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Negotiators Reach Tentative Deal to Keep Government Open; Washington Bracing for President Trump to Weigh in on Deal Over Border Wall Funding Agreement; NYT: Senior Officers Worried that Troops at Border Aren't Conducting Training Needed for Their Regular Missions; White House Refuses to Meet Congress' Deadline on Khashoggi Killing; GOP and Democrats Plan to Pressure Trump on Khashoggi as Pompeo Denies Covering Up for His Murder; Dow Set to Rise as Investors are Optimistic Over Border Deal; Interview With Sen. James Lankford (R- OK); Bipartisan Negotiators Reach Tentative Deal to Keep Government Open; President's Closest Allies Slam Deal to Avoid Shutdown; Aired 9- 9:30a ET

Aired February 12, 2019 - 09:00   ET


[09:00:27] JIM SCIUTTO, CNN ANCHOR: A very good Tuesday morning to you. I'm Jim Sciutto in New York. Poppy is on assignment today.

They have a deal. But the big question is this morning, will the president accept it?

It is a rare thing in Washington, a bipartisan compromise to avoid another government shutdown. But so far it's being met with something just as rare, and that is silence from that building right there, the White House. But we are learning right now from a White House official that the administration is still going through the border security agreement this morning.

Here's what's in it. The deal includes just $1.3 billion for just 55 miles of a barrier along the border. Keep in mind that is less than what the president rejected last year before triggering the longest shutdown in U.S. history.

The deal also includes $1.7 billion, an increase in overall DHS spending before negotiators say it should be enough for Mr. Trump, but he is already facing pressure from party hard liners and key FOX News commentators as well.

For more let's bring in CNN congressional correspondent Sunlen Serfaty.

Sunlen, tell us what the basics are of this deal? And is it -- are you confident or are they confident they could get this through both Houses?

SUNLEN SERFATY, CNN CONGRESSIONAL CORRESPONDENT: Well, I think lawmakers and the negotiators specifically, Jim, are collectively holding their breath right now waiting to see what President Trump says about this deal. But the deal, as it came together overnight, and you outlined some of the broad strokes, but $1.375 billion for barrier funding, that is much, much less. Only a fraction of what President Trump had been demanding this whole way through.

Democrats emphasizing this morning that that's not money for a so- called wall. They are calling it a barrier, a fence, if you will. And now only 55 miles of new barrier, including parts the president and the White House prioritize in these negotiations. On the detention bed number, that had been somewhat of a controversial figure in the last few days. That had been something of a big point of contention.

That settled at this current funding level of just over 40,000 beds. There is no cap on new beds, and that was something that Democrats had wanted and did not get in this negotiation. And about $2 billion increase in overall DHS spending.

Now a lot more in there. But the key question looming large over all of this is what will President Trump sign off for? We have heard from many of his key allies up here on Capitol Hill, many of them criticizing this deal.

Representative Jim Jordan, one of the president's friends and allies, he called this a bad deal on immigration. Mark Meadows, another key ally of the president, this morning saying this is hardly a serious attempt to secure our border. He says that it kicks the can down the road yet again and said, point blank, Congress is not doing its job here.

But those four negotiators on the conference committee they left last night after striking that deal, not sure but said that they were hopeful that the White House would sign off on that.

Here's Chairwoman Lowey this morning.


REP. NITA LOWEY (D), MEMBER OF BIPARTISAN PANEL ON BORDER SECURITY: This is a compromise. No one got everything they wanted. But it does secure the border. It does represent our values. And I am cautiously optimistic.


SERFATY: Now today will be a key day up here on Capitol Hill to see how lawmakers are responding to this deal. They only have a few days to actually write this piece of legislation, get it passed in the House and Senate and of course over to President Trump to sign it. And of course that remains a huge question mark -- Jim.

SCIUTTO: Sunlen Serfaty on the Hill, thanks very much.

For more now on what the White House will do, how it will react to this, let's bring in CNN chief political correspondent Dana Bash.

So, Dana, as we noted earlier, that this is less than the president rejected in December, but before he then helped spark the longest government shutdown. And around that time you'll remember that a lot of FOX News world pushed the president to some degree not to accept that deal. And you're hearing similar things now.

So how does the White House react to this proposal?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Well, at that time it was FOX News world but it was also key members of the House Freedom Caucus. You heard Sunlen talking about how some of them are also saying now that this is not a good deal.

But what's different between now and then is that we did go through the longest shutdown in history. And it was not a good look politically for anybody but especially the president. So that leaves the president with two options. Have another shutdown or sign this begrudgingly and figure out another avenue. And I am told by a conservative House member this morning that that it is the most likely outcome for the president. The most likely strategy for the White House is the president will sign this, making clear that Congress did not do its job to secure the border.

[09:05:11] And then look for options for executive action. Now I say executive action. That is not necessarily and probably the least likely of the executive action options, I'm told, is declaring a national emergency because that is probably the most problematic with regard to a court fight.

There are other options that we have been talking about over the past, you know, 30 plus days that the president had been considering, his lawyers also, using his executive authority to take money from Treasury for -- to counter drugs, illegal drugs. Taking money from -- a pot of money in the Pentagon. So those are all options that we are told -- I am told that the president is looking at.

No decision has been made. But it seems like that is the most likely road that the president is going to be headed down.

SCIUTTO: All right. Then setting up possible clashing of course.

Dana Bash, thanks very much.

BASH: Likely. Likely.

SCIUTTO: Likely.

BASH: Exactly.

SCIUTTO: I'm sure those briefs are already written probably by some Democrats.

BASH: Exactly.

SCIUTTO: Dana Bash, thanks very much.

Joining me now on the phone to talk through what would then follow here legally, CNN contributor and professor of law at the University of Texas, Steve Vladeck.

Steve, so you heard Dana there. Executive action, possibly an emergency declaration, but that's the least likely. What would executive action look like and would that be in your view legal here? Because, I mean, in the simplest terms it's Congress's job to approve funding. Congress has not approved the funding. So how can the president go around Congress?

STEVE VLADECK, CNN CONTRIBUTOR (via phone): Yes, Jim. I think Dana put her fingers on it. Like the real here is exactly which authority President Trump would point to and for what purposes? So, you know, we've been talking the last couple of weeks about these barriers, military construction authority that the president could rely upon. Some of which don't require a national emergency declaration.

But, Jim, I think at the end of the day the problem with those authorities and the reason why the president has not already resorted to them is because they won't get him all the way there. We're not talking about that much money. We're talking about, you know, authority to build fencing for limited purposes. And so I think the real question is whether the president is going to see that as enough of a win or whether he's going to feel hamstrung and feel the need to go beyond what Congress has both in this deal and in prior authorities already provided to him.

SCIUTTO: Yes. And you're right there. I mean, the political judgment as to whether this is a win or not is central to this, has been from the beginning.

Let me ask you this. If -- and really when -- an executive action is challenged by Democrats in court, is it likely that the action would be stayed? In other words it would be stopped while the court considers it or would it proceed while the court considers it? I mean --


SCIUTTO: Is it an immediate block of the president?

VLADECK: It's hard to predict that in advance. I mean, we certainly have seen a number of these kinds of injunctions against Trump administration policies over the past two years. So I think the odds are decent. Again, though, I think it really depends on just how closely what the president is doing fused to the statutes he's purporting to rely on. You know, one of the things that the court will look at, it will get there is what are the plaintiff's likelihood of success on the merits? And so if the president is doing something very small that's really just a face-saving gesture, I'm not sure the courts will block it.

They might just say, yes, this is close enough to the statute. This is fine. We're not going to raise, you know, a big hackle about this. But the more the president is departing from what Congress has given him, the more likely that is. And, Jim, I think this is the key point. This deal, if the president does indeed sign it, will at least to some degree be used against him as further proof that Congress hasn't approved of his actions.

So if we actually get to a point where the president is trying to go beyond these existing statutory authorities, I think his signature on this final compromise, you know, could very well go a long way toward hurting his legal argument that he has the power to act beyond it.

SCIUTTO: Steve Vladeck, thanks very much. The legalities are very central to this.

Let's discuss now with Josh Dawsey. He's White House reporter for the "Washington Post," and Ryan Lizza, chief political correspondent for "Esquire."

Thanks to both of you. Josh, if I could begin with you. As you know very well, the president speaks and thinks in the language and the terms of win-loss here. Is this deal a loss for the president?

JOSH DAWSEY, WHITE HOUSE REPORTER, WASHINGTON POST: Well, the deal itself would be in many ways as you can tell, Jim, because there is less money, as you said, than he would have gotten originally. It's a two -- I mean, a shutdown for, you know, five weeks, another three weeks of negotiations where Jared Kushner, his son-in-law, told him Democrats might come on board for this grandiose immigration plan.

That obviously has not happened here for the president. And he's getting less money. I mean, what's the likely scenario is what Dana said.

[09:10:02] The president signs this bill and then with sound and fury explains all the reasons he hates it and tries to take some sort of executive action. It's somewhat analogous to the omnibus spending bill. I don't know if you remember earlier this year where he seemed that he wasn't going to sign until the last minute, gave a pretty testy news conference delineating all the reasons he hated it, and then signed it after all.

So -- and the White House folks are looking for a way out of this but the merits of this bill, it's hard to argue are particularly, you know, victorious for the president.

SCIUTTO: Ryan Lizza, so the president, as Josh says, he declares victory here, and this is all about politics specifically it's about 2020 politics. Right? I mean, the president views this as an important campaign promise he has to deliver for his supporters. And we've heard throughout this that the president's own pollsters have been telling him that this issue works in key swing districts for 2020. Does it still work following a deal like this?

RYAN LIZZA, CHIEF POLITICAL CORRESPONDENT, "ESQUIRE: They sure think it does. I mean, if you watched his rally last night in El Paso, what were the giant signs hanging from the rafters? "Finish the wall."


LIZZA: The wall hasn't really been started so finish the wall means -- I don't know what exactly it means. But I think Josh is correct that Trump has a history of signing legislation from Congress and then trashing it. And not really, you know, owning it. So his alternative here is another government shutdown. And politically what's better for the president right now? To sign this legislation and move on and launch a PR offensive against it and run a little bit against Congress in 2020, or be blamed for another government shutdown?

I don't really -- you know, I don't think Trump believes that he came out of the government shutdown politically stronger, right? That was the period where his popularity was eroding really, really fast. And so I think the most likely scenario is sign the bill, trash it, and run on this slogan of, you know, Congress stinks, you've got to put me back in there for four more years to really get this wall and keep it as a live campaign issue.

SCIUTTO: Josh, you heard Dana Bash laying out the White House is considering now. Some sort of executive action with emergency declaration as an outlier.

LIZZA: Right.

SCIUTTO: Just make an executive order and kind of find some money elsewhere. Is that consistent with your reporting there? And key to this is, does the White House think that gets them enough money? Because a lot of those pots of money that they are looking at dipping into are certainly not as big as you need to build the wall that the president had in mind.

DAWSEY: That is consistent on our reporting. You know, the president has asked Mick Mulvaney, his chief of staff, formerly, you know, an OMB, to find these disparate pots of money, we can make some progress on the wall. The White House has been pretty surprised by the backlash from Senate Republicans on the national emergency and the unwillingness for so many to go along and the prospect of Senate Republicans, even repudiating the idea publicly in a vote.

So that has taken a bit of a backseat to a whole kind of array of other executive actions that they've been looking at. I think what they're trying to do here is they're trying to find a mechanism, a vehicle, if you will, to get some sort of movement on the wall that the president can show. Whether it's, you know, the amount that he wanted, whether it's, you know, $5.6 or $7, or $13 billion, those various numbers have been bandied about in the White House in different meetings.

It's unclear what they're going to propose right now. But the goal is to show some sort of progress and to show that the president is not just taking kind of a no from Congress as the last word.

SCIUTTO: We should remember, just before I leave you, that the president, Congress shut down the government for more than a month seeking a number that just isn't going to happen. And now have folded back to a number they already had before the shutdown. I mean it's -- it can't be forgotten.

Josh Dawsey, Ryan Lizza, thanks very much.

The president's former lawyer now says that he does not think there will even be a Mueller report. And John Dowd says that he knows everything there is to know about the investigation. Plus, is he in or is he out? Is Beto's counter rally to the

president's overnight a signal of what's to come?

And massive protests happening right now in Venezuela. A pivotal day there as the crisis grows. We are on the ground in the middle of it.


[09:15:00] JIM SCIUTTO, HOST, NEWSROOM: We do not know yet how President Trump feels about the agreement in principle to fund the government. But here's a look at the details of that deal, $1.375 billion for a barrier, of course, less than the agreement in the December.

Funding for more than 40,000 ICE beds and an increase in overall DHS spending. Bottomless, Congress is going to give the president the wall money he demanded, just a fraction of it. But a conservative source tells Cnn that he will probably take the deal for what it is, and then use executive action to get more money elsewhere.

Joining me now is Republican Senator James Lankford of Oklahoma, he sits on the key Appropriations Committee. Senator, thanks for taking the time this morning.

SEN. JAMES LANKFORD (R), OKLAHOMA: You bet, glad to be with you again.

SCIUTTO: So senator, you've said in the past that you would not support a deal without money for barriers. This deal as you know, funds about 55 miles of a border barrier, a prohibition we should note on any sort of concrete wall. In your view, is this enough?

LANKFORD: Well, we've got to see the rest of the details. By the way, it's not a problem having no concrete barriers, nobody is really asking for concrete barriers, that's been a campaign slogan. But in practicality, it's always been about these steel slats, a metal barrier, that's what the border patrol look for.

What we don't know yet on this deal, and there's only a few people that have seen in the details of it. By far, most of us haven't. In fact, many of the negotiators haven't even seen all the details of it. I ran into somebody on the Conference Committee early this morning who said that he hadn't seen all the details on it yet.

[09:20:00] So we're waiting to be able to see that. And we want to see, is it 55 miles of new area or is it 55 miles of replacing area? As you know, there's almost 700 miles of fencing right now, much of it has to be replaced. So we don't know yet whether this is new or this is replacement and how that fits in, we'll see in the hours ahead.

SCIUTTO: OK, so you're reserving judgment. You are aware that Cnn is reporting and others that the president -- and of course, this could change, but the president may accept this deal, but then seek money elsewhere and use an executive order to obtain money elsewhere to build more of the wall. I want to ask you, what would be your reaction to that? Do you believe

an American president when denied funding he wants in Congress has the authority to find money elsewhere?

LANKFORD: There are areas that he has authority to be able to use right now. What's called reprogramming, every president has that, and if it is within a certain line item to be able to reprogram it for other purposes. This is very different than the conversation before about using executive action, taking it from military budget, and taking it from other areas that are not classic reprogramming.

So again, we'll have to be able to see the details on that. I wouldn't have a problem if the president's reprogramming some of those funds. For instance, there is a fund that Senate calls the Treasury Asset Forfeiture Fund, that can be used for any law enforcement purposes.

That could clearly be used under the law right now for whatever purpose they choose to on law enforcement, including for border barriers. We'll have to be able to see where those funds come from though, that doesn't matter --


LANKFORD: A lot. It's important that we actually follow the law in this process.

SCIUTTO: Well, but let me ask you this because -- and I know you, yourself, given credit where credit is due have expressed reservations about a president overdoing an authority like this. Would you support for instance a Democratic president using similar authorities to find funds for expanding Medicare or imposing restrictions on gun rights?

I mean, are you worried about a precedent here that the president would be setting?

LANKFORD: Yes, it has been one of the things that I verbalized after President Obama was famous for saying, I have a pen and a phone, I'm going to take action.


LANKFORD: I don't want this ever to be a situation where this is a pen and a phone and a checkbook, and I can just use money wherever I want to. It has to say within the same line items. For instance, if you took money from the Department of Homeland Security, as you mentioned your early illustration and moved it to Medicaid or Medicare, that is exactly the wrong way to do it.

That is moving money from one account to another one, and you can't do that by law. I would adamantly oppose that, I would oppose that under this president as well. If he took money from one account and moved it to another one where it was clearly not intended to be.

So again, we've got to be able to see the details of it. There are several billion dollars that are in this Treasury Asset Forfeiture Fund, that are potential, that are out there that can be used for a stated purpose that is within the law. And we'll see if he targets to be able to use that, and I would assume he would.

SCIUTTO: As you're aware, the president has deployed thousands of active U.S. military to the border. The "New York Times" reported earlier this week that senior military officers are voicing concerns that those deployed troops are not being able to train for other essential missions.

I know you've been very vocal on national security issues, issues dealing with --


SCIUTTO: The military. Are you concerned that the president is using the military here for political purposes and causing damage elsewhere?

LANKFORD: I actually don't see them being used for political purposes. There really is a security risk on the border. I know everybody gets spun up on saying that this is a purely partisan issue, it's about a campaign promise until you've actually talked to some of the border patrol folks that are on the border and some of the ICE folks that are there.

And they can identify this is where their drugs are coming in, this is where we have human trafficking happening during this area. There really are humanitarian issues on the border, we've got to be able to manage those. And to be more aggressive to be able to manage it, every president of the last several have all used National Guard troops at different times to be able to assist some of our border patrol and ICE folks that are there.

Clearly, the border patrol, they are the law enforcement, but when they are setting up tents, when they're setting u concertina wire, when they're trying to be able to help provide some support to them, that is within their legal authority, they do. And I don't think that's a political purpose, I think it's a national security purpose.

SCIUTTO: But even when they're not able to then train for other crucial missions? I mean, this is a concern from U.S. military officers --


SCIUTTO: They're not able to meet those demands. Aren't there others who can set up barbed wire behind the lines of the U.S. border here?

LANKFORD: That's why -- that's why it's very common for the National Guard to be able to do that. Because typically, National Guard will step in to be able -- to be able to provide assistance. For instance, as helicopter support, other things that are there.

Currently, the news is that California is going to withdraw some of their National Guards --


LANKFORD: Folks which would require an active duty to be able to fill that in. That is a problem to be able to do that. So as much as we can do, we should use National Guard for individual states.

SCIUTTO: Let me ask you on another topic on Saudi Arabia. You've been vocal on this. It's more than four months now since the brutal murder of Jamal Khashoggi. You said in the past following a briefing on that murder, you said that this is the kind of behavior we expect from Russia and North Korea. And you said that the U.S. needs to confront them. As you're aware, this administration had a deadline this past Friday under the Magnitsky Act.

[09:25:00] The law of the land in the U.S. --

LANKFORD: Right --

SCIUTTO: To report back on that murder. They blew past that deadline, they said it's within their authority to do so. In your view, is this administration failing to meet its obligations under the law?

LANKFORD: Yes, this White House should actually report out what they know about the Khashoggi murder. They should follow the Magnitsky Act. This has been a law that's out there. This is how Senate White House have all come to an agreement.

The White House, State Department specific, and our investigators should be able to look at and identify who is responsible and any sanctions that are required under the Act. We should actually impose under that Act. This is whether it's friends or enemies, we should be able to still respond on basic human rights.

SCIUTTO: And if the administration fails, will the U.S. Senate therefore hold Saudi Arabia accountable?

LANKFORD: I think the first step that'll happen is you'll have a lot of senators as you've heard step up to the administration and say follow through on the law, and so to be able to put pressure on them. You'll see it in hearings that are coming up in the days ahead.

Every time Mike Pompeo is here, there will be a requirement, where is that response, where is that information? You will see a slowdown on some of the items the administration is looking for, dealing with State Department until we get that information.

But the goal is, again, this is not to hurt the administration. This is to get the facts and the details out there, we hold people accountable worldwide.

SCIUTTO: Senator Lankford, thank you for joining us this morning.

LANKFORD: You bet. Glad to be able to be with you in the conversation. SCIUTTO: Well, most Americans say that they want to see a Mueller

report. But President Trump's former lawyer does not think there will even be one. And we are moments away from the opening bell on Wall Street. The Dow set to jump this morning, you see those green arrows, investors are optimistic over a tentative deal to avoid a second government shutdown.