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Anderson Cooper 360 Degrees

We Should All Be Concerned About Omicron, But Not Panicked Says President Joe Biden; Jury In Kim Potter Trial Ends Second Day Of Deliberations Without Reaching A Verdict; Michael Flynn Sues Jan.6 Cmte. To Block Phone Records Subpoena; Trump Announces News Conference To Mark Anniversary Of Jan.6 In Lie-Filled Statement; Fauci: Fox News Host Jesse Watters Should Be Fired For "Ambush" And Kill Shot" Comments. Aired 8-9p ET

Aired December 21, 2021 - 20:00   ET


KATE BOLDUAN, CNN HOST: This fight in Miami's Airport last night, police say they were called to the gate because of a disturbance surrounding a delayed flight and it quickly escalated. Two people were eventually taken into custody. Honestly.

Thank you so much for joining us tonight. I'm Kate Bolduan.

AC 360 with John Berman starts now.


JOHN BERMAN, CNN HOST: Good evening, it's only Tuesday, but already it feels like we've witnessed a week of major developments in the fight against COVID. As families, friends, and worshipers gather in the days leading up to Christmas, President Biden used a speech for the White House this afternoon to assure the nation that there is a plan to fight the surge in COVID cases and the quickly spreading omicron variant, and that his administration is up to the task.

I'm John Berman, in for Anderson.

In just a moment, we will speak with one of the administration's top health official, C.D.C. Director, Dr. Rochelle Walensky specifically about the substance of that speech and what the administration is promising, including half a billion free at-home testing kits and more aid to overburdened hospitals, and the guidance from the President that the vaccinated should not change their Holiday plans.

Today, the President appeared defensive over the persistent problems in testing. He also told the tens of millions of unvaccinated Americans that getting these life-saving shots was their, quote, "patriotic duty."

But if there was one theme he kept returning to, it was that progress has been made in the fight.


JOE BIDEN (D), PRESIDENT OF THE UNITED STATES: We should all be concerned about omicron, but not panicked. And no, this is not March of 2020. Two hundred million people are fully vaccinated. We're prepared. We know more. We just have to stay focused.


BERMAN: A lot to cover tonight, including as I mentioned our discussion with the C.D.C. Director. But let's start with CNN's Athena Jones on where we are right now.



ATHENA JONES, CNN U.S. NATIONAL CORRESPONDENT (voice over): Hospitalizations are up 35 percent over a month ago. The U.S. now averages nearly 140,000 new COVID cases a day and more than 1,200 people are dying each day on average.

And even as early indications suggest, omicron may cause milder illness than the delta variant, the sheer number of COVID cases could overwhelm already stretched hospitals.

MICHAEL OSTERHOLM, DIRECTOR FOR INFECTIOUS DISEASE RESEARCH AND POLICY AT THE UNIVERSITY OF MINNESOTA: One of the things that we're very concerned about is in healthcare systems that are already overstretched, literally breaking.

Now imagine taking 20 or 30 percent of the healthcare workers out because they now too are infected.

JONES (voice over): Doctor stressing people who have not been vaccinated are most at risk. For the vaccinated, getting boosted reduces your risk further. While just over 61 percent of the country is fully vaccinated, less than 20 percent has gotten a booster shot.

Even as a "New England Journal of Medicine" study says people vaccinated more than six months ago were more than three times more likely to have a breakthrough case of COVID than those inoculated more recently.

In New York, where more than 70 percent are fully vaccinated, only about 40 percent of those eligible have received a booster.

There is one potentially positive sign.

MICHAEL DOWLING, PRESIDENT AND CEO, NORTHWELL HEALTH: We have right now about 460 patients in our hospitals. That's less than 10 percent of our overall capacity.

JONES (voice over): While the Empire State is setting daily records for new COVID infections, it is not yet seeing a corresponding increase in hospitalizations.

DOWLING: This time last year during the second wave, we had almost a thousand cases this time last year, and compared to where we were back in the first wave, we had 3,500 patients in our hospitals.


BERMAN: And Athena Jones joins us now. Athena, with infections once again rising here in New York, how are city officials responding to that threat?

JONES: Hi, John. Well, for one thing, incoming mayor, Mayor-elect Eric Adams has decided to postpone his Inauguration citing the serious public health threat of COVID. Of course, the transfer of power will still take place on January 1st. They're going to postpone the formal ceremony to a safer time.

In a joint statement, the Mayor-elect along with the city's incoming comptroller and the public advocate saying health and safety must come first, and in another move today, the Mayor of New York, Bill de Blasio announced a $100.00 incentive for any city resident who goes and gets a COVID booster dose from a city-run vaccination site.

This booster bonus program is in effect starting today and it runs until the end of the month -- John

BERMAN: Athena Jones, thank you very much.

And joining me now, C.D.C. Director, Dr. Rochelle Walensky.

Dr. Walensky, nice to see you. President Biden said Americans do not have to cancel their Holiday plans. He says it is safe to gather as long as all eligible people are vaccinated, but really, how safe?

I mean, given the rise in infections. Does the science suggest you can, but maybe you shouldn't?



So, maybe let's just step back and talk about where we are right now. In the last 24 hours, C.D.C. announced that we have now 73 percent of our cases that are projected to be the omicron variant.

The rise in the omicron variant is, as we've seen in other countries, it has mirrored what has happened in other countries. So, we've expected this and we've been prepared for it.

The President today announced major efforts to tackle the omicron variant and the surge that we have right now. And that, of course, includes support to hospitals, increased access to testing and increased capacity for vaccination and we have the tools right now. We can vaccinate, we can boost, and we can wear our masks in indoor public settings to protect ourselves.

Now, to your question about Holiday travel, and this is a question we're getting a lot certainly in this moment, of course, you want to make sure that you're vaccinated and that you're boosted. And you want to make sure that the people you're gathering with are also vaccinated and boosted. Wearing your mask in public indoor settings until you gather and

taking a rapid test or a test before you gather to make sure that everybody is negative, certainly not to travel if you're symptomatic.

But one thing I want to just make sure people understand and it is not really the act of being on the airplane or being in the car, the travel itself that puts one at risk. What puts one at risk is actually all of the behavior and mitigation strategies that may not have been used in the week prior to gathering, before people meet up and that is really why we are saying right now is the moment to really practice those mitigation strategies so that you can be safe when you're together.

BERMAN: I get that, but given that it might be too late already, if you haven't been practicing these mitigation strategies, or if people next to you in the airport weren't practicing those mitigation strategies. Again, the question is, how safe is it really given this spike in infections?

WALENSKY: Yes, everybody is really going to have to assess their own personal risk and what they are willing to risk. What I can say now, though, is if you have been vaccinated, if you have been boosted, if you have been practicing those mitigation strategies for the time leading up to your travel, your risk is much lower. And in fact, you can get that extra reassurance by testing ahead of time.

BERMAN: What about if you're celebrating with kids younger than five who are not eligible for the vaccine?

WALENSKY: Right. Really important. So first of all, kids over five, we really want to encourage vaccination there.

The advisory committee to the C.D.C. just this last week, reviewed the safety data that we've seen so far in the six million children who have been vaccinated to date, and it is really beautiful. It really demonstrates the extraordinarily safe vaccine. Yes, our children are having some sore arms, some fatigue after the vaccine, but truly, that is demonstrating that their immune systems are working.

As for the children who are under five, really the best way to keep them protected is to surround them, cocoon them with people who are vaccinated and if eligible, who are boosted.

BERMAN: The flip side of this is, one of the things we're seeing as more people get tested and more people are boosted is you are seeing people test positive, but asymptomatic positives. And I spoke to Dr. Fauci about this this morning.

Right now, the C.D.C. recommendation is to isolate for 10 days if you test positive even if you are boosted and asymptomatic. He said you are discussing changing that for folks who are boosted and asymptomatic, changing it to what? How many days are you considering?

WALENSKY: So we are reviewing -- that is a really good question. We're reviewing that science and that policy right now and understanding in the context of people who have been vaccinated, people who have been boosted, people who have mild or no symptoms associated with what might be a positive test. They have some low level of infection, but they're not being symptomatic. We're reviewing that science right now and we will, you know be -- you know, changing those guidance as that science emerges.

BERMAN: The U.K. has changed it to seven days just tonight, does that seem reasonable?

WALENSKY: Yes. I mean, that is certainly one of the places where we're looking at the science that they have reviewed and what they have been able to do. We want to make sure that people are complying with the guidance and that we keep Americans safe.

BERMAN: So as I noted before, the President when he was responding to questions from reporters, didn't seem pretty defensive about the issue of testing. This is what he said.


BIDEN: But the alarm bell going off, I don't think anybody anticipated that this was going to be as rapidly spreading as it did.

All of a sudden it was like, everybody rushed to the counter. It was a big, big rush. And I knew that was coming, so what I tried to do is meet with the companies and use the Defense Production Act to get a half a billion more tests.


BERMAN: So the President in an answer to that question said nobody expected it to be this rapid, but you just told me and I heard you say it earlier today that you did expect omicron to create these problems, so which is it?


BERMAN: I mean, why weren't these tests made really earlier?

WALENSKY: Yes, so when we learned about the omicron variant at the end of November, so really just, you know, about a month -- less than a month ago, really, we started to follow the science and see where -- what we were learning from other countries who had it before we did.

So really, in the last couple of weeks, it has demonstrated really capacity to rapidly rise and what I really do you want to address is, the government is doing a lot to address testing. We know we have more work to do and the President announced many of those steps that we're taking right now, $3 billion invested in rapid tests, 500 million rapid tests that will go out to Americans in January, 20,000 sites where you can get a free PCR, and right now actively putting new Federal testing sites in areas with the highest demand like in New York, that will be opened before Christmas.

And really, what I want to emphasize is in this moment with omicron now around the world, there is a global need for more testing. BERMAN: If you're asymptomatic right now, should you be tested?

WALENSKY: You know, I think it really depends on the behavior, you know, what you've been doing in the last week that you believe could put you at risk, and certainly what you're going to be doing and who you're going to be sharing the Holidays with.

Certainly, if you're sharing the Holidays with older population -- with you know, older family members, people who have immune compromised or have underlying medical conditions, I would use that extra reassurance of a test before you go visit them.

BERMAN: Again, I mean, surely you've seen the drugstores. I mean, these rapid tests just aren't available for people who want them and certainly not in places like New York, Boston, and other places where people are going to find them.

WALENSKY: Yes, and that's really why in this moment, we're actively working for a surge capacity in testing to see where the biggest rapid -- the biggest demand is in this moment for testing and set up those new Federal testing sites before the Holidays, so that they are available to more people.

BERMAN: Israel, calling for now a fourth shot for people older than 60 years old, is that something in the United States will consider?

WALENSKY: Certainly, when we see a science to that, we'll examine that. We will absolutely consider it. Right now, we are working to make sure that our vaccinated people get a booster. We really do want to make sure that people get a boost.

If there is science and when there is science that demonstrates that that is necessary, we will certainly be reviewing that.

What I do want to say also, though, is that we have many vaccines where two shots, two primary series and a booster gives some durable protection. So while I think it is an important question to evaluate, we will -- you know, it may very well be that we have some added protection by this booster shot right now.

BERMAN: And very quickly, Bloomberg News reported that the F.D.A. could authorize these COVID treatment pills, these antivirals from Pfizer and Merck, as soon as I guess tomorrow, is this something we could expect within the next 24 hours?

WALENSKY: I'm not going to get ahead of the F.D.A. What I will say is how important these will be as another tool in our toolbox to fight this variant. But importantly, and I really want to emphasize this, those treatments are for after you've gotten infected and what we really want to do is prevent infection in the first place through vaccination, through boosting.

But yes, when and if the F.D.A. were to move forward and authorize these two antivirals, they will be a really important tool in our toolbox in this moment.

BERMAN: C.D.C. Director Dr. Rochelle Walensky, I hope you have a wonderful Holiday. Thank you for taking the time to join us.

WALENSKY: Thanks so much, John. Good to be with you.

BERMAN: So we are going to continue our conversation. Next, two experts on COVID will join us to discuss what we just heard from the C.D.C. Director and from the President today and what we should be prepared for in the weeks and months ahead.

And later, a lot of breaking news to report on the House Select Committee's investigation as well as allies of the former President refusing to cooperate. I'm going to be joined by a former Republican Congressman, a firebrand in his day critical of what the party has become under the former President.



BERMAN: Before the break, I asked C.D.C. Director Dr. Rochelle Walensky about the plan President Biden unveiled during his White House speech today and just how safe it is to gather in groups for Christmas, after the President said that the vaccinated shouldn't change their Holiday plans.

She said that people should be vaccinated and boosted and now is the time to begin those best practices to prevent catching the virus, but that ultimately, quote, "Everybody is really going to have to assess their own personal risk in what they're willing to risk."

Perspective now from Michael Osterholm, Director of the Center for Infectious Disease Research and Policy at the University of Minnesota. He was also an adviser on COVID during the Biden transition, and Dr. Craig Spencer, Director of Global Health and Emergency Medicine at Columbia University Medical Center.

Professor Osterholm, let me just start with you on the issue of the Holidays. I know how important your family is to you, how much you cherish hugging your grandchildren. But really, how safe is it now to gather given the explosive rise of omicron?

MICHAEL OSTERHOLM, DIRECTOR FOR INFECTIOUS DISEASE RESEARCH AND POLICY AT THE UNIVERSITY OF MINNESOTA: Well, you know, let me just give you a very personal experience. Just in the last day and including just 30 minutes before I came on this set, I've learned with five different families whose kids have come home from college, all of them bringing omicron with them, and it's now spreading in the household.

And so that gives you an example of what is happening out there right now, and I think you have to assume that anyone, even those who may have been fully vaccinated, including the third dose could be infected.

And so, I think anything we do this Holiday season has to consider not only the transmission, but who might get the virus from them. People with underlying immune deficiencies, people who have other comorbidities and put them at higher risk for having a serious illness, it really should give you pause to just bring people together.

BERMAN: So given that, do you disagree with the guidance, Professor?

OSTERHOLM: Well, I think that we're trying to find that happy medium where we say please don't just lock down, please don't just quit living, but at the same time we are in an incredibly difficult position. I think that the next two to eight weeks will be as I've said to you before, a global blizzard of this virus.

And so I think that we have to understand that if this were ever a time where we'd want to be careful about exposing people to this virus, it's right now, and with all the travel and the Holiday events taking place, I'm concerned that we're going to see a great acceleration of the transmission of this virus.


BERMAN: Dr. Spencer, you're on the frontlines and have been, you know, for 18 months or 20 months or however long it's been going on. So, how do you feel about it, because you're going to feel the impact of the decisions that are made in the next two weeks?

DR. CRAIG SPENCER, DIRECTOR OF GLOBAL HEALTH AND EMERGENCY MEDICINE AT COLUMBIA UNIVERSITY MEDICAL CENTER: Right, we're going to -- all of us working on the frontlines, healthcare providers, doctors, nurses, respiratory techs, we're all going to feel the impact of those individual decisions.

And look, when we have more of our community that has previous exposure to this virus and/or has been vaccinated, the likelihood that they're going to get sick, and they're going to see me in the emergency room is considerably lower.

Now, we want everyone to do everything they can to slow the spread of this virus and it feels almost unbelievable saying this a year after I was vaccinated and almost two years into saying this, but we have a communal responsibility.

Our individual decisions matter and as Dr. Osterholm said know, getting together can be safe if we use rapid tests beforehand. If we limit the size of our groups, but if we're going to big indoor parties without masks, without testing, I think you're going to end up finding a lot of families like I've seen also in the past couple of days, they're going to find positives among them and you need to think about the repercussions and what those are for older family members, those with other vulnerabilities, et cetera.

BERMAN: Dr. Spencer, if I can stick with you for a second. I spoke to Michael Dowling who runs Northwell Health here in New York say that your hospital system is not part of that, but it is in the same area. And he said they are only 10 percent filled right now. They have a lot more capacity, they're not seeing huge increases in terms of hospitalizations yet.

Do you think that that maybe there will be a decoupling between this explosive rise in infections and growth in the patients that you see in the hospital?

SPENCER: I'm going to say three things really quickly. One, hospitals and emergency rooms were crowded before omicron came. We had a delta surge, we had ERs that are full of tired workers that are exhausted, not enough nurses.

Two, right now in New York City, we've had a lot of people that have been exposed throughout the past few years and have been vaccinated. I expect we're going to have a big number of cases here, and relatively fewer, but still significant numbers of hospitalizations and deaths.

And the third thing that I want to cover is that when we're talking about this, it's probably not best to just take the advice and the feedback of CEOs of hospitals. Now, to be fair, they're doing everything they can, but many of them have not been in the emergency department and healthcare in this country is a business. And so no one wants to go on camera saying that our emergency rooms in our hospitals are overloaded, stay away.

Talk to the frontline providers, and if you talk to them, what they're going to tell you is that we're exhausted, we're burnt out, there's not enough left of us and it is going to be hard to handle another surge.

BERMAN: No slack, you wrote a piece on that, really, that I think is very moving and people should go look at that.

Professor Osterholm, to you, the test surge, you know, 500 million new tests, but not for a few weeks. Don't we need these tests yesterday?

OSTERHOLM: Well, we do and we do have some testing, but what we're going to need, I think over the course of the next two to eight weeks is going to be remarkable. We're going to see this big surge nationwide.

Remember, as we've been discussing the delta wave, the delta surge really hit a limited number of states over the last four months. If you're one of those states like ours here in Minnesota or parts of New York, you understand the situation with what delta has done.

But that's meant that a lot of the country hasn't had a need for this testing. If you talk to people in California, they'll ask you, what's going on? What are you concerned about? Well, that's going to change with this particular variant, because I think we're going to see all 50 states in the soup at about the same time. And so testing needs are going to go up tremendously.

The other area that is going to go up tremendously is going to be the need for healthcare workers. You know, we've got 20.2 million healthcare workers in this country, 9.2 million of our doctors, nurses, and the kind of technologies that Dr. Spencer just talked about. Imagine 10 to 30 percent of those individuals getting infected in the next two to eight weeks and being out of work. That's going to be a huge challenge, too that we have to address and right now, we're not. BERMAN: Well, Professor Osterholm and Dr. Spencer, thank you both.

Dr. Spencer, thank you, and everybody that you work with every day for everything you've done. I know it's exhausting, and all we keep doing is forcing you to do even more.

SPENCER: We'll keep showing up.

BERMAN: The breaking news from CVS and Walgreens within the last few minutes, both have announced a limit on the number of at-home test customers may purchase. CVS is capping the number at six, Walgreens, four.

The new policies underlying just how difficult it has been for Americans to get the test, the C.D.C. suggests you need to have the safest possible Christmas.

It is a busy night, just minutes ago, the jury the Kim Potter trial ended deliberations for a second day without reaching a verdict.

CNN's Omar Jimenez has the details, next.



BERMAN: Breaking news. The jury in the trial of former police officer, Kim Potter has ended its second day of deliberations without reaching a verdict. A reminder, Potter faces manslaughter charges for shooting and killing 20-year-old Daunte Wright at a traffic stop in April.

The jury has deliberated for around 14 hours in total, longer than the jury in the trial of former Minneapolis Police Officer, Derek Chauvin who was convicted of killing George Floyd.

The Potter trial jury will resume deliberations tomorrow morning.

CNN's Omar Jimenez joins us now with the very latest and there is quite a bit here with the jury asking two questions.

OMAR JIMENEZ, CNN NATIONAL CORRESPONDENT: Yes, John. Well, for starters, it seems they may be having trouble getting to a consensus at least based on one of two questions they asked the judge today. The first question was simply, if we can't reach a consensus, what is the guidance on how long we should go, and what steps should be taken?

The Judge simply referred them back to part of their jury instructions, which said they should work toward an agreement without violating any individual's judgment and that no one should sacrifice their honest opinion just to get to a verdict.

Now, as you mentioned, they are done deliberating for the day. They've gone more than 14 hours total, over two days, which is little more than four hours more than it took to convict Derek Chauvin.

But the second question they asked was less about their consensus, but more about procedural stuff, a little more normal was they wanted to remove the zip ties from Kim Potter's gun, likely to compare it to the Taser that they also have in evidence.


Though prosecutors noted the weight will likely be different because it has been rendered safe by the courts. So this gun is unloaded therefore different weight than what Kim Potter would have felt back in April of 2021.

And of course, that comparison is important, because Potter all along has claimed that she missed took her taser for her gun when she shot and killed Daunte Wright during that traffic stop back in April of 2021. And prosecutors say that the mere fact that she claimed that she meant to reach for a taser shows that she knew this wasn't a deadly force situation. But her defense has argued that if Daunte Wright had just complied, none of this would have happened. Of course, that is the heart of what this jury is deliberating. They'll be back tomorrow morning to see if they can get closer to some sort of consensus (INAUDIBLE).

JOHN BERMAN, CNN HOST: They will be back tomorrow morning. But it was an eventful day. Omar Jimenez, thank you so much for that report.


BERMAN: Joining us now criminal defense attorney Sara Azari and Mark O'Mara. Sara, you know, these are words the judge never wants to hear whenever the jury comes back and says what happens if we can't reach consensus? What does that mean?

SARA AZARI, CRIMINAL DEFENSE ATTORNEY: Well, John, it means that they could potentially be deadlocked. Now, this could be a little premature. Sometimes your juries are concerned that they might not be able to reach a unanimous verdict. It's unclear whether they're at that point or they're headed that way. But this is exactly what the defense was aiming for, the idea that this jury would be swayed by that raw emotion in Potters testimony that made it worthwhile, frankly, for her to testify, despite making some bad admissions.

This jury might be headed to jury nullification, the idea that applying the law to the facts, they find her guilty, but they just can't come up with a guilty verdict, because they don't feel like she's guilty, or there could be stragglers on this jury. And that's why they can't reach a unanimous verdict, in which case it would be a hung jury. So either way, I think it's seems like it's going the defense's way.

BERMAN: Mark O'Mara, what do you see here, and how many times will a judge send them back to keep on talking?

MARK O'MARA, CRIMINAL DEFENSE ATTORNEY: Generally speaking, she didn't do what will come next, which is what we call an Allen charge, which is that push charge. Look, we've really relied on you no other jury is going to do it as well as you could do it. So really go back through and give it a -- your one last good shot. Listen to the other side, open up your mind. That hasn't happened yet. But I will expect that will come at the next time they say that they don't -- they're not going to get to a verdict.

But, you know, it's troubling, because I think what's happening now is this jury, at least a few of them are now trying to determine the reasonableness of her mistake. There's no question it was a mistake with tragic consequences. I think the reason why they want to feel and touch that gun is to see how reasonable therefore unreasonable, the mistake was to hold on to that gun and think it was a teaser.

BERMAN: So you think the combination of these questions today Mark really is revealing?

O'MARA: I think it's very revealing. Yes, I think they're, they're probably arguing over the issue of what she did and what she agreed that she did, but did it as a mistake. That's why they won't touch that gun, touch the taser. That's why the city that -- and don't forget a question like that, the first question, what do we do for a home, that could be one person could be two or three. If it's more than one or two, they're probably not going to get resolution because once you have that confederacy of two, three or four, they're going to stick together. But they may be trying to convince one, or they're just really wrestling with the idea of the reasonableness of the tragic consequences of a mistake.

So, Sara this specific question about the gun was to remove the zip ties that were on it, holding it in the box so they could get a better sense of it. Do you see that as important as Mark does?

AZARI: I do. I mean, I agree with Mark, I usually agree with Mark. But, you know, these two weapons are at the crux of the prosecution's case, they go to count one and count two, the idea that she mishandled her weapon, count one, the idea that she acted with criminal negligence count two. And so even though the weight is going to be different, because the ammunition is out of the gun, they still get to feel and see and physically observe these two weapons to determine like Mark said the reasonableness of this mistake.

So, I do think you know, when you couple that with the idea that they might be struggling, it could be that that might change the trajectory of where they're headed. I'm not sure. But they're definitely related. I don't think we should take them separately out of context.

BERMAN: Mark last week, obviously Kim Potter took the stand in her own defense. Are you seeing that pay off for the defense now in some ways based on these questions?

O'MARA: Yes, I think she had to I think she had to show that raw emotion I don't think was pretence, and here's why, it was connected to and very relevant to exactly the way that she reacted when she realized that she had shot him and I think it was really good because having cried and broke down at the scene, the idea of doing it now it's actually sort of consistent, and I think gave more credibility to her, if you will, in front of this jury who had to hear her apology, her explanation as best she could give it.


BERMAN: But Sara, the prosecution flat out says that a mistake isn't a real defense here.

AZARI: It's not John, because look inherent in the crime of manslaughter, under Minnesota law, it's the accidental killing of another human being. So you have you know, you call it accidental or mistaken, you have that mistake in the offence. So a mistake is not a defense to that mistake. It isn't. And I think the defense has been quite cleverly misleading in repeatedly telling this jury and closing arguments that, you know, it was a human mistake, it was an action error, you know, anyone would say, well, first of all, it's not any human. It's an officer of 26 years of experience, who's at training and has had certifications and recertification. So, but it seems to me like it might be working.

BERMAN: And Mark, just finally, look, we always talk about the effect that weekends have on juries and having them reach a decision. I mean, this is Christmas coming up here.

O'MARA: They're going to have a decision tomorrow. I hate guessing because we always want to be a fly on the wall. But they're not going to spend more time on this and if they don't get a decision tomorrow, by noon or one or two o'clock in the afternoon, they may very well hang.

BERMAN: Mark O'Mara, Sara Azari, interesting discussion. Thank you so much for your insight.

AZARI: Thanks, John. Happy holidays if I don't you.

O'MARA: Yes, have a great holiday.

BERMAN: So breaking news on the January 6 committee involving Michael Flynn the former president's embattled National Security Adviser the details ahead.



BERMAN: More breaking news, Michael Flynn, the embattled former national security adviser to the former president is now suing the January 6 committee in hopes of blocking a subpoena for his phone records.

Meanwhile, Republican Congressman Scott Perry has declined the request from the committee to voluntary -- voluntarily speak with investigators. That means the committee could potentially subpoena him. He was the first law maker to receive a request like this from the committee investigating the Capitol insurrection. They want to talk to him about several things including his efforts to install former Justice Department attorney Jeffrey Clark as the acting Attorney General. Perry connected Clark in the former President, when he was pressuring the Justice Department to find evidence that the 2020 election was stolen. It wasn't. And as we approach the one year anniversary of the January 6 attack, the former President is planning a news conference in Mar-a-Lago on that day to air his grievances over the committee's investigation and the 2020 election. And announcing the event he once again shared his election lies.

Here now former Republican Congressman Joe Walsh, who ran against the former president in the 2020 Republican primary.

Let's start with Congressman Perry rejecting the call from the January 6 committee to come in and answer questions from them. He calls them illegitimate, which is sort of this rhetoric we keep on hearing the likes of Perry, but anything he doesn't like, why do they keep saying things like that?

JOE WALSH (R-IL) FMR CONGRESSMAN: Hey John, I may be lousy TV tonight, because I really don't care what my former colleague Scott Perry said. I'm not interested. I don't think his statement telling us why he's refusing to cooperate in the investigation. I don't think that statement even deserves a response. It's so easy to get lost in the weeds here as the year ends, and we're almost a year removed from January 6.

John, the story is this, Scott Perry is yet one more Republican who refuses to cooperate. That's the story. Here we are a year away from January 6 and one more Republican won't cooperate. The Republican Party almost to a man and a woman refuses to cooperate with an investigation into an attack on our democracy. That's the story.

BERMAN: So what do you do about it, then? Should the committee issue a subpoena to a sitting member of Congress?

WALSH: Yes. And I believe it would be a first. Yes, like Mark Meadows, former member of Congress before him, Scott Perry should be issued a contempt citation from Congress should be subpoenaed. This committee should do everything they need to do to get to the bottom of this.

John, look, again, here we are almost a year removed from January 6, we have one political party, the Republican Party that for some reason, doesn't want America to get to the bottom of that attack on our democracy. I get that the committee is in a tough spot, and they're up against a clock, but they've got to do everything they possibly can do to these Republicans.

BERMAN: Well, along those lines, the New York Times is reporting and CNN has matched it to an extent, the committee is at least considering the idea of criminal referrals to the DOJ not on contempt, not on contempt, not for Perry and others, but actual actions surrounding January 6, the Time says they could be financial actions, funding the lies that went in to the insurrection. It could be, you know, the former president himself, we're not doing anything to stop it. Do you think it's necessary given your passion about this for them to do this?

WALSH: I think it's necessary to do whatever they can do to do whatever John, they have to do to make sure that something that I've never seen happen any other time in my lifetime, an actual insurrection and actual in John, this is where we need to stop and take a breath addressing your question and remind ourselves what happened on January 6, and what led to January 6.

Donald Trump and the people around Donald Trump systematically try to over throw an American election. My God if that doesn't demand that a committee use every single tool they have to get to the bottom of it to make sure a January 6 never happens again then nothing does.


BERMAN: Well, it is happening again, to an extent the lies happened beforehand the insurrection happened and lies continued after and, and the former president, who announced he's holding this news conference on the one year anniversary of January 6, did so with more lies.

So, what do you do? How should one handle that day his news conference, do you think?

WALSH: Oh, John, I've got a contrarian view here. And maybe you disagree with me, but it goes like this. Donald Trump is America's enemy, and he's democracy's enemy. And I really think it's important to remind the American people of that every opportunity you have. So if John -- if Donald Trump on January 6, stands in front of the American people, and rattles off a bunch of dishonest, treasonous, undemocratic stuff, I think you broadcast that.

I think you put that out in front of the American people, because doggone it, John, the American people, God bless them need to be reminded daily of who this guy is and what he did. And I think Democrats need to broadcast everything Donald Trump says.

BERMAN: Got about 30 seconds left, Joe, do you think that there will be those who were there one year ago, who will go back and try to do it all again.

WALSH: I worry about more violence on this anniversary. I felt that way before. Many others felt that way before January 6 last year. I have that concern again, because John, as you said, and I hear from these folks every single day, they do not believe Joe Biden won, and they do not believe January 6 was a big deal. So I think America needs to be concerned about further violence on this one year anniversary.

BERMAN: I think the even more troubling thing is they don't think -- it's not that they don't think it's a big deal. It's now that they celebrate, they celebrate that day as something that should be pointed to with a gully.

Former Congressman Joe Walsh --


BERMAN: -- thank you very much.

WALSH: Thanks, John.

BERMAN: So why Dr. Anthony Fauci is calling for a Fox News host to be fired and how the network responded.



BERMAN: Dr. Anthony Fauci is calling on Fox News to fire host Jesse Watters after he told a group of conservatives to ambush Fauci with questions in hopes of creating a viral moment and send the video footage to his network. Watters also told them to quote, go in for the kill shot. Rhetorical language of the nation's top infectious disease doctor and President Biden's chief medical adviser believes goes too far. Fox News has responded to Fauci who is no stranger to attacks.

With more on the controversy, here's "360s" Randi Kaye.


JESSE WATTERS, FOX NEWS HOST: Now you go in for the kill shot. The kill shot with an ambush deadly, because he doesn't see it coming.

RANDI KAYE, CNN NATIONAL CORRESPONDENT (voice-over): That was Fox News host Jesse Watters Monday night at a Turning Point USA Conference, Watters encouraged the right wing crowd to create viral moments, and rhetorically ambush Dr. Anthony Fauci and go for the kill shot by asking aggressive questions about research at the Wuhan lab.

WATTERS: This is when you say, Dr. Fauci you funded risky research at a sloppy Chinese lab, the same lab that sprung this pandemic on the world. You know why people don't trust you, don't you? Boom, he is dead. He is dead. Is done.

KAYE (voice-over): Fauci, who is President Biden's chief medical adviser had this to say in response?

ANTHONY FAUCI, DIRECTOR, NIAID: That's horrible. I mean, that just is such a reflection of the craziness that goes on in society.

KAYE (voice-over): Fauci has served more than three decades as the nation's top infectious disease doctor. He told CNN, all he's ever done was encouraged people to get vaccinated, wear a mask, and be careful in public settings.

FAUCI: For that, you have some guy out there saying that people should be given me a kill shot, to ambush me. Whatever network he's on is not going to do anything for him. I mean, that's crazy. The guy should be fired on the spot.

KAYE (voice-over): Fox News is defending Watters saying in a statement, he was using a metaphor for asking hard hitting questions to Dr. Fauci about gain of function research, and his words have been twisted completely out of context. CNN law enforcement analyst Jonathan Wackrow disagrees.

JONATHAN WACKROW, CNN LAW ENFORCEMENT ANALYST: It's just fueling mob rule to satisfy a political goal. KAYE (voice-over): Dr. Fauci has been attacked by Fox hosts since nearly the beginning of the pandemic. Most recently, it was Lara Logan, who last month used her show on the channels streaming network to compare Fauci to a Nazi doctor, known as the angel of death at Auschwitz for his brutal experiments on prisoners.

LARA LOGAN, FOX NEWS HOST: People say to me that he doesn't represent science to them. He represents Joseph Mengele, the Nazi doctor who did experiments on Jews during the Second World War and in the concentration camps.

KAYE (voice-over): After that Fox stayed silent and Lara Logan continued to demonize Fauci then she appeared to be quietly removed from air, at least temporarily.

FAUCI: How they can let her say that with no comment, and no disciplinary action. I'm astounded by that.

KAYE (voice-over): And all the rhetoric has come with a cost, Fauci has received death threats, and it's put his entire family at risk.

FAUCI: Every once in a while you stop and you think about and you see, my world has completely changed.


FAUCI: But as it's changing, you don't realize it's changing because she just focusing, you know, we got to get a vaccine. We got to get a drug. We got to do this, you got to do that. And then every once in a while you say wait a minute I got two armed security guards here I got another guy over there.


KAYE (voice-over): Since March of last year, Fauci has had security detail for extra protection, comments like Watters, perhaps making that all the more necessary.

WACKROW: The potential for such phrases to transform from rhetoric into destructiveness or physical harm, you know, we've seen that time and time again. People will co opt that for a call to action in harm against Dr. Fauci.


BERMAN: And Randi Kaye joins us now. Randi, does these threats to Dr. Fauci go beyond just the rhetoric we hear from people on TV?

KAYE: Absolutely, John, we are seeing that in fact, over the summer, the federal government filed a federal complaint against a 56-year-old Maryland man, and according to the affidavit, this man had made threats to Fauci and his family that he would harm or kill them. According to the affidavit one e-mail said that he would drag them into the street, beat them to death and then set them on fire. The affidavit also says that this man sent seven threatening e-mails in seven minutes on a single day back in April. Separate from that Dr. Fauci had also received white powder in the mail that he said he described it as blowing up in his face. Of course, there was some concern that it was the very dangerous anthrax, it turned out to be harmless, but these are distractions. He says he's not going to let them bother him. He's going to continue to stay focused on getting people vaccinated and doing his job. It's certainly John a lot to deal with.

BERMAN: It certainly is. Randi Kaye, thank you very much.

We'll be right back.

KAYE: Sure.



BERMAN: The news continues. So, let's hand it over to Michael Smerconish in "CNN TONIGHT." Michael.