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Lawmakers Meet Trump over Government Shutdown; Trump Hosts Lunch with Lawmakers & McConnell Says Votes on Pause; Schumer Demands Trump Drop Wall Funding; New York State Pays to Keep Statue of Liberty, Ellis Island Opening During Shutdown; McGurk Resigns Following Mattis over Trump's Decision to Pull Troops Out of Syria; Lindsey Graham: Drawdown of U.S. Troops in Afghanistan Could Result in "Second 9/11"; Trump Lashes Out at Acting A.G. Whitaker; Whitaker Refuses to Recuse from Russia Investigation; New Details on Justice Ginsburg's Health Scare. Aired 1-2p ET

Aired December 22, 2018 - 13:00   ET

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


[13:00:00] FREDRICKA WHITFIELD, CNN ANCHOR: Hello, again, everyone. I'm Fredricka Whitfield. Thanks for being with me this Saturday.

This breaking news right now, the Trump orbit is in a tail spin after a chaotic week and multiple breaking stories. A U.S. government shutdown, which we're in the midst of, entering its 13th hour. A meltdown on Wall Street. The Defense Secretary Jim Mattis walking out. And the special presidential envoy in charge of countering ISIS -- his name is Brett McGurk -- he has just now resigned, as well, following Mattis's resignation.

Let's start on Capitol Hill where we are entering hour 13 of the partial government shutdown. Lawmakers are in negotiations mode right now with the U.S. president as they work to end this standoff over the president's demand for border wall funding. The president hosting a lunch, in fact, at the White House hoping to strike a deal.

Senate Majority Leader Mitch McConnell says the Senate is on pause until it figures out a way forward. Listen.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL, (R-KY), SENATE MAJORITY LEADER: We pushed the pause button until the president, from whom we will need a signature, and Senate Democrats, from whom we will need votes, reach an agreement. No procedural votes, no test votes, just a meaningful vote on a bipartisan agreement whenever that is reached. And it's my hope that it's reached sooner rather than later.

SEN. CHUCK SCHUMER, (D-NY), SENATE MINORITY LEADER: President Trump, if you want to open the government, you must abandon the wall. Plain and simple.

The wall is President Trump's bone to the hard-right people. It's no way to spend $5 billion for a political bone.

(END VIDEO CLIP)

WHITFIELD: Let's get right to CNN congressional correspondent, Phil Mattingly, on Capitol Hill.

Rather dramatic moments there, but is there any movement?

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: There's not, to be blunt. If you want to go behind the scenes of what's happening right now. While there have been proposals traded back and forth between the White House and Democrats over the course of the last 12 to 18 hours, none of those proposals I'm told at least at this point from sources involved have brought them any closer to a resolution.

You mentioned that lunch the president is going to have at the White House. I'm told the people attending that lunch or at least part of that group will be members of the House Freedom Caucus. These are the very conservative allies of the president, the allies who have been pushing the president to have this fight, to hold out for the $5 billion he's requested to fund his border wall. They will be in attendance at that lunch in the residence that the president tweeted about.

If you listened to what both leaders said on the floor, you would know that lunch is probably not going to push the president closer to a deal, given their position, the Freedom Caucus's position on the shutdown and border wall.

What Mitch McConnell laid out clearly is that in his mind this is now a negotiation between Democrats and the White House, a negotiation that has been happening in fits and starts with no clear resolution over the course of the last day or so. What Senator Chuck Schumer made very clear is any deal cannot include money for the wall, which up to this point as the president has made clear is his baseline.

If you listen closely to what Senator Schumer said, he did open the door to any proposal, as he said, that included perhaps extra funding for border security that did not have any ties to a border wall. There's some opening there, a small one, but given the president's baseline has been not just money for the wall but $5 billion for the wall, you realize, Fred, why at this moment nobody is really optimistic that anything's going to happen soon. In fact, officials on both sides that I've been talking to right now are predicting that this will take longer than it will take shorter. In other words, it's going to take more than a few days. This isn't something that's going to be wrapped up in a couple of hours. As one person told me on my way over here, this is probably going to get worse before it gets better. We'll have to wait and see -- Fred?

WHITFIELD: Phil Mattingly, thank you so much. We'll check back with you:

Meantime, President Trump did delay his holiday trip to Mar-a-Lago, Florida, and says he is working hard at the White House on this shutdown.

Let's check in now with CNN White House reporter, Sarah Westwood.

Sarah, this lunch, who would be in attendance? Are these the folks that need to be persuaded by the president? SARAH WESTWOOD, CNN WHITE HOUSE REPORTER: Well, Fred, as Phil just

reported, some of the attendees will be from the conservative House Freedom Caucus. Those are people who are already very well-aligned with what the president said he wants from these appropriation bills, and that's $5 billion for the border wall. Criticism from conservatives in the House and conservatives in the media is part of what pushed the president to abandon what looked like a bipartisan deal earlier this week that would have kept the government open temporarily until February 8th. It would have punted this fight until after the holidays. That temporary spending bill passed the Senate unanimously. But the president then grew increasingly sensitive to criticism that he was basically surrendering on his signature campaign promise to build a wall. And by Thursday the president had summoned House Republicans to the White House and informed them he would not be able to support the temporary spending bill.

[13:05:10] This process has been made extremely difficult, Fred, because the president has not signaled really what he'd be willing to sign, and that's causing some headaches for negotiators on Capitol Hill as they try to get to some kind of deal that would really only be useful if the president would put his signature on it. He's not, for instance, said whether he'd be willing to come down off that $5 billion number that Senate Democrats have already described as a non- starter. He's not said whether he'd be willing to reconsider Senator Schumer's initial offer of $1.6 billion for border security. And so that lack of clarity has really caused a lot of problems in the negotiations, and the president is still not signaling what he'd be willing to sign. That's part of why, Fred, we still see these talks at a standstill essentially.

WHITFIELD: All right, Sarah Westwood, thank you so much.

Let's talk further on this. Joining me right now, former Ohio State Senator and CNN political commentator, Nina Turner, former Virginia attorney general and CNN legal commentator, Ken Cuccinelli.

Good to see you both. Happy holidays.

Nina, you first,

KEN CUCCINELLI, CNN LEGAL ANALYST: Happy holidays.

WHITFIELD: Your reaction to Senate Majority Leader Mitch McConnell, who is squarely placing the blame and the onus on Democrats, saying it's Democrats who can help end this shutdown and help agree to a plan that the president would sign. Your thoughts?

NINA TURNER, CNN POLITICAL COMMENTATOR: Fred, as much as Leader McConnell would like to wash his hands of this, this shutdown is of, for, and by the Republicans. And for the Republicans who are in charge of the House, the Senate, and the presidency, so he cannot separate himself from the president on this. And what is utterly shameful is that the American people are being played. And so as much as Leader McConnell wants to walk away from this, this is in his control. He leads the Republican majority in the Senate. They control the House for now. And they can still control the White House. And Fred, what's even more painful about this I heard in the last segment you were talking about they were going to launch. The Freedom Caucus menace are going to launch. And meanwhile --

(CROSSTALK)

WHITFIELD: It's preaching to the choir. These are not people who need to be persuaded otherwise. So --

(CROSSTALK)

TURNER: They get to have lunch. They get to be cavalier about a lunch where 800,000 of our neighbors and friends and family members, people who serve this government, may or may not get a paycheck. So, again, no member of the Congress should take a paycheck. If those working women and men, public servants and other ways, are having uncertainty about whether or not they're getting paid, no member of Congress should be paid, and certainly they shouldn't be having a lunch over at the White House hobnobbing while people are suffering in this country.

WHITFIELD: Ken, there are a few conflicting messages being sent that Nina was just underscoring there. You heard from Chuck Schumer, who said there are three proposals on the table, two from Democrats, one from McConnell, and this two days after a bipartisan, you know, panel came up with and agreed on McConnell's plan to keep government open until February 8th, but then the president changed his mind, acquiesced to pressure from conservative lawmakers and commentators. And Schumer said if you want to keep the government open, you've got to abandon this whole wall concept.

CUCCINELLI: Right, so it's OK for Chuck Schumer to put an absolute line in the sand, but it's not OK for the president to try to actually fulfill a campaign promise.

(CROSSTALK)

WHITFIELD: But the president had --

(CROSSTALK)

CUCCINELLI: -- that was voted on by the American people.

WHITFIELD: I guess the point he was making, though, the president had agreed to the earlier bipartisan panel but only changed his mind once he found out it wasn't popular with certain conservatives. So the president did show a willingness to go with the plan.

CUCCINELLI: Well, I wouldn't just say certain conservatives. The president's base goes well beyond conservatives. And I know that's the way it looks from the left, from where Chuck Schumer sits, but I can tell you as someone involved in the contest that he reaches way beyond that. This is his signature --

WHITFIELD: Why did he change his mind?

CUCCINELLI: -- campaign issue. Because it's his signature campaign issue. So on the other side, you have Chuck Schumer saying literally zero dollars. Let's not talk about this $1.3, $1.6 billion like it's wall funding. It's to fix and repair existing wall. It's not to build new fences, new wall, et cetera. It's explicitly restricted from that use. So far, Chuck Schumer is willing to move to zero dollars. And under the current procedural posture, it does require Democratic votes to pass any budget agreement. And there's a fourth plan on the table, and it is of course the one the House passed that included the $5.7 billion.

And my last point is it is very rich to hear Chuck Schumer say, oh, gosh, this isn't a good expenditure of $5 billion. I'm so glad Chuck Schumer has discovered frugality finally, but it's only on a program that is the president's campaign issue. And look, he got elected on this.

[13:10:07] WHITFIELD: So Nina --

(CROSSTALK)

CUCCINELLI: So it makes sense for the president to fight for it.

WHITFIELD: So does this mean that the government will remain closed unless there's specific wall funding, not border funding as, you know, part of this proposal, but it has to specifically spell out wall funding, and if not, then government will remain closed? Is that where we're going?

TURNER: That seems very much like what the president is staking his entire presidency on, not things like making sure that everybody has health care, not protecting auto workers, for example, in my home state of Ohio. It is utterly ridiculous, Fred, utterly ridiculous. And I am speaking for not just people who vote Democrat. This is not -- forget Chuck Schumer and the rest of those leaders, Mitch McConnell and the rest of those folks playing games with the American people. This is about keeping this government open. Fred, since this new budgeting system, I believe that they've only passed four budget appropriations. We continue, we or they continue to budget by continuing resolution, and it is outrageous. We need somebody to step up and stand up for the American people.

Mr. President, you have written a check that your behind can't cash this time. Keep the government open and find a way to make sure we secure this country in a way that is palatable to all Americans and not just some wall. He's selling a whole bunch of hokey to the people who voted for him. For all Americans, this is wrong and especially the people who are losing their paycheck. Because it's not just about the 800,000 federal workers. They have families too, and people need to eat and they need to pay their bills. They need to forgo that lunch they're about to have in the White House.

WHITFIELD: And the contractors are counting on government working as well.

Ken, why piggy back on this spending bill? Why not have a separate immigration bill, that's something that is to be worked out later --

CUCCINELLI: Well, there's a simple reason for that.

WHITFIELD: -- as opposed to hanging up everything on this campaign promise?

CUCCINELLI: There's a simple reason for that. It is because, because of the contentious nature of this particular issue, it has to be on must-pass legislation. That's why. And look, I'm in northern Virginia talking to you --

(CROSSTALK)

WHITFIELD: But it hasn't worked with a Republican-controlled House Senate and White House.

CUCCINELLI: -- by the shutdown. Well, again, you can't do this under the current procedural posture without Democratic votes in the Senate. The attempt to completely lay this on Republicans isn't accurate. And I don't think the American people care about the process. They care about the result. And that's been the history of other shutdowns as well. If you live in about 48 states, not Maryland, and not Virginia, you aren't even really noticing this shutdown. You don't even notice it. The people who notice it, as Nina noted, are the employees who are affected and contractors --

WHITFIELD: And 800,000 people, that's a pretty significant number.

CUCCINELLI: -- in and around Washington, D.C.

WHITFIELD: Yes, that's a pretty significant number.

(CROSSTALK)

CUCCINELLI: It certainly is. Hey, I live here.

WHITFIELD: Plus contractors, people who do government work, who may not be federal employees.

CUCCINELLI: That's right.

WHITFIELD: But if there's no government working, that means those services are not working either. It does impact a lot of people.

CUCCINELLI: That's true. It does.

WHITFIELD: Ken Cuccinelli and Nina Turner, thank you so much. We'll leave it there for now. Appreciate it.

TURNER: Thank you, Fred.

WHITFIELD: Still ahead, New York finds a way to keep the Statue of Liberty open despite the U.S. government shutdown. Governor Andrew Cuomo joining me next on how New Yorkers made that happen and what lawmakers need to do to reopen the U.S. government.

(COMMERCIAL BREAK) [13:17:36] WHITFIELD: Welcome back. Senate Majority Leader Mitch McConnell says the Senate is pushing the pause button on any votes until President Trump and Democrats can come together to end the U.S. government shutdown. Minutes later, Senate Minority Leader Chuck Schumer responded by demanding President Trump abandon the border wall to get a deal done.

Joining me right now, New York Democratic Governor Andrew Cuomo.

Governor, glad you could be with us.

What do you make of the arguments being made by Schumer and Mitch McConnell?

ANDREW CUOMO, (D), NEW YORK GOVERNOR (via telephone): Good afternoon, Fred. Thanks for having me.

One of the things that's really outrageous here is how patently obvious and absurd this situation is. Republican Leader McConnell trying to disassociate himself from the entire situation just shows their embarrassment. They say the president promised this in the campaign, and he wants to deliver on a campaign promise. This is not a campaign season. This is governing now, and you're supposed to be intelligent and rational about governance. And the wall may have been a great line in a campaign, but it's unintelligent as border security. Plus --

WHITFIELD: Are you concerned, then, that the president seems to dig in his heels, backing away from a bipartisan plan a couple of days ago and now saying, no, there's got to be funding for a border wall? How concerned are you about the longevity of this shutdown?

CUOMO: Look, with this White House, you would assume that, at one point, rational and logical thinking would kick in with most White Houses. With this White House, you don't know. I think even his own people, and they understand the differences between a wall and border security, and that a wall is actually not the most effective way to do border security, they should be talking about sensors and technologies and drones, et cetera. And the Democrats support that. Plus, the president's campaign promise is gone. He said Mexico was going to pay for it.

WHITFIELD: Yes.

CUOMO: So even if he has the wall, what happened to Mexico? Why are we paying anything? You promised, the president promised Mexico was going to pay. It was one of his great lines in his speeches. People would yell out, Mexico's paying. It's all baloney. Let's be honest. And it's an absurdity.

[13:20:13] WHITFIELD: With this government shutdown, among the places impacted would be places like Ellis Island and the Statue of Liberty. Now you and the state are going to foot the bill, $65,000 per day, to keep operations going at Ellis Island and the Statue of Liberty as long as the government shutdown is in place? Why was that important to do? CUOMO: First, as a practical matter, from the state of New York's

point of view, Fred, the Statue of Liberty is one of the nation's great tourism destinations. We're in the holiday season, and we literally get millions of people who come to see New York, but also see the Statue of Liberty and New York harbor and the beauty of it. And we would lose roughly $1 million per day in economic impact of the tourism. So the state will pay those employees. It's about, as you said, about $65,000 per day to actually keep those monuments operating and keep our tourism industry working, as well as the 1,000 federal employees who run those monuments because it's in our economic interests. But also, as a matter of symbolism. while they're being absurd in Washington, D.C., one of the great symbols of this nation, the Statue of Liberty, they can't close it down. They shouldn't close it down. And we won't let them close it down. And if it means the state will pay, the state will pay.

WHITFIELD: All right, New York Governor Andrew Cuomo, thank you so much, and happy holidays.

CUOMO: Happy holidays to you, Fred.

WHITFIELD: Thank you.

Next, two high-ranking officials leading the fight against ISIS suddenly resign after President Trump announces his pulling U.S. troops from Syria. Is the president making a big mistake?

(COMMERCIAL BREAK)

[13:26:43] WHITFIELD: President Trump's controversial decision to pull U.S. troops out of Syria prompting the resignation of the man the president put in charge of destroying ISIS. Brett McGurk, the special presidential envoy for the global coalition to counter ISIS, has quit. McGurk's resignation follows Defense Secretary James Mattis' stunning resignation, also triggered in part by the president's decision on Syria.

Let's bring in CNN global affairs correspondent, Elise Labott.

Elise, what can you tell us about Brett McGurk and why he's calling it quits now?

ELISE LABOTT, CNN GLOBAL AFFAIRS CORRESPONDENT: Well, Fred, we're talking about one of the U.S. government's most-accomplished diplomats. And Brett McGurk has been working on issues related to Iraq in the region for decades. He's been the envoy dealing with the 60-plus member coalition on ISIS for about five years now, and largely had been successful. But you know, you just remember, in recent days, the president had said that, you know, ISIS -- the U.S. would stay and remain in Syria to defeat those remnants of ISIS and also to counter Iran. And Brett McGurk was talking to State Department correspondents just a few days ago, and then went off to the region to brief partners about this policy, assuring members of the coalition, U.S. partners in Iraq and Syria, like the Kurds, that the U.S. was going to stay. In fact, he was in Iraq meeting with senior leaders when President Trump tweeted that he was pulling out of Syria. So according to sources familiar with his thinking, his colleagues,

you know, Brett McGurk felt his credibility, his integrity was on the line. He could not defend this policy, let alone, execute it. Found it, you know, too sudden and even reckless, and gave his resignation to Secretary Pompeo last night. It will be effective December 31st.

I will note that McGurk was expected to leave in February to take up a post at Stanford University. He has a young child, and he was looking forward to time out of the government, but felt he is not going to be holding the bag for this policy, which is really against what he had been going out and telling allies -- Fred?

WHITFIELD: Yes, you are laying out what was a very awkward sequence of events leading up to his resignation.

Elise, thank you so much.

With me now to discuss this is Rear Admiral John Kirby, who is a CNN military and diplomatic analyst.

Admiral, good to see you.

REAR ADM. JOHN KIRBY, CNN MILITARY & DIPLOMATIC ANALYST: Good to see you, Fred.

WHITFIELD: So your reaction to Brett McGurk's resignation and why?

KIRBY: I'm not surprised at all. I'm very sad to see it. I think it says a lot for how strongly he feels about the president's decision, that even just a couple of months ago before he was going to leave anyway, he's leaving now and so immediately. It just shows you how significant it is and how severe it's going to be to our ability to keep this coalition together going forward.

WHITFIELD: Admiral, to hear Elise spell out, here he is in Iraq, he learns of it in a public manner, while he is, you know, meeting, you know, with his counterparts overseas. I mean, that has to be really humiliated and embarrassing, you know, to be upstaged like that. And here you are trying to reassure allies about a plan in place. Come to find out the commander-in-chief has something else he's conveying publicly.

[13:30:08] KIRBY: Not just upstaged, but blindsided and completely undercut while you're in the region talking to partners in this coalition, a coalition that Brett helped build. He's been working on the ISIS problem since it became a problem back in 2014. He was on the ground floor of this counter-ISIS coalition with General John Allen when John Allen was the director of it or the envoy. To have that credibility, to have that reputation for honesty and integrity and for driving this coalition forward, and then to be completely -- have that rug pulled out from under you in the region, must have been a stinging blow to Brett because he has been so loyal and dedicated to this mission.

WHITFIELD: Wow. And then to hear now the president is angry after the resignation of, you know, the Defense Secretary James Mattis, who, in his resignation letter, he said, in part, "Because you have the right to have a secretary of defense whose views are better aligned with yours on these and other subjects, I believe it is right for me to step down from my position."

And apparently, the president, his feathers are really ruffled that this, you know, letter is public and the things, the content of Mattis's letter. You know, I guess, who are you most empathetic to in this? Is it the president and how he feels about this, or is it how Mattis spelled out this letter?

KIRBY: I actually think the president has a point here, Fred. I mean, the letter of resignation at that level really should be a private matter. I think -- let me back up a little bit. I think that Secretary Mattis did the honorable and right thing to do. Frankly, I think he had reason to do it earlier than this. When you lose the trust and confidence of your boss, it's a military tradition that you submit your resignation and move on, and you allow the boss to get somebody who he or she is more comfortable with. He did exactly the right thing. I think releasing the letter so aggressively right after meeting with the president, to me, was ham-fisted, and I think it undercut the legitimacy of Secretary Mattis's reasons. So I was really disappointed --

(CROSSTALK)

WHITFIELD: Meaning, he had that letter ready.

KIRBY: Yes.

WHITFIELD: You know, he was going to meet with the president. They met, apparently, for I guess another 45 minutes about this U.S. pullout of Syria plan, and then it didn't, you know, bode well from Mattis's point of view, and then handed the letter?

KIRBY: No, no. I have no problem with him having a letter prepared because I know that the last couple of months have been tough on Secretary Mattis and this was a decision long in coming, so I get that. And that he had it ready didn't bother me. It was very well written and articulate and measured and balanced. All of that is good. But a letter of resignation like that should remain private between you and the principle. I did not like the fact that as soon as he got back to the Pentagon, the Pentagon press officers were releasing it to the press in a very aggressive manner. That seems to me to undercut the dignity and the solemnity with which he had served as secretary of defense.

WHITFIELD: Now, there's discussion about U.S. troop withdraw from Afghanistan. This is what Senator Lindsey Graham had to say about that.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM, (R), SOUTH CAROLINA: We want to withdraw from Afghanistan with honor and do it based on conditions on the ground. Based on my assessment in Afghanistan, if we withdrew anytime soon, you'd be paving the way for a second 9/11. (END VIDEO CLIP)

WHITFIELD: What are your thoughts, and the whole notion of the whole telegraphing that the president said he didn't want to do?

KIRBY: It almost doesn't matter what the president says. In the past, he always just kind of flip-flops to the exact course he argued against.

Listen, I think Senator Graham's making a very key point, and this is what I think has gotten lost a lot in the last couple of days as we've been talking about Mattis's resignation. As serious and significant as that is, the Defense Department's going to keep doing their job. What's much more worrisome this week was the president's decision to unilaterally and rapidly withdraw forces from Syria and ordering the Pentagon to cut in half, just sort of arbitrarily cut in half the very small number of troops we already have there.

Senator Graham is just coming off a trip to Afghanistan. He's seen firsthand not only how the Taliban has regained strength in so many more districts throughout Afghanistan and now --

(CROSSTALK)

WHITFIELD: And he, too, probably was reassuring, sending a message of reassurance only to now --

KIRBY: Absolutely.

WHITFIELD: -- you know, maybe people will think he's not being honest.

(CROSSTALK)

KIRBY: The Taliban's not going to have any much more incentive to sit down and negotiate a peaceful solution to this conflict that we've been at for 17 years. Not to mention -- and Senator Graham mentioned this in comments earlier to Kate Bolduan -- that ISIS is gaining a stronger foothold in Afghanistan. There's still an ISIS threat there. Our troops are helping on two fronts. They're aiding and assisting and advising Afghan national security forces and they're doing counterterrorism operations. Both of them are still needed. I think this is a terrible mistake that the president is about to make.

WHITFIELD: All right, Admiral John Kirby, thanks so much. Happy holidays.

KIRBY: Thank you.

[13:34:49] WHITFIELD: Still ahead, is the honeymoon over for the president's acting U.S. attorney general? CNN has learned that Matt Whitaker is already in the Trump doghouse after a few weeks on the job. Details next.

(COMMERCIAL BREAK) WHITFIELD: The honeymoon phase for President Trump and Acting U.S. Attorney General Matt Whitaker appears to have hit a bump in the road. Sources tell CNN that Trump has lashed out at Whitaker at least twice in recent weeks. Trump was angry that federal prosecutors Whitaker oversees referenced the president's actions, implicating him, in fact, in crimes his former lawyer, Michael Cohen, pleaded guilty to. But sources say Trump has not directed Whitaker to stop the investigations.

All of this after Whitaker disregards advice from a Department of Justice ethics officials to recuse himself from the Mueller probe. And that's raising concerns on Capitol Hill.

Let's bring in our legal experts, Avery Friedman, a civil rights attorney and law professor, joining us from Cleveland.

Good to see you.

[13:40:11] AVERY FRIEDMAN, CIVIL RIGHTS ATTORNEY & LAW PROFESSOR: Hi, Fredricka.

WHITFIELD: And criminal defense attorney, Richard Herman, joining us if Las Vegas.

Good to see you as well.

Happy holidays to both.

RICHARD HERMAN, CRIMINAL DEFENSE ATTORNEY & LAW PROFESSOR: Hey, Fred. Happy Holidays to you, too.

WHITFIELD: Thank you so much.

So, Richard, you first.

While the ethics official recommended Whitaker recuse himself, he did note there was no legal conflict that would require a recusal. Do you agree?

HERMAN: Well, it's an ethics opinion, Fred. And for some reason, you know -- when you think it can't get any more absurd and repulsive from this administration, it does. It's incredible, and people are numb to it. So he's become attorney general after being on TV ranting and raving that Mueller's a witch hunt and it's outrageous and it should be stopped. This is the guy the president of the United States selects as the attorney general to oversee the criminal investigation of the president of the United States. It's unconscionable.

(CROSSTALK)

WHITFIELD: He gets to -- Whitaker gets to then just say, no, I don't want to recuse myself regardless of what the recommendation is.

HERMAN: Yes.

WHITFIELD: Is that the end of the story? FRIEDMAN: I don't think it's --

HERMAN: It's absurd.

FRIEDMAN: No. Here's the law. Here's the law. It's exactly what Jeff Sessions -- as soon as he came in, he was a Trump partisan, and the ethics officer says, look, this is the magic number. It's 5 code of federal regulations, 2635.502 a2. As soon as Sessions heard that Fredricka, he recused himself. It's the same law that applies to Matthew Whitaker.

WHITFIELD: Why is it this different this time?

FRIEDMAN: There's no ethical way he can do it. Either he says I will honor the ethics code, head the Department of Justice. These are honorable people that serve, or I will be unethical. One choice or the other. So it seems to me that --

WHITFIELD: So he can't be forced? No one can force him?

FRIEDMAN: What's that?

WHITFIELD: No one can force him?

FRIEDMAN: Oh, I think since he is the acting attorney general, he is the boss. But it seems to me Congress can examine that through Congressional hearings. And it seems to me also that sooner or later this ethical issue has to surface. If not in the executive branch, certainly before Congress.

WHITFIELD: OK. And --

(CROSSTALK)

HERMAN: He's got more --

WHITFIELD: OK. Go ahead.

HERMAN: I'm sorry. He's got ethical issues from Iowa. They have departmental grievance complaints against him. He may end up getting disbarred eventually. Who knows what's going to happen with him. But right now he sought an ethics opinion from the Department of Justice, and someone told him from the Department of Justice, you must recuse yourself, and he says, no, I'm not going to. He controls Mueller, Fred. Anything Mueller wants to do he controls. If Mueller wants to indict, they need his permission. He will never give permission. He's a political hack installed by Trump. Trump thinks he can control the attorney general.

(CROSSTALK)

FRIEDMAN: Whitaker will never --

(CROSSTALK)

WHITFIELD: Reportedly, the president is very upset, has, you know, blown up at Whitaker a couple of times, you know, Avery, saying, why wouldn't you step in and do something about the southern district? Why would you allow those prosecutors to implicate me? So I mean, that seems like an overreach right there, is it not, from the president? Are you bullying now?

FRIEDMAN: Remember --

(CROSSTALK)

WHITFIELD: The acting attorney general?

FRIEDMAN: The president views the Department of Justice, the attorney general, as if it is his personal attorney. And the fact is that's really what the problem is.

HERMAN: It's not.

FRIEDMAN: That is the problem. The United States attorney in the southern district of New York was an appointment by Donald Trump. He has the autonomy to do what he's supposed to do. What's Matthew Whitaker going to do, jump in and say don't proceed with any further --

(CROSSTALK)

WHITFIELD: But isn't that partly what the Mueller probe is about?

HERMAN: Fred?

WHITFIELD: Isn't that one of the tentacles about overreach --

(CROSSTALK)

WHITFIELD: -- obstruction.

HERMAN: Right. Yes.

WHITFIELD: -- bullying, all that kind of stuff, giving directives to the FBI, the A.G.

HERMAN: Yes, yes.

WHITFIELD: OK. So then help us figure out how are we at this juncture?

(CROSSTALK)

WHITFIELD: What's going on?

FRIEDMAN: I think he tried to say yes.

HERMAN: Where are all the spineless hypocrites who had a heart attack when Bill Clinton got on a plane with then-Attorney General Loretta Lynch, who was investigating Hillary Clinton?

(CROSSTALK) WHITFIELD: Who was back on Capitol Hill testifying about that.

HERMAN: -- investigating, is talking directly to the attorney general saying control those prosecutors in New York. How can you let them get this information disseminated?

(CROSSTALK)

HERMAN: These are documents that are drawn up that are made public.

(CROSSTALK)

WHITFIELD: Does this add, does this now add to --

FRIEDMAN: There's nothing he can do about it.

(CROSSTALK)

WHITFIELD: -- is this documents that can add to --

HERMAN: Yes, Fred.

WHITFIELD: I don't even have to get the question out. You know already.

(CROSSTALK)

WHITFIELD: Now Mueller looks at that, too?

HERMAN: Yes, Mueller looks at all of this. It's a mountain of obstruction. It continues every day. He can't help himself.

FRIEDMAN: Well --

[13:45:07] HERMAN: If the walls are coming in, Fred, it's coming down. The whole thing's coming down. It's outrageous.

WHITFIELD: All right.

FRIEDMAN: I'm not sure what's coming down but, at the end of the day --

(CROSSTALK)

HERMAN: The administration is coming down. He's going to be arrested.

FRIEDMAN: That's a different issue.

HERMAN: His family is going to be arrested.

FRIEDMAN: That's not the issue. That's not even the issue we're discussing.

WHITFIELD: OK.

(CROSSTALK)

WHITFIELD: Richard, Avery -- I don't have to ask the question. We've all been together so long that you know what I'm going to ask before I even ask it.

HERMAN: We read your mind. We anticipate your question and you anticipate our answer, that's right. Telepathy.

(CROSSTALK)

WHITFIELD: That's right.

HERMAN: Yes.

WHITFIELD: Good to see you guys. Happy holidays.

FRIEDMAN: Happy holidays.

WHITFIELD: All right, still ahead, new details emerging about Justice Ruth Bader Ginsburg's health scare. More on that next.

(COMMERCIAL BREAK)

[13:50:18] WHITFIELD: New health concerns for U.S. Supreme Court Justice Ruth Bader Ginsburg. Ginsburg had cancerous growths removed from her left lung by doctors on Friday.

CNN's chief medical correspondent, Dr. Sanjay Gupta, looks at her prognosis.

(BEGIN VIDEOTAPE)

DR. SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: What we know is this abnormality in her left lung was discovered back November 7th, when she broke her ribs. At that time, she had scans done. And they found these abnormalities, these nodules, incidentally. Meaning, that they weren't looking for them. It doesn't sound like the nodules were causing her any trouble. But once they saw them, they recognized that something probably had to be done about that. That was six weeks ago. So keep in mind, they were OK to wait six weeks and that gives you some sense that there wasn't a real concern, a real sense of urgency about this. They also did other scans of Justice Ginsburg to see if there's evidence of disease any other place in the body. Remember, she had a history of colon cancer and early pancreatic cancer in the past, and they wanted to see if there's possibly any connection with another cancer in this, and there doesn't appear to be. So instead of this being a cancer that spread to the lungs from somewhere else in the body, this appears to be a cancer that started in the lung itself. Again, these two small nodules.

Doctors also said that she should need no further treatment. So the operation took this cancer out, they don't see any other evidence of cancer within the lungs. So they are treating this as if the only treatment she will need.

Now, it is a big operation, I think, for, at any age, certainly if you're 85 years old. The recovery is going to be the most significant part obviously over the next several days. We don't know if she had what is known as a standard thoracotomy, which is an opening in the chest, or if she had something done less invasively, which would shorten the operation and shorten the recovery time as well.

What is likely to happen next, we will know exactly what type of malignant cells these were that were found in the nodule and that will give us a better idea what it means for Justice Ginsburg going forward.

(END VIDEO CLIP)

WHITFIELD: Thank you, Dr. Sanjay Gupta.

With me now, Supreme Court analyst, Joan Biskupic.

Joan, good to see you.

So the justice remains in the hospital right now. How do we believe the justice is doing?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: So far, so good, from the earlier reports, Fred. And it has been just a little over 24 hours when we first got the news that she had had the surgery, and you know, it is still ricocheting across the air waves because of how important she is. She has become a cultural icon. The notorious RBG, you know, the subject of books and movies. But also, she holds such a key position as the senior justice on the liberal wing of a very divided 5-4 court. If anything were to happen to her that would cause her to step down, President Donald Trump would get a third appointee so early in his tenure, and that could really tip the balance of this court. So progressives, women, all sorts of people who are her fans, but also people who care about the law in America, are watching to see what happens to her.

WHITFIELD: You know, and Ginsburg is known to be a real workaholic. She does not miss a beat. And even with all of this going on, she participated this week in a vote that upheld a lower court ban, striking down new restrictions on asylum seekers. And talk to us about her fortitude, why it is so important for her to matter, you know, and to weigh in, no matter what.

BISKUPIC: That's so true. I remember in 2009, when she had just come off of her pancreatic cancer diagnosis, and she insisted on attending a joint session of Congress, where President Obama was speaking for the first time. And at that moment, she happened to be the only woman on the Supreme Court, Sandra Day O'Connor had left, and Sonia Sotomayor had not yet been appointed. And she said to me, I want Americans to see that the court was not all men. And she's very fierce about, first of all, showing up, being conspicuous, and casting her vote for her side. And that decision, that order that you just referred to, Fred, it was again by one vote, 5-4, to ensure that President Trump's new asylum restrictions did not go into place. What President Trump has tried to do here is to say that anyone who crosses the border beyond a port of entry cannot be considered for refugee status, and all the judges who have looked at this, now including the Supreme Court, have signaled that, no, that's not part of asylum law. You can't decide on whether someone needs protection from persecution back home, based on where he or she entered the country.

[13:55:13] WHITFIELD: She continues to be a fighter for so many. And folks really got a chance to see that, too, play out in that notorious "RBG," the documentary on CNN, and the new movie out, the nucleus of the story telling of her life.

Joan Biskupic, thank you so much. Appreciate it.

BISKUPIC: Thank you.

WHITFIELD: Next, a part of the federal government shut down affecting hundreds of thousands of Americans. Senate Majority Leader Mitch McConnell calling on the president and Senate Democrats to work together. So how long could this drag out? We will discuss.

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