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Judge Rules White House Cannot Deny Asylum Claims; Ivanka Was Using Personal E-mail for Official Government Business; 79 Dead in Camp Fire, Mud Slides Possible; Democrats File Suit Challenging Whitaker Appointment. Aired 7-7:30a ET

Aired November 20, 2018 - 07:00   ET

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

(BEGIN VIDEO TAPE)

UNIDENTIFIED MALE: There have been a number of e-mails from Ivanka Trump sent from her personal account about federal business.

[07:00:03] UNIDENTIFIED MALE: Her father was out there chanting, "Lock her up."

DONALD TRUMP (R), PRESIDENT OF THE UNITED STATES: She has to go to jail.

UNIDENTIFIED MALE: To say that she's not aware is intellectually dishonest.

UNIDENTIFIED MALE: There's a big difference between what Hillary Clinton as secretary of state was doing and what Ivanka Trump is being accused of.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Watching this campaign and then not being scrupulous about your e-mail practices is pretty remarkable.

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ANNOUNCER: This is NEW DAY with Alisyn Camerota and John Berman.

JOHN BERMAN, CNN ANCHOR: Good morning and welcome to your NEW DAY. We begin with breaking news.

A federal judge has blocked the White House from denying asylum claims to immigrants who cross the southern border illegally. A U.S. district judge in San Francisco halted the president's plan with a temporary restraining order, ordering the U.S. to resume accepting asylum claims from migrants, no matter where or how they enter the country.

Judge Jon Tigar wrote, "Whatever the scope of the president's authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden." This is a new legal setback for the president's executive actions as the president tries to reshape America's immigration system. ALISYN CAMEROTA, CNN ANCHOR: At the same time, CNN was first to

report that President Trump is expected to increase troop authority on the border with Mexico. The administration says this is an effort to protect Customs and Border Protection personnel from migrants if the migrants somehow engage in violence.

Also this morning, we have an irony alert. Ivanka Trump allegedly used her personal e-mail account to send hundreds of e-mails discussing government business.

As you may recall, President Trump made Hillary Clinton's use of personal e-mail a key focal point of his presidential campaign, prompting chants of "Lock her up" that exist to this day.

Here's what former top White House aide Marc Short told us this morning on NEW DAY.

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MARC SHORT, CNN POLITICAL COMMENTATOR: It's hypocritical, and certainly it looks bad. And I'm sure that the media will have a field day with it today.

(END VIDEO CLIP)

BERMAN: All right. I want to bring this former federal prosecutor and CNN chief legal analyst Jeffrey Toobin; former White House press secretary under President Clinton and CNN political commentator Joe Lockhart; and congressional reporter for "The Washington Post" and CNN political analyst Karoun Demirjian.

Jeffrey Toobin, I want to start with you on the immigration ruling overnight.

The president signed an executive order, which said that migrants crossing the border seeking asylum can only do so at specific ports of entry. This judge ruled overnight you can't do that. You can't say that, because Congress has a law which says you can seek asylum no matter where you cross.

TOOBIN: Right. This is in the same family of rulings as the first several rulings regarding the Muslim ban, that if the president wants to change immigration law in a fundamental way, he has to do it through Congress. There are lots of laws about immigration that the president on his own cannot overrule. That's what they said in the first two iterations of the Muslim ban. That's what Judge Tigar has said in California in the -- in this case about asylum seekers.

CAMEROTA: Karoun, the president is kind of a closet lawmaker. He wants to be in Congress. He does these executive orders so that he can change laws and then generally -- I'm thinking of the Muslim ban and this -- a judge has to remind him, "Sorry, it's Congress that makes the laws, and you can't singlehandedly change that."

So the people around the president in the White House have seen this movie before with the Muslim ban. Why do they let him make such sweeping executive orders that only get shot down in court?

KAROUN DEMIRJIAN, CNN POLITICAL ANALYST: I mean, this is the power of the president in general to try to push Congress' hand to do things. It's not like Obama never made executive orders that were intended to press Congress to act on things like immigration. I mean, the DACA ruling. Right? When you can't get through Congress, you try to do things on your own.

The problem with the way that the president is making these executive orders, though, is that they're kind of focused on certain groups. The Muslim ban focused on Muslims. The denial of asylum claims at certain points of entry seems to be focused on these groups of Central Americans trying to come up to the United States.

So to apply these executive orders selectively just kind of creates constitutional challenges automatically, because you can't really distinguish based on, you know, race or point of origin or anything like that at the outset, which is what these -- these executive orders seem bent on doing.

You would never be able to get these particular changes through Congress, because there's too much resistance even within the GOP. And so this is kind of the back and forth and the push/pull that you'll keep seeing between the White House and between Capitol Hill of the president kind of doing what he wants and stating it through an executive order, and Congress being in the courts saying, "Hold on, now. We're going to have to take this slower."

And because Congress doesn't really have the numbers to get anything proactive done, I don't see an end to this sort of back and forth anytime soon.

BERMAN: It's a great point. As long as Congress refuses to act on immigration, which it has done for several presidents now. You will see executive orders, will presidents try to force the issue. And the judges will try to push back to an extent.

The president did get his travel ban through, ultimately, by the time he changed it a few times and it got to the Supreme Court. We'll see what happens.

[07:05:00] CAMEROTA: Maybe that is the new process.

BERMAN: It may be.

CAMEROTA: Maybe that's the new process.

BERMAN: It may be. It avoids Congress completely, unless Congress wants to do its job and pass stuff.

Let me just read one more bit of what the judge ruled and said overnight, Joe. "Asylum seekers will be put at an increased risk of violence and other harms at the border, and may -- many will be deprived of meritorious asylum claims. The government offers nothing in support of the new rule that outweighs the need to avoid these harms." LOCKHART: You know, I -- I think this is about politics and P.R. I

think the president is trying to throw red meat out to his supporters, and he's been doing it from the beginning. We're not going to build a wall, but every time he goes and talks at a rally he talks about building a wall. We're just not going to do it. The Muslim ban. This.

The troops, we heard about the caravan every day for two weeks before the election. Not a peep from him now. In fact, the troops are coming home. The caravan is still moving north.

So I think this is -- the president is playing more politics here, and I think he just loves this fight. He doesn't want people talking about Mueller. He doesn't want people talking about any of the other problems about his daughter's e-mails. So every day he's going to throw a little bit out there, and he's playing politics.

CAMEROTA: But I do --

TOOBIN: I'm sorry, go ahead.

CAMEROTA: I do want to give an update on the caravan, because things have happened. The so-called caravan.

There are now 2,200 migrants inside a sports center in Tijuana, OK, at the border; and there are 3,000 migrants in Mexicali at the border of the U.S. So 5,000 or so have made it to the border. So things are happening.

And the way the administration has framed it and the way that Trump supporters believe it and feel it is these people are demanding entry. We don't have to give people who demand entry just because they can make a better lives -- life for themselves here if they have economic problems at home. Go take that up with your own government. I think they have successfully framed it that way.

What Marc Short told us was that in the past ten years, the asylum applications have skyrocketed, like, tenfold. So we do have a problem.

TOOBIN: Absolutely. And the law has been clear for decades that just because you come to the -- you want to come to the United States for a better economic life, that does not entitle you to entry.

But asylum is a different situation. Asylum is about when you are -- fear for your life, when you have some well-founded fear of prosecution --

CAMEROTA: Of course. The administration says they're overwhelming the system. The people who have economic need are overwhelming the system tenfold than a decade ago.

TOOBIN: There are more asylum applications, there's no question. Does that mean we need to send troops to the border? Are they an invading force? Of course not. These are desperate people who are trying to flee persecution, flee a desperate situation, and coming into this country. But they are not, in general, a threat to the United States. I mean, that's just --

LOCKHART: And now that there are these people at the border, why are the troops coming home?

BERMAN: You're talking about there's a "Politico" report citing General Buchanan, suggesting that some of the troops that have already completed their task will be coming home, and all of them will be coming home as scheduled by December.

CAMEROTA: December 15.

BERMAN: We're trying to get more information on that to find out exactly what's going on there, because overnight the president issued new rules of engagement for troops to get involved at the border. So this is all stuff we're looking into over the next few hours.

Karoun, I want to shift to the e-mail story, and this time I'm not talking about Hillary Clinton's e-mails. I'm talking about Ivanka Trump's e-mails. Because your paper reported overnight, was the first to report that Ivanka Trump sent many e-mails for government work on her personal account.

And I think the thing that was most astounding in this story was the claim that she did so because she wasn't aware of some of the details of the actual rules. How could that be after life in 2016?

DEMIRJIAN: I was going to say, you'd have to be, you know, woefully tuning out parts of the 2016 campaign -- and she was a very big player on her father's campaign -- to not realize that, you know, there are rules about records act and using their official account and keeping -- and not keeping anything out of the public records that you might be able to do if you used personal e-mail. And hi, we remember Hillary Clinton and the -- where her e-mails campaign that took over the last part of the 2016 campaign.

So like Marc Short was saying in the last hour, it is hypocritical. And for her to make this claim right now it suggests that, had she been anyone but Ivanka, she would have had to have been tuning out her television, completely ignoring anything that was discussed in the Trump campaign meetings, and just been kind of out of the country for a few months to not have some clue about what was going on here; and we know that's not the case.

CAMEROTA: Jeffrey, I mean, one of the things the media is tasked with, the press, is tasked with pointing out hypocrisy from public officials.

TOOBIN: Can I point?

CAMEROTA: Yes.

TOOBIN: Hypocrisy.

CAMEROTA: I mean, this is what -- when Trump supporters in the White House say, "You guys always have your hair on fire. Stop with going --" This one is so stunning. The "Lock her up" to this day, that's what they chant at rallies when President Trump goes.

TOOBIN: That's right. But it also underlines how the Trump family recognizes what a bogus issue this whole thing was. That it was just minor. That, you know, people in government have -- sometimes have two e-mail addresses, sometimes they mix and match what they do.

[07:10:08] It is done routinely; it is no big deal. Hillary Clinton did it. Ivanka Trump did it. By the way, her husband, Jared Kushner, there were earlier reports he did it, too. It is not a big deal when Ivanka and Jared do it. It was not a big deal when Hillary Clinton did it.

And I feel some personal responsibility, having spoken a lot about Hillary Clinton's e-mails, that I at least -- I don't speak for anyone but myself -- spent too much time talking about a minor issue in the 2016 campaign. And I think this recognizes -- this shows that Trump has never cared about this issue. It was just a political --

BERMAN: The fact is, a lot of people talked about it, so much so that you should have known when you got to the White House. And Marc Short, who was with us last hour, let's just play a little bit more of what he said.

(BEGIN VIDEO CLIP)

MARC SHORT, CNN POLITICAL COMMENTATOR: Today's story is an ironic one and shows hypocrisy and is a mistake. And the administration shouldn't have had private e-mails going to -- or government e-mails going to private e-mail servers. I think, look, anyone who was part of the 2016 campaign would be -- would be familiar with the rules.

(END VIDEO CLIP)

BERMAN: First of all, Marc Short has an extraordinarily high bar. It's an extraordinarily high bar for Marc Short to criticize the administration. So what you just saw there was very, very interesting, Joe Lockhart, where Marc just basically says there's no way to defend this. This is just pure hypocrisy, and anyone involved with the campaign should have known.

It gets to a question Jeffrey sort of raises, is does Ivanka Trump and Jared Kushner, do the president's kids feel like they live under a different set of rules?

LOCKHART: Of course they do, at least Ivanka. She grew up in a family where the whole family believes they live by a different set of rules. That's -- that's as Trumpy as you can get.

But picking up on what Jeffrey said, this is as much about how the media and the people who follow politics cover these things. And it continues to this day. We won't be talking about this a couple days from now, I guarantee that, because Trump will throw something else out there, and everyone will chase it and this was not a big story.

But this was a decisive reason that Hillary Clinton did not get elected president, and Donald Trump did. And we are now almost two years into it, and I don't know that we've learned anything about how to cover him and how to get to the real stuff and to stop looking at the fireworks that he sets off every day.

CAMEROTA: I mean, just one last point about all of this Trump family security concerns. As you point out, there was this -- "Politico" said that Jared Kushner also used private e-mail. Ivanka, we now know, used private e-mail. "The New York Times" said that Russia and China are listening in on Trump's cellphone that he still uses that is not a government-secured one.

As we know, he also spilled classified information in the Oval Office -- that was from "The New York Times" and CNN -- from Israel.

So there are all sorts of things that people, if they wanted to have their hair on fire about this, could have their hair on fire.

LOCKHART: No, and, you know, the phones stuff is way more important than Ivanka's e-mails. When we have adversaries of this country listening in on the president doing national security work, because he can't be bothered following the rules. Ivanka can't be bothered learning the rules or following them. You know, the scandal in here, I think, is Trump's phone use, but we'll be on to something by tomorrow.

BERMAN: Can I just ask, Karoun, while we have you here. You cover Congress. Do you think Democrats in Congress will put Ivanka Trump -- you know, call her up to the Capitol and have her testify on this?

DEMIRJIAN: I mean, that's a good question. I think that there might be some -- there will definitely be drive from certain Democrats to do that, because they want to investigate everything.

But right now the Democratic party is trying to prioritize what it wants to do. I think it's very focused on pointing out policies that they think would be actually -- the hypocritical policies are not just hypocritical kind of internal White House policies. They think actually will affect voters where they live, because they're looking towards 2020, and they're trying to look at the president himself. So possibly, but I don't think it's at the top of anybody's agenda right now.

CAMEROTA: OK. So in terms of calls for bipartisanship, we do this every day in our green room. Take a look at this photo that was just snapped in the green room and has already broken the Internet. It's Joe Lockhart and Anthony Scaramucci. It's not the best lighting, but it is a wonderful message that is being sent in our green room, where people come together every day from different sides of the aisle.

LOCKHART: Anthony wanted to know what happens on the 12th day in the White House, and I said, "I don't know. I don't know."

CAMEROTA: Low blow.

BERMAN: He gets a free swipe the minute he --

CAMEROTA: And he'll take it. We know the Mooch. He will take it. He will join us live in just minutes.

TOOBIN: Very good, Joe. Very good.

CAMEROTA: All right. Now we have to turn to the raging wildfires in California. There's a new threat that's emerging, because heavy rain could cause flash floods and mudslides.

The state's deadliest blaze, the Camp Fire, has killed 79 people, and hundreds more are still unaccounted for at this hour. CNN's Paul Vercammen is live for us in Paradise, California, with more.

What's the latest, Paul?

[07:15:10] PAUL VERCAMMEN, CNN CORRESPONDENT: Alisyn, as you pointed out, 79 dead now. They found two more bodies, one inside a structure in Paradise, another one outside in the area.

And as for that unaccounted for list, it shrunk dramatically to 699. It was well over 1,000. The sheriff conceding that this is raw data, saying there could be misspellings on the list, and even people on the list who don't know that they're considered unaccounted for.

As for the fire fight, 151,000 acres burned. It's now 70 percent contained. This, of course, a humanitarian crisis, also an animal crisis as so many people in this rural county own livestock, much of the rescued animals winding up at the county fairgrounds.

(BEGIN VIDEO CLIP)

NATHAN WILKINSON, ANIMAL RESCUE VOLUNTEER: At any given time there's up to 2,000 animals in the shelters, you know. We've had more animals in shelter care than people. And so it takes an army to care for these animals.

People can't get their animals in a home if they don't have a home. So the least we can do for them is care for their animals until they can take them back.

(END VIDEO CLIP)

VERCAMMEN: And with rain on the way there is a concern from fire officials that the roads could become ashy and muddy and complicate things for those first responders -- John.

BERMAN: All right. Paul Vercammen on the ongoing situation out there. Paul, thanks for being there for us.

President Trump is expected to turn in written answers to Special Counsel Robert Mueller in the coming days. Now some Senate Democrats say they are taking steps to protect the Russia investigation. How they're taking on the new acting attorney general. That's next.

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[07:21:17] BERMAN: Three Democratic senators have filed a lawsuit claiming the appointment of Acting Attorney General Matthew Whitaker is unconstitutional. Before assuming that role Whitaker was a very outspoken critic of the Mueller probe leaving some worried that he would take steps to slow or stop the Russia investigation.

Joining us now, one of the Democrats who filed that suit, Senator Richard Blumenthal.

Senator, thank you so much for being with us. What's your goal here in this suit?

SEN. RICHARD BLUMENTHAL (D), CONNECTICUT: Our goal is very simply to protect our right to advise and consent, to approve or not, an appointee who is one of the principal officers, one of the top officials of the government, the top law enforcement officials, and to assure he or she has the qualifications to do this job. Not just because we're protective of our power but because the founders literally gave the Senate that responsibility on behalf of the American people.

BERMAN: For principal officers, it is in the Constitution. The Justice Department says it doesn't apply here, because it's a temporary role and, if it's a temporary role, it's not a principal role.

BLUMENTHAL: But there's no justification in the law for saying so. And the Department of Justice, actually the Office of Legal Counsel, says that there are some kind of special or exigent circumstances that, in some cases, allow for the president to appoint someone temporarily.

But those kinds of circumstances are death or tragedy or crisis, not what we have here. There is no precedent, none, John, for this kind of appointment of someone who is essentially a lackey of the president.

BERMAN: I'm not suggesting there's precedent. They claim through the Vacancy Act, which is a law passed by Congress, that a resignation is a reason to appoint a temporary person, and they say that's how they're getting it through.

Let me ask you about Whitaker, though, who's been on the job now, I think, it's officially two weeks as of today. Have you seen any evidence yet that he has worked to slow or impede the Mueller probe?

BLUMENTHAL: There is no overt evidence, no public indication yet, but there would not be any, probably, at this point. If he has declined to approve a subpoena or an indictment, which he could do in supervising the investigation, we may not know about it at this point.

BERMAN: If he did something like that, would you hope that Robert Mueller would go public with it? Do you think his investigators should say, "Hey, we wanted to issue a subpoena. We wanted to hand up an indictment, but the acting attorney general said no"?

BLUMENTHAL: At some point, I would hope that he would, but what we have here is the danger of a slow-motion Saturday Night Massacre, death by 1,000 cuts: cuts in funding that could strangle the investigation; cuts in authority, cuts in subpoenas that may not be public.

I'm going to be introducing legislation that will require, absolutely require, full disclosure of all the findings and evidence of the Mueller investigation if he is, in any way, forced to resign or if he is fired.

And just to go back to your point about the Vacancies Act, which is an important one, you know, the United States Constitution is the highest law of the land. It trumps the Vacancies Reform Act. And even if you go by statutes, there is a more specific one that says the deputy attorney general, Rod Rosenstein, should take over.

And so there's really no crisis, no kind of exigent circumstance that would justify going around Rod Rosenstein.

BERMAN: Let me you about a story in the news this morning, which is that Ivanka Trump -- "The Washington Post" was the first to report, and others have matched since -- was using her personal e-mail for government business inside the White House.

Obviously, when Hillary Clinton was at the State Department and used her personal e-mail, that became a big story, which was covered by everyone for a long time. What do you make of this today?

BLUMENTHAL: Marc Short had the right word for it: hypocrisy. And there's no way that she had no knowledge of the rules.

[07:25:10] But really, there's a larger story here, which is the mixing of public and private, as with her clothing brand and her public position, the blending and mixing of e-mails on her private account, her public account. And it raises the issue of whether there has been anything improper. There should be some kind of investigative effort.

BERMAN: By whom?

BLUMENTHAL: Whether it's through the Office of Government Ethics or through the Congress.

BERMAN: What do you think the House, because it would be the House which will be led by Democrats in January, unlikely it will happen in the Republican-led Senate, but what do you want to see the House do? Because look, I mean, Democrats after the whole Hillary Clinton situation, I think, feel as if too much was made of that. And if too much was made of Hillary Clinton's e-mails, why make anything of Ivanka Trump's?

BLUMENTHAL: I think there are real challenges ahead on immigration, on infrastructure, on other issues like jobs and the economy that really have to be faced by this Congress and which need to work together, not be driven apart by party or personal insults.

BERMAN: Focus on those before Ivanka Trump's e-mails, you're saying?

BLUMENTHAL: I think there's also a need to hold accountable this administration. We can do both. Accountability and progress on the issues is not incompatible. And the principle person who has to be held accountable is the president of the United States and his self- dealing.

For example, violating the Emoluments Clause, which we have brought to the floor in a lawsuit that I have helped to lead, with almost 200 of my colleagues, making progress in the court. Standing has been granted.

But the Congress can hold the president accountable for putting himself above the law, which is essentially, in a sense, what Ivanka Trump has done with these e-mails.

BERMAN: Do you feel like she broke the law?

BLUMENTHAL: That will be a question for us after we know more about the facts and the evidence. As a former prosecutor, I'm going to tell you, I need to know the facts and the evidence before I say whether or not somebody has broken the law.

BERMAN: Senator Richard Blumenthal of Connecticut, thanks very much for being with us. I appreciate it.

BLUMENTHAL: Thank you.

BERMAN: Have a happy Thanksgiving.

BLUMENTHAL: You, too.

CAMEROTA: Up next, former White House communications director, Anthony Scaramucci is in the house. There he is. Hi, Anthony. Come on out.

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