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Judges Sides with CNN, Says White House was Wrong to Revoke Jim Acosta's Press Pass; Florida Senate Race Heads to a Manual Recount; Seahawks Rally Past Packers; TUMS Ultimate Tailgate Comes to Nashville. Aired 10:30-11a ET

Aired November 16, 2018 - 10:30   ET



POPPY HARLOW, CNN ANCHOR: And Brian, the argument that CNN's attorneys made here is that this was capricious and arbitrary, doing this against Jim Acosta and against CNN. And this is the judge agreeing with that in part.

BRIAN STELTER, CNN CHIEF MEDIA CORRESPONDENT: Yes and at times this judge, a Trump appointee, seemed to emphasize the limited nature of his ruling. It seems he does not want to say completely that this is a CNN -- that CNN is in the clear here. This is going to be legal battle, as Jeffrey is saying. Our colleagues in the courtroom are sharing some quotes from the judge that I'll share here.

Marshall Cohen, Jessica Schneider, David Shortell at the courthouse, they said the judge says, I want to emphasize the very limited nature of today's ruling. I have not determined that the First Amendment was violated here. I have not determined specific nature of First Amendment interests in this case, but the headline here is that the temporary restraining order has been granted. That means Acosta's press pass is returned right away and will at least be in his hands for a short period of time while these underlying legal arguments are determined.

JIM SCIUTTO, CNN ANCHOR: So Jeffrey, you then go to the bigger -- emergency relief was granted. He has it now. But there will still be a court proceeding here. Both sides will make arguments. The same judge will then make a larger decision down the road?


HARLOW: On permanent relief.

TOOBIN: Well, but - I mean, I guess the ball is really now in the White House's court. They have to decide. Now, in a sane world, I think, what would happen is Jim Acosta would have a meeting with the White House communications director. And the director would say let's knock it off. Let's lower the temperature here. Let's, you know, behave like adults. And then the whole thing would be dropped.


SCIUTTO: That's a sane world. TOOBIN: That's a sane world.

SCIUTTO: Let's dismiss the sane world.

TOOBIN: Right. That's how this would operate in a rational world.

HARLOW: Here's a question I have to both of you on that front. Even if that's the case and even if that solves the issue between Jim Acosta, you know, and CNN and the White House on this front, this is, again, a bigger case, Jeffrey. This is a case about whether any White House or any administration has the right, the Fifth and First Amendment right to do this. Shouldn't it be a case that ultimately is decided big picture?

TOOBIN: Well, not necessarily because the next step, as I understand the preliminary ruling, is that the White House has to either drop the whole thing and, you know, patch things up or establish clearer rules about what justifies the removal of a hard pass and how the accused hard pass abusers are allowed to defend themselves. That --

STELTER: Focus on the Fifth Amendment. He's saying it's all about due process. He's not ruling on the First Amendment right now. It's almost as if this judge begrudgingly is giving this press pass back but knows he has to follow the law, follow the precedent that goes back to the 1970s, the Sherrill case which says if you're going to deny someone a press pass, you got to have a really specific reason and in practice that means a threat to the president's life.

TOOBIN: And if I can just add one point. I mean, you know, all of us, including me, are often cynical about judges and you know we say he's a Trump appointee, and as if that's the answer to all the questions. This strikes me as an extremely savvy and wise resolution of this case. I mean, this is a way of sort of preserving Jim Acosta's right to do his job and CNN's right to cover the news, which is of course paramount in our view, but also telling the White House, you know, you have a right to maintain decorum and discipline. You just have to do it in an orderly way.

SCIUTTO: Follow due process.


STELTER: Sometimes it's about competence versus incompetence. Oftentimes in the White House we see incompetence leads to problems and legal decisions against the White House, so we'll see if they can come up with a new way.

SCIUTTO: I'm not going to ask either of you to predict, but I'm going to ask both of you to predict. Based on -- you saw this with the AT&T merger, right? A decision that seemed, you know that the opposition to it seemed to be farfetched and yet the White House pursued and I believe appealed. I mean based on precedent. Do you see the White House continuing with this case, in effect?

STELTER: Well, look at what Mercedes Schlapp said yesterday. Mercedes is one of the communications officials at the White House. She said we're not going to tolerate bad behavior. She said that in the present tense. We're not going to tolerate it at the White House. She also wouldn't rule out revoking press credentials from other reporters.

HARLOW: Right.

STELTER: This all comes from the top. Let's be clear.

TOOBIN: Right.

STELTER: The president of the United States does not want to be questioned. He does not want to be challenged. He does not want to acknowledge what real news is. And so, he's lashing out. He lashed out nine days ago and Acosta was the victim --

TOOBIN: He left out one thing. He also hates CNN.


TOOBIN: And the fact that you know he's targeted CNN is relevant.

HARLOW: There's a beauty to co-equal branches of government, right? And checks and balances. Don't go anywhere, guys. Jessica Schneider, not only our correspondent inside the courtroom, but also an attorney, is with us. Jess, what stood out to you?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Well, you know, Poppy, this was very interesting. This judge, extremely succinct and straightforward with this ruling and noting that he wasn't going very broadly with this ruling but he was in fact granting a victory to CNN and our chief White House correspondent Jim Acosta.

[10:35:04] Saying that the White House must immediately restore Jim Acosta's hard pass that allows him access to the White House on a daily basis. So this judge taking it very narrowly. Remember, this was just this emergency ruling. This was on the temporary restraining order that would restore Jim Acosta's pass for the short period of time while the litigation moves forward. There's the broader issue here, there's whether or not the First Amendment, what rights there are within the White House grounds.

You know the government in that hearing on Wednesday made that very broad argument that really -- the First Amendment protections do not extend within the White House grounds and that the president, they said, has broad range to tell which reporters he will take questions from and to let reporters know which ones he will actually admit into the grounds.

So the judge saying here, I'm not ruling on those arguments. I'm only ruling on the Fifth Amendment due process rights. You know, he noted that the way that this all went down, he laid out the facts right at the top, right before he issued his ruling, saying that the way this all went down, he actually put it this way. He said this is a highly unusual set of facts. And then he laid out the fact that Jim Acosta showed up at the White House gate on that night, the day after the midterm elections. And that he was actually notified by tweet. He said that just did not satisfy due process. He also pointed to the fact that the government, when they made their arguments on Wednesday, they couldn't point to who the ultimate decision maker was to revoke the hard pass here. They couldn't say whether it was Sarah Sanders, the press secretary, or whether it was the president himself. So he said that hodgepodge set of decision-making, whether it was by tweet or by statement or by the president himself that just did not afford Jim Acosta the due process rights that he needed in order to have that press pass revoked.

So a very limited ruling here, but quite a victory for Jim Acosta, for CNN, saying that yes, in fact, Jim Acosta needs to get his hard pass back right away. But again, this judge ruling very narrowly, very limited in his scope here, and now this can go forward as to whether or not there were First Amendment rights violated here. But this judge, again, we've noted. I've heard you guys note. This is a Trump nominated judge. This judge has only been on the federal bench for just about a year now. So toeing the line very carefully here, very narrow in his ruling, but again, a big win for Jim Acosta and CNN, saying that the White House must restore his hard pass immediately. Poppy?

SCIUTTO: Jessica, if I could ask you as well, because it appears we have the attorneys coming out. We have currently Jim Acosta and Ted Boutrous, attorney for CNN.

TED BOUTROUS, COUNSEL FOR CNN IN LAWSUIT: Extremely pleased with the ruling today. This is a great day for the First Amendment and journalism. We're very excited to have Mr. Acosta be able to go back and get his hard pass and report the news about the White House. I'll turn it over to Jim.

JIM ACOSTA, CNN CHIEF WHITE HOUSE CORRESPONDENT: Everybody, thanks for coming. I just want to say something very briefly, and that is I want to thank all of my colleagues in the press who supported us this week. And I want to thank the judge for the decision he made today. And let's go back to work. Thank you.

SCIUTTO: Simple, short, and sweet from Ted Boutrous, attorney for CNN. It is a great day for the First Amendment and for journalism. And that's a point we have been highlighting throughout the coverage of the story, as we have noted on a number of news organizations across the board, print, and television, including Fox News, came out and supported us because they saw this as a precedent that would affect more than just CNN, but other news outlets.

I wonder if we could bring back Jessica Schneider just for a moment. As you hear back there, because the judge in his commentary in there did take down some of the government's, the White House's arguments, said that it was of questionable accuracy that Jim Acosta, for instance, placed his hands on the intern, but also said very, very explicitly that it would have caused irreparable harm to Acosta and CNN to keep the pass - to keep that pass revoked, so some fairly strong words from the judge, even in what was a limited ruling.

SCHNEIDER: Right, exactly. And the judge here really had to follow the case law in the D.C. Circuit. And one of the overriding cases was from a journalist that was excluded from the White House back in the 1960s and 1970s. So the judge had to strictly adhere to that ruling. And the judge made the point that while the White House has said that CNN has 50 other employees which are hard pass eligible, that have those hard passes, it didn't matter. That in this case, this was about an individual journalist. This is about an individual journalist's rights. In this case, the due process rights and whether or not those were violated.

[10:40:09] In which case the judge here said that there was the likelihood of success that they would prove that those due process rights were violated. But it didn't matter that CNN has a whole cadre of journalists, photojournalists, reporters, producers. What mattered was Jim Acosta as an individual journalist and the fact that his due process rights were likely violated here. That he didn't get the opportunity to be heard or there wasn't any clear notification. And there wasn't -- it was unclear who exactly made this decision. The reasoning from the government, from the White House, was jumbled.

The judge did reference that as well. He said initially, Sarah Sanders mentioned that Jim Acosta had placed his hands on that intern who tried to take the microphone away. But then the judge also noted that in later statements, that reasoning wasn't mentioned. And the White House simply referred to disrespectful conduct on the part of Mr. Acosta. So he said that was problematic as well.

But yes, the judge definitely ruling that it is the individual journalist's rights that should not be interfered with in this case. It doesn't matter about the organization as a whole and whether or not they have other journalists to supplant Jim Acosta in this case. It matters for the individual right of a journalist and their press freedom, and their due process rights. Guys?

SCIUTTO: The law matters. We have seen it here. We saw it with the Muslim ban. We saw it with family separation at the border. The judges step up for the law.

HARLOW: Jessica Schneider, great reporting. Thank you.

Let's bring back in Jeffrey Toobin and Brian Stelter.

You know, Jeffrey, I have always been proud to call Jim Acosta a colleague and a friend. But just those words, all he said was let's get back to work. This is not about him. This is about press freedom, and he will go back to work today.

STELTER: And look, the criticism of Acosta is always that he's too aggressive. He's a showboat. That's what you hear on Fox News, that he grandstands. But you saw the real Jim Acosta just now, very simply saying he wants to get back to work.

Look, there's a lot to cover at this White House. There's a lot to cover in the Trump presidency. We need to have reporters on the front lawn covering these stories every day, including Jim Acosta. So it's an important moment for press freedom in the U.S. because this entire case is a test of the rights that we have in America for coverage of the White House, for coverage of politicians. And even reporters in other states, you know cover state houses, who cover city councils, they're watching this, too, because a tone, again always gets set from the top. The president's attacks on the press are endless, but today, the institutions worked. The courts ruled in the favor of the free press, and of course, as Jessica was saying, limited ruling, we will see what happens down the line. But it was an important first round.

TOOBIN: And what was so striking about this was the unanimity of the press corps.


TOOBIN: Everyone from "The New York Times" to Fox News itself saying this is not right, what happened to Jim Acosta --

HARLOW: Because they know it could be them.

TOOBIN: That's right. And you know, one way of looking at what Jim Acosta was accused of doing was being too aggressive with follow-up questions. Another word for that is journalism.

HARLOW: There you go.

TOOBIN: And if that goes - and if that results in losing your ability to do your livelihood, throwing you out of the press corps, that's a threat to everyone who covers -- as Brian said, not just the White House, but state houses and city halls.

SCIUTTO: Think of the precedent. I said this on the air the other day. The only other personal experience I had was in China, where China rejected and overturned and took away press credentials because they didn't like the questions asked or the coverage of the stories. I'm not saying the U.S. is China. I'm just saying that there is a commonality there, right?

HARLOW: You don't want to get even close to that.

STELTER: There's a lot to protect about the American experiment. This is part of it. And CNN just issued a statement, both CNN and Acosta. I'll read it to you. It says, we are gratified with this ruling and the result and we look forward to a full resolution in the coming days, our sincere thanks to all who have supported not just CNN but a free, strong, and independent press.

TOOBIN: But I do think it is worth pointing out that this process is not over. The White House has a choice to make now.

SCIUTTO: To proceed.

TOOBIN: That they can, it seems to me, call Jim Acosta in and say, look, we really thought what you did was wrong. We hope you knock it off. But let's shake hands and move on. That to me is the smart resolution. Alternatively, the judge did give them an invitation to say we are going to establish procedures. We're going to continue to try to take away your hard pass. We're going to continue this battle. The White House now has to choose which of those courses to go. STELTER: Yes and you know the president loves a fight. He loves to pick these fights. But he lost today.

TOOBIN: And he's already been fund-raising off of this fight with CNN.

SCIUTTO: He could make a political judgment that continuing this in the courts, even if it's a loser, eventually, is in his political interests. He's made decisions like that before.

HARLOW: Thank you.

SCIUTTO: Jeffrey, Brian, thanks very much for covering this throughout, quite a fascinating story for us to cover.

[10:45:00] HARLOW: Yes, certainly.

SCIUTTO: We've got a lot more news. We'll be right back.


HARLOW: Election fatigued Florida is now undergoing a hand recount in that state's Senate race. Here's why. After a machine recount, Republican Rick Scott leads incumbent Bill Nelson just by 12,000 votes. Officials have until Sunday to finalize the hand counted votes. Let's go to Republican Congressman Carlos Curbelo of Florida. He joins me now. Good morning to you, sir. I appreciate you being here.

[10:50:00] Aside from the numbers and the drama, what about the claims of fraud from your fellow Republicans like Governor Rick Scott, Republican, Republican senator of Florida, Marco Rubio, both talking about potential fraud in this election. What's your response to them?

REP. CARLOS CURBELO (R-FL), WAYS AND MEANS COMMITTEE: Yes, Poppy. I think the problem is that some of these supervisors of elections have been so incompetent that to some, it can appear like fraud. For example, when invalidated ballots get counted, well, perhaps fraud isn't the opposite word, but certainly it's incompetence that does threaten the integrity of elections.

HARLOW: So you're not worried, Congressman, about the claims of fraud that are unsubstantiated that are made from the president, on then to Rick Scott and Marco Rubio, it doesn't concern you that it might undermine the confidence at the American people.

CURBELO: Well, certainly, I think we have to be careful in choosing our words. And I have seen no evidence of fraud. However, I have seen evidence of incompetence that does also threaten the integrity of our election. So, I think it is unfortunate that the president and others have used words to try to undermine - our you know, the elections in Florida or the public's trust and confidence, but we also have to remember that whether it's fraud or incompetence, we should all be in favor of an electoral process that's transparent and of integrity.

HARLOW: Amen. Amen to that. Let me ask you about you. You're outgoing. You did not win your campaign for re-election. You're also the co- chair of the bipartisan Climate Change Solution Caucus. You were the first Republican in a decade to really propose substantive climate change legislation. And that was in July, the proposed tax on carbon emissions. Do you think you paid a political price for that among Republican voters?

CURBELO: Not at all. On the contrary, in my district in south Florida, that was a winning issue. And it's an issue that I'm going to stay very active on because quite frankly, if people like me want to keep living in south Florida, in Miami, we need to take care of this issue. And we put together a solution that I think is going to be very useful for the next Congress. We have good Republicans like Congressman Francis Rooney who is in southwest Florida, who I think is going to take a leadership role in the bipartisan Climate Solutions Caucus. This is one of the big issues where this new Congress can show that Republicans and Democrats can actually work together and get something big for the - get something big done for the country.

HARLOW: Can and will, two very different words and two very different actions. Before you go, Congressman, let me ask you this. In your current role, you know, while you're still serving the American people in the state of Florida, you're going to have to vote on funding the government, in you know a matter of weeks here. Are you willing to join Democrats and some fellow Republicans in voting against the government spending bill if it does not include protection for the Special Counsel Bob Mueller?

CURBELO: Well, in the past, I have withheld my vote on spending bills for important priorities and I have said over and over again that the special counsel's investigation must be allowed to proceed uninhibited and uninterrupted. So certainly, if there's an effort here to protect that investigation, I'm going to take a look at what exactly is being proposed, and I would certainly be willing to do right by the American people by the country as I have told the president and the White House numerous times. The best thing that can happen for the president is for this investigation to reach its conclusion, for everyone to see what happened, and then hopefully we can turn the page, but not before.

HARLOW: So that sounds like a yes to me.

CURBELO: It certainly is something I'm willing to consider. I would have to see exactly what's being proposed, but it is important to protect this investigation and more broadly, to just protect the integrity of our elections and the integrity of our government.

HARLOW: Well, Congressman Curbelo, I appreciate your time this morning and thank you for waiting around. We had a little bit of important breaking news there, so thanks for waiting.

CURBELO: No worries. I completely understand. You have a good day, Poppy. Thanks.

HARLOW: OK, you as well.

SCIUTTO: Coming up next, Nashville is much more than just music city. Football fever has hit the town, and we're going to take you there next. (COMMERCIAL BREAK)

[10:57:02] HARLOW: They're making me read this because it's the Green Bay Packers, not my beloved Minnesota Vikings. The Green Bay Packers' chances of making the playoffs - the playoffs, taking a big hit, thanks to the Seattle Seahawks. I'm not sad.

SCIUTTO: My Giants lost the chance weeks ago. Coy Wire has more in this morning's Bleacher Report from Nashville, home of this week's TUMS ultimate tailgate.

COY WIRE, CNN SPORTS CORRESPONDENT: Yes, lucky me, right? Jim, good morning to you, and Poppy. I'm right here in the Nashville underground on Broadway. And yes, they have their football and their food here. It's going to be a must-win for Vanderbilt, just up the road here for keeping both folks alive. But last night, it was in the NFL in a back and forth battle looking to keep playoff hopes alive. The Seattle Seahawks, they were down 14-3 at one point, but Russell and Wilson would rally back. Dixon there with the touchdown would give them the lead with five minutes to go. Aaron Rodgers was on fire in this game. Over 330 yards, but it was this incomplete pass here that would force a fourth and two. Coach Mike McCarthy decides to punt. The Packers would never get the ball back. Rodgers was sacked five times in this game. The look on his face says it all. Seahawks get the win 27-24.

Now our TUMS tailgate is here featuring the incredible food and yes the football in the city, but this is music city. Known worldwide for it, right? And so we want to talk to you about Ryman Auditorium. It is an iconic place. It's called the mother church of country music because back in the late 1800s, did you know, it literally started as a church, but over the years, it transformed into one of the most incredible and iconic music venues in the world. Primarily because it was home to the Grand Ole Opry from the '40s to the '70s, and over 120 year history you had Elvis Presley, Dolly Parton, Louis Armstrong and others gracing the stage. Last night, it was the Beach Boys. But the CMA is here earlier this week. Nashville is the place to be and the perfect place for our TUMS tailgate.

HARLOW: We heard you were enjoying some wings while we were dealing with the breaking news there. I wish we could have -- got some of those, Coy.

WIRE: I wish you could, too.

HARLOW: Yes. Thank you for being with us.

SCIUTTO: He gets all the good assignments.

HARLOW: Exactly.

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