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DOJ Top Election Crimes Prosecutor Quits in Protest Over Bill Barr Memo; Biden Considers Legal Action as Trump Threatens Transfer of Power; Defiant Trump Fuels Chaotic Transition with Firings, Falsehoods, Legal Fights; Defiant Trump Fuels Chaotic Transition with Legal Fights; Georgia Secretary of State Rebukes GOP Senators' Call to Resign; Anthony Fauci: Vaccine Could Be Ready By End of Year. Aired 9- 9:30a ET

Aired November 10, 2020 - 09:00   ET

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

[09:00:06]

JIM SCIUTTO, CNN ANCHOR: Very good Tuesday morning to you. A week since election day. I'm Jim Sciutto.

POPPY HARLOW, CNN ANCHOR: And I'm Poppy Harlow.

The president is throwing a critical transition deeper into chaos this morning. And this is not just about political infighting or the right versus the left. This has real implications for our nation. It impacts our national security, it impacts how our country operates, and it undermines the legitimacy of our entire electoral process.

Still, though, this morning as the president is digging in, top Republican leaders are not taking away his shovel, still standing by the president's refusal to concede the election, and despite no evidence of massive voter fraud, Senate majority leader Mitch McConnell and other top Republican officials are backing up the president's legal fight, calling him 100 percent within his rights.

SCIUTTO: Well, while notably raising no questions about race that elected Republican senators or House members on the same ballots overseen by the same poll workers and the same secretaries of state.

HARLOW: Right.

SCIUTTO: The Justice Department top elections crime prosecutor resigned in protest after Bill Barr told federal attorneys to investigate to any allegations of irregularities in the vote.

As each day goes by President-elect Biden's transition team says it is losing valuable time. The camp says it is now considering legal action if the Trump administration continues to stall.

There are many headlines to get to this morning. Let's begin with CNN's senior justice correspondent Evan Perez on the top DOJ prosecutor resigning in protest. You know, I think it's important, Even, as we look at this memo from

Barr what it said. It said, and I'm quoting from here, "Investigations may be conducted if there are clear and apparently credible allegations of irregularities," important word, "that if true could potentially impact the outcome of a federal election in an individual state."

So saying you can investigate any irregularities but does still have to meet the standard of potentially overturning things? Is that right?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: That's right. I mean, the interesting thing about this memo is that you don't have to tell prosecutors that they should be looking into vote fraud claims. This is something that is routine, part of their job under every administration.

So the interesting thing about sending this memo as it did, it comes after days and days during which the Trump campaign and the lawyers were having press conferences, filing some of these frivolous lawsuits claiming that there was widespread massive fraud that cost the president the election, when they have had -- they've presented no proof of that.

And so what appears to be happening from this memo that Bill Barr sent yesterday was giving the green light to prosecutors who want to take action, perhaps bring charges, before states certify the elections and that's the reason why Richard Pilger, who is the top vote fraud prosecutor here in this building, Jim, that's why he sent an e-mail last night to his colleagues saying he was resigning.

He was passing on the memo from the attorney general and took the opportunity to say that it was abrogating a 40-year policy of not interfering in the process before states certified their results. And so that's the big key -- the key difference here in this memo.

I'll read you just a part of what Bill Barr says in his own memo. It says, quote, "While most allegations of purported election misconduct are of such a scale that they would not impact the outcome of an election and thus investigation can appropriately be deferred, that is not always the case."

You see what the attorney general seems to be doing is raising the specter that any of these recounts, any of these allegations of fraud that are being brought forth are going to change what is really over 100,000 votes, right, that separate the two candidates right now over several states.

HARLOW: Evan, the prosecutor that resigned, citing 40 years of precedent, led what is known as the Election Crimes Section, right? And what Barr did here is something that would normally always have to go through that section for a green light, right?

PEREZ: Right. Exactly. And I think that's -- that's a very big reason why he resigned is that normally if prosecutors want to take action like this -- it's not necessarily prohibited -- what they do is they have to go through the process, go upstairs in this building to get permission from the Public Integrity Section which oversees all of these types of investigations. And what Bill Barr says in his new memo is that you don't have to do that.

And what this opens the door, Poppy, to is the fact that, you know, obviously there's 93 U.S. prosecutors, U.S. attorneys in this country and it gives a green light to one of them who is willing to put their careers, their public reputations on the line.

HARLOW: Right.

[09:05:03]

PEREZ: To go ahead and file something like this in the coming weeks before states have a chance to certify their elections -- their election results. And thereby give the president and his campaign something to hang their hat on which they've so far don't have to try to make these claims of the election was stolen.

Again, there's no proof of that. There's no indication that any of these claims is going to overturn, again, tens of thousands of votes that make the difference between these two candidates in several states.

SCIUTTO: Yes. I mean, it doesn't give state legislatures something to hang their hat on, whatever the basis and therefore not certify.

Listen, it's remarkable. Evan Perez, thanks very much.

Well, let's go to the president-elect and there is a president-elect to his transition fight. Jessica Dean is tracking the new pressure now coming from Joe Biden's team.

Jessica, we've heard the prospect of legal action by the Biden team? What specifically is that?

JESSICA DEAN, CNN CORRESPONDENT: Well, at this point we're still waiting to find out exactly how they would do that, Jim and Poppy.

Look, they are facing a far more contentious battle than they thought they would have to endure once this was all said and done. Joe Biden himself telling his allies over the weekend he wanted to give Republicans and President Trump some time to accept the results of this election, but now here we are on Tuesday and the General Services Administration, which is responsible for what's called ascertainment, it's essentially validating that Joe Biden is the president-elect, has so far refused to do that and instead is comparing this election to the 2000 election and specifically Florida where Bush and Gore were deadlocked there. That's triggered some worry in the Biden team.

Let me read you a quick statement from one Biden official. They said, "This is not 2000 by any stretch. That involved one state that had a 500-vote plus margin that had a number of different lines of contention of ballots that would have altered the outcome of that election, and therefore the entire electoral college vote." So the Biden transition team really making the case. This is actually

nothing like that. And what's at stake here is because they haven't ascertained this election so far, the official transition process has not been triggered.

And Poppy and Jim, as you said, that has implications for national security, for what they're trying to do with the coronavirus pandemic, they're not allowed to get access to the funds that they need to run the transition process. Joe Biden not getting his daily security -- highly classified security briefings, intelligence briefings. All of this coming together and now they know that they're going to have to put intense pressure on that and that could be in the form of a legal battle. So we'll have to see what today brings and the next day.

HARLOW: Wow. Potentially another legal battle on something that has such big implications for how this country operates.

Jess, thanks for the reporting, very much.

The other turmoil in the administration is the Defense Secretary Mark Esper is out, fired by the president. And it may not stop there.

Let's get to our John Harwood. He joins us this morning at the White House.

Good morning to you, John. So now there are questions about the fate of Gina Haspel and of course FBI director Christopher Wray.

JOHN HARWOOD, CNN WHITE HOUSE CORRESPONDENT: Well, what we know, Poppy, is that these two officials, Gina Haspel and Christopher Wray, have upset the president for the same reason that Mark Esper upset the president. They had resisted his attempts to corrupt their agencies to his personal benefit. So no one will be surprised if five minutes from now or five hours from now the president tweets that he has fired those officials.

We know after the impeachment trial he purged a series of officials who had told the truth about his conduct. He's already started doing that in the U.S. government right now. Aside from Mark Esper, he's fired a utility regulator who had called for renewable energy. He has fired a climate official who had talked about the seriousness of climate change. He has fired the person and head -- in charge of the nuclear weapons stockpile.

We don't know -- the president is transactional. We don't know if he is getting some benefit from those actions or whether that's just a fit of pique. But what we do know is that this president while he is stewing in the White House, embarrassed by his election defeat, trying to resist it and get the Republican Party to stand behind him, he is determined to break important parts of the U.S. government on his way out of office and he's already started.

SCIUTTO: John Harwood, thanks very much.

With us now is Larry Sabato, he's director of the University of Virginia Center for Politics, and Carrie Cordero, CNN legal analyst and former senior Justice Department official.

Thanks to both of you, guys. It's good to have you on this morning.

Larry, if I could begin with you, I don't want to over or understate what's happening here and how it might affect the election. On the one hand -- you know, I'm curious what these investigations could do to state legislatures certifying the results because all states, they've chosen to choose their electors by popular vote.

[09:10:11]

That's baked in. But can conceivably open Justice Department investigations give them legal cause to somehow not certify or is that a fool's errand?

LARRY SABATO, DIRECTOR, UNIVERSITY OF VIRGINIA CENTER FOR POLITICS: Well, I don't think it's a question of legality, Jim. I think it's a question of political preference. Legislatures do what they want to do. They have independent elected authority to do that. It would of course be incredibly controversial and I would assume in the long run cost some of them their elected positions, but for the short term, if they're looking for a reason to overturn the popular will, the frightening part of this is it might work.

Now I personally don't think it will because it is so outrageous, it's beyond outrageous. We don't just have a close winner here. We have somebody who when all the votes are counted is going to be well over five million vote majority here. Not to mention a substantial electoral college majority. So this is -- this is going well beyond what any state has ever considered other than the Republican legislature in Florida in 2000.

If there had been a total deadlock, the Republican legislature had been discussing sending the Republican electoral slate to Congress.

HARLOW: Carrie, you were a senior official at the Justice Department and I just wonder what you make of Bill Barr's memo saying you are free to investigate this stuff, despite the margins that Larry is so rightly talking about here. Could you just speak to the significance of him doing that?

CARRIE CORDERO, CNN LEGAL AND NATIONAL SECURITY ANALYST: Sure, Poppy. So, you know, we've heard a lot throughout the Trump presidency about the institutions. Are our institutions holding up? Can they push back? Can they withstand the political pressure that the president places on them? Because throughout his presidency he has overtly indicated a desire to use the Justice Department in particular to achieve his political objectives.

And so what this is, is this is the attorney general allowing the Justice Department to appear as if it is assisting the president politically. I agree with Larry that as a practical matter it will not likely change the actual outcome, but what the attorney general has done is he has reversed what is the norm, what is the policy of the Justice Department, which is that it would not take an investigative step that could impact the outcome of an election during the course of the election being resolved.

And so that's the difference. He has said that there have to be substantial allegations, but the fact that he has changed that policy and it has caused a senior election DOJ management person to relinquish their management position indicates that he has -- he is causing the appearance of politicization.

SCIUTTO: And it's not the first time, right, where folks in very senior positions in the Justice Department have resigned as a result of his decisions.

Larry, I just want to dig down a little bit deeper on this, again, just gaming this out. Let's say that legislatures which we have seen do some pretty remarkable things already, if they were to attempt to do that, to in effect overrule the popular vote in their state, and send a Trump victory, certified Trump victory as opposed to a Biden one as reflected in the popular vote, that would, I imagine, be challenged in the Supreme Court, right? And on what basis would the Supreme Court judge that, right? I mean, is there a constitutional right to change the rules at this stage of the game?

SABATO: Well, as always, Jim, it will be up to the nine members of the Supreme Court and we all know that President Trump has three appointees on the court and the conservatives have a 6-3 majority. That's not to say they will vote along party lines, although "Bush v. Gore" isn't encouraging. That 5-4 decision pretty much went according to party lines and it became apparent in the years after "Bush v. Gore" that at least some of the members of the court were clearly rooting for the candidate of their party.

So, you know, they used to say the Supreme Court reads the election returns. Well, if they do then there's no chance at all that Biden will lose because he won convincingly. But the question is, do they still read the election returns and do they care?

[09:15:00]

SCIUTTO: Yes.

HARLOW: So good to have you both, Larry, Carrie, thank you very much. Well, a fierce fight in Georgia as two Republican Senate candidates are calling for the Republican Secretary of State to resign after he said there was no evidence of voter fraud. Also Dr. Anthony Fauci says, quote, "help is on the way with Pfizer's announcement of a promising coronavirus vaccine." There are some key challenges, though, and we will talk about them.

SCIUTTO: Moments from now, another big Supreme Court case, the court will hear arguments on the future of Obamacare, a health care for tens of millions of Americans now hangs in the balance. Something to watch.

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SCIUTTO: Welcome back. This morning, the nation's top infectious disease doctor, Anthony Fauci says it is, quote, "very likely that people could start taking a coronavirus vaccine by the end of this year." This follows drug giant Pfizer's announcement that its vaccine appears to be more than 90 percent effective.

[09:20:00]

HARLOW: Let's get straight to our senior medical correspondent Elizabeth Cohen with the latest. Good morning Elizabeth.

ELIZABETH COHEN, CNN SENIOR MEDICAL CORRESPONDENT: Good morning, Poppy. Poppy, let's talk next steps as Jim just said, this looks like a very effective vaccine, so what happens next? Well, first, data will have to be sent to the Food and Drug Administration and we'll see if they approve it, and then there's good reason to think that they would give it emergency use authorization, but then comes, well, then comes the hard part. States will have to administer the distribution of this vaccine and you might think, well, I get a flu shot every year, that's no big deal, you go to your pharmacy, you go to your doctor's office.

It is not going to work that way because this is the most fragile vaccine in use in the United States. So, let's take a look at exactly what I mean by fragile. So, this is a vaccine, Pfizer's vaccine, that has to be kept at minus 75 degrees centigrade, the equivalent of minus 103 degrees Fahrenheit.

That is 50 degrees colder than any vaccine that's currently in use in the United States. Doctors offices and pharmacies, they do not have freezers that go anywhere close to that low. So, we've been speaking with state health officials and they said that they feel overwhelmed and daunted by the prospect of distributing this vaccine because it is so fragile.

One state official telling me that she was on a webinar where she was being given all of the state officials would be given instructions on how to handle this vaccine, store it and all of that. And she texted a friend who was on the call and said how are we going to do this? And that colleague just sent back an exploding head emoji. Jim, Poppy?

HARLOW: Yikes.

SCIUTTO: Sometimes emojis say it all, Elizabeth Cohen, thanks very much.

COHEN: Right, exactly, thanks.

HARLOW: Joining us now is Dr. Mark McClellan; director of the Duke- Margolis Center for Health Policy and former commissioner of the FDA. It's very good to have you. The headlines are good --

MARK MCCLELLAN, DIRECTOR, DUKE-MARGOLIS CENTER FOR HEALTH POLICY & FORMER COMMISSIONER OF THE FDA: Thank you.

HARLOW: Out of Pfizer, right? And it's an independent body that, you know, uncovered the data, looked at it and said here is where we are at. Are there any red flags for you, though?

MCCLELLAN: Not that I'm seeing so far, Poppy. As you just heard, there will be some challenges with distributing the vaccine, but even before that, we do need to make sure that it really works, so the data that Pfizer talked about needs to be put together with more data on the safety of the vaccine or follow people who were in the trial for the next few weeks to see how that goes. It will go to the FDA, there will be an independent review with public participation.

So a chance for the public to see exactly what's there before that approval comes. So all very promising, and you're right, it is going to be a challenging administration problem, but Poppy, I'd rather have that kind of problem than no treatments available. There is a lot of work going on to get refrigerated trucks and distribution in place so that the highest risk people could potentially start getting vaccinated by the end of the year.

SCIUTTO: OK, so there are other vaccines in the pipeline that are making --

MCCLELLAN: Yes --

SCIUTTO: Progress, too. For instance, Moderna, the one done in conjunction with the NIH which don't require that degree of care, refrigeration, et cetera. I wonder, assuming this happens, it looks like it will, there is more than one option out there over the next several months. What will that mean in terms of distribution? Will it be kind of up to you and me, we know, which vaccine we take or what's available, how will that work out?

MCCLELLAN: Well, Jim, so the good news for Pfizer's vaccine is probably good news for a lot of other vaccines. They all work against the same part of the virus, this spike protein. So, Moderna is going to have a similar read-out probably in the next few weeks. If it has similar results, it could also be available soon. It requires cold storage, too, not as cold as Pfizer. Both of those are so-called RNA vaccines and they're working on technologies to make it more stable, that will probably take some time.

But that does mean a significant number of doses of vaccines possibly by early 2021, if not the end of this year, two more vaccines, Johnson & Johnson, AstraZeneca, also a different type of platform, but they also target the same part of the virus, those could be available in the first part of 2021, to second quarter of 2021 as well. So --

SCIUTTO: Yes --

MCCLELLAN: Gradually, you're going to see more availability of vaccines that are probably a little bit easier to use and gradually more and more Americans will get vaccinated, but it is going to take a matter of months. In the meantime, we need to keep paying attention to all --

HARLOW: Yes --

MCCLELLAN: The steps that we know work --

SCIUTTO: Right --

MCCLELLAN: Like masks and distancing. HARLOW: Totally --

SCIUTTO: Good point --

HARLOW: Don't let your guard down now because you're feeling hopeful about a vaccine coming. Let me ask you, doctor, the head of the Mayo Clinic's Vaccine Research Group on this trial made an important point, I think, and that is that, he said, we still don't know what this means for groups that they didn't study in this Pfizer trial, like children, like pregnant women, like highly immunocompromised folks and the eldest -- like the eldest of the elderly.

[09:25:00]

MCCLELLAN: Yes.

HARLOW: So, does that mean that none of those people can take this vaccine?

MCCLELLAN: Children definitely won't be part of the first rounds of vaccines, probably all the way through the first half of next year. They were not studied at all. But there were a lot of people in the trials who were older, who had obesity or other conditions that we know place people at risk.

There were a lot of individuals even in extreme ages included. We need to look very closely at the data that comes out. It is possible that some of the vaccines may have a better profile in some groups than others, and that some people --

HARLOW: OK --

MCCLELLAN: May not be able to mount as good of a response, but Poppy, one other treatment also approved for emergency use yesterday, a man- made version of antibodies works on the same principle, that treatment which is starting to be available now could actually help infected people from those very compromised groups.

SCIUTTO: OK, what -- Dr. McClellan, does the next several months look like, right, before the vaccine is widely available because the numbers are going up, sadly --

MCCLELLAN: Yes --

SCIUTTO: Remarkably and quick. Well, what does it look like and what do folks need to do?

MCCLELLAN: We are in the midst of some very worrisome trends where the vaccines are not going to make a difference. They're not going to be impactful on this surge hopefully by later in December or January, it will protect a few people who were at higher risk, that's not going to give us immunity. So, what we need to rely on now is masks and distancing.

You're seeing around the country not a national lockdown, but unfortunately, many cities and regions having to take more extreme steps to restrict businesses, restrict travel, and people are doing it, too, as they see healthcare systems getting hit really hard.

I do think that other treatment I mentioned, the man-made antibodies, if we can make them available, they're not easy to use, they require a special infusion, but that can help prevent hospitalizations in people --

SCIUTTO: Yes --

MCCLELLAN: Who are at risk of serious complications from COVID after they get infected. And I remember that's what President Trump received, Governor Chris Christie as well. So, we can start making those available. That won't help a bit. There are more tests available that could be done, but we've got some hard work to do --

SCIUTTO: Yes --

MCCLELLAN: Before vaccines are going to make a difference over the next few months.

SCIUTTO: And listen to Chris Christie, right? I mean, he went to the ICU, and he said the lesson he learned was wear the mask, right? So --

MCCLELLAN: Yes, wear the mask.

SCIUTTO: Even with these treatments and the prospect of a vaccine, that rule remains hard and fast. Dr. Mark McClellan, thanks so much --

MCCLELLAN: Right, good to be with you.

SCIUTTO: Georgia's Republican Secretary of State is pushing back against calls for his resignation from fellow GOP members in the state's Republican senators. Both lawmakers whose races appear to be headed for a runoff in January are citing alleged failures in the election process without providing any proof.

HARLOW: We are also moments away from the opening bell on Wall Street. You see mixed open there among futures, global stocks that rallied yesterday petering out this morning, many major indices inching up as investors weigh promising news about Pfizer's COVID vaccine. We'll keep a close eye on this, stay right here.

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