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Trump Eyeing to Replace John Kelly and Kirstjen Nielsen; Fate of Top NSC Aide in Uncertain; Florida Governor Rick Scott Attends Senate Leadership Talks, Photo; DOJ Confirms Appointment of Matt Whitaker Constitutional; Legal Battles Unfolding as Florida Recount Deadline Nears; Aired 10-10:30a ET

Aired November 14, 2018 - 10:00   ET


[10:00:04] JIM SCIUTTO, CNN ANCHOR: Top of the hour now. I'm Jim Sciutto.

The story of the hour, comings and goings in Washington. This morning the winners of last week's midterm congressional races are meeting their colleagues and in many cases learning their way around the capital, all while several House races and two Senate races remain undecided.

And more elections loom. Each party is choosing leaders in each chamber for the incoming Congress. House Republicans set to become the minority come January are choosing their leaders today. House Democrats who have to pick a speaker will keep us in suspense for two more suspense.

So much for the comings, the goings are still largely anticipated. At the other end of Pennsylvania Avenue, a breathtaking call from the first lady's office for the firing of a top National Security aide is only the latest indication of a White House in, for lack of a better word, fluxed, shall we call it.

CNN's Sarah Westwood is there at the White House.

Before we get to the East Wing drama, what's the status of the Homeland Security secretary whose firing is believed to be or believed by some to be a done deal?

SARAH WESTWOOD, CNN WHITE HOUSE CORRESPONDENT: That's right, Jim. There's potentially some significant West Wing upheaval on the horizon starting with that deputy National Security adviser, Mira Ricardel. Senior White House officials say she was in her office into the night. But after that stunning statement from the first lady's office calling for her removal, her exit from the National Security Council is seen as likely. Sources say she clashed with the East Wing, she clashed with other members of the NSC.

But as with everything in this White House, nothing is ever certain until it's in writing with the president. And looming over that change is the potential departure of Chief of Staff John Kelly. Now the president has considered several contenders to replace Kelly should he go, one of them being Nick Ayers, the chief of staff to Vice President Mike Pence, and a number of others inside and outside the administration.

And Kelly's fate is seen as closely tied to that of another senior administration official, that's Homeland Security Secretary Kirstjen Nielsen. Nielsen is a close ally of Kelly's. Kelly helped put her in that position in the first place. But we've learned that the president has grown to view Nielsen as ineffective on his key issues of immigration and border security. And Nielsen has told people that she expects she could be fired any day now.

The president is said to have made up his mind about that. But any of these departures could come at any time or not at all, Jim. There's just no way to know with this president.

SCIUTTO: Now you mentioned the Deputy National Security adviser Mira Ricardel. But her circumstance is truly unique, I mean, really unprecedented, are they not? Because it's the First Lady Melania Trump who went so public after Ricardel, particularly someone with the portfolio on national security.

WESTWOOD: That's right. There's been people struggling to recall an incident where a first lady waded into issues of a National Security personnel like this. Now Mira Ricardel is said to have clashed with staff for months now. These are tensioned that have simmered below the surface. But the first lady making this statement yesterday. It took a lot of people in the White House by surprise. They were not expecting the East Wing to come out and make that call for Ricardel to be fired. She, although, was in her office late into the night. She is not yet out at the White House. Her fate is still unclear.

SCIUTTO: Sarah Westwood at the White House, thanks very much.

Let's go now to Phil Mattingly. He's up on Capitol Hill where lawmakers on this big day, they're talking leadership, they're taking photos.

Phil, tell us what you're seeing and hearing up there and particularly the status of those leadership races.

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes. The photo ops are going to be what everybody sees. But it's what's behind the scenes right now that really matters. In fact House Democrats, their caucus is meeting for the first time behind closed doors since the election. And I'm told by one member in the room that when Nancy Pelosi, who we know is running for speaker, is trying to lock up votes for that position, was introduced, she received a standing ovation from the caucus members.

Now does that mean that she has the speakership locked up? No, not at all. There's still a lot more to go here. But it's the angling right now, and also everybody is paying close attention to how members react both on the House and Senate side. Senate Republicans and Senate Democrats having leadership elections right now behind closed doors.

And Jim, in just a few hours House Republicans are expected to elevate their current majority leader Kevin McCarthy to be the minority leader in the next Congress for them. I think the big question right now as we pay to what's happening over the next couple of weeks is mostly in the House with Democrats and that is, how does Nancy Pelosi wrap up the votes that she's expected to get to reach that speakership, and does that small group of House Democrats who claim that they can stop her from getting that position end up, A, having the votes to do that and B, putting up some kind of alternative?

Now I mentioned the photo-ops, Jim. There was one that I think drew particular attention because of who was actually there. Governor Rick Scott of Florida who is still in an undecided election down there showed up to hang out with the new Republican members of the Senate with Mitch McConnell. Take a watch and listen to what happened.


UNIDENTIFIED REPORTER: Governor Scott, do you still contend that there is fraud going on in Florida with this recount?

[10:05:05] UNIDENTIFIED MALE: All right, everyone. Thank you very much. That's all.


UNIDENTIFIED MALE: Thank you. Thank you, guys.


MATTINGLY: And that was my colleague Ted Barrett who was asking the question. Any of us who have been disgraced with the majority leader numerous times in the past know that he often doesn't answer questions in cases like that. But look, it's still an open question. Rick Scott is here participating in orientation, participating in membership, and leadership elections as if he's the new senator. But as we talked about last hour, Jim, that is not finalized yet. His team and the Majority Leader Mitch McConnell believe that it's only a matter of time. We still have to wait and see on that front.

SCIUTTO: Phil Mattingly on the Hill, thanks very much. I'm joined now by CNN political analyst Molly Ball and CNN political commentator Mary Katharine Ham. Thanks to both of you for joining this morning.

Molly, if I could start with you, it's not unusual for a president post midterms to make some changes in his Cabinet, in the White House. But this one particularly broad, is it not? And as always it seems with this White House a little unpredictable.

MOLLY BALL, CNN POLITICAL ANALYST: Yes. I mean, none of these changes have actually happened yet. So it's hard to comment on the potential breadth of them. But yes, I mean, we know that this president is moody and impulsive and that there has been a high rate of churn in this White House. It has been quite a revolving door. In some cases a one-way revolving door where people leave and the position just never get filled.

So I think one of the fears out there is that people could get fired and then nobody would come to take their place and that impedes the functioning of the government, not just the White House. You know, we already have a White House that's quite dysfunctional in the way it operates. And it could become more so as more positions get shuffled.

SCIUTTO: You know, Mary Katharine, folks have often talked about the moderating voices around this president and that list of names is dwindling, right? I mean, Nikki Haley was one of them. She is going. The relationship with Jim Mattis in the Defense Department is souring. At least certainly not as close as it used to be. But folks like Nielsen, Kelly, others, who will be the moderating voices if they do depart?

MARY KATHARINE HAM, CNN POLITICAL COMMENTATOR: Look, I think if there is anything we've learned in the last couple of years is that the moderating voices have limited power, right?


HAM: It's not a -- it's not a silver bullet here. And so I think that will remain the truth. The other part is that those who are in there doing that part of the job and trying to serve the president and also serve their own morals are in a very unorthodox situation, or as Molly says, dysfunctional management situation. And how long can you really last there, is the question. Right? And it's a fair question.

When it comes to this most latest really bonkers move by the first lady to sort of publicly denounce someone who has apparently not yet lost the job, and is still in place, even she hasn't lost the job yet.


HAM: So it's just -- it's hard to tell at any moment what is going to happen. And I do wonder if post midterms he is feeling a little bit more in a corner and that is some of the reason for this.

SCIUTTO: Yes. Yes. Molly, how is Mira Ricardel, the Deputy National Security adviser, who Mary Katharine was mentioning, that public statement from the first lady calling for her departure, saying she doesn't deserve to hold this position anymore. How is she still in that position?

BALL: Well, she just hasn't left. I mean, I think we don't know. But it is amazing to have this level of public acrimony between the first lady's staff and a National Security official. That is not something that you see at all. And I think it raises serious questions about, you know, why the first lady is involved in this type of decision, what exactly her interest is in this beyond simply a personality conflict.

We're told that, you know, this is someone that she clashed with over flights and so on. So it's a weird situation. It actually kind of reminds me of the situation that Jeff Sessions was in for nearly two years where the president was publicly taking shots at him and yet not getting rid of him. So he was just kind of dangling.


BALL: You know, the president just --


BALL: Just kind of had him out on a limb there dangling for a really long time and it seemed almost like he was torturing him.

SCIUTTO: No, it's a good point. A lot of folks have survived for months and months, years in Sessions' case, despite talk of their imminent demise.

Mary Katharine Ham, you know, the president last Wednesday after the midterms came out and said we had a tremendous victory. Since then the numbers have not looked as promising for Republicans as he imagined. The Dems widening their gains in the House. Fewer losses in the Senate than some had been expecting that night.

Is it dawning on the president that it wasn't the victory he imagined or claimed and he is entering a different period now with the House and Democrats control?

HAM: Yes. I mean, if he -- he pitched a red wick. Right? So it obviously was not that. I think there was plenty that he could have talked about for Republican gains. I think the House many had acknowledged was probably gone. And some of the Senate -- the Senate gains are good and they're worth talking about. But this is a perfect example of what Republicans are up against message-wise for the next two years.

[10:10:03] What did he do? He stepped on any of the good news out of the election the next day by firing Sessions that afternoon, I believe. So there was very little to talk about even if there were victories, and I think that is something that will stymie Republicans for the next two years.

SCIUTTO: Molly, Mary Katharine, thanks very much as always.

HAM: Thank you.

BALL: Thank you.

SCIUTTO: Still to come, the appointment of acting attorney general Matthew Whitaker is now getting a boost from the Justice Department. We're going to have new details.

Plus all eyes on recount 2.0. Election officials in Florida say they will meet tomorrow's deadline. This as Democrats head back to -- to court, rather, in hopes of a delay.

And he was about to escape the wildfires. That's when a nurse turned his truck around and drove back into the flames to help others. He joins us to tell us about that heroic, that dangerous journey.


[10:15:14] SCIUTTO: We are learning new information just into CNN. The Justice Department's Office of Legal Counsel says President Trump's appointment of acting Attorney General Matthew Whitaker, who you see there on the right side of the screen, is constitutional. This despite allegations from some critics both Republican and Democrat. Whitaker will be speaking shortly at a justice summit in his hometown of Des Moines, Iowa.

Let's bring in CNN justice reporter Laura Jarrett.

So, Laura, tell us what this legal counsel opinion says. How does it justify his appointment as the acting attorney general?

LAURA JARRETT, CNN JUSTICE REPORTER: Well, Jim, for days constitutional lawyers, professors, former Justice officials have all been weighing in on the question of whether Whitaker's appointment last week was constitutional mainly because he hasn't been confirmed by the Senate. And because the attorney general is a principal officer. Under the Constitution he would require Senate confirmation.

And so the argument has always centered on the fact that Whitaker wasn't confirmed by the Senate. But the Justice Department in a 20- page memo to the White House today says definitively this is constitutional. This is valid.

And they offer a variety of different justifications for it, Jim. And stick with me because this is something of a legal rabbit hole. But they say that there is a statute on point here called the Vacancy Act which essentially says if you are a senior enough DOJ official, you've been here for 90 days, you're at a certain senior level called GS-15, you can stay as the temporary appointment for 210 days. And so they say because Whitaker was high enough here at DOJ, he'd been here long enough, his appointment is valid under the VRA.

But they also say he's only serving as the temporary, in the acting capacity as attorney general. So he doesn't have to go through Senate confirmation. They go through a variety of different circumstances past precedent to support that, Jim. But it's interesting, a senior DOJ official tells us that the president, I should say the White House actually asked for some oral advice before Sessions was ousted last week about whether this was OK.

So clearly this had been in the works for some time. The DOJ official declined to really provide any specifics about the details of those conversations and whether the White House was specifically contemplating Whitaker or whether somebody else at DOJ. But that they provided oral advice and that this is -- this memo is consistent with that advice.

Whitaker as we know has been on the job since last week. He's in Iowa as you mentioned, his hometown. He is there for an elder fraud conference today. Acting attorney general fulfilling those duties. And we haven't seen any real evidence yet that he will step aside. There have been a lot of questions about whether he would step aside from overseeing the Mueller investigation, of course, which is the main investigation on everybody's mind -- Jim.

SCIUTTO: We're seeing Matthew Whitaker taking the podium there at that event in Des Moines, Iowa. A question for us, is the Office of Legal Counsel in the Justice Department, is it nonpartisan? JARRETT: It is. It's full of career officials. The main person at

the helm of it is a political appointee, Stephen Engel, who was appointed by the president. But it is chockfull of many lawyers who had been here for years and years. And so it is viewed as an office that is supposed to be impartial. Obviously, it is the chief legal interpreter for federal agencies for the Trump administration. It's providing legal advice. And as we can imagine their advice was going to be consistent with what the president did last week. We didn't think we'd see an opinion saying this was unconstitutional, Jim. But the office is supposed to provide its best legal advice based on the law.

SCIUTTO: Right. Well, the question would be when he has the ability to make a judgment regarding next steps in the special counsel investigation. That will be quite a test.

Laura Jarrett, thanks very much for following this.

Now to Florida's recount 2.0. The battle heads back to a courtroom today. Democrats are asking a judge to set aside some state laws so the currently uncounted ballots can indeed be counted. This as the state's election official says she is 100 percent certain that she will meet tomorrow's deadline.

Rosa Flores is live in Lauderhill with the latest.

Rosa, so that deadline looks like it's going to be reached.

ROSA FLORES, CNN CORRESPONDENT: At least here in Broward County. That's what we're hearing from the supervisor of elections. She's confident about that. But she did insert some controversy yesterday when responding to reporters about a question about a tweet from Jeb Bush asking for her removal. She said she might step down. That she was contemplating a lot of things, said she would have to talk to her family about it.

Jim, this has been a roller coaster of a recount here in Florida with lawsuits, barbs, jabs. Broward County is just one piece of this puzzle. We also have Palm Beach County where yesterday because of old machines that overheated, that were malfunctioning, Palm Beach County had to recount the recount.

[10:20:13] They had 176,000 ballots that had been already recounted. They lost those. They had to fly in technicians. Staff there are working 24/7 to make sure that they can meet that deadline. But from the get-go, the supervisor of elections there said that there was no way that she could do three recounts based on how the machines work in that county. The hope there was just to finish at least the Senate recount. So it's unclear at this point how the malfunction of these machines is going to impact the recount there.

And then you have lawsuits. There is a slew of lawsuits. There's at least one that you should know about. Parties are in court today. There is a hearing in Tallahassee. This is a lawsuit filed by the Democrats. And it alleges that the state law that requires that the signature of mail-in ballots match with the signature on record is unconstitutional.

And, Jim, that's important because if the judge rules in their favor, that would insert thousands of ballots into an already very narrow race. And of course the big question is, will that flip any of these contested races, Jim?

SCIUTTO: Quite a wide margin in those races.

Rosa Flores, thanks very much.

We have this just in to CNN. Chuck Schumer, the Democratic senator from New York, has been reelected minority leader by acclimation by fellow Democrats in a meeting behind closed doors on Capitol Hill.

Up next President Trump is looking to replace key members of his administration. Who could be next? And is all this turmoil all that different from past White Houses? We're going to discuss that next.


[10:26:33] SCIUTTO: This just in, Mitch McConnell, the Republican senator from Kentucky, has been reelected majority leader by acclimation during a meeting behind closed doors on Capitol Hill.

Lots going on this morning. We're going to bring you updates throughout the hour. A few minutes ago Democratic Senator Chuck Schumer elected minority leader in the Senate.

This morning President Trump on his way to shaking up his White House staff and Cabinet again -- yet again. Sources telling CNN that the president is eyeing several potential replacements at senior level positions. That includes the deputy National Security adviser Mira Ricardel. The first lady in an extremely unusual move called for her to be fired yesterday via public statement. In an unprecedented rebuke Melania Trump saying that Ricardel, quote, "No longer deserves the honor of serving in this White House."

The president also -- to look to oust Homeland Security Secretary Kirstjen Nielsen. She's caught the president's ire over disagreements on border security. Her departure could mean that one of her biggest allies, Chief of Staff John Kelly, could be on his way out as well.

Joining me now to discuss, CNN political analysts David Drucker and Molly Ball.

So, David, listen, we've talked about this a bit before. It's not the first time we've talked about upheaval in this administration. Yes, administrations after midterm elections in particular make moves. But this, the range of this if it pans out -- again, there is a big qualifier there because often the president will make signs about removing someone and not remove them. But the range of this would be unprecedented.

DAVID DRUCKER, CNN POLITICAL ANALYST: Well, it certainly would be par for the course for this White House. And I think that's the first thing we need to understand that turbulence in what appears to be often chaos in lurching from one direction to the next is more common in this White House than is the opposite. There are always a few days and a few weeks, sometimes a couple of months where the president appears to be governing in a more conventional style. Things were calm, things were collected. I think this is where he's most comfortable.

I will say that a move to replace his chief of staff possibly with Nick Ayers who's a very politically oriented political operative where the current chief of staff is just not a political animal, would make a lot of sense. Everything being left out of the equation. And I think that would be a smart move by the president heading into a reelection, to have a chief of staff who has a good understanding of both the political world and the insider world.

So I think that makes a lot of sense. Everything else, as you mentioned, Jim, while very normal for this president and I think it's more normal than not, is clearly creating a lot of upheaval in Washington and probably has a lot of people in the government wondering who is next and when.

SCIUTTO: Molly Ball, there is a lot of opposition, though, is there not, within the White House staff to Nick Ayers? And the president has been told that.

BALL: Yes. Ayers has a lot of friends and a lot of enemies. He's sort of a polarizing figure inside the administration. And you know, as David said, he is politically oriented.

The chief of staff's job is going to be difficult for whoever gets it just like it's been for John Kelly because whoever it is their mandate is basically going to be to try to manage a president who doesn't like to be managed. Inevitably that's what the job entails. And it's also managing a president who doesn't like to internalize blame. So whoever is closest to him or whoever is trying to direct him is going to get the brunt of his criticism for anything he perceives as bad news for the administration.

So the president is clearly in a bad mood. I think the double whammy of the midterms and the Mueller report -- the Mueller investigations sort of seeming to rev back up.