BURNETT: OK. Quickly, though, before we go, I mean, you know, Rick Scott oversees the elections commission and they have found no evidence of fraud whatsoever, and yet you just heard him there talk about fraud. He said Senator Nelson is trying to commit fraud.

GITCHO: Yes.

BURNETT: He oversees, and I know you're uncomfortable with that word but he oversees that election commission that has looked into this and at this point has found no fraud whatsoever. Why is he saying that?

GITCHO: Back up for a second. There are examples of fraud. So, first of all, Brenda Snipes --

BURNETT: So he does not agree with what his own election commission has concluded?

GITCHO: I'm not going to put words in the governor's mouth but what I will say is that he's exactly right to have asked the FDLE to investigate this because Brenda Snipes was on national TV and your network carried it where she said that she mixed in illegal ballots with legal ballots. And now, they don't know which ones are legal and which ones aren't, but they want to count all of them.

And that's just one of many examples of what's happened that have been in violation of the law since this whole recount process started. There are laws in place to prevent this kind of fraud, and since the -- since this recount has continued, we've seen over and over again, the Democrats and Broward and Palm Beach County officials completely failing the state of Florida.

BURNETT: All right. Thank you very much, Gail. I appreciate your time.

GITCHO: Thank you, Erin.

BURNETT: And next, the record breaking new class of women elected into Congress have arrived, and they are speaking out.

Plus, Jeanne Moos on the real winner in Arizona's Senate race. You're looking at him/her.

(COMMERCIAL BREAK)

[19:52:09] BURNETT: Just moments after arriving on Capitol Hill as the youngest congresswoman-elect, the rising Democratic star, Alexandria Ocasio-Cortez, was picketing, picketing none other than Nancy Pelosi who had an issue with it, because she's a woman.

Well, Ocasio-Cortez is now joining a record 101 other women who are going to be members of the House of Representatives. Which doesn't include a handful of race that are still too close to call so it could change even a little bit.

Sunlen Serfaty is OUTFRONT.

(BEGIN VIDEOTAPE)

OCASIO-CORTEZ: My gosh.

SUNLEN SERFATY, CNN CONGRESSIONAL CORRESPONDENT (voice-over): From the victory stage, to the halls of the U.S. capitol.

(on camera): Do you know your way around?

OCASIO-CORTEZ: Not quite yet, it's a very big building.

SERFATY (voice-over): The new class of women elected into Congress have arrived in Washington.

JENNIFER WEXTON (D), VIRGINIA REPRESENTATIVE-ELECT: I guess we're members-elect now.

SERFATY (on camera): How does it feel to say that?

WEXTON: Still it's a mouthful. It's strange, but I'm sure I'll get used to it. SERFATY (voice-over): Or the squad as one of them put it.

UNIDENTIFIED FEMALE: We're all ready to buckle down and get to work.

SERFATY: The women who ran, who won, and will now usher in a new record-breaking makeup of Capitol Hill, with at least 125 women in Congress, at least 40 of them newly elected and 15 of those women of color.

UNIDENTIFIED FEMALE: There's some incredibly talented people coming in in the freshman class.

SERFATY: The class includes Ilhan Omar and Rashida Tlaib, the first Muslim American women. Sharice Davids and Deb Haaland, the first Native American women.

UNIDENTIFIED FEMALE: Tonight we made history.

SERFATY: Lucy McBath who lost her son, Jordan Davis, to gun violence. Former cabinet secretary Donna Shalala.

DONNA SHALALA (D), REPRESENTATIVE-ELECT: I haven't been a freshman for a long time.

SERFATY: The youngest member to be elected in Congress, 29-year-old Alexandria Ocasio-Cortez.

(on camera): Do you feel like this is the first day of school?

OCASIO-CORTEZ: Oh, totally.

SERFATY: What are your emotions? Are you nervous?

OCASIO-CORTEZ: You know, I have butterflies, but I'm excited.

SERFATY (voice-over): And Air Force veteran Chrissy Houlahan among others.

CHRISSY HOULAHAN (D), PENNSYLVANIA REPRESENTATIVE ELECT: Congress camp (ph), congress school. It does feel a little bit like that. You get a backpack and school splice and feels like everything is new.

SERFATY: New members did get something of the new backpack which some showed off on social media as they checked in for new member orientation in Washington this week.

MADELEINE DEAN (D), PENNSYLVANIA REPRESENTATIVE-ELECT: Seeing a bank of cameras is kind of ridiculous. I've never had that happen to me.

SERFATY: Meeting their colleagues, finding their sea legs.

UNIDENTIFIED FEMALE: I came through the regular entrance. A capitol police officer was like, no, you need to go through the members entrance. Didn't know that.

SERFATY: And then hoping to move forward. ILHAN OMAR (D), MINNESOTA REPRESENTATIVE-ELECT: I hope we're never

continuously talking about the firsts. Thank you.

(END VIDEOTAPE)

SERFATY: That's a sentiment we certainly heard from so many new members up here on Capitol Hill that, yes, the celebrating of all these records is a good thin thing, at some point, they're going to have to move past that and, of course, start doing the work up here on Capitol Hill.

[19:55:01] First up, though, tomorrow, Erin, is the class photo and then electing new leadership in their caucuses -- Erin.

BURNETT: All right. Thank you, Sunlen.

And next, Jeanne Moos on the real star, Martha McSally's concession video. It is a beautiful star.

(COMMERCIAL BREAK)

BURNETT: A Republican concedes, it happened 24 hours ago on this show. And Boomer, the dog, consoles.

Here's Jeanne.

(BEGIN VIDEOTAPE)

JEANNE MOOS, CNN NATIONAL CORRESPONDENT: It was a concession speech --

REP. MARTHA MCSALLY (R), ARIZONA: I wish her all success.

MOOS: -- that we have to concede succeeded. Even Representative Martha McSally's dog, Boomer, wanted to shake her hand.

MCSALLY: Everybody who voted for me, I'm so grateful for you. My wing men and my wing women in this journey.

UNIDENTIFIED MALE: Boomer is now my nominee for best performance by a dog in a Senate election concession speech.

MOOS: Boomer's appearance was a triumph on Twitter. This is how everyone should concede, with a dog. Would vote for that dog for Senate, though he has larceny in his past and likes to bury things.

MCSALLY: My mom was visiting, we had her pajamas disappear. All of a sudden a few weeks later we have -- we find tops, bottoms, and socks all rolled up together behind the mesquite tree.

MOOS: But the canine concession --

MCSALLY: My staff and volunteers --

MOOS: -- rankled some. Stop using dogs to humanize yourself.

The Arizona Republican had Boomer carry her ballot when she voted.

MCSALLY: They say if you want a friend in Washington, get a dog. Well, meet my friend, Boomer.

MOOS: The two cavorted in a pickup in this campaign ad.

MCSALLY: Boo boo, come on.

MOOS: Tweeted one cynic, if only McSally had campaigned like the person her dog thinks she is.

Boomer has himself run for elective office, though he skipped making his own concession speech. Last year, he ran for cutest dog on Capitol Hill, losing to another former shelter dog by the name of Ellie. But Boomer is a winner when it comes to sitting on a couch like a human.

MCSALLY: Our best days are still yet to come.

MOOS: Boomer's best days are right now.

Jeanne Moos, CNN, paw, New York.

(END VIDEOTAPE)

BURNETT: And thanks for joining us. Our special coverage "ELECTION NIGHT IN AMERICA CONTINUED" begins right now.