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Mueller Mystery Unfolds At Courthouse While List Of Trump Entities Under Investigation Grows; ProPublica: Trump's Inauguration Paid Trump's Company, Ivanka Trump Was Involved In Negotiations On The Price; Trump Names Mick Mulvaney As Acting Chief Of Staff; CNN Poll: Beto O'Rourke Soars to No. 3 Among Dems for 2020. Aired 7-8pm ET

Aired December 14, 2018 - 19:00   ET


[19:00:08] ERIN BURNETT, OUTFRONT HOST: Out front next, the Special Counsel's secret, Mueller's team shutting down an entire floor of a Washington courthouse to secretly make the case for a very important client to testify in front of the grand jury. Who is it? This as the list of investigation grows again for Trump tonight.

Plus, breaking news, President Trump naming an acting chief of staff, a surprise announcement days after the President was adamant he would not accept anyone as acting chief of staff.

And California's chief justice, lifelong Republican, quits the Republican Party. Was it because of Trump? She's going to come out front. Let's go out front.

And good evening, I'm Erin burnet. Out front this evening, Mueller's big secret. Today, Mueller's team making a move on the Russia investigation, shutting down an entire floor of the D.C. federal courthouse. Keeping out the press for more than an hour, all to hide a VIP's identity.

So, attorneys secretly entered the courthouse. They were making the case for this person to testify in front of Mueller's grand jury. Who is this witness, this person that is so important we shut down an entire floor of a courthouse and shrouded in secrecy? It is a major question tonight. It comes as the man who blew open Watergate said on Twitter the Trump situation is worse than Watergate.

John Dean, Nixon's Former White House Counsel, tweeting, "Trump's campaign, Trump's transition, Trump's inauguration, Trump's presidency, plus Trump and family all are now under state and federal criminal and civil investigations. This is much more damning than Watergate and it is just getting started." Just getting started, well, the threat to Trump's presidency isn't just coming from these investigations and the Special Counsel. In 19 days, Democrats will be able to subpoena the White House and launch new investigations.


REP. DENNY HECK (D), INTELLIGENCE COMMITTEE: The writing's on the wall. The walls are closing in. And this is the beginning of the end for the Trump administration.

SEN. BOB MENENDEZ (D), NEW JERSEY: It seems to me that the walls are closing in on the President.

REP. ERIC SWALWELL (D), INTELLIGENCE COMMITTEE: You are now seeing more evidence than ever that Donald Trump was associated with a criminal campaign, a criminal transition, and presides today very likely over a criminal presidency.


BURNETT: OK. Now, one person already singing like a canary, willing to share a lot more damning information if he has it is Michael Cohen. Cohen already set to go to prison for three years in part for crimes he says he committed at the direction of Donald J. Trump. Cohen speaking out today for the first time since his sentencing.


GEORGE STEPHANOPOULOS, ABC NEWS HOST: He's saying very clearly that he never directed you to do anything wrong. Is that true?

MICHAEL COHEN, FORMER LAWYER FOR DONALD TRUMP: I don't think there's anybody that believes that. First of all, nothing at the Trump organization was ever done unless it was run through Mr. Trump. He directed me to make the payments. He directed me to become involved in these matters, including the one with McDougal. I just reviewed the documents in order to protect him.


BURNETT: I want to pause here for one moment. Not only does Mueller's filing say Cohen has provided information that is credible and consistent with other evidence that proves Cohen's telling the truth, right? We're talking things like tapes, e-mails, those sorts of things, right? You don't have to take Cohen's word for it. Mueller has it another way too.

But in which you heard there, even today, Michael Cohen is referring to his former boss as Mr. Trump. Does anyone think that a guy who's going to jail for someone, who's calls his boss mister after working together for more than a decade, who's paying off women hundreds of thousands of dollars without his boss' say-so? Come on, it's ridiculous.

Sara Murray is out front live in Washington. And Sara, what happened in this big mystery court appearance today? I mean, shutting down an entire floor of the D.C. federal courthouse for over an hour because of someone so important.

SARA MURRAY, CNN WHITE HOUSE CORRESPONDENT: Well, Erin, we don't know what's been going on and this has been driving us crazy since September. You know, this is what appears to be someone challenging a grand jury subpoena in the Mueller investigation, and today, it was supposed to be this appeals court battle. So we don't know if they shut down this entire floor at the courthouse because they didn't want us to see anyone involved in this case or if it was because, you know, as you say, this actual VIP person who has been subpoenaed was there for some reason. But it's very unusual, what the court did today, to clear out an entire floor. You couldn't even get off the elevator on that floor. There were reporters who were staking out every stairwell, they were staking out every exit, including our own, court way's (ph) Kaitlan Collins (ph) she was there for CNN. And you know, we did see that it was Mueller's top appellate lawyer who is going in there but that's all, you couldn't see anything else.

And then after these court proceedings wrapped up about 10 minutes later, this, you know, big black vehicle arrives back in Mueller's office with these attorneys who are arguing this case. We have no idea who the grand jury subpoena was originally for, why they are fighting it, what is going on behind closed doors and it may not surprise you that Mueller's team is not helping. The Special Counsel's office declined to comment on that today, Erin.

BURNETT: All right, thank you very much. But obviously, it just opens the door for all of us to understand what we don't know about Mueller at this point, right? Something that significant and we don't know what it is.

[19:05:04] Out front now, Harry Sandick, Former Assistant U.S. Attorney for the Southern District, Juliette Kayyem, Former Assistant Secretary of Homeland Security in the Obama administration, and David Gergen, Adviser to Four Presidents, obviously including Nixon and he's got a perspective there on what John Dean is saying, that this is more damning than Watergate. Juliet, when it comes though to what we saw today, of the Special Counsel, like shutting down a whole floor, the elevator shut down, the stairwells, this is basically unprecedented.

JULIETTE KAYYEM, FMR. ASST. SECRETARY, HOMELAND SECURITY DEPT. UNDER OBAMA: It is. It seems like especially for a civil case or a case that's not involving terrorism, I'm used to this in terrorism cases when you're working with a defendant who might be worrisome from that perspective. So most federal courthouses and sorry to get, you know, tell Sara something, you know, that she may have saved some time today, most federal courthouses will have private elevators for the judges so you have to just assume that's how they got in. So --


KAYYEM: -- that's probably what happened. And so these lawyers come in, and then they go out and get into their car. I don't know who it is and there's lots of speculation on Twitter. What I will say is the number of people who are now in Mueller's web is greater than the number of people still in allegiance to the President. And that's all I'm going to say, right?

I mean, in other words, what has happened in the last two weeks is that his circle is not only limited at this stage, but people are jumping to the other side. This appears to be someone who may not want to go -- do so willingly but it sounds like Mueller's finding them.

BURNETT: I mean, Harry, it's pretty stunning, right? May not want to do so willingly but it's an important person. HARRY SANDICK, FMR. ASSISTANT U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK: Yes. And the reporting that we've heard is that, you know, the judge made a decision, it was appealed once before in a similar kind of completely secret setting, sent back to the trial judge, and now appealed again. It looks as if there is either somebody who Mueller badly wants to testify who is refusing and he's appealing again and again, or that the witness is very unwilling to testify and that even the identity of the lawyer in a case of this kind of public renown would disclose the identity of the witness. And the Mueller team and the court commendably are doing everything to keep it secret.

BURNETT: So to be clear, we're not talking about some kind of no-name coffee boy. I'm saying that on purpose, right? But I mean, obviously, you're not doing this unless this is somebody who has something to say, this is somebody important, right? I mean, just to be clear, this is a no-name.

SANDICK: I think that's right. And we've heard about some other people going into the grand jury. You know, we know like Jerome -- to us.


SANDICK: This is somebody who does not want their identity to be disclosed and the Mueller team and the judges and the courthouse staff are professionally preserving the anonymity that they're entitled to.

BURNETT: So David, when you take this in the context of what, you know, John Dean is saying, right, he's saying more damning than Watergate, you now have investigations, criminal and civil into every aspect of Donald Trump's professional and personal life at this point. I mean, literally. Have you ever seen anything like it?

DAVID GERGEN, FMR. ADVISOR TO FOUR PRESIDENTS: Absolutely. No, no, it goes way beyond and there are so many tentacles now that -- on this investigation and the Watergate case. There were -- the Justice Department, the FBI, especially, the CIA, the White House were all implicated but most parts of the government and certainly Nixon's personal life escaped this kind of -- he got congressional investigation but it wasn't as exposed as just so many different fronts as these investigations have multiplied recently.

Going back to the grand jury and the clearing of the grand jury room, it does strike me -- when I first heard that, I thought they must have some very important VIP there and they're trying to hide that person's identity. But nobody reported any sort of, you know, security detail or a number of black cars driving off with that mysterious person. So, that heavily suggests that what we had in the courtroom today were lawyers, and you know, they wanted to not be able to have the press not be able to see who the lawyers were because they could identify who they're representing.

BURNETT: Who the client was or the name that they're discussing.

GERGEN: Yes, who the client was. Yes. But I don't think -- yes, I think it sounds like a more lawyer to lawyer kind of conversation simply because there's no evidence of anybody -- big person coming.

BURNETT: Yes. And does this, Juliette, in your mind, lead towards the President being caught up in at least one of these investigations at some point here when we talk about personal, professional --

KAYYEM: All of them.

BURNETT: -- presidential.

KAYYEM: It's like -- I mean, all of them. There's -- his fingerprints are on all of it. He's directing the, you know, the sex side of it. He's directing the election side of it. He's directing, you know, the family making money on the transition and the inauguration side of it. It's like, you can't be a rational human being at this stage and say, he had no idea of any of it.

And I'll tell you this, if he had no idea of any of it, he has no business being President of the United States. Here's the amazing thing. All of this activity, guess what we still don't know? We don't know the substance of what Cohen or Flynn have told Mueller. We just know they've spoken and think about once we finally learn the substance, we're in the process stages.

[19:10:04] BURNETT: And I think to your point, I think we should emphasize to viewers, we do know, right, that Michael Cohen's talked to the Special Counsel extensively about these payments to women. We don't know what else. We do know that he is talking about anything else that they want to know about but we don't know what those things are. So that's important. Just because we only know about the women, does not mean that that is all there is to know and it's important to emphasize that.

To that end, I want to play more of that clip because it's just -- it's really important for a lot of reasons, Harry. Here again is George asking Michael Cohen about whether he was directed to do this.


STEPHANOPOULOS: He's saying very clearly that he never directed you to do anything wrong. Is that true?

COHEN: I don't think there's anybody that believes that. First of all, nothing at the Trump organization was ever done unless it was run through Mr. Trump. He directed me, as I said in my allocution, and I said as well in the plea, he directed me to make the payments. He directed me to become involved in these matters, including the one with McDougal, which was really between him and David Pecker and then David Pecker's counsel. I just reviewed the documents in order to protect him.


BURNETT: It's very clear to me that that is, in terms of being directed, almost certainly the truth. Not just knowing Donald Trump as many of us have known him for a long time, but that Mr. Trump, to me, was very telling. He's still calling the guy Mr. Trump. That isn't someone who goes rogue and pays a woman $150,000 without the boss knowing, right, Harry?

SANDICK: Yes, I mean, look, it's a very -- looks like a very hierarchical organization, and Mr. Cohen was below Mr. Trump in the hierarchy, so I entirely agree with that. What is harder to know was -- and there was some discussion about this, I think, in the interview, about whether Trump knew that what he was directing him to do was against the law. And I think it's an open book on that. It may well be that he did, and Cohen, I think, said to the effect, yes, I think he did know that it was against the law. And the way you would prove that if you were a prosecutor is either with direct evidence, meaning, like a diary entry or a recorded statement by Trump --


SANDICK: -- or circumstantial, indirect evidence, which is just as reliable. So, you know, bits and pieces, did he know too much about the John Edwards case to be able to deny knowing what a crime is here.

BURNETT: To that point, David Gergen, the President back during the John Edwards case, right, the payment case which he was on television saying, I've been looking at this every which way and looking at the lawyers. I mean, the guy clearly knew a lot about paying off women and campaign finance law, at least he said so himself.

GERGEN: Absolutely. I don't think it was any doubt about it, about his knowledge of what was constituted here, you know, whether the danger there was in paying him off. He had to keep it very, very private. What was telling to me about the Cohen interview was when his line when he said, nothing happened in the Trump organization without first going through Mr. Trump. And you know, that applies to so many different stories that are important here in this whole episode.

One of them, of course, being the tower meeting. And he's denied having anything to do with any knowledge of it, but you know, I think Cohen is on to the critical truism and that is nothing happened in that organization without first going through Mr. Trump. That's the same for his White House. Very consistent.

BURNETT: Very consistent. And of course, raises all kinds of questions. I mean, depending where Mueller's going to see his purview, you know, the reports of the suitcases of cash and buildings and payoffs and Azerbaijan and on. I mean, you know, all of a sudden, you're opening the door here to potentially a lot more. Thank you all very much.

And next, for the first time, Ivanka Trump reportedly linked to allegations that the Trump inaugural committee was, well, giving money, funneling money above market rate to Trump and his company. The reporter who broke the story is out front.

Plus, breaking news, President Trump picking a new acting chief of staff. Now, a few days ago there was no way, right, no way in heck, he's never going to let anyone be acting, it was you're signing on for the whole time or else. Changed his tune, why? And the most famous loser in America, Beto O'Rourke is winning over more and more people. Does he have a shot?


[19:17:55] BURNETT: Tonight, did Trump's inaugural team funnel money to Trump? ProPublica reporting tonight that the Trump organization may have overcharged Trump's own inaugural committee for all kinds of things, rooms, meals, event space at Trump's hotel in Washington, D.C., during the inauguration and we're talking about an incredible amount of money here. The person in the middle of the negotiations? Ivanka Trump.

This breaking news coming just one day after the New York Times reported the inaugural committee is under criminal investigation for possibly taking illegal foreign donations. So, that's the money coming in and now this new reporting on the money going out.

Out front now, one of the ProPublica reporters who broke the story, Justin Elliott and Former Ethics Lawyer for President George W. Bush, Richard Painter, who worked with President Bush on the second inauguration and was the one in charge of making sure that everything was -- the rules were followed. So, Justin, let me start with all this reporting that you have. OK. You have never before reported evidence here tonight that is part of this story of how much the Trump organization was overcharging, right? And in one case, you're talking about $100,000 a day for space at the Trump hotel in Washington, right?

JUSTIN ELLIOTT, REPORTER, PROPUBLICA: Yes. So what we know is -- we didn't know before that the inaugural committee actually spent a significant amount of money with the Trump hotel, Trump giving money essentially to Trump himself. But we also know my colleague --

BURNETT: By the way, in and of itself, would be problematic to a lot of people but --

ELLIOTT: Extremely unusual.

BURNETT: But you were saying on top of that.

ELLIOTT: So my colleague from WNYC and I published e-mails showing that a top planner in the inaugural committee expressed concerns to several people, including Ivanka Trump, saying, the rate that the Trump hotel is trying to charge the inaugural committee is way too high, and essentially, she said, this is not going to look good when it becomes public. They were proposing to charge $175,000 a day for a --

BURNETT: Like a ballroom?

ELLIOTT: -- for a ballroom rental in the Trump hotel down in Washington. We also didn't know that Ivanka Trump was involved in some kind of pricing negotiation between the inaugural committee on one hand and her company, the Trump organization, on the other. [19:20:01] BURNETT: And let's just be clear. This top event planner, Stephanie Winston Wolkoff, she was saying $175,000 is out of control. $85,000 is what I would propose. I mean, just to give people a sense of how out of whack this was.

ELLIOTT: Right. And it's not clear where they ended up. It's also not clear the total amount of money the Trump organization ultimately got, but --


ELLIOTT: -- you know, another issue here is if they were overcharged, it could actually be a violation of tax law because Trump was an influential person in the inaugural committee. His business is not allowed to be overcharging the inaugural committee for services so there could actually be a legal violation.

BURNETT: And Ivanka Trump, you're saying, was in the middle, right, when there were these complaints about pricing, she's the one who came in between the person complaining and the hotel, correct?

ELLIOTT: She's on the e-mails. Rick Gates, who is another figure in Trump world who's since pleaded guilty to conspiracy and lying, says in one of the e-mails, thank you, Ivanka, for the help on this.

BURNETT: All right. So we learn last night the inaugural committee's also under criminal investigation, right? This is the foreign donors, the money coming in. The President's spokesperson responded, Sarah Sanders, she says, this has absolutely nothing to do with Trump himself. Here she is.


SARAH SANDERS, WHITE HOUSE PRESS SECRETARY: That doesn't have anything to do with the President or the First Lady. The biggest thing the President did in his engagement in the inauguration was to come here and raise his hand and take the oath of office.


BURNETT: Not true. You report, right, that he was repeatedly briefed on inaugural planning, which would surprise no one because this is the kind of thing that he loves to do. You actually have seen presentations that he was given. We're talking room renderings, whatever, floral arrangements. I mean, he knew what was going on.

ELLIOTT: Yes, and even before that, Donald Trump personally selected the people running the inaugural committee at the top of it, his friend, Tom Barrack, a wealthy businessman and fund-raiser. And then during the planning process, there are presentations that my colleague and I have seen showing we're going to rent this room, this is what it looks like, and this building, this is where we're going to have a luncheon, this is where we're going to have a ball that were delivered to Donald Trump himself.

BURNETT: All right. Well, let me bring Richard Painter in here. Richard, I mean, what's your reaction to this reporting?

RICHARD PAINTER, FORMER WHITE HOUSE ETHICS LAWYER FOR PRES. GEORGE W. BUSH: Well, it's a terrible situation, and the Bush administration, we kept very close tabs on the inaugural committee, even months after the inauguration to make absolutely sure there was no self-dealing with those funds, no favorable treatment of government officials. We made sure the government officials didn't even get special souvenirs from the inauguration, because when you take funds for personal use out of a nonprofit, that's like taking money out of a church collection plate or the treasurer of a nonprofit, just skimming money off for himself or herself. That could be a crime. People go to jail for that.

And then you have the tax implications, and furthermore, we're dealing with government officials here --


PAINTER: -- and it's absurd to say that the President doesn't know what's going on. The President is on top of this situation.

BURNETT: And let me just, Richard, you know, when this comes -- you're talking about the money going out of Justin's reporting. Now also, you know, he's talking about we now know the criminal investigation, right, on donors. We know that they raised $107 million from donors and that's what prosecutors are now looking at. But of that $107 million, we, to this day, do not know where $40 million of it went. $40 million, we have no idea where it went. How's that possible?

PAINTER: And that's shocking. Somebody's stealing money. Somebody's putting money in their own pocket. $40 million unaccounted for? We elected a President who said, well, I'm a successful businessman. We knew there were a lot of problems there, but $40 million unaccounted for, that is a tell-tale sign of fraud. Something's going on here, criminal activity is very likely. If we had seen any amount of money missing in the Bush inaugural committee, I would have called people into my office and said, I want to find out exactly where that money is, better find out fast, because it could be a crime, what's going on here.

BURNETT: All right. And there is a criminal investigation, as we said, just on the donations and now with this reporting, you know, we see what happens here on the spending. Thank you both very much.

PAINTER: And next, more breaking news. President Trump making a surprise announcement, naming an acting chief of staff and that word is so crucial. This is the same President who refused his top choice earlier this week, a guy walked because the President said, I will not take you as an acting chief. You must commit for two years.

Plus this.


REP. BETO O'ROURKE (D), TEXAS: I will not be a candidate for President in 2020.


BURNETT: OK. So, why is that guy, Beto O'Rourke, getting so much buzz now?


[19:28:07] BURNETT: Breaking news, President Trump has named Mick Mulvaney, he's a current Director of Management and Budget, as his acting chief of staff. Acting is the operative word and it comes after Chris Christie today became the fourth person to publicly walk away from the job of chief of staff.

Kaitlan Collins is out front live at the White House. And Kaitlan, that is the crucial word here. This is not the new, permanent chief of staff the way it is put out there. It has been -- it's very clear it's temporary. He is acting.

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: And that's what's raising so many eyebrows here, Erin, is because last week the guy who wanted chief of staff and had been in those talks to be chief of staff, Nick Ayers, did not become chief of staff because President Trump didn't want him to be the acting chief of staff. He wanted someone who could commit to two years on the job, and Nick Ayers said he only wanted to do it on a temporary basis and be here for a few months. But President Trump did not want to announce someone and say, this is my acting chief of staff. Those negotiations fell apart, but here we are, a week later, and we've got an acting chief of staff in Mick Mulvaney, the Budget Director. So that's raising several questions on its own, how that came to be.

A White House official said it was President Trump's idea to have Mick Mulvaney be acting chief of staff, but it would raise the question if he was fine with that, why wouldn't he have been OK with Nick Ayers having the same title. Of course, Erin, another thing this could all come down to is the timing here. This is a day where a lot of people in the west wing were focused on that potential government shutdown next week, including it being the focus of the senior staff meeting this morning, led by John Kelly and Mick Mulvaney came over to discuss the budget and a potential shutdown with President Trump, and he walked out of that meeting with the top job in the west wing. And that came after reports that not only Chris Christie had dropped out of the running but several other people, including even the President of the Yankees had issued statements saying they did not want to be considered for that job.

And there was this emerging narrative that essentially no one wanted the position. But now here we are, the President has abruptly announced Mick Mulvaney is going to take over and Erin, it's to be determined just how long he'll be here.


BURNETT: Thank you very much, Kaitlan. Of course, to Kaitlan's point, Mick Mulvaney earlier in the week was, you know, happy where I am, don't need this.

OUTFRONT now, Joan Walsh, the national affairs correspondent and CNN political commentator, and Steve Cortes, member of President Trump's 2020 reelect advisory council and political commentator here as well.

Steve, OK, so, acting was unacceptable for Nick Ayers, who's the guy the president wanted because he wanted someone for the whole remainder of his first term, but now Mick Mulvaney, it's fine, we're going to -- it's fine to be acting. I mean, how else to see this other than nobody perfect wanted the job permanently?

STEVE CORTES, CNN POLITICAL COMMENTATOR: Well, look, I don't know why they use the term, acting. I think we're going to get more explanation. This announcement is only hours old on a Friday afternoon. Because normally, when we say acting, it has to do with confirmation. And there's no confirmation for this. There's no Senate conversation. Once you're named, you're it and you're it until you're no longer it when you're fired by the president.

So I hope if they want to call him acting, I hope he is acting in this role for a very long time because I think he's a fantastic choice and I think he proves, by the way, because of his credentials, he proves false that narrative that no one wants to work in this White House or nobody qualified wants to work for this president. We have here an amazing pick in Mick Mulvaney.

BURNETT: The reporting had been he was very happy where he was, he wasn't looking for it full-time. I mean, Joan, obviously, acting, you know, we can parse the word all we want. What it means when it's used in a government sense is, you know, temporary.

JOAN WALSH, CNN POLITICAL COMMENTATOR: Temporary. We're looking for somebody else.

BURENTT: To Steve's point, maybe this changes over time, but that is not what he took the job as. He took it as acting.

WALSH: No, no, and he did say he wasn't interested earlier in the week. He has said he wanted to be at commerce or even treasury secretary so this is not his first choice but he's a loyal soldier. I mean, I think we were in this position, Erin, where we should consider all of them acting because there has been a revolving door and that might continue.

But I personally was really -- I believed the rumors about Jared Kushner because Jared can't be fired, can't quit, and he's already got lawyers. It's really going to be tough for a chief of staff at this point to last very long in this toxic environment. It's just been a horrible news day for them and I think that's also playing into it.

BURNETT: So, Steve, you know, how do you square this circle, right? You know, Monday, it was, quote, he's not interested in chief of staff. He's been saying for almost two months he would be more - interested in something like commerce or treasury if that's where the president needed him. It sounds -- I mean, do you disagree with Joan? It sound like Mick

Mulvaney, when he walked in there today, the president asked him to do that and he's going to be a loyal soldier but it doesn't sound like his heart is in it. I mean, that's pretty clear. That could change, but that's the way -- where we are tonight.

CORTES: Sure. I agree, it doesn't seem like this is his dream job, right? He really lives in economics, and he understands economics the way any professor of finance does, by the way. I mean, he's really a technocrat when it comes to that side.

But then he's also an incredibly successful retail politician, very rare to find that combination. I don't think he was looking for this job. I don't. I think he's taken it out of patriotic duty for our country because he knows it's important and I think he knows his skill set is important.

And one of the reasons I say that is not just because of what I just mentioned about the economy. He also was a congressman, was in the House of Representatives, he won a seat which was held by Democrats for over a century before he won it in South Carolina and much of 2019, in my opinion, is going to be about the White House battling the House Democrats and he needs somebody who knows the House as well as Mick Mulvaney does. He needs a wartime consigliere and I think he got one in Mick Mulvaney.

BURNETT: You have a fair point there. Again, the issue is interim, and clearly this wasn't what he wanted. The fourth person bowed out of, you know, taking this job today. That was Chris Christie. He went to the White House for a meeting, came out and said, it's an honor to have the president consider me as he looks to choose a new chief of staff. However, I told the president now is not the right time for me or my family to undertake this assignment.

Nick Ayers cited his family when he turned down the job. Rick Santorum the other night came on this show and he was going to take it and here's what he said.


RICK SANTORUM (R), 2016 PRESIDENTIAL CANDIDATE: My family situation really doesn't allow me to do that right now. I would, again, be honored to do it at some point in time, maybe, but at this point, it just doesn't -- it just doesn't fit for me and my family, and so, you know, I guess the answer right now would be no.


WALSH: Well, we all love our families. That's great. I mean, my daughter's grown, but you know, I wouldn't take this job either because of my daughter.

No, it's a terrible job, Erin. I mean, you know, I wouldn't nominate Steve for this job. I like Steve too much to tell him that he should take the job.

CORTES: I appreciate that.

WALSH: Right, Steve? I mean, it is objectively a terrible job. John Kelly was at that White House, he had a great reputation. His reputation is tarnished.

He is a strong man who tried to say no. He did try to set limits. He failed, so you know, good luck to Mick Mulvaney.

One last point on the, you know, working with the House, I don't know that he's ever shown any ability to work across the aisle, Steve, and that is what's most needed right now. He is dealing with a lot of freshmen, I believe it's 40 new people, revitalized, rejuvenated Nancy Pelosi, that part of his job, I'm not sure he's up for either. We'll see.

BURNETT: Well, I appreciate both of your time. I just want to, as we go here, I don't know, you know, who's watching this program right now, but the president has just tweeted, for the record, there were many people who wanted to be the White House chief of staff. Mick M. will do a great job. OK.

OUTFRONT next, the excitement building around Beto O'Rourke after becoming one of the most famous losers on Election Day. Will this Beto buzz last?

And California's chief justice, a lifelong Republican, quitting the GOP tonight, why? Well, she is going to come OUTFRONT to tell you.


BURNETT: Tonight, the most famous loser in America, Beto-mania running wild among Democrats for 2020, even though this guy lost his Senate race to Ted Cruz. Just take a look at some of the headlines, "The New York Times" calling him the wild card in waiting. "Politico", Beto has a path to the presidency. Lincolns? Wow, guys.

And "The Hill", no, it's not a gamble for Dems to back Beto for president.

OK. It is a gamble and here are the odds.

Tom Foreman's OUTFRONT.


TOM FOREMAN, CNN CORRESPONDENT (voice-over): He lost the battle for a Senate seat but Texas Congressman Beto O'Rourke is rising in the Democratic war for the White House. A new CNN poll shows former Vice President Joe Biden atop the list of possible contenders for the party's nomination, then Senator Bernie Sanders, but O'Rourke has vaulted into the number three slot.

REP. BETO O'ROURKE (D), TEXAS: We want all of us Republicans and Democrats, independents alike to come together and do something great for this country. FOREMAN: Relatively unknown outside of Texas, O'Rourke nonetheless

ignited a passionate following when he challenged Republican Senator Ted Cruz.

O'ROURKE: This is why people don't like Washington, D.C. You just said something that I did not say.

SEN. TED CRUZ (R), TEXAS: What did you not say?

O'ROURKE: And attributed it to me.

CRUZ: What did you not say?

O'ROURKE: I'm not going to repeat -- I'm not going to repeat the slander and mischaracterization.

CRUZ: What did you say? You're not going to say what you did say.

O'ROURKE: This is your trick in the trade. To confuse and to incite based on fear and not to speak the truth.

UNIDENTIFIED FEMALE: Do you foresee yourself one day running for the president of the United States?

FOREMAN: Asked about a presidential run before the Senate vote in Texas, he was clear.

O'ROURKE: The answer is no.


O'ROURKE: It's a definitive no.

I will not be a candidate for president in 2020.

FOREMAN: But soon after he narrowly lost to Cruz, the O'Rourke family was repositioning.

O'ROURKE: Amy and I made a decision not to rule anything out and just to be open.

FOREMAN: Then O'Rourke had a private meeting with former President Barack Obama and when a cheering crowd asked him again today about whether he has decided on the presidency, his no came with a twist.

O'ROURKE: No -- no decision on that. No decision.

FOREMAN: All of that along with his ability to fire up Democratic voters and raise massive sums of money has many in the party taking note.

O'ROURKE: We're going to be fiercely focused on the future and we're going to do this together.

FOREMAN: After all, they were the last time a candidate with an unusual name, an outsider's message and seemingly little chance of winning came along.


FOREMAN: To be sure, O'Rourke is clearly aware of how tough it could be for any Democrat to take on Donald Trump. That the president's brawling bare knuckled way of fighting could make it hard to stay focused on issues and on policies. He has indeed said just this weekend that he thinks this could be the mother of all tests for this democracy in the 2020 election -- Erin.

BURNETT: Tom Foreman, thank you.

And I want to go now to "New York Times" op-ed columnist Frank Bruni who has interviewed Beto, met Beto several times.

So is the buzz about Beto -- and, you know, I got to say, the name helps. When you got a quick little name like that, the name does help. But is this real?

FRANK BRUNI, OP-ED COLUMNIST, NEW YORK TIMES: It is real and I'll tell you why. I mean, I have interviewed him. I followed him on the campaign trail.

He is one of the nimblest and most talented politicians I've watched in the decades I've been doing this sort of thing. When you see him interact with voters, do Q&As, when you're doing an interview with him, he's just -- he's deft, he has this ability to pivot from folksy to eloquent. He's very sensitive to when there's a ripe viral moment and we've seen that, that beautiful moment that went out, his video talking about defending the players who kneel for the national anthem and why that's so consistent with American values.

He's just got a knack for that for the social media and most importantly of all, as these various Democrats kind of come up to the starting gate and decide whether they're going to run or not, we're going to start weeding them out based on how much money they can raise because you cannot make a go of this, this go for the Democratic presidential nomination, if you can't raise money. Beto broke records for a Senate race with the money that he raised for the Texas Senate race against Ted Cruz and there's no reason to believe he's not going to be able to do it again.

BURNETT: So, you know, President Trump has salivated about this. He loves it, right? He doesn't -- the running is what he lives for. Here's three contenders he's called out by name.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I dream about Biden. That's a dream.

Elizabeth Warren, oh, I hope she runs. I hope she runs.

How about Cory Booker? He ran Newark, New Jersey, into the ground and now he wants to be president, right?


BURNETT: The guy can't wait. I can only imagine what he would do with Beto.

BRUNI: Well, he loves to insult people. We know what he's going to do with Beto. He's going to say, you're a loser, because Beto lost his Senate race and it's a good question. If you lost your Senate race, how do you get a promotion to president?

But in fact, by losing that Senate race, that's why Beto can run for president. If he'd won that Senate race, right, how does he turn around to Texans and say, you just hired me for a six-year job but in year one, I'm going to pay no attention to it and audition for something better.

BURNETT: Even Obama had done a term.

BRUNI: And he has a great answer to but you lost and the answer is, he came within 2.5 percentage points of Ted Cruz and not in decades has a Democrat done that well against a Republican in deep red Texas in a statewide race.

BURNETT: All right. We shall see what happens here. Thank you very much, Frank Bruni.

[19:45:01] I'm trying to think what the nickname would be. Little boy Beto? I don't know, he's young compared to Trump. That probably doesn't help Trump with the comparison. We'll see.

Well, the chief justice of California's Supreme Court leaves the Republican Party. Is it because of attacks like these?


TRUMP: Nobody said I should not criticize judges. OK. I'll criticize judges.


BURNETT: Plus outrage and calls for an investigation after the death of a 7-year-old girl who died after being taken into custody at the U.S.-Mexican border.


BURNETT: Tonight, the chief justice of the California Supreme Court, lifelong Republican, has announced she is leaving the Republican Party. Why? And why now?

OUTFRONT tonight, the California chief justice, Tani Cantil-Sakauye.

And thank you very much for being with me, Justice.

Why did you decide to leave the Republican Party now?

CHIEF JUSTICE TANI G. CANTIL-SAKAUYE, CALIFORNIA SUPREME COURT; SAYS SHE'S LEAVING GOP: I had been thinking about it for several years, and of course, I left it right after the Kavanaugh hearings and really the Kavanaugh hearings were mostly, for me, a symptom and really a condition of why I was thinking about leaving in the first place. And that was -- the label didn't fit anymore. The values were different from what I value as a person, and as a professional. And the pure polarization, lack of civil discourse, led me to take that action.

BURNETT: So, when you say Kavanaugh, is it because you think that he did what she said he did and that would, you know, disqualify him or was it just how it was handled on Capitol Hill? Which part of it did you feel was such an offense to your values?

CANTIL-SAKAUYE: Well, I think for me, it was the latter. Of course, Justice Kavanaugh is qualified and the president has the prerogative to name to the Supreme Court, but it was the hearing itself and how it was handled and the tone and the polarization and the conduct and the procedure that greatly disturbed me, and that's really what led me to make the decision to go online and to finally change my party.

BURNETT: All right, so, when you're talking about the way the hearing was handled, Republican hearing, I want to play some of the attacks that the president has made. Obviously, our Republican president, on judges and courts, various contexts here, but this is all Donald Trump. Here


TRUMP: If these judges wanted to, in my opinion, help the court in terms of respect for the court, they'd do what they should be doing.

The courts are not helping us, I have to be honest with you. It's ridiculous. Somebody said I should not criticize judges. OK. I'll criticize judges.

We need quick justice, and we need strong justice because what we have right now is a joke, and it's a laughingstock.


[19:50:08] BURNETT: Judge, is he part of the reason that you are leaving the GOP?

CANTIL-SAKAUYE: Well, of course, certainly, the rhetoric and the name calling and the divisiveness is all part of it, because nothing is getting done. It doesn't reflect the values of the Republican that I signed up to be when I was 18 years old.

BURNETT: So, you know, last month after the president criticized the 9th Circuit Court of Appeals which he's done many, many, many times, the Supreme Court Chief Justice John Roberts took a stand, put out a statement. A highly unprecedented move and he said: We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary, something we should all be thankful for. You know, as I was preparing for the segment, I was wondering, obviously, we're all people. You are a person, I'm a person. So you have a party affiliation. But does even talking about your party affiliation as a chief justice of the California court cloud the matter here?

CANTIL-SAKAUYE: I think it absolutely does because certainly as judges, we don't make decisions based on politics, contrary to popular opinion. In fact, we write out our opinions. It's based on the rule of law. And I don't know any jurist that I've been with in 28 years that makes decisions based on politics. And that's why who we are professionally as a party makes little difference to the kind of work we do because we follow the law, and the law comes from the people or it comes from the president or from the governor through the legislature.

BURNETT: And is there anything that would bring you back? Is this bigger than Trump? If he doesn't win re-election, does that change your point of view?

CANTIL-SAKAUYE: No, it doesn't change my point view of. I think that, for me, no matter preference first all of reflects really how I approach cases as a jurist but also reflects me more as a certain because I'm a centrist, because I want to consider the issue, I want to consider it from all angles, and it doesn't matter what label you put on it. I want to look at the merits of it and I want to be able to have a healthy, frank, respectful exchange over the merits, not what label someone else places upon it.

BURNETT: All right. Judge Cantil-Sakauye, thank you very much for your time.

CANTIL-SAKAUYE: Thank you for your interest.

BURNETT: And next, a 7-year-old girl dying after being taken into border patrol custody. We have new details tonight on what happened. Ed Lavandera is next.


[19:56:46] BURNETT: Tonight, outrage over the death of a 7-year-old girl who was in border patrol custody when she died of dehydration. Trump administration says it's not responsible for her death. The DHS chief, Kirstjen Nielsen, saying it is, quote, a sad example of what happens when a family crosses the border illegally.

Ed Lavandera is OUTFRONT with the latest.


ED LAVANDERA, CNN CORRESPONDENT (voice-over): Federal officials say the 7-year-old Jakelin Rosemary Caal Maquin would have likely died in the desert had border patrol agents not intervened with medical help. But despite that, calls for an investigation into what happened in the hours she was in custody before her death are growing. The girl had just celebrated her 7th birthday three days earlier when

she and her father made the difficult journey through treacherous terrain.

KIRSTJEN NIELSEN, HOMELAND SECURITY SECRETARY: This is just a very sad example of the dangers of this journey.

LAVANDERA: According to DHS, Customs and Border Patrol agents apprehended the girl and her father on December 6th at the Antelope Wells border port of entry in western New Mexico, along with a group of migrants turning themselves in to the U.S. agents.

It was there DHS says her father at first told border agents his daughter was in good health. It was noted on an English language intake form the father signed. But he does not speak English.

The father and daughter waited for hours before boarding a bus to a nearby border station. DHS says on the way to Lordsburg, New Mexico, 95 miles away, the girl ran a high fever and started vomiting. At one point, she stopped breathing. Agents revived her and called ahead for emergency medical help.

Just over an hour after reaching the border station, she was airlifted to Providence Children's Hospital in El Paso, Texas, 160 miles away. Her father traveled there separately.

The girl suffered cardiac arrest in the hospital, was revived but did not recover. She died on the morning of December 8th. The coroner has not ruled on her cause of death.

NIELSEN: This family chose to cross illegally. What happened here was they were about 90 miles away from where we could process them. We gave immediate care. We'll continue to look into the situation, but, again, I cannot stress how dangerous this journey is when migrants choose to come here illegally.

HOGAN GIDLEY, WHITE HOUSE DEPUYTY PRESS SECRETARY: Does the administration take responsibility for a parent taking a child on a trek through Mexico to get to this country? No.

LAVANDERA: Not far from this hospital in El Paso, the group Border Network for Human Rights takes issue with the Trump administration blaming the girl's father.

FERNANDO GARCIA, BORDER NETWORK FOR HUMAN RIGHTS: This is not the America that we believe that we used to believe it is. I mean, the militarization of the board, this situation is going to come and haunt the rest of our society. This is not what America is about.


LAVANDERA: And, Erin, what those critic goes on to say is they believe it's the Trump administration's immigration policy making it much more difficult for these migrants to request asylum at these legal ports of entry and forcing migrants to make these much more dangerous treks throughout the more remote areas. The inspector general here with the Department of Homeland Security says they will launch an internal investigation and that report will be made public.

But there's also growing concerns and critics, Erin, people wondering why it took so long for DHS to speak about this case publicly -- Erin.

BURNETT: All right. Ed Lavandera, thank you.

And thanks very much to all of you for joining us.

"AC360" starts now.