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AT THIS HOUR WITH BERMAN AND MICHAELA

Source: Trump Taps Elaine Chao As Transportation Secretary; Trump: Flag Burning "Must Have Consequences"; GA Lawmaker And Surgeon Picked As Health Secretary; Trump Finds Time For Twitter War With CNN Reporter; Trump, Romney Meet Tonight For Second Time; Senate Democrats Prepare To Fight Jeff Sessions. Aired 11-11:30a ET

Aired November 29, 2016 - 11:00   ET

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


KATE BOLDUAN, CNN ANCHOR: Hello, everyone. I'm Kate Bolduan.

JOHN BERMAN, CNN ANCHOR: And I'm John Berman. OK, I thought there was going to be an animation there. It said "pause." I'm not going to pause. I'm just going to keep going here.

President-elect Donald Trump is having Mitt Romney over for dinner tonight. What is on the menu, you ask, is it a cabinet position? That would be the spiciest option, perhaps revenge, a dish best served cold they say or is it the First Amendment, which is at least in one respect out of season at Trump Tower this morning?

BOLDUAN: To continue the delicious John Berman metaphor, what Trump today says he wants on the cutting board, flag burning, that is where the First Amendment comes in. Trump writing on Twitter this morning this, "Nobody should be allowed to burn the American flag, if they do, there must be consequences, perhaps loss of citizenship or year in jail."

Here is the thing. The Supreme Court settled this issue almost 30 years ago. Burning the flag is protected symbolic speech under the First Amendment.

For more on that and the breaking news and the latest in Trump's cabinet with some big consequential picks and announcements, let's get to CNN's Phil Mattingly live over at Trump Tower -- Phil.

PHIL MATTINGLY, CNN CORRESPONDENT: Good morning, Kate. And we will talk in a little bit about the flag burning issue, certainly, a lot of heat and light to folks on there, but I want to start with cabinet officials and cabinet picks.

We have just learned from a Trump transition official that Elaine Chao, the labor secretary in George W. Bush's administration, the wife of Senate Majority Leader Mitch McConnell, will be named the secretary of transportation later this afternoon.

Now that announcement comes the same day as Tom Price, the congressman from Georgia, was named the secretary of health and human services this morning. So the Trump transition is starting to fill out those positions right now, two crucial cabinet roles. I want to focus a little bit on Tom price because I think that's important. Conservatives are thrilled by this pick. He has been the leader of the opposition to Obamacare in the House. He's also been the leader of the alternative to Obamacare amongst House Republicans. He's an orthopedic surgeon.

He has a lot of experience on the complexities and I think the realities on the policy side of things. So I've been going back and forth with Capitol Hill Republicans throughout the day and last night when this news broke.

People are very excited about this pick. So two big cabinet selections today. That's been the focus of the Trump operation behind the scenes.

Now, in public, slightly different. Kate, as you noted, the president elect taking to Twitter multiple times over the course of the last couple of days to talk about things other than the transition operation including the flag burning issue.

Now here's a really interesting element I think we should all kind of point to on this. I mentioned Elaine Chao who is the wife of Senate Majority Leader Mitch McConnell. Mitch McConnell in 2006 cast the deciding vote in the Senate to block a bill that would have allowed Congress to amend the Constitution to punish flag burning.

His point at that time, according to an opinion piece he wrote in a local newspaper was people who burn flags while they might be an annoyance aren't really a big problem. Starting to mess around with the First Amendment, that is.

So while the president-elect clearly wants to make this an issue, at least according to his Twitter account this morning, he's going to run into opposition in the form of the most powerful man in the U.S. Senate and the husband of one his cabinet selections, guys.

BOLDUAN: That's a tangled web right there. Great to see you, Phil. Break out the flowchart. Thank you, Phil, so much.

Let's talk about this with our panel right now, CNN senior Washington correspondent, Jeff Zeleny is here, CNN's chief political correspondent, Dana Bash, CNN political reporter Sara Murray is here as well, and CNN political analyst, "National Political" reporter at "The New York Times," Alex Burns, and CNN senior legal analyst and former federal prosecutor, Jeffrey Toobin.

BERMAN: CNN well represented here this morning.

BOLDUAN: Jeffrey. Phil laid it out very clearly and very well, but to be clear, where has the court and the Constitution landed on flag burning?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, this has been a settled issue for a long time. In fact, Justice Scalia, whose vacancy we're talking about a great deal these days, was the deciding vote in favor of protecting flag burning under the First Amendment. So I don't know what our job here as a journalist these days because are we just going to do Donald Trump's tweet of the day? I mean, this is -- you know, this is clearly something that is prohibited by the Constitution.

But it is a bright shiny object that we are now looking at. And, you know, it is pretty remarkable that the president-elect of the United States is calling for, you know, penalties, criminal penalties, for protected speech.

BERMAN: Loss of citizenship.

TOOBIN: Loss of citizenship. I mean, I just, you know, why is he doing this? I mean, that's the question. Is he trying to distract attention from something else? I don't know why he would be. His transition seems to be going well. What is the purpose behind this? I don't really get it.

BERMAN: Dana Bash, Jeffrey brought up a couple of really important points here. Let's try to break them down one at a time. Number one, what does he get out of this? From what you are hearing, why is he bringing this up today?

[11:05:13]DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: It's unclear. I mean, that's just the bottom line. It just seems as though the pattern of Donald Trump and his use of social media has not changed since the campaign.

In that he sees something, whether it's on his own Twitter feed or on television or, you know, somebody calls him and tells him about something and he reacts and he tries to, you know, get whatever his feeling is at that moment out to his millions and millions of Twitter followers.

It was, you know, a campaign tool that people really marveled at. The way he was able to use it such uncharted territory here in that a president-elect is continuing to do that and, you know, set the agenda.

His bully pulpit right now is his Twitter feed and he's trying to do that with not just this, but I'm sure you're going to talk about this, going after our esteemed colleague, Jeff Zeleny, on his very, very good reporting.

Trying to find out what exactly Donald Trump is talking about on that Twitter feed when he addresses alleged voter fraud. You know what, strap in guys, this is the world we're living in.

BOLDUAN: But to the other point, Alex, I know you've been thinking about this as well. A lot of people, Jeffrey Toobin included, are musing what to do with this -- if Donald Trump tweets it, does it make it news?

Here's the only thing that I would say. When the president-elect says anything, written word, Twitter word or spoken word about how someone should lose citizenship or what should be illegal, though, it is protected by the Constitution. It's a big deal.

ALEX BURNS, CNN POLITICAL ANALYST: It is, I think it's a fundamentally different conversation than we might have had about this during the campaign when candidates are simply saying outrageous or provocative things. It's a fair question for the media to debate how much play, how much attention and seriousness do you give to something like that.

When as the president-elect making this kind of pronouncement, in a situation like this, where it appears pretty -- obviously to be an extra constitutional pronouncement or any number or other sort of policy proposals that he raised during the campaign that run afoul of existing U.S. law or that show an attitude that's dismissive of existing U.S. law, I think we can't just say this is clearly out of bounds and we just need to pretend that he's not doing it --

TOOBIN: No, I understand, but it is also consistent with a number of tweets since the election. He didn't like the protests in Portland and elsewhere against the fact that he won the election. He didn't like the way the cast of "Hamilton" behaved. These are all First Amendment expressions that are different from his point, you know, his political point of view, and he is outraged about that.

Now, in part, you could say, well, he's just expressing his own First Amendment views. But when you're talking about taking away people's citizenship or putting them in jail for their expression of the First Amendment, that's where things get really dicey.

BERMAN: That's why we're talking about it. In addition to the other things that Donald Trump is doing, like picking members of his cabinet. We heard about Elaine Chao. I don't think that will be controversial, but Sara Murray, Tom Price --

BOLDUAN: Mitch McConnell has a problem with it.

BERMAN: I think it's a definite yes vote on that for Elaine Chao. Let's talk about Tom Price right now, Republican congressman from Georgia who a lot of people look at as the personification of the end of Obamacare. People have noted, Sara Murray, if you wanted to pick one person to get rid of Obamacare, it will be Tom Price, who will be heading up HHS if confirmed.

SARA MURRAY, CNN POLITICAL REPORTER: That's what makes it confusing that Donald Trump was talking about something else today because conservatives on the Hill, as Phil Mattingly pointed out, are overjoyed by this pick.

They really believe that Tom Price is the kind of person who not only has been a leading critic of Obamacare, but who has the know how to be able to repeal this, which is going to be a complicated process, but also come up with some kind of alternative that you're going to replace this with.

Now we are already beginning to hear from Democrats on the Hill who, of course, are not pleased by this. They're trying to preserve Obamacare and this is going to be very, very tough for them. Look, it's going to be tough for them to block Price from this position.

Of course, they're going to be able to exact their pound of flesh, of course, they're going to be able to (inaudible) the benefits of Obamacare. But the reality is the Democrats lost this election. The Republicans won. They have the House. They have the Senate. They have the White House.

They campaigned on the promise of repealing and replacing Obamacare, which you would think would be Donald Trump's number one talking point today.

BOLDUAN: Jeff Zeleny, Democrats also might be getting hurt by their own moves. I mean, Democrats, they made it easier to move forward with presidential nominations and they might be facing that with some of these picks that they don't like, like Tom Price even Jeff Sessions as AG.

[11:10:07]JEFF ZELENY, CNN SENIOR WASHINGTON CORRESPONDENT: No doubt about it. I mean, as Sara just said, elections as we say many times, they have consequences and the consequences are going to play out in January and February, first and foremost with those nominees and they are going to be confirmed in the Senate by and large.

There's usually one cabinet secretary who stumbles or has to be replaced. But by and large, most of these will be confirmed because Republicans have the majority. You're right about the change of rules.

Democrats saw to it that the rules changed to allow a simple majority to confirm everything except Supreme Court justices. So Republicans have enough members of the Senate to confirm these.

Now, the -- we're seeing so many people here who are coming to join the administration from Capitol Hill. Senators get confirmed pretty easily. House members get confirmed almost as easily here.

So I think that most of these confirmations so far seemed to be pretty pro forma. Now secretary of state is something that might be a little more complicated, which is why it's not yet been announced.

That's a whole separate matter going on at Trump Tower, but look for most of these confirmations to happen in January.

BERMAN: Jeff Zeleny, while we have you here -- we know you've been working hard trying to find an example of the millions of cases of fraudulent voting that the Donald Trump pointed to. Has the Trump team provided you with any examples?

ZELENY: They have not provided us with any broad stroke examples. I've received a lot of individual examples from a place in Arizona or a place in Texas or a handful of things. But what we're after is trying to find out what Donald Trump was talking about when he said that he actually won the popular vote if not for millions of illegal votes that were cast and allegations of fraud.

This simply does not exist. There is no one that can point to that. Republican election officials cannot certainly. Democratic election officials cannot, but that is what drew his attention last evening after a report we had here on CNN saying that we simply could not find any evidence of this.

He did not offer any evidence of that. He being Mr. Trump, but certainly was criticizing our reporting for pointing out the fact that there indeed is no evidence of this.

BOLDUAN: So while this is all -- while that is still percolating --

ZELENY: Right.

BOLDUAN: He also has quite a dinner date tonight, Dana, that I'm fascinated by. I think we all are. I don't think I'm alone on that one, with Mitt Romney. And it seems hard to believe that with all the very public kind of feuding over Mitt Romney amongst his top advisers that has been surprising.

It seems hard to believe that if he's sitting down, having dinner with Mitt Romney, that Donald Trump isn't seriously considering him as candidate, his top candidate maybe for secretary of state.

BASH: No question. He is seriously considering. I know there are a lot of conspiracies out there. People who say no, this is about trying to publicly humiliate Mitt Romney. From my reporting, I don't think that the case. I think that this is real.

It is really hard to envision this dinner wherein, you know, just a couple months ago we would have all suggested to Mitt Romney that he get a food taster before sitting down to that because he had been so incredibly harsh with his criticism of Donald Trump during the primaries.

But the primaries are over and Donald Trump is trying to decide whether or not he will make the ultimate decision of I'm ready to move forward by picking his chief Republican critic and putting him in, probably the most prominent cabinet position in his administration.

We know and we've been reporting very extensively over the past several days about the deep division among Donald Trump's advisers that obviously spilled out in public with Kellyanne Conway very publicly saying that making clear she doesn't think it's a good idea, but there are others who do think that it could be a good idea.

So this dinner tonight is -- and how it pans out is going to be fascinating especially given the fact that the recent history of Donald Trump's sort of intimate meetings with his chief foes, President Obama, obviously the brightest example of that, end up with Donald Trump changing his position and seeing a different side of these people who he really disliked very much from afar.

BERMAN: Sara Murray, quickly, you're still deeply sourced in Romney world, how is Governor Romney looking upon this meal tonight, any word?

MURRAY: You know, there's a lot less drama coming from the Romney side than there is from the Trump side of this. I think the Romney world is sort of just watching this and waiting to see what happens. They sort of feel like he was invited into this mix.

Donald Trump wanted to meet with him, wanted to talk about this position with him, and now there's a fight brewing around him that he hasn't really been that involved in since the campaign ended. So I think they're just trying to sort of stay calm, to wait and see what happens.

[11:15:08]And, look, Governor Romney is the kind of person that if they asked him to take this job, I think it would be extremely difficult for him to turn it down. He wants to be involved going forward. He is a patriot.

He does believe that he has more years of service left to devote to this country. But I have to imagine it's not particularly pleasant for him to be sitting around watching the things that people are saying about him on television.

BERMAN: All right, guys, thanks so much. Mitt Romney better show up with an appetite tonight.

All right, the Democrats apparently preparing for a possibility of a fight against Donald Trump's pick for attorney general, but really can they do anything to stop Senator Jeff Sessions? That's coming up.

BOLDUAN: Plus, horror at Ohio State University. A Somali immigrant who attacked his classmates on campus, allegedly ranting against America before his attack. Details on that and the officer who stopped him ahead.

And Tennessee on fire, just look at that. Severe drought, heavy winds, creating what rescue officials are calling a perfect storm. The fight to stop those raging flames and evacuate an entire city under way right now. That's next.

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[11:20:05]

BOLDUAN: Democrats in the Senate are sending a strong message, they're ready for a potential fight over one of Donald Trump's cabinet nominee, Senator Jeff Sessions as attorney general. Democratic senators sending a letter to the Republican chairman of the Senate committee that will vet the attorney general pick calling for thorough, fair and open hearings.

BERMAN: Senator Chris Coons signed this letter. He joins us now from Capitol Hill. Senator, thanks so much for joining us. There's a lot of news about nominations today, in addition to Jeff Sessions, which we'll get to in a second. But Elaine Chao, which we just heard, will be dominated, we are told, for secretary of transportation.

And then Tom Price, Republican congressman from Georgia, nominated to head up HHS. I want to focus on Price, for a moment if I can, because a lot of people have noted that he could be the personification of the very overturning of Obamacare. How do you look upon his nomination and what he could do to the Affordable Care Act?

SENATOR CHRIS COONS (D), DELAWARE: Well, I think we need to be looking at all of Trump's nominees for cabinet positions in the way the letter -- a group of us just sent to Chairman Grassley suggests with an open mind by conducting thorough and complete hearings.

It's my hope and expectation that Trump's nominees will get the chance that Merit Garlen never got which is a chance to fully explain the record, to talk about their policy positions and what they intend to do if confirmed.

And to give the American people a chance to understand what it might mean for their health care if Price is secretary of HHS, what it might mean for their civil liberty, civil rights, for their security and for our elections if we end up with Senator Sessions as attorney general.

BOLDUAN: Senator, real quick, on Congressman Price, if he is confirmed, in your mind, do you think Obamacare is dead?

COONS: Well, I think the Republicans have made it blindingly clear that they intend to repeal the Affordable Care Act. I think the House has repealed it some 60 times in the last two years.

The question is will they keep Trump's commitments to replace it with something that includes some of the most important consumer protections of Obamacare preventing discrimination by insurance companies against those with pre-existing conditions.

Making sure that young people can stay on their parent's insurance policies until they're 26. President-elect Trump has spoken positively as a number of other Republican leaders about some of the very good things that the Affordable Care Act has done.

They've got the votes in the House and Senate using an arcane procedure to literally ram through a repeal of Obamacare with no Democratic votes. But I think that would be foolish and I think that would throw tens of millions of Americans off health insurance.

And it would make Republicans responsible for the near chaos that would result in many insurance markets and our health care system. I think the smarter thing to do is work together to embrace the positives of the Affordable Care Act and to move towards more market mechanisms that obviously Republicans have championed in its place.

BERMAN: The key when you're talking about Obamacare, the key when you're talking about the confirmation process, maybe a sentence you just said there, they've got the votes. The Republicans have got the votes to do just about anything they want to do.

So when you write this letter about Jeff Sessions and others and say you're going to ask all these questions and give a thorough vetting. You can ask whatever you want, but you in the Democratic Party at this point, you really can't to block any of these nominations, can you?

COONS: That's right. What would have to happen is that in one of these confirmation hearings, a nominee would say things or their record would reveal that they held positions that Republicans could not join in supporting. And because the margin here in the Senate is fairly close, even a few Republicans deciding that one of the nominees for a critical position was not acceptable to them would derail the nomination.

BOLDUAN: But Senator, also a rules change the Democrats put in place could also come back to bite you. I mean, I don't get into the weeds, but Democrats made it much easier than a simple majority can push through presidential nominees. Democrats did it for themselves and now Republicans can do it as well.

COONS: That's exactly right. The filibuster no longer acts as emergency brake on the nomination --

BOLDUAN: So do you regret that?

COONS: I do regret that. I frankly think many of us will regret that in this Congress because it would have been a terrific speed bump, potential emergency brake, to have in our system to slow down the confirmation of extreme nominees.

We're instead going to have to depend on the American people, on thorough hearings and/or persuading a number of Republicans in those cases where President-elect Trump might nominate someone, who is just too extreme to the American people.

I'll remind you that Secretary Clinton won the popular vote and that Democrat -- Senate candidates won more votes. So I don't think Trump has an overwhelming mandate. I do think Republicans are conscious of that.

BERMAN: He's got the White House though, which is something. He's got the bully pulpit, both bully pulpit, if I could say it, which is something. He's using it right now as president-elect and he's talking about things like flag burning.

So if we can, I'd like to get your reaction to his latest tweet, for lack of a better word today, where he says he thinks there should be some kind of punishment for flag burning whether it be a year of imprisonment or loss of citizenship. Your reaction?

COONS: Well, President-elect Trump is showing that he intends to use the bully pulpit, and in some ways to bully perhaps more than to lead. My advice to him would be to put the phone down, stop tweeting and focus on choosing a secretary of state and secretary of defense rather than peeling us off into a side fight about whether or not Americans think our flag should be burned.

Of course, I think burning the American flag is despicable. I don't think disrespect to this important symbol of our nation is appropriate, but I support the First Amendment, and the Supreme Court in decision after decision over many years has said that it is protected free speech.

Even though appalling, offensive, despicable for protesters to burn the American flag. What Donald Trump did all through the primaries and the general election was by casual tweets or perhaps intentional tweets to deflect our focus from important issues at hand and instead get us arguing about things that he threw into the news for the day.

He has succeeded in being the focus of the news many, many days when something else important was going on. Obviously respecting our nation's most important patriotic symbol, the flag, is important. But we can do it in a way that violates our basic First Amendment rights.

BOLDUAN: Well, you've got a very busy time ahead of you with confirmation hearings that will definitely be landing in your lap. Senator, thank you for your time. We appreciate it.

COONS: Thank you, Kate.

BOLDUAN: Thank you.

BERMAN: All right, before he rammed his car into his classmates and stabbed them with a knife, he allegedly ranted against the United States on Facebook. New details on the Ohio State attacker.

BOLDUAN: Plus, absurd, reckless, inappropriate, some state election officials are now hitting Donald Trump, the president-elect over the unfounded claims of serious voter fraud in the election in key states. The backlash now ahead.

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