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Judge Sides with CNN, Saying White House Wrong to Revoke Acosta's Press Pass; "Clerical Error" Unsealed Court Filing: Assange Could Face Criminal Charges; Trump, Lawyers Meet 3 Times this Week on Mueller's Questions. Aired 11-11:30a ET

Aired November 16, 2018 - 11:00   ET


[11:00:00] POPPY HARLOW, CNN ANCHOR: We heard you were enjoying some wings while we were dealing with the breaking news there. I wish we could have gotten some of those.


HARLOW: Thank you for being with us.

JIM SCIUTTO, CNN ANCHOR: He gets all the good assignments.

HARLOW: Exactly.

Thanks for joining us. Have a great weekend. I'm Poppy Harlow.

SCIUTTO: I'm Jim Sciutto.

"AT THIS HOUR" with Kate Bolduan starts right now.

KATE BOLDUAN, CNN ANCHOR: Hello, everyone. I'm Kate Bolduan.

We're going to begin with breaking news. A federal judge has just ruled in favor of CNN and ordered the White House to reinstate the press pass of CNN's Jim Acosta. This is an important initial ruling coming from this judge in this case. The White House had revoked Acosta's pass, as you'll remember, after a contentious back and forth with President Trump at the press conference the day after the midterm elections. This is a case that has CNN's name on it, but it gets to a much bigger issue of the First Amendment and press access to the White House.

CNN's justice correspondent, Jessica Schneider, was in the courtroom and she's now outside.

Jessica, what happened inside there?

JESSICA SCHNDEIDER, CNN JUSTICE CORRESPONDENT: Kate, the judge's ruling in this case, simple and succinct. It lasted just a few minutes, in fact, but the judge ruling very clearly that the White House must immediately restore our chief White House correspondent Jim Acosta's hard pass. That, of course, is the pass that allows him somewhat broad access into the White House grounds.

Now, the judge in this case was careful to say that this was in fact a limited ruling. Remember, this was just an emergency motion by CNN to get Jim Acosta's hard pass reinstated. The judge saying here that he wasn't ruling on the broad First Amendment rights of Jim Acosta to be at the White House and to have that hard pass. Instead, the judge ruling here that it was likely that Jim Acosta's due process rights were violated and also that Jim Acosta had suffered irreparable harm here.

In particular, you know, as you'll remember, over the past week, there were multiple different explanations from the White House as to why exactly Jim Acosta's press pass was revoked. There was that initial tweet the night Jim Acosta showed up at the White House gates and was refused entry. In that tweet, the judge referenced this. Sarah Sanders said, in part, it was because Jim Acosta had placed his hands on the intern when she had tried to get the microphone back from Jim Acosta at the press conference the day after the midterm elections. The judge noted, A, it wasn't clear who made the decision to revoke Jim Acosta's hard pass. And B, he noted the shifting explanations in that after that initial tweet from Sarah Sanders, the other statement that came out from the White House on the day CNN filed its lawsuit mentioned nothing about Jim Acosta playing his hands on the intern.

In addition, it's important to note that the judge really did talk about the irreparable harm Jim Acosta faced. He said the White House's argument that 50 other journalists from CNN with hard passes could still go to the White House every day, he said that shouldn't overweigh any of Jim Acosta's rights here. He said it was important Jim Acosta, as an individual journalist, have that right and have his due process rights not violated.

So, Kate, an important ruling here for CNN, and really for all journalists as the ACLU has noted. Jim Acosta, his press pass must be immediately restored.

We have reached out to the White House, haven't heard comment yet. Also reached out to the Department of Justice to get their thoughts on this. We have not heard back yet. But Jim Acosta, as he put it today as he left the courthouse, he said. let's get back to work.

Back to you.

BOLDUAN: And so we do.

Great to see you, Jessica. Thank you so much. I really appreciate it.

Let me bring in for more on this, chief media correspondent, Brian Stelter, here as well as CNN chief legal analyst, Jeffrey Toobin.

Brian, on Jessica's point, do we know what that means for Acosta today? Is he heading over to the White House today?

BRIAN STELTER, CNN CHIEF MEDIA CORRESPONDENT & CNN HOST, "RELIABLE RESOURCES": The agreement is his press pass will be reinstated immediately. The judge agreed with that interpretation. That's the plan. Acosta was supposed to be on vacation this week, Kate. What timing for him. He had to be in court instead all Wednesday and today. So I'm not sure exactly when he will return. Frankly, we need the White House and Secret Service first to agree to the order and actually reinstate his credentials. That still remains to be determined. I can tell you CNN has reached out to the White House to make sure this is put in effect, but that remains to be seen.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: The White House is going to encourage that vacation for a long time.


TOOBIN: I think they can't do it today.


BOLDUAN: Here's the thing. They can't force the vacation.

TOOBIN: Exactly. Exactly.

BOLDUAN: Let's put it that way.

STELTER: They never have to call on Acosta again. The president never has to call on him again, but he did last week. He did take questions from Acosta last week. I think the president likes this back and forth. He might like this legal battle as well, but this was a loss for him today.

BOLDUAN: What do you take from this. This is an important step. It is one step, though, right? What does this mean? What does this decision mean for the broader case?

TOOBIN: Actually, the judge did something very clever here. And frankly, I didn't predict it, and I am impressed by the savvy the judge showed here. Because what he said was, look, I am not ruling on the broad issue here about whether there's a First Amendment right in total. But he accepted CNN's argument that if you are going to take away a hard pass, you have to have standards for what justifies taking it away. You have to have a clear process for who decides on what basis that a hard pass can be taken away. So now, the result of this ruling is that the White House is going to have a decision to make. They are going to have to say, look, we are either going to call Jim Acosta in and shake hands and say, look, we had a disagreement, but let's move forward. That to me would be a sensible resolution. Or, they can say we are establishing a procedure and we're going to try to take your hard pass away based on what you did, but with an appropriate decision-making process. In other words, continue this fight. That's up to the White House now. And we'll see what they do.

[11:05:56] BOLDUAN: You think there's a chance -- I guess it would be considered settling out of court.

TOOBIN: Absolutely. The sensible resolution here is simply for the White House to say, look, OK. We made our point. But here's your press pass. Let's go forward. Instead, they could say well, the judge said we need to set up a procedure. We're going to set up a procedure, and we're still going to try to take your press pass away. BOLDUAN: One of the important things we have seen come out has been

the number of news organizations that have come forward in supporting CNN's decision. Is there any indication that that support, those friends-of-the-court brief that have been filed have weighed on the judge at least in how he's decided this initial step?

STELTER: We didn't hear a lot from him about that in court, but it is quite possible. CNN's out with a statement thanking all the other news outlets for standing up not just for Jim Acosta but for the rights of the press in general. The ACLU as well. I think we can share their statement saying: "Today's decision reaffirms no one, not even the president, is above the law. The White House surely hoped that expelling the reporter would detour forceful questioning. But today's court ruling will have the opposite effect." The ACLU continuing, "The freedom of the press is a bedrock principle and our democracy is strengthened when journalists challenge our leaders rather than defer to them."


STELTER: What have the past two years been about? In some ways, backsliding. People concerned about our institutions, the strength of our institutions. Concerned about our democracy rotting from inside. Today, the courts effectively did their job. Looked at this case and supported checks and balances.

TOOBIN: And this case was not certainly just about CNN or even about the White House. This was about government officials in state Houses, in city halls, whether they can throw out reporters who they view as annoyances. And this was a very clear statement that at the minimum, if you're going to do that, you better have decent reasons and a process and an opportunity for the journalist to be heard. You can't just get angry and throw them out.

BOLDUAN: And on the most basic level, consistent reasons. I have found this important and fascinating throughout, me not being a legal mind at all, but the evolving reason given from the White House on why they were revoking Jim Acosta's press pass. The fact that the judge, as Jessica noted, they couldn't even come up with who was the ultimate decider in the decision to revoke the press pass. I wonder how important those facts are to anything going forward.

TOOBIN: They are important going forward because, you know, what the judge understood was that this is a big deal. This is a big deal to throw out a journalist from something as important as covering a government institution here, the White House. So if you're going to do it, you have to have a process that comports with the Fifth Amendment, which guarantees due process under the law. Now, precisely what process that is, the judge didn't spell that out. Again, if I believe -- you know, this situation c es out for a sensible, honorable, nonlegal solution. Jim Acosta made his point. And CNN made its point. The White House made its point. Let's shake hands and move forward. We don't need to, as they say, make a federal case out of it --

(CROSSTALK) TOOBIN: -- even though one has been made, but --

STELTER: For the record, CNN did try. They tried for several days to get the press pass back.


STELTER: There were private conversations and e-mails. White House did not respond, didn't want to engage. That's why the lawsuit was filed.

BOLDUAN: It's important and I wanted to point out, Brian, get your take. In court, not today, but previously, the attorney representing the White House and the president suggested Acosta could do his job, I think the quote was, "just as effectively, if he had been watching a feed of the press conference from a CNN bureau." That fundamentally is not -- that's not accurate.

[11:09:53] STELTER: Yes, the lawyer doesn't know how journalism works. Look, he was given a tough case. He's having to represent the president in this case, and media lawyers knew all along this was a strong case for CNN. But the Justice Department lawyer's arguments were concerning. At one point he said, hypothetically, the White House has a right to kick out any reporter for any reason at any time. That's a disturbing thing to hear from a government lawyer in the United States. I don't want other countries hearing that and thinking they can repress the press elsewhere as well. So this government lawyer, you know, he may have to make further arguments to that effect. But it was concerning to hear that said in court. It breaks with decades of tradition in our country. And hopefully we can break back to what's normal now.

TOOBIN: I think you said an important word there, you said "tradition." A lot of what goes on between the press and the public -- the press and government, is based on tradition.

STELTER: No law.

TOOBIN: It's not based on law. What we have seen from President Trump is changing those traditions, changing those laws. And not those laws, changing those traditions, changing those norms. And you know, here we have a judge saying, if you want to change the norm, at least in this case, you have to do a better, fairer job.

BOLDUAN: Announce it and make it a real process.


STELTER: -- that we have from our D.C. bureau chief now. He says, "CNN has officially requested the return of the press pass. You asked me if Acosta might be back later today," -- Sam saying -- "we expect he will be reporting from the White House this afternoon."

BOLDUAN: Good to hear.

Thanks guys. Really appreciate it. Coming up for us, it's being called an administrative error, but it

also could have big implications. Will charges now be filed against Julian Assange? And what does this have to do with a clerical error? That's next.


[11:15:58] BOLDUAN: A key figure in the Russia investigation could soon face charges from the Justice Department. It's not a member of President Trump's inner circle. It's Julian Assange, the WikiLeaks founder, who spent the last six years holed up in Ecuador's embassy in London. But are there actually charges coming soon and are they related to the Russia investigation? And how is it possible that we all only know about this from what the Justice Department is deeming a clerical error? Seriously.

Let's go to the Justice Department. Laura Jarrett is there with more on this.

Laura, what are you learning?

LAURA JARRETT, CNN JUSTICE REPORTER: Kate, this colossal blunder has all developed over the last 24 hours. Really thanks to a professor at George Washington University who scrubs public dockets looking for interesting filings. He uncovers this, posted it on Twitter late last night.

I want to read to you this part of a case that has nothing to do with Julian Assange, and here's what it says: "The complaint supporting affidavit and arrest warrant as well as this motion and the proposed order would need to remain sealed until Assange is arrested and in connection with the charges in the criminal complaint and can therefore no longer evade or avoid arrest and extradition in this matter."

In fact, suggesting there's a criminal complaint against Julian Assange.

Now, the spokesperson in the eastern district of Virginia said that this court filing was made in error, it has nothing to do with Assange, it

was inadvertent. But it's raising questions about what he's facing, whether it has to do with the DNC hack of e-mails as we remember during the 2016 campaign, or whether it has to do with other documents that WikiLeaks has posted over the years, various treasure troves of classified government information. We don't know exactly what charges he's facing but his attorney is saying this is a haphazard, really a serious error, and any prosecution of him for disseminating public information that's truthful is dangerous -- Kate?

BOLDUAN: Laura, thank you so much. I mean, really a head scratcher here.

Joining me is CNN senior justice correspondent, Evan Perez, CNN chief legal analyst, Jeffrey Toobin with me, and Chris Cillizza, CNN politics reporter and editor-at-large. Jeffrey, it really is --


TOOBIN: Be careful with cut and paste. That's the message here.

BOLDUAN: There's one lesson today. It's funny, and so serious, and not funny at all. How is it possible this would happen?

TOOBIN: Oh, having been an assistant U.S. attorney and knowing how harried they can get, you are sometimes dealing with similar legal arguments in different cases and you would cut and paste an argument from one brief that you made into another one. I mean, I'm not excusing it. It's a terrible blunder, but could I see how it happened? Sure.

BOLDUAN: Geez, Louise.

Evan, does this mean charges are definitely coming or have already come against Assange? Do we know where we are right now?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Well, we don't know, but I think all signs point to the fact that there are existing charges, and that's how this mistake was made. I think, just certainly as in the hours last night as we were trying to figure this out, it emerged that is the most likely thing that has happened here, Kate.

But it's a very interesting arc that's happened with the case. Look, under the Obama administration, they looked into this. Eric Holder, the attorney general, I think they wanted to look into a way to file charges against WikiLeaks and Assange, and they arrived at the fact that it's difficult to do that if you're not going to prosecute newspapers, for instance, for publishing leaked information.

I think what has happened is the idea that the Trump administration has taken a new look at this and has arrived at a different standard. I think they're looking at Assange as less of a publisher and more of an actual participant in some of the hacking, especially with some of the hacking that targeted the CIA. I think that's where this case is probably going.

BOLDUAN: I do actually -- Jeffrey, I find that fascinating. The Obama administration would have wanted to go after Assange. Would have gone after Assange if they thought they could, right?

[11:20:00] TOOBIN: Remember, he's released a number of documents not just the stuff during the 2016 --


TOOBIN: Yes. I mean, the Chelsea Manning stuff was classified American documents, whereas the e-mails were not classified documents.

But, I mean, as Evan pointed out, it's very hard to draw a meaningful distinction between Julian Assange getting these documents and releasing them in a quasi-journalistic way, and Bob Woodward getting documents and publishing them in his books or in the "Washington Post." I mean, obviously, I think many people regard Julian Assange as a skuzzy character and someone who is not admirable. But --

BOLDUAN: Not putting him on the same level as Bob Woodward.

TOOBIN: But not on the same level as Bob Woodward. But in law, you're trying to establish rules. And it's hard to generate a rule that protects Bob Woodward but doesn't protect Julian Assange.

BOLDUAN: Chris, I don't think many people at this point need reminding, but just because we will and can, here's how -- the president has long talked about WikiLeaks. Well, here's examples.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: This WikiLeaks stuff is unbelievable. It tells you the inner heart. You've got to read it.

Another one came in today. This WikiLeaks is like a treasure trove.

As I was getting off the plane, they were just announcing new WikiLeaks, I wanted to stay there, but I didn't want to keep you waiting.

This just came out. WikiLeaks, I love WikiLeaks.


BOLDUAN: That one does not age well.

TOOBIN: Never gets old.

BOLDUAN: So Trump has already said this terrible, horrible, no good, very bad day or more than a week. What is this likely to do, Chris?

CHRIS CILLIZZA, CNN POLITICS REPORTER & CNN EDITOR-AT-LARGE: Well, I mean, let's also remember just one other point there, Donald Trump repeatedly urging on the day the Democratic National Convention opened in 2016, urging the Russians to find Hillary's missing e-mails. There's so much here.

I do not know, and I think I have about the same level of knowledge as Donald Trump does as it relates at least to the inner workings of the Mueller investigation, which is this may be not at all related, but I will tell you that Donald Trump's tweet on Thursday, Kate, speaks to his frustration. His idea that he knows about the inner workings of what's going on with Bob Mueller I think really is more about frustration, anxiety, nervousness, because the pace of all of this is picking up after six-ish weeks where it lay dormant publicly. So I think Donald Trump is someone who wants to control his universe, wants to control his surroundings and this is not something he can control. I'm sure his lawyers -- and Jeff can speak to this -- have told him not to lash out at Bob Mueller, but he can't help himself. After three days of written questions, answering them, according to our reporting, he on Thursday posted this tweet, which you know, is more of the same, but I think speaks to the level of anxiety, nervousness, and not knowing and not being able to control that he hates.

BOLDUAN: Evan, what do you make of Assange's attorney's statement? Laura talked about it, but the government bringing criminal charges against someone for publishing truthful information is a dangerous path for democracy to take.

PEREZ: I think he's going at the potential weakness of any prosecution of Julian Assange, which is the idea that how can you go after him if you're not going to go after the "New York Times" or the "Washington Post," CNN, any organization that freely encourages people to send, you know, classified documents or secret documents to us as journalists. Look, I think that's going to be the problem for any prosecution here. I don't know where the Justice Department has arrived at. I don't know how they have arrived at their new theory here, but certainly, we reported last year they had prepared these charges and now we'll see whether or not they're going to unseal them.

By the way, Kate, the fact this is accidentally come out perhaps gives an avenue for Assange's lawyers to go to the judge and say, hey, we want to know what he is charged with. We'll see whether the government will have to do that.

BOLDUAN: Not like you can un-ring this bell easily.

PEREZ: Exactly.

But, Jeffrey, on something that Chris was talking about, the fact that the president, our reporting is that the president has met three days this week for hours to work on the written questions coming from Mueller. This was supposed to be the, I don't know if we want to call it the easy part, but the written take-home test.

TOOBIN: Take-home open book test, yes.

BOLDUAN: Which were the only ones I aced.

When it comes to that, if that is weighing on the president the way folks say it is, and angering him the way it is, I wonder what any next step is going to do to him.

TOOBIN: You know, far be it for me to predict how Donald Trump is going to react to anything. But the fact is it's been a bad week. The midterm elections have turned south. The results have gotten worse and worse.

BOLDUAN: Does it surprise you they haven't returned these answers and questions in this amount of time?

TOOBIN: I mean, it shocks me.


[11:25:03] TOOBIN: There was nearly an agreement for Donald Trump to answer questions from Robert Mueller in January.

BOLDUAN: That's true. TOOBIN: It's getting to be Thanksgiving next week. I mean, the idea

that this negotiation has gone on this long strikes me as just absurd. I think it speaks to almost inhuman patience on the part of Mueller. Remember, what's being dealt with here is only half of the questions Mueller has.

BOLDUAN: That was part of the deal.

TOOBIN: This is questions about stuff that went on in the campaign. The Trump lawyers insist that the questioning about the presidency is off limits under --


BOLDUAN: Meaning James Comey.

TOOBIN: -- right, under the obstruction of justice, is off limits under Article II of the Constitution. That may wind up in court if Trump -- if Mueller subpoenas the president for testimony. So, I mean, this is a slow boat, this issue, of the resolution of the president's question.

BOLDUAN: And everyone's on it. You didn't even buy a ticket.

Thanks, guys. Really appreciate it.

Coming up for us, broken machines an unexpected power outage, and a failure to meet a critical deadline. In certain circumstances, a deadline by two minutes. Seriously. Now a hand recount is under way in Florida. Is a winner finally in sight when it comes to the Florida Senate race?