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Anderson Cooper 360 Degrees

Joe Biden Says Nobody Saw Omicron Coming; Jan.6 Committee Want To Talk To GOP Firebrand Rep. Jim Jordan; Jury In Kim Potter Trial Ends Third Day Of Deliberations Without A Verdict; Time Capsule From Pedestal Of Robert E. Lee Statue Opened. Aired 8-9p ET

Aired December 22, 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: The babies were not reunited with their grandmother. Amazing and remarkable, and a reminder of what matters this season.

We keep the people of Dawson Springs and so many of the other communities hit by these storms in our hearts this Holiday.

Thank you all so much for being here. AC 360 starts now.

[20:00:19]

JOHN BERMAN, CNN HOST: Good evening.

Breaking news to report in it is an impressive array of good news tonight, involving what the data suggests about the path of the current coronavirus surge, as well as the fight against that quickly spreading new omicron variant, that in just a moment, because just a short time ago, President Biden spoke at length about criticism of his administration's fight against COVID and specifically about what Vice President Harris said in a recent interview that the administration didn't see the omicron variant coming.

Here's the exchange with ABCs David Muir.

(BEGIN VIDEO CLIP)

DAVID MUIR, ABC NEWS: The Vice President said in recent days that that you didn't see delta coming, you didn't see omicron coming. How did you get it wrong?

JOE BIDEN (D), PRESIDENT OF THE UNITED STATES: How did we get it wrong? Nobody saw it coming. Nobody in the whole world saw it coming.

MUIR: Did the administration not expect that there could be moments like this one where you'd have a highly transmissible variant, that's possible around the corner.

BIDEN: Sure, it was possible, and it is possible there could be other variants that come along. That's possible.

But what do you plan for? You plan for what you think is available, that is the most likely threat that's existed at the time, and you respond to it and I think that that's exactly what we've done. And that's, for example, omicron is spreading rapidly, but the death

rates are much, much lower than they were. This is not March of 2020. This is a very different time that we are in now.

(END VIDEO CLIP)

BERMAN: The new comments come from the President, they come on a day like every other day this week that have seen major developments in the fight against the deadly virus.

Pfizer has now received F.D.A. approval for the first ever antiviral pill, Paxlovid, which is expected to substantially reduce the rate of hospitalization and death among high risk individuals.

According to Pfizer, these pills which are taken over a period of days have an efficacy rate of about 88 percent if treatment begins within five days of symptoms. It is expected to be easier to get and use than monoclonal antibodies, which are typically administered in a hospital or clinic. The administration hopes to have 250,000 treatment courses by next month and 10 million by summer.

Also tonight, new information from health officials in other countries about the spread of the omicron variant, both studies suggests that omicron, which again is now the dominant strain in new cases here in the United States, is leading to a lower rate of hospitalizations than previous variants.

The studies are based on preliminary data and not been peer reviewed, but Dr. Anthony Fauci today said that it could mean a lower hospitalization rate, shorter hospital stays, and less need for supplemental oxygen.

And in South Africa, which first reported the existence of the new variant almost one month ago, medical authorities now believe they have passed the peak of the omicron outbreak.

We start with what President Biden said just a short time ago and CNN's Jeff Zeleny joins us now. So Jeff, what do you make of the way the President described his administration's response to omicron?

JEFF ZELENY, CNN U.S. CHIEF NATIONAL AFFAIRS CORRESPONDENT: Well, John, I think he was right when he said nothing has been good enough, because that is obvious when you look at the long testing lines across this country, when you look at empty shelves, where there simply are not at home tests.

So he is right about nothing has been good enough, but what he struggled to do in that interview with ABC, which was taped earlier today here is really take command of this crisis that is enveloping his administration still.

Of course, no one could have predicted exactly what this was going to be, but testing has been a central theme, a central challenge for this administration and it simply has not been up to pace.

And now they're talking about sending at home tests next month in January, but it is unclear if those will even be able to be produced. And the President really struggled with really some of the language of that.

At one point, he said sending pills to people's homes, but then he corrected himself and said, sending a test to people's homes. So I think the overall takeaway, he just was not in command of this necessarily.

But the bigger point here is the administration is hoping that that news out of South Africa actually is true. This is burning so hot right now and they hope it burns very quickly here. But this was not one of the President's best interviews, I would actually say he -- you know, he just didn't take command of this challenge of this moment here today.

BERMAN: Talking about the 500 million test kits the administration is talking about, Jeff, I mean, how confident is the White House that it can get them to people who want them in the timeframe, they're promising -- January?

ZELENY: Well, a lot has to happen for this to go right. They have to get a website up and running, which has not even been started to have people request these tests. These tests have to be produced and half a billion, that's a lot of tests.

[20:05:00]

ZELENY: So they are going to use the Defense Production Act, that's a lever of government that you can essentially direct private businesses to help speed up production here.

So everything would have to happen, but the question is, at what point would that be? This is not going to be early in January, this is mid to late January, probably at best, and there is no guarantee there will be a half billion test to be produced, so that is the challenge and the takeaway here. The testing remains the thing.

But I think the President made one point very clear in this, this is not Christmas last year and it's not the beginning of the pandemic because of vaccinations, and once again, tried to use this as a venue to say get vaccinated and get boosted.

BERMAN: The President said today you heard him say, you just talked about it, that he doesn't see his response to omicron as a failure. But look, there are these issues with testing two years into the pandemic, and people know. I mean, you can't tell people who can't find a test that they can when they can't.

So how does the White House explain these images we're seeing of the empty shelves or the long lines?

ZELENY: Well, you saw the President sort of struggled to do that. He acknowledged this challenge. He acknowledged the pain that people are feeling, but said, look, no one could have expected this to spread this quickly. But one thing was on the calendar, that's Christmas. Everyone knew that testing was going to ramp up before people go home

for the Holidays here. So that is one thing that's a bit hard to explain here. Why this -- a demand was obvious for the test, but the supply simply is not there.

Yes, it is complicated. Yes, there are government regulations, bureaucracy they have to break through, but this is one thing that has really been vexing for this administration. Other countries have done it. Yes, they're smaller, but this is something that really has been a central challenge and it remains that going into the Holidays.

BERMAN: Jeff Zeleny for us at the White House tonight. Jeff, thanks so much.

ZELENY: Sure.

BERMAN: Turning back now to the science and the potentially good news on the new pill in the studies we mentioned.

Joining us, Michael Osterholm, Director for the Center for Infectious Disease Research and Policy at the University of Minnesota. He was also an adviser on COVID during the Biden transition, and from Dr. Leana Wen, CNN medical analyst and former Baltimore Health Commissioner. She is also the author of "Lifelines: A Doctor's Journey in the Fight for Public Health."

And Dr. Wen, I just want to start with the approval of the Pfizer anti-COVID pill. When do you think we're going to start seeing the real world impact of this? How big of a deal do you think it is?

DR. LEANA WEN, CNN MEDICAL ANALYST: I think it's a really big deal. We've been waiting for something like this for some time. Essentially, this is the Tamiflu that we use for influenza. We now have this oral medication that appears to be very safe and that reduces the likelihood of progression to severe illness by almost 90 percent, which is really great.

And here is where I think it can be very helpful. First is, there are a lot of people who are remaining unvaccinated. I wish they were going to get vaccinated, but we know that there are some people who are just not going to do it.

Somehow these people are ready to take treatments if they get infected, even if they won't get the vaccine, which is not understandable. But still, these people are the ones who are most likely to get ill to overwhelm our hospitals and if they can get a pill that removes them from the hospital, that will help to save their life, but also will help to remove the strain on our healthcare system, I just think that there are still so many logistical challenges in terms of producing this treatment, but also in terms of getting it to people.

It requires early testing, it requires widespread distribution, and also, it requires people to behave responsibly and not hoard the medication in case they get it rather than giving it to people who really need it. So lots of things in the way, but I'm very optimistic about this oral

treatment.

BERMAN: When it gets up and running, it could make a difference, but it may take some time.

Professor Osterholm, on these two studies out today. And these are both from the U.K. that suggests that omicron has a lower risk of hospitalization compared to delta. We saw it in South Africa, and now we see it in Scotland and elsewhere in the U.K. How likely is it in your view that the U.S. would follow a similar path?

MICHAEL OSTERHOLM, DIRECTOR FOR INFECTIOUS DISEASE RESEARCH AND POLICY AT THE UNIVERSITY OF MINNESOTA Well, I think it will, John. In fact, there is good data today to support that there surely are a spectrum of cases with this variant. I think the challenge that we have right now is transporting data from one population to another and saying that's exactly how it's going to work.

For example, if you look at the U.K., they have a significantly higher vaccination level than we do, so what is the underlying protection that comes from even some vaccination? So, I think we are overall optimistic that we will see fewer cases. But again, reminding you the number of cases that are getting infected right now is really unprecedented in any respiratory pathogen I've ever seen.

And I think that that could surely go the opposite way and say even with fewer severe cases, per thousand cases overall, we may have more people hospitalized than we even did with delta.

BERMAN: So Dr. Wen, you made some waves recently when you said here on CNN that cloth masks were quote, "little more than facial decorations." So in light of omicron, what kind of masks should we all be wearing and were you surprised by the pushback from your comments?

[20:10:10]

WEN: Well, I was surprised because this is not the first time that I or Professor Osterholm or really any of us public health experts have been saying that cloth masks are not appropriate for this pandemic. It was -- it is not appropriate for omicron, it was not appropriate for delta, alpha or any of the previous variants either because we're dealing with something that's airborne, we're dealing with a virus that's extremely contagious.

At the very beginning of the pandemic, we didn't know about masking and then we didn't have enough masks, enough high quality masks for healthcare workers, and so we were trying to ration those.

But then pretty quickly, we recognized that COVID is airborne, and also that there are really high quality masks that protect us from getting COVID. And so at this point, what people should do is wear at least a three ply, medical grade surgical mask.

Ideally, you're double masking, so if you really want to do that cloth mask tune, you can do the three-ply surgical mask, and then you can put the cloth mask that's more well-fitting on top of them.

Even better, would be the N95, KN95, or KF94, the respirator masks, and really at this point, we should all be wearing these very high quality masks.

If our country and different jurisdictions are going to go as far as to mandate masks in some settings, let's at least wear the most effective masks. I'm not saying don't wear a face covering at all. I'm just saying if we're going to do it, do it the right way, and really use it in the way that it's intended to prevent us from spreading and acquiring COVID-19.

BERMAN: Professor Osterholm, I know you agree with this because the masks in my house were masks that you recommended. My wife went out and got right away. So, I know you agree with that.

Listen, I want to talk about something --

OSTERHOLM: I do and I think it's an important issue right now, because it's one of the few things we can really do to be effective. You know, John, if we get everybody vaccinated today, possibly we could, they still are going to have two to three weeks before their immune response is going to be sufficient to really boost them back up again.

You can start wearing high quality respiratory protection right now, tonight. And I think that's an important point. So I want to thank Dr. Wen for her comments. I think she has been very upfront with us and in a very professionally important way. And please listen, she's right.

BERMAN: I want you both to listen to what President Biden said tonight, when asked about vaccine requirements for domestic flights. Listen.

(BEGIN VIDEO CLIP)

BIDEN: It's been considered, but the recommendation I've gotten is, it is not necessary.

MUIR: Even with omicron.

BIDEN: Even with omicron. That's the recommendation I got so far from the team.

(END VIDEO CLIP)

BERMAN: What do you think Professor Osterholm, necessary or no?

OSTERHOLM: You know, right now, I would throw everything including the kitchen sink at those if I could. I'm a realist, however, and I realize what society will take. And I think that one of the challenges we have right now are leaders, many who do believe that in order to keep our hospitals from overflowing and our systems literally breaking, not just bending, we should be doing things like this.

They are surely doing them in other countries, but I don't think it's politically acceptable. And that's an unfortunate situation, we will pay a price for that. But I would have a mandate wherever I could right now, just to keep unvaccinated individuals out of our hospitals and dying from a virus they don't have to die from.

BERMAN: Professor Osterholm, Dr. Wen, thank you both for being with us tonight.

OSTERHOLM: Thank you.

BERMAN: And just ahead, more on that new interview with the President including what he said about why there is a shortage of COVID test kits. Also, what he said about whether he will run again.

Two White House veterans, David Axelrod and Andy Slavitt will join me.

And later, the House January 6 Committee wants to talk to one of their fellow congressman, a very public defender of the former President and someone Republicans tried to put on that Committee, but failed. The details when 360 continues.

(COMMERCIAL BREAK)

[20:17:26]

BERMAN: More breaking news on COVID. In that new interview with President Biden, there is of course a political component to how the President and his critics have approached this fight against the virus. And during that interview tonight, the President defended his administration over the persistent lack of enough testing.

(BEGIN VIDEO CLIP)

MUIR: If you go to the pharmacy, we hear this over and over again, empty shelves, no test kits. Is that a failure?

BIDEN: No, I don't think it's a failure. I think it's a -- you could argue that we should have known a year ago, six months ago, two months ago, a month ago, I've ordered a half a billion of the pills -- 500 million pills -- excuse me, 500 million test kits that are going to be available to be sent to every home in America if anybody wants them.

But the answer is yes, I wish I had thought about ordering a half a billion pills two months ago before COVID hit here.

(END VIDEO CLIP)

BERMAN: I'm joined now by two men who have advised the two most recent Democratic Presidents, David Axelrod, a former senior adviser to President Obama, and a CNN senior political commentator, and Andy Slavitt, a former senior adviser to President Biden for COVID response and he is also the author of "Preventable: The Inside Story of How Leadership Failures, Politics and Selfishness Doomed the U.S. Coronavirus Response." That's about the previous administration's response to the pandemic.

Andy, look, you heard President Biden say he doesn't think that the testing issues are a failure. That's hard to sell to people who can't find the instant test kits in the drugstore right now, because they're not there by and large when they go.

And it's a hard sell to people who are waiting hours at clinics to be tested otherwise, so is the President's response satisfactory there?

ANDY SLAVITT, FORMER SENIOR ADVISER TO WHITE HOUSE COVID-19 RESPONSE TEAM: Well, look, I think people are tired, but I also think the goalposts may be moving just a little bit, given that -- given how tired people are. I mean, here we are a year from now -- a year ago, and we are facing even a more aggressive variant that we didn't anticipate and the President has said, no shut downs, schools remain open, and people who've been vaccinated can safely go see their families.

So this is due to a tremendous amount of work, and so while I think anything that doubles every two to three days is going to create shortages. I don't think there's any scenario that we could have analyzed, and as I talked to the White House, they could have possibly anticipated creating enough supply for that situation.

But having said that, I think in the main, the advances that have happened over the last year, they've been really substantive and whether people are in a position to recognize that or not, that's something maybe David might have a view on, but it really is substantial progress.

BERMAN: David?

[20:20:00]

DAVID AXELROD, CNN SENIOR POLITICAL COMMENTATOR: Look, I agree that there has been substantial progress and we're not where we were in the past. I mean, this question of testing has come up again and again and again in the previous administration and now in this one.

And, you know, I think what the President candidly said tonight was, yes, maybe I wish we had anticipated this. You know, half a billion tests, and Andy is the expert, I'm not, but half a billion tests are a lot of tests, but we have 300 million people in this country. So honestly, it doesn't sound all that much.

I will say this, it isn't just the President who may have underestimated the need for testing. But industry as well. I mean, if in fact, Abbott Labs and others who are producing these tests are now having to go into overdrive to produce more, they also underestimated what the need would be, and I think that's a function of dealing with a virus that takes a lot of unpredictable turns.

But there is no doubt that politically, there is going to be a lot of frustration among people who are lined up for those tests tonight.

BERMAN: David, you know, there is an issue though. The President, first of all, COVID has been his best issue from the day of his inauguration. People have the most support from on that, but he also did promise to get it under control. Now, COVID has its own ideas. Coronavirus, has its own ideas, the pandemic has its own path, but that was his promise he did in July, more or less declared victory over it.

AXELROD: Yes, no, I think look, I think if there are two things off of that interview tonight that are valid criticisms, it's -- you know, did he strike the right balance in July? You know, this country is so eager to be done with COVID and because of the good work that Andy and others did, and because frankly, as the President said the other night, because of the accelerated progress on vaccines, you know, we were making great progress going into July before delta arrived in full force.

And I think the President wanted to give the country the jolt of knowing that this was behind us. We've had a couple of setbacks since then, and so the question is, how do you strike the right balance? How do you strike the right balance to encourage the country to look past the virus and understand there will be a better day, and at the same time deal with all the twists and turns that an unpredictable pandemic like this can deliver?

BERMAN: Yes, and that's the real issue with where we are in this pandemic right now, in general is the nuance here. You want people to get vaccinated who haven't been, you're telling people to get boosted. At the same time you're trying to send the message the President is that people who are doing all these things and are careful and are tested, can spend time with their families over the Holidays. It's a hard needle to thread there, Andy.

SLAVITT: Well, it is, and I think people should account for that and thinking about what he said around the Fourth of July. If people can even think that three worlds ago when we were in April, the idea that he said people will be able to get people with their families for a small barbecue outdoors, people thought that was a radical idea and a radical suggestion.

And in fact, they were able to, and even in the face of the delta variant, which had been anticipated, they were able to. So the country has gotten back to work, people have slowly gotten back with their lives.

In the U.S., just like in Europe is having trouble having enough tests right now and they will because this is a variant that hit you all at once. The bad news is you run into these shortages. The good news is, as you reported earlier, we may be over more quickly. So this temporary supply issue is something that you just have to deal with the best you can and he's got a plan to get more hospital workers and more hospital beds and others built.

But the hope is that the flip side of that will be we could be sitting here by Super Bowl and saying this is behind us.

BERMAN: David, I want to play something else the President was asked tonight. Listen to this.

(BEGIN VIDEO CLIP)

MUIR: You said you would absolutely serve eight years if elected. Do you plan to run for re-election?

BIDEN: Yes. But look, I'm a great respecter of fate. Fate has intervened in my life many, many times. If I'm in the health I'm in now, if I'm in good health, then in fact, I would run again,

MUIR: if that means a rematch against Donald Trump?

BIDEN: You're trying to tempt me now. Sure. Why would I not run against Donald Trump if he is the nominee? That increased the prospect of running.

(END VIDEO CLIP)

BERMAN: All right, David, what did you hear there?

AXELROD: Well, first of all, I've heard him answer the first part of the question the same way before and it's the exact right way to answer, which is yes, I plan to run but I can't predict, you know what my health will be in the future or what events will intervene.

He would be absolutely nuts to say anything else. You don't make yourself a lame duck President one year into your administration and I think he is genuine in his answer and very realistic.

On the second part, he is also right. His chances of getting re- elected will be better if Donald Trump is the nominee of the Republican Party because Trump remains unpopular outside of his base.

[20:25:11]

BERMAN: David Axelrod, our thanks to you, Andy Slavitt, thanks for joining us tonight. Andy, thanks for everything you've done over the last couple of years to help educate us as to what's going on here. I really appreciate it. Happy holidays to both of you.

AXELROD: Thank you. You, too.

SLAVITT: Thank you.

BERMAN: Well, we do have some breaking news. The third ranking Democrat in the House, South Carolina's James Clyburn has now tested positive for COVID. In a tweet just moments ago, Congressman Clyburn called his diagnosis a breakthrough case and said he is asymptomatic.

He also reiterated what so many public health officials have said that no one is immune and urge those who have not done so to get themselves vaccinated.

We wish him well. Again, asymptomatic like so many people were hearing from who've been vaccinated and boosted.

Up next, the January 6 Committee wants to talk to another lawmaker on Capitol Hill who was a fierce ally of the former President. Who that is next.

(COMMERCIAL BREAK) BERMAN: More breaking news. The January 6th Committee wants to talk

to another Republican lawmaker and staunch supporter of the former President and his election lies.

They've asked Ohio Congressman Jim Jordan to voluntarily sit down with investigators. Yes, the same Congressman Jordan who wanted to be on the January 6 Committee and House Speaker Nancy Pelosi said no.

Tonight on FOX News, the Congressman wouldn't say if we will comply with the Committee's request. Earlier this week, Republican Congressman Scott Perry declined a similar request from the Committee.

As for Jordan, Congressman Bennie Thompson, the Democratic Chairman of the Committee says the panel sent Jordan a letter telling him they want to learn more about his communications with the former President on January 6th and details on any communications he had with the former President's team to challenge the 2020 election results.

[20:30:11]

Just last week, you may recall Jordan's office admitted. He was the lawmaker who on January 5th, the day before the interaction 400 a text message from a former federal inspector general to then White House Chief of Staff Mark Meadows. The text reveals the intense pressure -- pressure campaign put on then Vice President Mike Pence to overturn the election results, outlining a legal theory that he had the authority to stand in the way of certifying the election results.

Here's Democratic Congressman Adam Schiff, a member of the January 6 committee sharing that test message last week.

(BEGIN VIDEO CLIP)

REP. ADAM SCHIFF (D-CA): I want to display just a few of the message he received from people in Congress. The committee is not naming these lawmakers at this time as our investigation is ongoing. If we could queue the first graphic, this one reads a January 6, 2021, Vice President Mike Pence as President of the Senate should call out all electoral votes that he believes are unconstitutional as no electoral votes at all.

(END VIDEO CLIP)

BERMAN: Again, Congressman Jordan's office admits he sent that text. The ranking member of the Judiciary Committee fronting a theory for a potential coup, the same Jim Jordan, who is rarely at a loss for words when it comes to defending the former president, except this time when he was asked about his conversations with the former president on the day surrounding the insurrection.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: On January 6, did you speak with him before during or after the Capitol was attacked?

REP. JIM JORDAN (R-OH): I'd have to go I spoke with him that day after, I think after, I don't know if I spoke with him in the morning or not. And I just don't know, I have to go back. I mean, I don't I don't I don't know that when, when those conversations happen. But what I know is I spoken all the time.

(END VIDEO CLIP)

BERMAN: Joining us is CNN justice correspondent Evan Perez. Evan, what more do we know about this request from the committee?

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Well, John, the committee considers Jim Jordan to be a key witness because he played such a big role in trying to prop up the former president's claim that the election was that there was widespread fraud, that there were problems with the election, and his ideas for trying to overturn the results, including, according to the committee, they know that he was in touch with some of these folks that were sitting at the at the Willard Hotel near the White House there on the day before and during the day of the January 6 rally that the President had talking to people over their Trump associates.

And we also know that, as you saw in that little clip, he was communicating with the President. We don't know how many times. We know at least once the committee says they know at least once, perhaps more times that he's talked to the President that day. And they also know that he forwarded that message that you read just a minute ago.

So a lot of these things. They know that that Jordan has a lot of information that could explain some of the things that went on, on January 6, and that's reason why they wanted. And by the way, if you notice, you know, Jim Jordan is, you know, you said on Fox News, he said they received -- he's received a letter, but he's not yet, you know, saying what he's going to do. I think that's interesting, because he is obviously the top Republican on the Judiciary Committee, and it would take over if the Republicans take over the committee. And so, he is going to be able to send subpoenas and I bet you, he's considering exactly how he responds, because it's going to it's going to, it's going to, it's going to weigh a lot on how he gets responded to when he issued subpoenas.

BERMAN: It's a good point. I want to bring in CNN chief legal analyst and former federal prosecutor Jeffrey Toobin.

Jeff, I mentioned Jordan declined to say on Fox, whether he would comply with the committee's request. What do you think he'll do?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, I think he's obviously going to be torn in two directions at one level, like, like Congressman Perry from Pennsylvania, he would like to say to this committee on a hand gesture involving one finger that I will not demonstrate. I mean, the contempt that they have for this committee is quite is quite intense.

On the other hand, you know, Jim Jordan, even more than Perry is someone who enjoys the spotlight enjoys being on television, would like to joust with this committee. And as Evan pointed out, you know, he's potentially going to be in the position of sending out subpoenas soon. If he refuses a subpoena, you can bet that witnesses will respond in kind if he becomes Chairman of the Judiciary Committee.

Personally, I think he's not going to testify. I think he will find a way --

BERMAN: Right.

TOOBIN: -- to tell the committee to go to hell. But I'm -- but it's a little more complicated than Perry's decision.

BERMAN: To be clear he hasn't received disappear yet. The committee hasn't given a subpoena yet. Do you think if you refuse to go and voluntarily the committee would or should issue a subpoena?

[20:35:07]

TOOBIN: Well, Chairman Thompson said, it's under consideration. It's a somewhat unusual situation, because Congress has always been reluctant to treat fellow members like ordinary witnesses. There is a tradition of deference and comedy. There are also potentially constitutional issues involving the speech or debate clause that might allow any congressman to object.

The fact is, if he does object and goes to court to fight a subpoena that would simply run out the clock. So, the real -- the issue of whether Jordan testifies is up to Jordan. And, and you know, we'll see what he's going to do.

BERMAN: Evan reminded us about the context of this text that Jordan sent to Meadows.

PEREZ: Yes, I mean, look, we can put it back up. You know, he lays out this, this legal theory that the former Vice President Mike Pence, you know, had the legal power, had the constitutional power to reject, you know, these electoral votes from the states that Trump claims were fraudulent. That includes, of course, Pennsylvania, Georgia, of places that the former president was claiming. There was kinds -- all kinds of fraud. I mean, you know, there was fraud, according to the former president in Michigan and Wisconsin and Arizona as well.

So, that's what this lays out. And what they were claiming was that it goes back all the way to the founders to Alexander Hamilton, that this is some kind of power that the former Vice President had which of course in the end, Pence concluded he did not have.

BERMAN: Evan Perez, Jeffrey Toobin, thanks to both of you.

PEREZ: All right.

TOOBIN: All right.

BERMAN: So just moments ago, the jury in the Kim Potter trial wrapped up the third day of deliberations without reaching a verdict. We have the details next.

(COMMERCIAL BREAK)

[20:40:44]

BERMAN: All right, breaking news, the jury and the trial of former police officer Kim Potter has finished its third day of deliberations with no verdict. The jury is deliberated for more than 24 hours in total over the last three days.

CNN correspondent Adrienne Broaddus joins us now.

Any word Adrienne from the jury tonight? Because obviously they were yesterday, yesterday they were asking the judge about what happens if they can't come to a consensus.

ADRIENNE BROADDUS, CNN CORRESPONDENT: John, nothing at all today, at least not on the record. And yes, yesterday the jury submitted two questions. So far, totaling three questions have been submitted on the record. The question that captured the attention of so many was that question about consensus, the jury essentially wanting guidance, wanting to know, what steps should they take? And how long should they continue to deliberate if they were unable to come to an agreement.

And Judge Chu reread jury instructions, directing them to deliberate until they are able to reach an agreement and it appears that's what this jury is doing. They started early today. They ended at 6:00 p.m. local time, that Central Standard Time, and they were unable to reach a verdict. There have been other high profile cases here in the state of Minnesota. Most recently Derek Chauvin we all know that name. After about 10 hours of deliberating, he was convicted in this same courtroom where the Potter trial took place.

Outside of Derek Chauvin, you might remember the name Philando Castile, the officer who shot and killed Castile. Jurors in that case deliberated for more than 25 hours. And a lot like the Potter trial, there was significant video evidence in that case. So, the jury will return tomorrow to continue the deliberations. John.

BERMAN: What happens if they don't -- what happens if they don't reach a verdict by tomorrow night because of course, then they run into the Christmas holiday.

BROADDUS: Christmas Eve is Friday, and Judge Chu indicated if they don't reach a verdict by the end of the day tomorrow, she will not keep this jury from their family during the holiday. She will pause deliberations. And they will pick back up next Monday. But keep in mind the jury sequestered right now. But if they don't reach a verdict by tomorrow, they will not be sequestered. John.

BERMAN: That is interesting. Adrienne Broaddus, thank you very much.

Joining us now criminal defense attorney Sara Azari and Mark O'Mara.

Mark last night you predicted that, especially given the holiday weekend coming up that there would be a verdict or a hung jury today that didn't happen. So what do you think is going on?

MARK O'MARA, CRIMINAL DEFENSE ATTORNEY: So a true lawyer fashion? I'm not wrong, yes. They may well be hung. It really seems a couple of surprising points. One, not a question today.

BERMAN: Yes.

O'MARA: Not even the question of judge we've been trying and we really can't reach a verdict that may have either caused a mistrial or that one additional charge we've talked about that. Go back and try one last time choice. They didn't even ask for that. So if I had to read the tea leaves, now I'm thinking one again, they're hung, they're stuck.

But it may be one juror, it may be the 11 to one with the 11 are going to wear down or wear out the one juror to try and get consensus. Because I got to believe there was four to eight or six to six that they would probably have gotten to the point of telling the judge, we're not going to get anywhere. So, my tea leaves is that it may just be one juror holding it all up.

BERMAN: So Sara, no questions today. I agree with Mark. That was the thing that stood out to me the most particularly after getting the question from the jury the other day where they said, what if we can't reach a consensus? Today, they were just behind closed doors. What does that signal to you?

SARA AZARI, CRIMINAL DEFENSE ATTORNEY: Well, I leave all the statistics to Mark because I'm not good at that. But, you know, it's so difficult to tell what is going on with a jury, why they're taking so long. Even the O'Mara's are a dream team with 55 plus years of trial experience can't really say for certain. But the three questions that we have gotten over the past three days and we can't forget about question one on Monday are very important.

And to me, they're really one compound question. That question on Monday was about the testimony of the defense psychologist. The guy that the prosecution argued was the hired gun, you know, testifying just for the purpose of trial and the jurors asked when was he -- when did he interview Potter?

[20:45:12]

And that goes translation, you know, that goes to credibility, do we believe what he says about an action error? Can we believe him? Or was he just hired for trials? The prosecution argued? And when you put that together with the other two questions, it tells us that they're struggling with the reasonableness of the mistake. And this idea of her consciousness of that mistake. Did she really believe that she had a taser when she had a glock, and they were so vastly different? And that brings us to the second question yesterday of, you know, trying to actually physically examine, and observe the gun.

So when you take these three questions in the aggregate, John, I think it's pretty clear that the struggle is with reasonableness of the mistake and cause consciousness of the mistake.

And so, may very well hang. But, you know, we're now in our 24. And we'll see what happens tomorrow. BERMAN: Mark, the idea that if they don't reach a verdict tomorrow, and look, maybe the holiday will create the pressure to get them to say something one way or the other. But they will and sequester for that for the Christmas holiday. That's unusual. I mean, what do you think the implications of that could be?

O'MARA: So, the reason why you have them sequestered is a couple of things. One, keep them focused, keep them on point. But most importantly, keeping them away from the outside influences that were always difficult now are virtually impossible with the digital age that we're in. So my concern, you know, I, I understand it's Christmas. This is an extraordinarily serious case for this jury for this defendant. Unfortunately, maybe they shouldn't get on sequestered, even though it means missing Christmas at home, not to rush them to verdict. But my concern is that if there is some type of influence, and there's going to have to be quite the interrogation, if not inquiry of that jury to make sure none of them were taught to or saw something. My concern is maybe keep them sequestered.

But again, I think that there's going to be a decision tomorrow, that decision is now looking closer towards that they're going to be a hung jury.

BERMAN: First of all, I appreciate you humoring my vocabulary choices there. Thank you for the -- for that.

Sara, if there is a hung jury here, what do you think the likelihood is that the prosecution will seek to retry this case?

AZARI: I think that depends on the statistics that Mark just laid out, you know, if the hung jury is mostly towards guilt versus not guilty, then obviously, it'll be likely that the prosecution might try the case again. Otherwise, they may not and they might, you know, use that as leverage and offer Potter some sort of a lesser offence that she could plead to and maybe get probation or something so that they don't have to go through the resources on the risk of trying the case again, given what they saw.

And that that brings me to another issue is that the prosecution was so certain in this case about the strength of their case that they did not include any lesser offences and the instructions and went forward just with the two manslaughter charges here. So.

BERMAN: Sara Azari, Mark O'Mara perhaps we'll see you here tomorrow night. Thanks both for being with us.

AZARI: Thank you --

O'MARA: Your welcome (ph).

AZARI: -- thank you, John.

BERMAN: So took officials in Virginia five hours day to pry open a time capsule found in the base of a statue of Confederate General Robert E. Lee. They had a list of items they expected to see so were those items there? Details and that ahead. (COMMERCIAL BREAK)

[20:52:44]

BERMAN: So in Richmond, Virginia, the former capital of the Confederacy there is quite a mystery tonight and mystery that dates back to 1887. That's what it's believed a time capsule was buried inside the pedestal of the Statue of Confederate General Robert E. Lee. The statue came down this past September. And today they open the time capsule and they got a surprise.

With the story, here's "360s" Randi Kaye.

(BEGIN VIDEOTAPE)

RANDI KAYE, CNN NATIONAL CORRESPONDENT (voice-over): It's delicate and tedious work. And yes, opening a 134-year-old time capsule is time consuming too. The task was shared among conservators from Virginia's Department Of Historic Resources. For more than a century this time capsule set buried in the base of the Statue of Confederate General Robert Ely in Richmond, Virginia. It was discovered Friday morning, months after this historic moment in September.

(INAUDIBLE) dismantling the statues base found what appeared to be a copper box as described in the Richmond dispatch back in 1887. The list of articles in the copper box was said to include dozens of items, including a battle flag, compass, 12 copper coins, even a picture of former President Lincoln lying in his coffin. But it turns out, this capsule was made of lead, heavily corroded and partly covered in mortar. The box itself is an artifact. So they had to take care to preserve that to using tiny spatulas tongue depressors and --

KATE RIDGWAY, CONSERVATOR, VIRGINIA DEPT. OF HISTORIC RESOURCES: A very controlled tool that vibrates and has a hard metal tip that is much more easily controlled. It's good for getting the mortar separated from the lead.

KAYE (voice-over): Finally late this afternoon, the time capsule was unlocked.

UNIDENTIFIED FEMALE: Yay.

KAYE (voice-over): Inside three books, a cloth envelopes and a single coin.

GOV. RALPH NORTHAM (D-VA): So one book is an Almanac from 1875. There was another book that has all the word Love on it and the author verb when B-U-R-G-W-Y-N, so I let the historians take further look at them and figure out what why that's in there.

KAYE (voice-over): In the end, there was no picture of Abraham Lincoln in his coffin and even more puzzling along with the 1887 Almanac was a book that appeared to be published in 1889, two years after the time capsule was apparently sealed.

[20:55:12] RIDGWAY: The original time capsule was supposed to be put in there closer to 1887. And so, something published in 1889. Obviously, that is, we will have questions and that's where the historians come in to help us.

(END VIDEOTAPE)

KAYE: And John, in terms of the condition of the items inside, most of them were pretty wet. So now they plan to freeze them so they can stop them from getting moldy or deteriorating any further. But the big question, John, is, is this the right time capsule? Or is there possibly another time capsule out there? Because the newspaper clippings from that time from 1887 say there should have been 60 items inside and there were only five and there certainly was not that picture of Abraham Lincoln.

So now we'll have to rely on these historians to figure out what is going on here, John.

BERMAN: The truth is out there. Randi Kaye, thank you so much.

Up next miraculous rescue caught on camera following the deadly tornadoes in Kentucky. The extraordinary video, next.

(COMMERCIAL BREAK)

[21:00:00]

BERMAN: In the aftermath of the deadly tornado outbreak in Kentucky this month new body cam footage showed the miraculous rescue of two babies who were blown away by the storm.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Hey baby.

UNIDENTIFIED MALE: Oh my God!

(CROSSTALK)

UNIDENTIFIED MALE: There you go.

UNIDENTIFIED MALE: She OK?

(END VIDEO CLIP)

BERMAN: Two Hopkins County Sheriff's officers rescuing the 15-month and three month old babies were found inside a bathtub. According to the baby's grandmother when the tornado came bearing down, she put them in the tub with a blanket pillow and Bible. She held on to the tub but it was lifted away by the tornado. After a pass she found two officers who have helped searched for her grandchildren, both baby survived. Mom was taken to the hospital for a head injury. Amazing.

The news continues. So let's hand it over to Michael Smerconish in "CNN TONIGHT."