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AT THIS HOUR WITH BERMAN AND MICHAELA

House Speaker Ryan Threatened with GOP Rebellion; Missing Supreme Court Justice Could Cause Problems in Election Case. Aired 11:30-12p ET

Aired October 21, 2016 - 11:30   ET

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


(COMMERCIAL BREAK)

[11:33:39] JOHN BERMAN, CNN ANCHOR: Tensions rising by the minute as we head into Election Day. It's not just Democrat versus Republican. It's now Republican versus Republican. Some House members are increasingly angry over Speaker Paul Ryan's refusal to campaign for Donald Trump.

KATE BOLDUAN, CNN ANCHOR: And now -- I can't talk anymore -- more are saying that if Ryan won't do more to help Trump, they might not help him keep the speaker's gavel.

CNN's senior political reporter, Manu Raju, joining us from Capitol Hill.

Apparently, it's Friday. I have lost the capacity to speak. Manu, please take it.

MANU RAJU, CNN SENIOR POLITICAL REPORTER: You know, Paul Ryan is in a Donald Trump dilemma. Now that the Speaker says he can no longer defend Donald Trump, some are saying they can't back him.

You already had one Congressman, Jim Bridenstine, of Oklahoma, threatened to vote against him. And now the man who led the charge to take out John Boehner, he says Ryan himself may not be so secure after the election. Take a listen.

(BEGIN VIDEO CLIP)

REP. MARK MEADOWS, (R), NORTH CAROLINA (voice-over): Honor the people who believe so desperately that we need to put Donald Trump in the White House. They question the loyalty of the speaker. I do think there will be real discussions after November 8th on who our leadership will be and what that will look like going forward.

(END VIDEO CLIP)

[11:34:55] RAJU: Why are a couple congressmen so significant? Because of the margins. If the House GOP keeps the majority next month, they almost certainly will have a small majority because they are certainly to lose seats, potentially up to ten, including moderates. Meaning that conservatives would have even more sway over the party's leadership next Congress. And Ryan will face a vote on the floor, so he cannot afford to lose many votes to get the 218 he needs to be re-elected speaker. He already lost 10 votes the first time he ran. So every vote counts.

That could be one reason why we have not heard Paul Ryan speak up publicly against Donald Trump for the last couple of weeks since the release of that "Access Hollywood" video. Radio silence from Ryan, avoiding all questions about Trump as he tries not to criticize the nominee, because if he does, that could provoke even more backlash from the right.

BERMAN: My favorite was when he took prescreened questions from a college audience, college Republicans.

(LAUGHTER)

Wouldn't even let them ask the questions.

Manu Raju, thanks so much.

BOLDUAN: Thanks, Manu.

RAJU: Thanks, guys.

BERMAN: So is this Paul Ryan's Republican Party or is it now Donald Trump's? We will discuss with our panel as we wait on Donald Trump. You are looking at live pictures right now. Donald Trump will take that stage in just a few moments.

BOLDUAN: Plus, what does doomsday look like? If you are a legal expert, it could be Election Day. More on that ahead.

(COMMERCIAL BREAK)

[11:40:35] BOLDUAN: We're looking at live pictures here and there. You're looking at a Donald Trump rally that will be starting any minute now. He will be taking to the stage in Fletcher, North Carolina, a state Donald Trump would love to win.

BERMAN: Before the break, we were talking about Paul Ryan's issues within his own caucus. There are now rumblings down-ballot across the country. Let's bring in our panel, Bill Kristol, editor of the "Weekly Standard"; Krystal Ball, no relation --

(CROSSTALK)

BERMAN: -- of the New Leaders Council --

(CROSSTALK)

BERMAN: I'm so confused here.

(CROSSTALK)

(LAUGHTER)

BERMAN: -- and John Phillips, who is merely grateful he's not in the studio with us right now.

JOHN PHILLIPS, CNN POLITICAL CORRESPONDENT: I feel left out being the only one not named Krystal.

(CROSSTALK)

BERMAN: -- and a Donald Trump supporter.

Bill Kristol, let me start with you.

The "Washington Post" has an article out today essentially saying after the third debate there are Republicans convinced the presidential race is lost. It has quotes of not just blind quotes from people saying it's over and now down-ballot candidates that have to deal with that situation. So if you are running for Senate, say, right now, how do you deal with that reality? And keep in mind, everyone is not like you. Everyone is not going to stand up and say I'm not voting for Donald Trump.

BILL KRISTOL, EDITOR, WEEKLY STANDARD: I know that.

(LAUGHTER)

BERMAN: How do you position yourself?

KRISTOL: That's the editorial in the new "Weekly Standard" this morning. We are on the same page. I think he's very, very likely to lose, Donald Trump. No one has reversed a six, seven, eight point deficit this late in the campaign after the debates and with his unfavorable numbers. I think he'll most likely lose.

I think Senate and House candidates need to say you are looking at Hillary Clinton as president. I don't want it. I'm voting Republican. That's what they can say. But this is the facts. Do you want Hillary Clinton and Nancy Pelosi and Chuck Schumer unchecked, running wild, a replay of 2009, '10, all this liberal legislation passed, or do you want checks and balances. That's a pretty effective message.

(CROSSTALK)

BOLDUAN: Isn't that everything people don't like about politicians? They haven't broken with him yet, how can they honestly inoculate themselves?

KRISTOL: They should have broke through, yes. Look, in more elections than not, voters have sent back divided government. One or both Houses controlled by the other party, than the presidential candidate they voted for. Voters are kind of used to it. They don't love checks and balances. It's, oh, gridlock. On the other hand, compared to -- I think especially if I were a republican House candidate, I would just say Hillary Clinton and Nancy Pelosi. Is that who you want running the country?

BERMAN: John Phillips, does that become a self-fulfilling prophesy if you start to have candidates saying it's inevitable and it starts to become inevitable, so are there consequences for these people among Donald Trump supporters? PHILLIPS: I quote Tip O'Neill and say, "All politics is local." I

would run my race to whatever local audience it is in whatever district or state I'm running in.

Secondly, there's a lot of truth to what Bill just said. Americans do like divided government. Let's go back to the 2008 election when Barack Obama won in a huge national landslide. What happened in the next midterm election? The Democrats took a thumping in the Tea Party revolution. Same thing happened after he was re-elected in 2012. The Republicans had huge gains in the midterm elections. There's a lot of states out there, including Massachusetts and California, that are heavily Democratic states that have a long history of electing Republican governors for that. People do like divided government.

Hillary Clinton's unfavorables are very high so there's going to be a lot of people that vote for Hillary Clinton, even though they don't like her. If you vote for her, and don't like her, you definitely want a check on her to make sure she doesn't have complete control over the government.

KRYSTAL BALL, JOURNALIST ACTIVIST & SENIOR FELLOW, NEW LEADERS COUNCIL: There are two problems with that analysis. First of all, John, you have to wait I guess until the next midterm election before you see this backlash that brought us divided government because in 2008 and '12 Democrats did fairly well down ballot. The second thing is --

(CROSSTALK)

PHILLIPS: Republicans controlled the Senate in 2012.

BALL: -- the trend over time has been that fewer and fewer people are ticket splitting. It's just not what we have seen so far.

But going back to Bill's analysis here, I think you are absolutely right that the Trump base is going to show up. They are not going to vote for Democrats just to spite the Republicans that might have gone against them. I do think their best bet, at this point, even though they should have done it long ago, is to separate themselves as much as possible and say, hey, Nancy Pelosi is still very much hated among Republicans, do you want her to be back in charge?

[11:45:02] BOLDUAN: For Democrats, I mean, we have seen President Obama, he's made this his election kind of battle cry, is taking on the down-ballot races. We saw him take on Marco Rubio over and over in Miami, who are not really hearing that from Hillary Clinton. She is -- you don't really hear her talking about down-ballot races in the forceful manner that Barack Obama is talking about it. Why do you think that is? Is that more of a statement of they don't want her --

(CROSSTALK)

BALL: There's a challenge here. She's been trying to reach out to moderate Republicans and she doesn't want to say all the Republican Party is terrible for standing by Trump. She wants to distinguish between the Trump folks and the rest of the party. But you do see, in terms of money, and this is where money becomes really important, she has the resources and, frankly, the Electoral College flexibility to be moving money from Hillary Clinton super PAC, going now into Pennsylvania to support the Senate candidate, in New Hampshire to support the Senate candidate. So even the money piece plays out and has a ripple effect.

BERMAN: They're going to start running ads in Indiana and Missouri and those are places where Hillary Clinton really plans on winning.

Bill Kristol, another area where you have weighed in on, teeing this up for you right now --

(CROSSTALK)

BERMAN: -- is the issue of Paul Ryan. We were talking about Paul Ryan before in trouble with some of his caucus for turning his back partly on Donald Trump. But you sort of say he didn't turn his back enough. He's going to get it from both sides right now. Where is the future for Paul Ryan?

KRISTOL: Look, I think he acted out of good motives. He felt he had to try to represent his members who wanted to be pro-Trump. He's personally anti-Trump. He tried to split the difference. Sometimes you get the worst of both worlds. Sometimes that works. We were talking about this before the show. She lives in Kentucky where Mitch McConnell is from. He's kind of a cynical guy or shrewd guy. We made one statement three months ago, Donald Trump will be the nominee, I support the Republican nominee and, literally, to my knowledge, not said a word about Trump. Paul Ryan wanted -- I can work with him, I'm going to convince him to be on board our entitlement reform agenda and he got himself wrapped around the axle of half working with Trump, then had to denounce Trump when Trump said something bad, then has to reassure people he's voting for Trump. It's been rough. Honestly, it has been personally a rough few months for Paul Ryan.

BERMAN: Bill Kristol, Krystal Ball --

BOLDUAN: Paul Ryan would probably agree with you.

BERMAN: -- John Phillips, our thanks to all of you.

(CROSSTALK)

BERMAN: We're looking at live pictures right now from North Carolina. There they are. Donald Trump getting ready to speak in the town of Fletcher, North Carolina, a swing state. Of course, it's a swing state he needs to swing his way. We will take it live when it happens.

BOLDUAN: Are Republicans suggesting the unthinkable. Giving President Obama the parting gift of a full Supreme Court? That is next.

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[11:51:44] BOLDUAN: Let's play one of our favorite games. What if? What happens if Donald Trump disputes election results as he suggested. If on November 9th there's a dispute in one state and the U.S. Supreme Court is forced to decide the winner? One legal expert calls this the doomsday scenario.

BERMAN: That's why we have --

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Speaking of doomsday.

(CROSSTALK)

(LAUGHTER)

BERMAN: Jeffrey Toobin is here.

Jeffrey Toobin, this is an issue. Elections have gone to the Supreme Court.

TOOBIN: Indeed.

BERMAN: The ruling in Bush versus Gore was five, four.

TOOBIN: Correct.

BERMAN: There are only eight justices on the Supreme Court, it could be a four/four ruling. What happens then?

TOOBIN: Let's just back up. Remember, we don't have a presidential election. We have 50 presidential elections, all with different rules, different voting machines. So there will not be one lawsuit dealing with the presidential election. There may be one or more state where there's some legal controversy. And if a case involving one, and the state, of course, has to be dispositive, it doesn't matter if one candidate has 350 electors in one state. But what made Florida so important in 2000 was that it held the balance of the 270 electoral votes. The Supreme Court gets the case. Whatever the lower court decision was supporting one side or the other, would be affirmed, four to four, if that's how the court split.

BOLDUAN: Sounds like a not good result for anyone involved.

TOOBIN: I mean, this is why the Supreme Court has an odd number of seats on it.

(CROSSTALK)

BOLDUAN: Becomes odd numbered because of the Ginsburg factor now? Ruth Bader Ginsburg statements made in an interview with CNN that she then essentially had to apologize for about Donald Trump.

TOOBIN: Right.

BOLDUAN: What do you think would happen?

TOOBIN: That, again, is a difficult question. One of the oddities about the Supreme Court is that unlike other federal courts, the lower federal courts, there is no binding rule of legal ethics on the Supreme Court. It's the honor system. They have to decide themselves whether to recuse themselves in any given case. That's been the subject of some criticism, but that's the rule as it is now. So it could simply be up to Ruth Ginsburg whether she wanted to recuse herself. And there's no review, no appeal of that decision. It's just up to her.

(CROSSTALK)

BERMAN: So speaking of the Supreme Court, Merrick Garland, still nominee of President Obama to fill the vacant seat on the court. There's talk among Republican Jeff Flake, among others, that if Hillary Clinton does win the election on November 8th, the lame-duck Senate should take up the issue of Garland, confirm him to the Supreme Court?

TOOBIN: Jeff Flake is not the majority leader of the U.S. Senate. The majority leader is Mitch McConnell, who has said over and over again there will not be a lame-duck vote on Merrick Garland, by which he means, I think, there will not be a lame-duck vote on Garland. Interesting idea. You can see the logic of it, but I don't think there's any way it's going to happen.

BERMAN: First, that will put pressure on Hillary Clinton if she wins. Does she re-nominate Merrick Garland?

(CROSSTALK)

TOOBIN: I have been pursuing that issue unsuccessfully. I cannot get an answer on that and I think she has not made up her mind yet.

BERMAN: Jeffrey Toobin, great having you with us.

TOOBIN: My pleasure.

[11:55:08] BOLDUAN: And to win the White House, Trump will likely -- not even likely -- he needs North Carolina. That's where he'll be speaking moments from now. Looking at live pictures. We'll bring you there live.

Be right back.

(COMMERCIAL BREAK)

BOLDUAN: This week's "CNN Hero" is trying to save teenagers lives in the United States.

(BEGIN VIDEO CLIP)

UNIDENTIFIED CNN HERO: A lot of parents would never toss their kid a loaded gun and tell them to have fun but many don't think twice about throwing them the car keys and we just throw the kids out there on the road and expect them to be prepared to handle every situation. And that's just not the case. We're just doing our job so we can make a difference out there and make the roads safer for all of us.

(END VIDEO CLIP)