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Anderson Cooper 360 Degrees

Sheriff Says Live Round was Fired from Baldwin's Gun; Sen. Grassley Accuses A.G. Garland of Politicizing the Department of Justice; Manchin Pushes Back On Reports That He Is Against The Billionaire Tax; Biden Expected To Attend Dem Caucus Meeting Thursday Morning; Polls Show Tight Race For Virginia Governor As Trump Teases Possible Visit To State; Judge May Allow The Men Rittenhouse Shot To Be Called "Rioters" Or "Looters," But Not "Victims". Aired 8-9p ET

Aired October 27, 2021 - 20:00   ET

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

KATE BOLDUAN, CNN HOST: Thank you so much for being with us tonight. I'm Kate Bolduan. AC 360 starts right now.

[20:00:09]

ANDERSON COOPER, CNN HOST: Good evening. We begin tonight with the apparent confirmation or perhaps the darkest possibility in the fatal shooting of cinematographer, Halyna Hutchins by Alec Baldwin on the set of the movie, "Rust."

Authorities say she was killed and director Joel Sousa was wounded by a bullet, in other words, a live round. The one thing that should not be anywhere near a movie set was in the gun's chamber when Baldwin pulled the trigger.

(BEGIN VIDEO CLIP)

SHERIFF ADAN MENDOZA, SANTA FE COUNTY, NEW MEXICO: We believe that we have in our possession the firearm that was fired by Mr. Baldwin. This is the firearm we believe discharged the bullet.

We also believe that we have the spent shell casing from the bullet that was fired from the gun. The actual lead projectile that was fired has been recovered from the shoulder of Mr. Souza. The projectile was recovered by medical personnel where he was being treated and turned over to the Sheriff's Office as evidence.

We regard this specific spent casing and recovered projectile to be the live round that was fired from the revolver by Mr. Baldwin.

(END VIDEO CLIP)

COOPER: An affidavit for a search warrant obtained by CNN affiliate KOAT contained information that the assistant director who handed Baldwin the firearm and yelled "cold gun." Meaning, the gun had neither a blank nor a live round in it, and a search warrant made public today contains a detective's note that the assistant director told investigators he did not check all the rounds loaded in the weapon prior to the lethal shooting.

Joining us now is Sheriff Adan Mendoza and District Attorney Mary Carmack-Altwies.

Sheriff, obviously this is still ongoing investigation, but are you able to tell us how a live bullet got into the gun? And how close you and the F.B.I. might be in determining what exactly happened?

MENDOZA: Right now we can't determine exactly how that live bullet got into the firearm. That's going to be the basis for further investigation. We need more interviews and that's going to be the million dollar question is how alive round ended up in the revolver that Mr. Baldwin fired?

COOPER: And Sheriff, have people been cooperative during the investigation in terms of talking about what they know?

MENDOZA: Initially, we got statements from the three individuals, Mr. Baldwin, Mr. Halls and Miss Gutierrez. We would like to get further statements, and most of those individuals are being cooperative.

COOPER: Madam District Attorney, you told CNN today that knowing how a live round got into the gun that Mr. Baldwin used will be the linchpin -- your word -- on whether or not to bring charges. Do you have a sense tonight on what those charges could be? Or at least what part of the Criminal Code might apply?

MARY CARMACK-ALTWIES, SANTA FE COUNTY DISTRICT ATTORNEY: No, not at this point. I think it's a little too preliminary to start focusing on what the criminal charges will be because we don't even know who, if anyone would actually be charged.

You know, certainly we've been looking at our Criminal Code and looking at unintentional killings, which in New Mexico is called involuntary manslaughter. But we don't know that we will be able to get to that point. We just can't make that determination yet until the investigation is complete.

COOPER: And Madam District Attorney, who on the set -- I mean, do you -- is it clear to you at least who on the set of the movie had the ultimate responsibility for the safety of the gun?

CARMACK-ALTWIES: I think that's probably a question more for the investigators, for the Sheriff. We don't necessarily know that yet. I think that with the further interviews that the Sheriff indicated they're trying to do, we might be able to come -- get a clearer picture of that.

COOPER: Sheriff, you mentioned today that there were additional rounds found in the gun that you believe Alec Baldwin fired. Do we know if those were live bullets as well? Or were they blanks?

MENDOZA: Right now, the indication are they were dummy rounds. So they were not similar to the bullet that was fired. They were not similar. The casing was similar, but the primer was not. So we believe that those were dummy rounds that were in that were also in the gun that Mr. Baldwin fired.

COOPER: Sheriff, has anyone explained to you at all why there would be a bullet, a live round on a movie set?

MENDOZA: No one has offered an explanation to that question. Again, we are hoping to get follow up interviews with the three individuals that handled the loaded firearm prior to Mr. Baldwin taking possession of it. So, we're hoping to get further information on exactly why they were there and how they got there.

[20:05:06]

COOPER: So are they being cooperative? I mean, the people who would have direct knowledge of that, can you say?

MENDOZA: Right now, we have been getting in contact with Mr. Baldwin and Miss Gutierrez. Mr. Halls, to my knowledge has retained a legal counsel, and will work through his legal counsel to hopefully get a further statement and clarifying statement in reference to what happened.

COOPER: And Sheriff, there were some reports that crew members were using live rounds for target practice on the set. Can you confirm that?

MENDOZA: We've heard that from different sources through the media, through social media, and other sources that that took place. There is no indication that that that has happened. We don't have specifics of where that took place and when it took place. And we would encourage anybody with that information to come forward to the Sheriff's Office.

COOPER: Were there -- there weren't -- so you're saying, there's not other live rounds that you found cartridges of around?

MENDOZA: There are other additional suspected live rounds that we found. That will be determined when we send those rounds in to the F.B.I. crime lab for analysis, but we believe that they are possibly additional live rounds that were on the set.

COOPER: Are they -- can you say if they're in the church?

MENDOZA: I won't comment specifically where their location was, but they were within the specific crime scene that we processed.

COOPER: And Madam District Attorney, just from your vantage point, I mean, filming happens often in Santa Fe, on the set, there have been other films. I'd imagine there are on set safety procedures in place. How surprised were you that a tragedy like this could occur?

CARMACK-ALTWIES: Well, obviously we were pretty surprised that a tragedy like this could occur, and certainly, that it did occur. There are safety procedures and protocols that are supposed to be followed by everyone in the industry, and it sounds like -- it seems like that did not happen in this case on multiple levels.

COOPER: Sheriff Mendoza, District Attorney Carmack-Altwies, I really appreciate your time. Thank you so much.

CARMACK-ALTWIES: Thank you. MENDOZA: Thank you.

COOPER: I want to go next to our Gary Tuchman in Los Angeles with motion picture armorer, Larry Zanoff. So, Gary, I appreciate you guys being with us. Larry, good to see you.

GARY TUCHMAN, CNN NATIONAL CORRESPONDENT: Yes, Larry Zanoff Anderson is a modest guy, but he is a renowned motion picture armorer. He's been the Chief Weapons Safety Officer at scores of movies and television shows over the years.

We are outside the Independent Studio Services prop house right now north of Los Angeles. It is a huge place with every prop imaginable for the entertainment industry. First, question I want to ask you, the other day, we got a chance to shoot with you to learn more about the guns and the ammunition. But the thing that you told me that really stuck in my mind, there should never be live rounds on a set in a weapon and an actor's hands, correct?

LARRY ZANOFF, MOTION PICTURE ARMORER: That's correct. The industry- wide safety bulletin number one, which governs the use of firearms and blank ammunition on set clearly states that no live rounds are ever to be brought on to a studio lot or onto a stage or onto a set, and it's just not done.

TUCHMAN: Now, the blanks that are typically put in actor's guns, they make noise, they light up, smoke, nothing comes out. But to a layman, when you look at a blank, it can look like a live round. You have here a blank and a live round. Explain the difference, and what the difference is between them.

ZANOFF: Okay, this particular round right here is actually a dummy cartridge, but we're going to use it as an example of a live round.

TUCHMAN: This is what a live round looks like.

ZANOFF: This is what a live round would look like, and so you see that we have a cartridge case, typically that's full of gunpowder. There is a primer case or a primer cap at the bottom. And this right here is the projectile or the bullet. That is what would leave the shell casing and get propelled downrange in a live cartridge.

TUCHMAN: And this?

ZANOFF: This right here is the modern crimped theatrical motion picture blank, and can see that it's simply a shell casing, there is a primer cap at the bottom, but there is no projectile. It's simply crimped over and shut and it is designed specifically to create the simulation of gunfire.

There is an audible bang, there's smoke, there's a bit of a muzzle flash, but there is no projectile flying downrange.

TUCHMAN: Sometimes in a movie, you would use this, but it would be inert, it wouldn't have gunpowder, it wouldn't have primer. You would use it because you would sometimes want to have a tight shot of a bullet being loaded into a gun, correct? That's why you have it here.

ZANOFF: Sure. Again, this is what we call a dummy cartridge in the industry. We manufacture those here at ISS ourselves and we put a BB inside of the shell case so you can actually rattle it by your ear and hear it.

[20:10:11]

ZANOFF: And when we would be loading that into a gun on set in front of an actor, we would tell them, hey, we're loading in these rounds, so that you can see that the gun is loaded on camera, but each one of is a dummy, and we would rattle it next to the actor's ear and then with their understanding that is not a live around, we would go ahead and load it into the firearm once the first AD told us that we were ready to do that.

TUCHMAN: It is just a --

ZANOFF: Correct.

TUCHMAN: So now, we were shooting with you the other day, as I said, and you emphasized that the only two terms that people should be hearing are "hot gun" and "cold gun." What do each of those terms mean?

ZANOFF: So in the motion picture industry, we have our own language, if you will. And two of those terms are "cold gun" and "hot gun." A "cold gun" means that the gun is empty, it cannot fire. There might be dummies in it, but it cannot go bang. A "hot gun" means that it is ready to fire with blanks loaded up in to the gun, and those call outs happen just before and after each one of the sequences on set.

TUCHMAN: So hot gun -- a blank isn't necessarily dangerous if it's used, right, but it's still a hot gun because something can go bang in the gun.

ZANOFF: That is correct.

TUCHMAN: Okay. My friend, Anderson, has a couple of questions for you also.

COOPER: So Larry, even if it's a dummy round, as you said, it's not -- there is no projectile coming out. But it does make you know, a flash, it does make a loud noise. Just so I'm clear, if somebody has a dummy round in and the gun is very close to them, could that potentially injure somebody?

ZANOFF: No, no. Let me be clear, the dummy cartridge is totally inert. It's the blank cartridge that makes the smoke and the muzzle flash.

COOPER: Sorry, I used the wrong terminology, if it's the blank cartridge, the smoke and the muzzle flash, I mean, if someone is holding that up to their head or in close proximity, that would -- that is something that they would avoid doing.

ZANOFF: Sure. In the safety guidelines, it clearly states that minimum safety distance in front of the muzzle of a blank firearm is 20 feet. So, you should never have that situation where a full flash blank is being pressed up against someone's exposed skin or anything like that.

There is again, a little bit of a flash, a little bit of smoke and stuff coming out, so you would not want that in that close proximity, and that is why we maintain a minimum 20 foot safety distance.

COOPER: So in a movie, I mean, it's fascinating to me, the skill you all have -- in a movie when it looks like somebody is right next to them or right in front of them and they're shooting, is that -- that's done with long lenses? They are 20 feet away, or is there something -- is there something else they can do to allow them to be close?

ZANOFF: Yes. I mean, and thank you for saying that. But we are professionals in this industry and we worked very hard at creating those illusions. They are done with either long lenses or what we call blocking the shot where we're actually off access. We're not pointing a gun directly at someone, but we're like pointing it six inches off their shoulder so they're not in the direct line of fire.

There is also the ability to create a physical barrier. In our case, we use sheets of Lexan, which is a clear materials so you can separate the blank fire from another actor, and those are all safety implements that we use, depending upon the specific scene we're filming.

COOPER: Gary and Larry, I really appreciate it. Thanks so much. Appreciate it.

Coming up next, a parade of Senators line up to accuse the Attorney General of writing a memo they say target school parents as domestic terrorists. Just one catch, and it's a big one, and they could have found the truth with just their eyes assuming that they had to actually read the memo.

We're keeping honest, next.

And later the chair of the House Progressive Caucus who can tell us the very latest on the push to pass President Biden's agenda because she is one of the key players in it. Congresswoman Pramila Jayapal joins us ahead.

(COMMERCIAL BREAK)

[20:18:12]

COOPER: Anyone looking for proof that irony is truly dead need only look to Capitol Hill and Senator Chuck Grassley, Ranking Republican on the Senate Judiciary Committee. Here he is today confronting Attorney General Merrick Garland.

(BEGIN VIDEO CLIP)

SEN. CHUCK GRASSLEY (R-IA): Since your confirmation, in less than a year, the Department has moved as far left as it can go. You've politicized the department in ways that shouldn't be, case in point, your infamous school board memo. (END VIDEO CLIP)

COOPER: So more on that memo in just a second. But spoiler alert, as you'll see, it is anything but infamous.

First, though, the whole irony being dead thing because the Chuck Grassley you heard talking is the same Chuck Grassley, who shill for each and every Attorney General and acting Attorney General of the former President used as his personal political enforcer or fired when they would not go as far as he publicly -- publicly said he wanted them to go.

It's the same Chuck Grassley, by the way who is running for re- election at age 88, and who recently re-embraced the former President shortly after the man put out a statement saying the 2020 election was the real insurrection and there he is shaking his hand.

The same Chuck Grassley who dished up this word salad when CNN's Gary Tuchman tracked him down and asked him about it.

(BEGIN VIDEO CLIP)

TUCHMAN: This is your chance to answer that question. Do you think the real insurrection -- what he said was in November?

GRASSLEY: I don't think your question is even appropriate from this standpoint. I was -- I was given a chance to speak five minutes at this event and I took advantage of that to see about what the Biden administration is doing on inflation. Nothing. What they're doing at the border, nothing. How they left Americans in Afghan, nothing.

And the tax and spending spree that we have, and I had a chance to say about the last four years, how I've worked to get strict constructionists on the Supreme Court, how I've worked in conjunction with ethanol, with a President that's very appropriately, has said how he and I have worked together to benefit Iowans. He said, I loved Iowans.

So I had an opportunity to be before 23,000 Iowans, and I wouldn't have had that opportunity if he hadn't brought that crowd together.

TUCHMAN: So sir, was the real insurrection November or was the instruction on January 6th?

GRASSLEY: I'll take you back to my --

TUCHMAN: It is your chance to answer the question.

GRASSLEY: Yes I'm answering it.

(END VIDEO CLIP)

COOPER: Yes. He wasn't answering it. He didn't answer it because he is afraid of losing the support of the former President if he crosses or contradicts him. Grassley referred to a statement he made previously after the insurrection, which if you look it up, was negative toward the President, but he is not willing to actually say that now, to speak those same words because he is afraid, even if it means debasing himself.

An 88-year-old man who served this country honorably for decades as a Senator is now bowing down, and debasing himself to the former President just to stay in office.

Today, Senator Grassley and some other Republicans on the panel, including Josh Hawley, the guy who raised his fist in solidarity with the gathering mob on January 6th, spent their time with the current Attorney General Merrick Garland misrepresenting the facts surrounding the memo. You just heard Senator Grassley mention a minute ago what he called the School Board memo.

Now, before we go any further, here is what the memo actually said. This is a memo from the Attorney General dated October 4th to the F.B.I. Director, U.S. attorneys and the head of the Department of Justice's Criminal Division, quoting from the subject line, quote, "Partnership among federal, state, local, tribal, and territorial law enforcement to address threats against school administrators, board members, teachers and staff."

It goes on to direct the F.B.I. to convene meetings with those officials to discuss strategies for handling the rise in criminal conduct against school personnel, which if you've been watching the news lately, or involved in your community, you know, is a real thing.

Now, what has the senators upset is that the memo came several days after the National School Boards Association, not the F.B.I., the National School Boards Association, wrote a letter to the President in which it likened some of the threats and actual violence to quote their words, "a form of domestic terrorism and hate crimes."

Now, that association has since apologized for its choice of words, which drew a very negative response, understandably, and this is key, nothing in the memo by the Attorney General Garland, not one single line refers to parents as potential domestic terrorists.

In fact, there is no mention of parents or terrorism at all in this memo -- none.

So with that, listen to Tennessee Republican Marsha Blackburn, how she characterize what Garland wrote.

(BEGIN VIDEO CLIP)

SEN. MARSHA BLACKBURN (R-TN): I just have to ask you, I knowing that you really helped to bring to justice, those that caused the Oklahoma City bombing, would you really honestly put parents in the same category as a Terry Nichols or a Timothy McVeigh?

MERRICK GARLAND, U.S. ATTORNEY GENERAL: Oh, my God. Absolutely not. BLACKBURN: Then why -- why would you ever release a memo? I mean, did you write that memo? Did staff write that memo? What would have led you to do this? It is so over the top.

(END VIDEO CLIP)

COOPER: He didn't do that, and it isn't. But when Garland said correctly that there is nothing in the memo like that, Senator Blackburn replied, and I quote, "That may be your opinion." Actually, it's not. It's actually just what was in the memo.

Democrat or Republican, fan of the administration or not, facts are facts and words are words and there is not a single word phrase comparison or insinuation on this page that parents are domestic terrorists. There is just not.

The only insinuations were coming from Senator Blackburn, of course, Senator Cruz got in on it.

(BEGIN VIDEO CLIP)

SEN. TED CRUZ (R-TX): This is a memo to the Federal Bureau of Investigations saying go investigate parents as domestic terrorists.

(END VIDEO CLIP)

COOPER: Then there was Senator John Kennedy.

(BEGIN VIDEO CLIP)

SEN. JOHN KENNEDY (R-LA): You don't think there are parents out there in the real world that said, oh my god, maybe we shouldn't go to the school board meeting. There'll be F.B.I. agents there.

(END VIDEO CLIP)

COOPER: And Senator Josh -- I raised my fist for insurrectionists -- Hawley.

(BEGIN VIDEO CLIP)

SEN. JOSH HAWLEY (R-MO): It's wrong. It is unprecedented to my knowledge in the history of this country, and I call on you to resign.

(END VIDEO CLIP)

COOPER: Senator Tom Cotton of Arkansas also called on the Attorney General to resign.

(BEGIN VIDEO CLIP)

GARLAND: That is wrong.

SEN. TOM COTTON (R-AR): This is -- Judge, this is shameful. This testimony, your directive, your performance is shameful.

GARLAND: That's not --

COTTON: Thank God, you are not on the Supreme Court. You should resign in disgrace, Judge.

(END VIDEO CLIP)

[20:25:11]

COOPER: We should note that three of those you just heard from are said to be considering a run for President, based on their performance today, maybe auditioning would be the better word.

Joining us now CNN chief legal analyst, Jeffrey Toobin. Jeff, are the comments from Senator Grassley saying Attorney General Garland has politicized the D.O.J. accurate?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, no, they are not accurate. And as you pointed out, they are rich with irony since he spent four years defending the incredibly politicized Justice Department of William Barr and Jeff Sessions.

But as you point out, this was theater where Merrick Garland was really a prop more than a witness so that some senators -- some Republican senators could campaign for President, some Republican senators, like Grassley could run for re-election, but it all had very little to do with Merrick Garland.

COOPER: What does it say that Grassley suggests the Justice Department is politicized when the former President whom Grassley is clinging to for re-election tried nine times to get his Justice Department undermine the election, according to this committee's report.

TOOBIN: Well, this is sort of the fantasy world in which we live. But you know, Anderson, it's really important to remember, why we are talking about school boards at all, because it's about white supremacy, and that's on the rise in the Republican Party.

The reason school boards are controversial is that some school boards have dared to teach that, you know, Civil Rights and African-American rights have not been so great in this country over the centuries, like when we had slavery, and when we had Jim Crow, and that has so outraged the Republican Party telling the truth about race in America, that they feel the way to win elections and win the governorship in Virginia is to demonize these school boards for daring to tell the truth about race in America and that's really the core of what's going on here.

And that's even more chilling in a way than the posturing that went on today in the Senate.

COOPER: You know, some who watched today thought Attorney General Garland should have maybe pushed back harder. Are you surprised he didn't? Or is that just not in his nature?

TOOBIN: You know that -- you have to remember that Merrick Garland had spent the last 20-plus years on the D.C. Circuit where the judges treat each other with respect, where they deal even when disagreeing with each other in the realm of what you might call reality and facts. And he's not used to the give and take in the surreal world of our contemporary politics.

I think he -- you know, he handled it in a low key way, but he was really irrelevant to what the Republicans were trying to do, which was to lie in advance of a white supremacist agenda.

COOPER: Jeff Toobin, I appreciate it. Thank you.

Ahead, breaking news from Capitol Hill on the President's domestic agenda. Sources saying a key provision is out now as Democrats try to get moderate Senator Joe Manchin on board and now the President is planning another visit to Capitol Hill. I'll talk it over with Congresswoman Pramila Jayapal, the Chair of the Progressive Caucus, next.

(COMMERCIAL BREAK)

[20:32:02]

COOPER: Sources President Biden is expected to attend to House Democratic Caucus meeting on Capitol Hill tomorrow at 9:00 a.m. delaying his overseas trip to try to get progressives to vote on his infrastructure bill tomorrow. Also, Sources tell CNN that Democrats are now expected to drop paid family and medical leave from the massive social spending bill. That's after objections from moderate Senator Joe Manchin. Progressives want to 12 weeks that was scaled back to four weeks now it seems to be totally out how that's received has the potential perhaps to create another roadblock?

Also, Senator Manchin is pushing back on reports that he's against the billionaire tax to fund the measure saying that he's open to basically everyone paying it's a quote. All of which is to say it's Wednesday in Washington, Democratic congressman and member of the Progressive Caucus, Brendan Boyle summed up the talks to Bloomberg earlier this week, saying quote, we're just missing two things, what exactly is going to be in the bill and how we're going to pay for it. Critical questions.

Joining me now, Democratic Congresswoman Pramila Jayapal, chair of the Progressive Caucus. Great to have you back.

What does it say that the President is apparently going to the Democratic caucus meeting tomorrow morning? And is it going to have an impact?

REP. PRAMILA JAYAPAL (D-WA): Anderson, it's great to be back. I don't know what the President's going to say tomorrow. Of course, we always welcome hearing from the President. But here's the thing, if there isn't a deal, which is what I'm still hearing that we don't have agreement of Senator Manchin and Senator Sinema, on a framework, even on a framework much less than a legislative text, that I'm not sure what the President is going to present to us. We have been very clear that this is -- we've been standing up for the 85% of the President's agenda that is in the Build Back Better Act. And that the two bills, the only reason people were willing to vote for the infrastructure bill, which has some good things in it. But for many people who care about climate, they see this as a net negative for climate.

And so, the way that we were able to get people to say they would vote for a bill that only 12 senators, you know, drafted, but the House has had not had any ability to weigh in, is to pair it with the Build Back Better Act. And that's why the two have to stay together. And we don't have an agreement yet on the framework. So, I'm not sure what the President's hoping for but we, you know, dozens of our members are still the same place Anderson, where we deliver the whole thing to the President.

COOPER: So, I mean, our pay family medical leave out of this bill altogether.

JAYAPAL: We really don't know. But that's what we're hearing.

COOPER: Would it be acceptable to you if they were?

JAYAPAL: Look, I'm a woman who has had a baby. And I know what that takes, and millions of women across the country are wondering how the president can go to Europe and explain that we are going to be one of six countries that don't have paid family leave, because one guy says he doesn't want it. I don't know how you explain that.

So look, I we haven't drawn red lines. But I just think that needs to be really thinking about what we're saying about the United States leadership with this bill. And the best course of action is to keep the keep negotiating, we are close but we're not there yet so let's finish the negotiations and then let's vote both the BIF and the Build Back Better Act out of the House with a commitment from the Senate that they're going to do it.

[20:35:16]

COOPER: But you said you're not drawing a red line on the no family leave.

JAYAPAL: I mean, we're trying not to draw any red lines, just because it's not a good thing to do in negotiation. So though, we're all from everybody's saying, how can this be out?

COOPER: Where do you and your caucus stand on the so-called billionaire's tax and corporate minimum tax?

JAYAPAL: Well, we were very much in favor of the original set of taxes to rollback the Trump's tax cuts that were in the House bill, but Senator Sinema said she didn't like those. So Senator Warren, Senator Wyden, I, you know, we all put together this billionaire's tax, and Senator Sinema said she was OK with that, then Senator Manchin said he didn't like it. So this is what we're dealing with. And this is why we need to have the two of them come to agreement with the rest of us and with the President. We've made tremendous concessions to get them there. But now they need to step up and recognize that we all need the Build Back Better Act to pass, and they need to quickly get their act together and figure out how we're going to get this thing done. We're close, but we're not there. And the two of them have to agree.

COOPER: But is your -- you don't think Manchin and Sinema have their act together?

JAYAPAL: I'm just saying they haven't agreed yet. And they both disagree on different things. So, you know, we have to they -- we want to pay for this thing. We want to make the tax system more fair, we have multiple ways to do it. Let's just agree on how this thing is going to be paid for. And then we can get it done.

COOPER: I don't know if it matters. But is there a sufficient trust between the Progressive Caucus, I guess the more moderate wing of the party or the, you know, Manchin, Sinema, you know, two person wing, to stick to whatever agreement finally takes shape?

JAYAPAL: Well, look, that's where I'll tell you there's not a lot of trust. I have spoken to Senator Manchin quite a bit. I believe that if he gives us word. I have to take him at his word that he's going to keep his word, but he's got to agree first. And this is a, you know, look, that's the problem right now. But I think I have my caucus to agree.

You know, Anderson, remember, we wanted a Senate vote for exactly this reason on Build Back Better first, before we voted for the infrastructure bill. I've got my caucus to agree that we will accept both bills going forward in the House together. That was a big concession.

Basically, what we're saying is we will trust them if they say they're going to do this, and we have an agreement. But we got to get the agreement first, we given and given and given and now it's time for them to also help us to get this done.

COOPER: Yes. Congresswoman Jayapal, I appreciate it. Thank you.

JAYAPAL: Thank you.

COOPER: Up next, the Virginia governor's race starting to look like 2020 with President Biden taking shots the former president possibly trying to goad him into a last minute trip to the state who if anyone does all this back and forth actually helping. More than that ahead.

(COMMERCIAL BREAK)

[20:41:50]

COOPER: With less than a week to go before the election the Virginia's governor's race is becoming less and less about the actual candidates while stumping for Democrat Terry McAuliffe last night, President Biden mentioned the former president multiple times and was less than subtle linking him to the Republican candidate Glenn Youngkin.

(BEGIN VIDEO CLIP)

JOE BIDEN (D) PRESIDENT OF UNITED STATES: Extremism can come in many forms, can come in the rage of a mob driven assault, driven to assault the capital. It can come in a smile and a fleece vest. Either way, the big lies still a big lie. So Virginia show up, show up like you did Barack and me. Show up like you did for me and Kamala. And show up for a proven leader like Terry McAuliffe.

(END VIDEO CLIP)

COOPER: Today, the former President released a statement teasing his own visits the state quote, chanting, we love Trump in Arlington, Virginia. Thank you, Arlington. See you soon.

Later the former president's communications director confirmed he quote, looks forward to being back in Virginia, end quote and details would be released when appropriate.

To that the Lincoln Project responded quote Donald Trump is too big of a coward to come to Virginia and campaign with Glenn Youngkin. Clearly the former president is looming large in this race, but who does it actually help and who does it hurt?

CNN senior data reporter Harry Enten joins us now. So, is there an argument you made that foreign president should be campaigning for Youngkin in these final days of the race? How do voters feel?

HARRY ENTEN, CNN SENIOR DATA REPORTER: Glenn Youngkin wants Donald Trump to take a two-week trip to Australia. Here's the situation, if you look at the polls right now, look, Glenn Youngkin has been closing in on Terry McAuliffe, look, this lead that McAuliffe had five points in August, three points in September, now down to a single point, well within the margin of error. Now compare this to Donald Trump's popularity in the Old Dominion. Look at this, among likely voters Donald Trump's net popularity rating minus nine points among registered voters. It's minus 18 points.

So if Donald Trump comes to the state of Virginia, he may get some Democrats who are staying on the sidelines and get them to say, you know what, Donald Trump's involved in this race and Glenn Youngkin stand for what Donald Trump stands for, and we're going to get out and vote. It's not good for Youngkin, he wants no part of this.

COOPER: But he is popular with his base and certainly turning out those voters could be crucial for Youngkin wouldn't?

ENTEN: I mean, it could be but the fact of the matter is, is that he doesn't just motivate Republicans to come out and vote. He motivates Democrats to come out and vote. And what we see among in Virginia is not very motivating for your decision about. Look at that, feelings about Donald Trump, 51% of likely voters in Virginia said that yes, he is very motivating for them to come out and vote. Compare that to Joe Biden, it just 48%. I've never seen that before. You know, I love old polls. You know, I love going through the archives, the idea that a former president would more motivating for voters to come out and vote than the current president. It's bizarro land.

And what's truly bizarre is if you look at a slightly different question, which is essentially how big of a factor is Trump in your choice for Virginia governor? Look at that, 41% of voters say yes now compared to 2017 when it was 43%. There's no drop off, it's the same he's still a factor in voter's minds.

[20:45:03]

COOPER: What type of voters can -- I think they can hear you in Virginia tonight. What kind of voters -- I mean can Youngkin win over some voters that the former President couldn't and what might that mean nationally for midterms and beyond?

ENTEN: Yes, I don't know if I necessarily need the microphone for this. I probably yell loud enough that each viewer can hear me in their own home. Look, it's white voters with a college degree. Look at the net favorability ratings among white voters with a college degree among Youngkin versus Trump and look at white voters without a college degree. Among white college voters, Youngkin is basically even. Look at Trump at minus 16 points. That's a 16 point difference. Youngkin is basically holding the white non-college base that Trump got look at that just a two point difference. They're both quite popular among them. And I think the question is, is what Glenn Youngkin doing in Virginia able to translate nationally, because what we've seen in the Trump era is white voters without -- with a college degree, excuse me, moving away from the Republican Party.

Look at that, in 2012, Romney won white college voters by eight points. It was time in 2016 then Biden won by eight, Republicans want to get those voters back. And if Glenn Youngkin is able to win on Tuesday on the strength of white college -- white voters with a college degree, it could provide the roadmap for Republicans going forward post Trump.

COOPER: And that -- I mean, the school issue is something that obviously Glenn Youngkin has really seized on and to great effect.

ENTEN: Absolutely, absolutely. I mean, it's suburban voters, suburban white voters, who are the ones who are basically saying, You know what, I might not have liked Donald Trump, but I will be willing to cast a vote for Glenn Youngkin because I don't like what the school boards are doing. And that's part of the reason why you've seen Youngkin play up that message in the closing days of this campaign.

COOPER: It's fascinating race. Will continue to follow. Harry Enten, appreciate it.

ENTEN: I try and be a little quieter --

COOPER: No please don't.

ENTEN: Oh, OK.

COOPER: I like it. I like it.

ENTEN: OK.

COOPER: Yes.

ENTEN: I'm always (INAUDIBLE), you can count on that.

COOPER: All right, Harry. Thanks.

ENTEN: Bye.

COOPER: Still ahead, a Wisconsin judge rules the two protesters shot and killed by color ridden house during a demonstration against police brutality can't be called victims and what the judge may allow instead.

(COMMERCIAL BREAK)

[20:51:17]

COOPER: Controversial ruling from Wisconsin judge in a pre trial hearing, the judge said that the men shot by Kyle Rittenhouse during a protest in August 2020 can potentially be referred to as rioters or looters but not victims at his trial. Rittenhouse is charged with felony homicide and the deaths of two men shot during what started out as a demonstration against the police shooting of a black man. His lawyer say was self defense

Sara Sidner has the latest.

(BEGIN VIDEOTAPE)

SARA SIDNER, CNN SENIOR NATIONAL CORRESPONDENT (voice-over): Before the jury is even selected controversy erupts in the case of double homicide suspect Kyle Rittenhouse after a judge's ruling on evidence and his upcoming trial. Judge Bruce Schroeder rules, the three people written house shot last August during civil unrest in Kenosha, Wisconsin cannot be called victims by prosecutors in front of the jury. But if there is evidence to prove it, written houses attorneys may refer to the dead and injured men as looters, rioters and arsonist. The judge and prosecutor sparred over it.

BRUCE SCHROEDER, JUDGE, KENOSHA COUNTY: -- and if the evidence shows that any more than one of these people were engaging in arson, rioting or looting, then I'm not going to tell the defense that can't call them that.

UNIDENTIFIED MALE: I think Your Honor, if I were to count the number of times that you've admonished me not to call someone a victim during a trial, it would be thousands.

SCHROEDER: You made that point. And this is a long held opinion of mine, which very few judges I guess share with me that I think it's a loaded -- the word victim is a loaded, loaded word. And I think alleged victim is a cousin to it.

LANCE NORTHCOTT, CIVIL ATTORNEY & FMR PROSECUTOR: To put it mildly. It's very odd.

SIDNER (voice-over): Attorney Lance Northcott, who is a former law enforcement officer and former prosecutor is floored by the ruling.

NORTHCOTT: And it begs the question of what else would you call someone who's been shot? They're not bullet recipients. SIDNER (voice-over): Northcott says Judge Schroeder's decision is highly unusual and will hurt the prosecutor's case while helping the defense.

NORTHCOTT: If you're going to use the phrase loaded question or loaded term, you've got to apply that equally across the board. And here there didn't seem to be any real explanation as to why what's good for the goose is not good for the gander.

SIDNER (voice-over): But longtime was constant criminal defense attorney and former prosecutor Dan Adams has a very different tank.

(on-camera): Do you think the judge made the right call here?

DAN ADAMS, CRIMINAL DEFENSE ATTORNEY: Yes, I've been making this motion to stop the government from calling their complaining witness a victim for years.

SIDNER (on-camera): Has it ever been granted?

ADAMS: Yes, this motion is granted with some regularity. Some judges like Judge Schroeder will grant it as a matter of course, you can't be a victim unless there has been a crime committed in the decision whether a crime has been committed is the providence of the jury only.

SIDNER (voice-over): Kyle Rittenhouse became a household name after this video emerged other than 17-year-old with a semi automatic weapon strapped to his chest walking right past police. Moments after he had shot and killed two people and injured another. His attorney says that Rittenhouse was in danger and acted in self-defense. Prosecutors say Rittenhouse shot and killed Joseph Rosenbaum first, this video shows what happened next, Rittenhouse is chased by people trying to catch him. He shoots and misses one person. The video appears to show Anthony Huber hits Rittenhouse with a skateboard.

UNIDENTIFIED MALE: He shot that guy in his stomach.

SIDNER (voice-over): Huber is shot and killed. Three seconds later, Gaige Grosskreutz goes towards the shooter and is shot in the arm.

This is all happening during protests that at times during volatile and violent after an earlier shooting, the police shooting of Jacob Blake. Rittenhouse said he was in Kenosha trying to protect businesses.

[20:55:08]

Prosecutors later charged Rittenhouse with two felony homicides felony attempted homicide and possession of a dangerous weapon under the age of 18. Rittenhouse has pleaded not guilty to all charges.

One person we have not heard from in the latest controversy, the only person that night to survive being shot who told me this, months before the trial.

UNIDENTIFIED MALE: I'm missing 90% of my bicep. I'm in constant pain, like excruciating pain and pain that just doesn't go away.

(END VIDEOTAPE)

COOPER: And Sara Sidner, joins us now. So what are the judges a prosecutor should call the three people read no shot if not victim?

SIDNER: He said they can be called dissidents. And to that the prosecutor clearly was very unhappy with that idea. It's not a word that we use in general conversation and a word that a jury may not have any reaction to. But attorneys say look, this is all for the defense who is the person that is on trial is Kyle Rittenhouse. And that is who the judge is most concerned with in this particular case, but it has caused quite a bit of controversy, Anderson.

COOPER: Sara Sidner, appreciate it. Thank you.

We'll be right back.

(COMMERCIAL BREAK)

COOPER: As we showed you in our reporting the Virginia governor's race earlier the, former president continues whole concerned sway over his party.

[21:00:01]

In the hour had more evidence to that effect. So stay with CNN's Dana Bash's new special report, "STOP THE VOTE THE BIG LIES ASSAULT ON DEMOCRACY," starts now.