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Erin Burnett Outfront

Court Doc: "Rust" Assistant Director Acknowledged He Did Not Check All Rounds In Gun Before Deadly Shooting; "Rust" Armorer Handled Guns In A Reckless Manner On Previous Nicolas Cage Film, Crew Members Allege; Father Who Lost Daughter During Movie Set Accident Speaks Out; Biden Agenda Hits Major Roadblocks A Day Before Overseas Trip; President Biden's Agenda Hits Major Roadblocks A Day Before Overseas Trip; Video Emerges of Lawyer Bragging About Memo to Overturn Election. Aired 7-8p ET

Aired October 27, 2021 - 19:00   ET

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

NIC ROBERTSON, CNN INTERNATIONAL DIPLOMATIC EDITOR: That's going to be difficult for him to sort of set a global standard leading. So there's a lot to achieve here and a lot at stake, Wolf.

WOLF BLITZER, CNN HOST: It certainly is. Nic Robertson in Rome for us, thank you very much.

And to our viewers, thanks for watching.

Erin Burnett OUTFRONT starts right now.

KATE BOLDUAN, CNN HOST: OUTFRONT next, the man who handed a loaded gun to Alec Baldwin revealing what happened in the moments leading up to the deadly shooting as the District Attorney says no one has been ruled out when it comes to potential charges.

Plus, anger on Capitol Hill over what's in and out of Biden's spending bill. Some Democrats furious tonight, paid family leave is expected to be dropped from the bill. Is that a deal breaker?

And a Trump-aligned lawyer caught on camera slamming Mike Pence for not following his memo on how to overturn the election and now he's wanted by the January 6 Select Committee. Let's go OUTFRONT.

Good evening, everyone. I'm Kate Bolduan in for Erin Burnett.

OUTFRONT tonight, a deadly accident waiting to happen. That's the clearer picture emerging tonight following a press conference and court documents about the deadly shooting on the set of the movie Rust in New Mexico. The Sheriff now revealing that he believes it was a live round that killed cinematographer on the set of Alec Baldwin's movie and they suspect that was not the only real bullet there that day.

(BEGIN VIDEO CLIP)

SHERIFF ADAN MENDOZA, SANTA FE COUNTY: We suspect that there were other live rounds, but that's up to the testing. But right now, we're going to determine how those got there, why they were there, because they shouldn't have been there. We would consider it a live round, a bullet live because it did fire from the weapon and obviously caused the death of Mrs. Hutchins and injured Mr. Souza.

(END VIDEO CLIP)

BOLDUAN: This comes as new court documents reveal the gun handed to Baldwin was not thoroughly checked. According to an affidavit, the assistant director, David Halls, he told investigators that the film's armorer opened the gun for him to inspect but that he did not check all of the rounds before handing the gun to Baldwin. We're also hearing from two crew members who tell CNN the armorer, Hannah Gutierrez, mishandled guns on a previous film set with actor Nicolas Cage.

As for potential charges, the Santa Fe District Attorney says nothing has been ruled out, including potential charges against Alec Baldwin who, of course, fired the gun and is a producer on the film.

(BEGIN VIDEO CLIP)

MARY CARMACK-ALTWIES, DISTRICT ATTORNEY: If the facts and the evidence and law support charges, then I will initiate prosecution at that time.

(END VIDEO CLIP)

BOLDUAN: Stephanie Elam is OUTFRONT live in Santa Fe, New Mexico for us tonight. Stephanie, where does the investigation stand tonight?

STEPHANIE ELAM, CNN CORRESPONDENT: What we learned today, Kate, is that the investigation is ongoing. There's more interviews that they want to do and they have more questions they would like to get answered, principally who put what was in that gun in it and to determine exactly what it was, but we did learn some new things today. Take a listen.

(BEGIN VIDEOTAPE)

(BEGIN VIDEO CLIP)

MENDOZA: The facts are clear, a weapon was handed to Mr. Baldwin. The weapon is functional and fired live round, killing Mrs. Hutchins and injuring Mr. Souza.

(END VIDEO CLIP)

ELAM(voice over): Authorities in New Mexico revealing the gun fired by Alec Baldwin and killing director of photography, Halyna Hutchins on the set of Rust held a suspected live round.

(BEGIN VIDEO CLIP)

MENDOZA: The actual lead projectile that was fired has been recovered from the shoulder of Mr. Souza. UNIDENTIFIED MALE: Until it's proven by the crime lab, it's a

suspected live round that was fired.

(END VIDEO CLIP)

ELAM(voice over): The Sheriff saying they suspect some of the 500 rounds of ammunition recovered are alive, but only one of the recovered guns appears functional.

(BEGIN VIDEO CLIP)

MENDOZA: The other weapon is a Single Action Army 45 revolver. That one looks like there's some modification to the cylinder and may not be functioning, but that'll be determined by the crime lab. The other firearm is a plastic nonfunctioning revolver.

(END VIDEO CLIP)

ELAM(voice over): New court documents released today also revealing that Assistant Director Dave Halls who handed actor Alec Baldwin the functioning gun before rehearsal, acknowledges failing to fully check the firearm. The warrant saying Halls could only remember seeing three rounds. He advised he should have checked all of them, but didn't.

The same document shows that armorer, Hannah Gutierrez, told investigators no live ammo is ever kept on set. Halls was previously fired from another film after a crew member was injured in a gun incident, according to Rocket Soul Studios and was the subject of complaints over safety and his behavior on the set of freedoms path and another production in 2019.

Two crew members also tells CNN the Rust armorer, Gutierrez, mishandled weapons on a previous film production with Nicolas Cage. Officials today stopped short of announcing whether anyone will face criminal charges.

(BEGIN VIDEO CLIP)

CARMACK-ALTWIES: All options are on the table at this point. It will take many more facts, corroborated facts before we can get to that point criminal negligence standard.

(END VIDEO CLIP)

[19:05:01]

ELAM(voice over): District Attorney Mary Carmack-Altwies, telling CNN later what that standard could rest on.

(BEGIN VIDEO CLIP)

CARMACK-ALTWIES: The way that I was sort of taught was you treat a firearm like a live snake and so it's a terrible tragedy. We don't know how those live rounds got there. And I think that that will probably end up being kind of the linchpin for whether a decision is made about charges. UNIDENTIFIED FEMALE: We need help immediately.

(END VIDEO CLIP)

ELAM(voice over): The low budget western saw a number of issues during production with a camera crew walking off the job over pay and housing disputes the day of the tragic accident. Allegations of crew using proper weapons for target practice and cutbacks in crew on set.

(END VIDEOTAPE)

ELAM(on camera): Neither Halls or Gutierrez has responded to CNN's request for comment based on these allegations and reports. And it's also worth noting that Rust productions has previously said that they are making security and safety the top priority on their set and that they continue to work with law enforcement as they investigate this.

And one other note, Kate, that was noteworthy is that people were wondering whether or not the camera was rolling at the time of this tragic accident and the Sheriff confirming today that it was not, so that won't even be part of what can answer questions as to what happened and how it happened there on set. Kate?

BOLDUAN: But a clearer picture coming out at least tonight starting to. Thank you so much, Stephanie.

OUTFRONT with me now is Scott Rasmussen. He's an armorer who worked on a previous movie with Dave Halls. He's, of course, the assistant director who handed the gun to Alec Baldwin before this fatal shooting. He also interviewed Rasmussen to work on Rust, but didn't end up taking the job. And Stuart Fraenkel is also here with us, an attorney who's worked on several high profile cases against production companies, including a Chuck Norris movie where four people died in a helicopter crash. Gentlemen, thanks for being here.

Scott, I want to start with you. You have this new search warrant that Stephanie Elam laid out very clearly. And you have Dave halls who admits to investigators that he didn't check all the rounds in the gun before he handed it to Alec Baldwin. What's your reaction to him saying that?

SCOTT RASMUSSEN, ARMORER, WORKED WITH "RUST" ASST. DAVE HALLS ON 2017 FILM: It's good of him to say that. He should have checked the entire weapon to make sure that it was safe, make sure that each round was a dummy round. In other words, take them out of the gun and shake them. Dummy rounds, they have a BB in them.

So you can shake them next to your ear and you'll hear it rattle. Apparently that was not done and he just went ahead and took the gun in and hand it to Alec Baldwin, which I don't know why he was the one who took the gun in, that's the job of the armorer, not the first AD.

BOLDUAN: That's one thing I've heard over and over again that that is just like completely out of alignment for how this is supposed to go, Scott, right?

RASMUSSEN: It is, yes. Yes.

BOLDUAN: Halls was fired from a production a couple of years ago over a weapons incident. You've worked with him. Are you surprised to hear of this kind of recklessness?

RASMUSSEN: I'm always surprised when I hear that someone is lax with their safety on set. When I worked with him on Shot Caller and when I show the weapons, the second AD would show up instead of Mr. Halls. When he did look at the weapons, he didn't give a good inspection. So I made sure that everybody else was well aware of what we were shooting and what was in the weapons.

BOLDUAN: Stuart, the DA isn't ruling anything out at this point. She made that very clear today with regard to charging anyone with a crime. The way she put it a couple times is all options are on the table. Do you think someone will face criminal charges?

STUART FRAENKEL, ATTORNEY, HAS LITIGATED CASES INVOLVING FILM INDUSTRY ACCIDENTS: Based upon what we're hearing right now, it would not surprise me. I'm seeing nothing but reckless conduct on this set. In fact, if we look at what the statute says in involuntary manslaughter, it's an unintentional killing while acting without due care or circumspection.

So if we look at what the armorer did, we look at what Mr. Halls did, we look at what Alec Baldwin did, it doesn't appear that anyone really did what they were supposed to do with due care and circumspection, so I would not be surprised if charges were brought.

BOLDUAN: We are also, Scott, learning about previous concerns over the armorer, Hannah Gutierrez. One crew member from a previous project that she was on with Nicolas Cage tells CNN that she fired a gun near the actor unannounced and it scared everyone around her and this was the quote that this one of the crew members gave, "She's the most inexperienced armorer I had ever worked with. I have no idea why she wasn't let go after what happened on that set."

I mean, with that kind of reputation, are you surprised that she got this job on Rust?

RASMUSSEN: I'm surprised, yes. Had I known of her before and if someone had told me about her, I would not recommend her for the job.

[19:10:02]

She's just totally inexperienced. If she is going to be an armorer on the set, she should have been supervised by a weapons master or a key armorer and that just wasn't the case. And when I heard about Nicolas Cage getting upset with her for discharging a firearm, I totally agree with him because she is out of her league. She should not have even had the weapon. She just doesn't seem to be competent.

BOLDUAN: Scott, how does this happen? I have to assume there are so many qualified armorers in the industry that are ready to take a job.

RASMUSSEN: I don't know about so many qualified armorers. I know that they did approach it with me to take the job at first to be prop master, I turned that down and then they talked to me about being armorer. And I said, yes, I would do the armorer. And so I received an email from Ro Walters (ph), the UPM. And she said thank you for meeting with them and they understood about me doing the prop master and they said that they'd get back to me about being the armorer and they never did get back to me, so I accepted another job.

BOLDUAN: So Stuart, even kind of forgetting the prior red flags that we were learning about from some of the folks on this film, the Sheriff confirmed today that it was, as we've been talking about, it was the AD and this armorer who were the people handling the gun before handing it to Alec Baldwin. And the Sheriff said as he put it today and they're being careful with their language that there was complacency on this set.

Is there enough to support charges against people in the production company from what you see already?

FRAENKEL: Well, what we really have to look at is who did what and who did what wrong. We can start with the armorer and there's a whole list of things that she did wrong. I agree with Scott, the standard in the industry is that the armorer is supposed to handle the guns solely and supposed to give the gun to the actor, supposed to show the actor that the gun is clear and what's happening.

Now, we look at Mr. Halls. He should never have been touching this weapon, he had nothing to do with this weapon and Alec Baldwin if we look at, for example, the Actors' Equity Association' safety tips for firearms, one of the things he's supposed to do is he's supposed to make sure that that gun is safe before he's using it and he needs to know about firearm safety.

And he wears another hat, he's an executive producer. He needs to ensure he had competent people as an assistant director, as an armorer and had proper safety procedures in place and clearly this was the Wild West out there they did not.

BOLDUAN: And Scott, this new search warrant also says that Gutierrez told detectives that no live ammo was ever kept on set. That clearly seems to not be true, according to the Sheriff. What is the scenario a live round gets onto a set and into a gun without the armorer catching it?

RASMUSSEN: Well, that should never happen, of course. I come on to a set where someone had some boxes of ammo on the set and I had to clear the set before that happened, because I always check the set. I make sure that no crew member has any ammo anywhere near anything.

So for her to say we don't have any ammo on the set then how could she go shooting the gun that morning, so obviously she had to have some ammo. And for it to not appear on set after that, I don't believe her. I just don't believe her.

BOLDUAN: So many questions and a very thorough investigation is clearly underway. Thank you both very much.

FRAENKEL: Thank you so much, Kate.

BOLDUAN: Thank you.

RASMUSSEN: Thank you, Kate.

BOLDUAN: OUTFRONT for us next, this movie set shooting bringing back painful memories for one father. He lost his daughter in 2014 when she was hit by a train while filming a movie in Georgia. His message to the film industry tonight.

Plus, outrage is building among Democrats over Biden's spending bill. Just moments ago CNN learning that the party is expected to drop a key priority that Biden campaigned on here. Can Biden make a deal before he heads overseas at this point?

And a top U.S. General sounding the alarm about China testing a hypersonic missile that's capable of carrying a nuclear weapon.

(COMMERCIAL BREAK)

[19:17:43]

BOLDUAN: Tonight, the Santa Fe County District Attorney telling CNN that she was astonished to learn about the tragic shooting on the set of Rust.

(BEGIN VIDEO CLIP)

CARMACK-ALTWIES: Well, the entire situation has shocked me. I was under the assumption probably with most other people in this country that movie sets were much safer and more protected than I think that, at least, this movie was.

(END VIDEO CLIP)

BOLDUAN: But now this tragedy is raising more questions about the safety of crew members working on movies. The death of cinematographer, Halyna Hutchins, bringing back memories now of Sarah Jones, who died on a movie set in 2014. She was 27 years old and she was working as a camera assistant. She was hit and killed by a train in Georgia during a movie's production. Seven other people were injured.

The director eventually spent a year behind bars after pleading guilty to involuntary manslaughter over clear and egregious safety lapses then. OUTFRONT with me now is Sarah's father, Richard Jones. After Sarah's death, he and his wife started a nonprofit called Safety for Sarah with a mission of making movie sets safer.

Richard, thank you for being here tonight. It has been seven years since your daughter's tragic death. And seeing then this news from Rust, this set, someone else's daughter killed on a movie set and questions about safety measures not being followed in the aftermath. I could only imagine the feelings that it's conjuring up for you.

RICHARD JONES, DAUGHTER DIED WHILE WORKING ON MOVIE SET IN 2014: Yes. I'd hoped that Sarah's death would create positive change and I'd hoped that her death would even save lives. And I would have hoped that Sarah's death would have saved Halyna but it didn't and that hurts. There's a lot to be done. There's simply no reason that a life should be lost making a piece of entertainment. That needs to stop.

[19:20:01]

BOLDUAN: Yes. In your daughter's case, the director pleaded guilty to criminal charges. And with this tragic shooting on this film set of Rust, the Sheriff today, the way he talked about it was there was complacency that he saw on set and somehow a live round ended up in that gun. I mean, do you think someone should be held responsible even charged over this shooting death?

JONES: First of all, I think it's important that the investigation run its course and we find out the facts the best we can. Having said that, once it is determined who's responsible and it's probably more than one for this incident, this tragedy, the hammer needs to come down. They need to be held fully accountable. They need to be made an example of. This should not happen again.

BOLDUAN: For you when that director went to prison, as Sarah's parents, did you feel any sense of relief? I asked, because I've been sitting here looking at pictures of Halyna Hutchins and pictures of Halyna and her family and wondering kind of with all the talk of criminal charges and the investigation, like what this all might mean for them?

JONES: Yes. I think it maybe go through different emotions through all this. Certainly, I mean, angers is understandable. I don't know. I wasn't looking for revenge at all. But at the same time I really feel that the director and those responsible needed to be, again, to be held fully accountable for the reason of trying to stop this from happening in the future.

And I would have hoped that what happened with this director, having to serve time, would have averted this incident here. But, again, it hurts me that it didn't, simply didn't.

BOLDUAN: Yes. As I mentioned, after Sarah's death, you made it your mission to make it safer on movie and film sets. Before this tragedy, were you seeing progress?

JONES: Yes, we have we. Following Sarah's death, we had people in the industry come to Elizabeth and myself asking us to be a voice that they had safety concerns that were not being addressed. And since at the time we had an audience and so we formed Safety for Sarah to try to improve safety in the industry.

And we worked hard and we have heard many stories of incidences where someone would raise the flag and even raise Sarah's name. And a director has responded and said, well, let's take a look and make sure it's safe and make sure everyone understands what we're dealing with here.

So, yes, we've made progress but here again not enough. We still have work to do.

BOLDUAN: Still have work to do. Never had a chance to meet her, of course, but seeing the beautiful pictures of your daughter and her with you just on the screen tonight, I'm really thankful to be able to learn more about her and to speak with you. Thank you, Richard.

JONES: Well, thank you for having me.

BOLDUAN: Really appreciate it.

OUTFRONT for us next, President Biden is now scrambling to secure a deal on his sweeping spending bill before he leaves town. But his party is still at odds tonight. So how important is it for Biden to have a deal by tomorrow?

Plus, a Trump-aligned lawyer caught on camera attacking Mike Pence because the former vice president didn't go through with the plan that he had laid out to overturn the election.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Mike Pence is an establishment guy at the end of the day.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[19:28:28]

BOLDUAN: Tonight, a major scramble in Washington as President Joe Biden's agenda is hanging in the balance. The White House saying President Biden could make a last minute trip to Capitol Hill before he leaves for his overseas trip tomorrow. Right now Democrats appear to be at a new standstill over the President's spending bills. Key progressive senator, Bernie Sanders, telling reporters there won't be a deal by the end of the day.

(BEGIN VIDEO CLIP)

SEN. BERNIE SANDERS (D-VT): There is no way. I mean, I think we got revenue issues and everything else.

(END VIDEO CLIP)

BOLDUAN: It appears moderates and progressives have actually moved somehow further apart over the last 24 hours. Though everyone talking about progress, the White House holding a series of meetings with key players through the day, Sen. Sanders late this afternoon. Earlier, moderate senators Joe Manchin and Kyrsten Sinema.

And Biden is concerned how it will look on the world stage if he arrives at this big meeting he's heading off to with world leaders without any deal in hand, because his own party couldn't deliver. Manu Raju is OUTFRONT on Capitol Hill tonight.

Manu, this story really is changing by the hour. At this point, is there any chance of a breakthrough tonight?

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Virtually no chance, because on the policy there is still significant debate about what should be in this bill. What was very clear as that it is moving closer to what Joe Manchin wants. Of course, he is a moderate senators, Senator of everything, meaning all 50 Democrats, including Manchin to support this larger package going forward.

And because of his opposition to paid leave policy, some of the Democrats want to require for 12 weeks for people for getting sick or having a child.

[19:30:04]

That is out of the bill. Despite the push by the White House to potentially move that down to four weeks, Joe Manchin is simply not there.

And on the Senate floor tonight, this was intense lobbying effort to get him to change his mind. One Democratic senator told me that they -- that Democrats are, quote, pissed at Joe Manchin and trying to get him to change course. But Manchin is indicating he is not.

He is also opposed to the expansion of Medicare to include dental, vision, and hearing. Bernie Sanders is still pushing for that, as are many liberals. There are a number of key policy issues.

And then, there is a strategy, Kate, the infrastructure bill. Separate bill hanging in the balance because progressives are warning that they will sink that bill in the House if it comes up for a vote tomorrow which is possible that it could. Unless Manchin and Sinema agree to a larger plan and some liberals even going further. They want that larger plan to pass the House, first, before agreeing to support the infrastructure bill.

So, that means tomorrow morning will be a key moment, Kate. The Democratic Caucus in the House is meeting to discuss their strategy going forward. That's when there's some speculation that Joe Biden could come up to Capitol Hill and try to convince his colleagues to at least vote yes on that infrastructure bill, send it to his desk and be okay with this emerging agreement that's coming together.

But it's still uncertain, Kate, as major divisions linger and Joe Biden's agenda hangs in the balance -- Kate.

BOLDUAN: I mean, it really sounds like they are back at the beginning with this.

I mean, Manu, great to see you. Thank you so much for reporting as always.

OUTFRONT with me, Gloria Borger, chief political -- CNN chief political analyst and Tim Naftali, a presidential historian.

Si, Tim, adding to Manu's great reporting, Phil Mattingly is reporting tonight that it is Biden in private meetings who has repeatedly not sugarcoated his view on the stakes. How high the stakes are.

How important is it for Biden to have a deal before this big trip overseas for this climate summit?

TIM NAFTALI, CNN PRESIDENTIAL HISTORIAN: Well, in terms of foreign policy, it's really not that important. His American allies know that Joe Biden and the Democrats understand the challenge of climate change. They know the United States and -- has different leadership from -- from what it had in the Trump period. So he doesn't have to go and demonstrate his credibility on climate change.

The problem, however, is that he looks weak as a leader because he's been setting expectations very high when it is clear now that the reason Speaker Pelosi did not go forward with the infrastructure bill was she didn't have the votes, which means the Democratic Party is in disarray and that does not help the president's hand when he goes abroad.

BOLDUAN: Yah, and, Gloria, I mean, Democrats are now talking about dropping paid family leave. I mean, this is something that Biden campaigned on. This is something Biden spoke specifically to when he laid out details of what was in the -- what was going to be in the deal during the CNN town hall.

And if it's now dropped, I mean, how do they sell a bill if some of their biggest selling points are now getting cut out?

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: You know, just before I came on the air, Kate, I was talking to a senior adviser to Bernie Sanders. And he put it to me this way. He said we're -- we're in danger of having a bill defined more by what's not in it than by what's in it. Particularly, if you do drop this family medical leave.

BOLDUAN: That adviser is not wrong.

BORGER: No, no, he is totally right. I mean, Jen Psaki tweeted about the bill and used family and medical leave as one of her three key ingredients to what's so important. It's a cornerstone of what -- of what Biden has been talking about.

And I'm told that in the meeting with Bernie Sanders, the president, you know, wasn't thrilled, obviously. But he is looking at the reality and saying, look. We got to get something done.

I think in a way, he's more aligned with where Sanders is, personally. But of course, that doesn't matter because he's got to get something passed. And now, I think he doesn't look strong. He looks as if he is just trying to find something -- anything -- it's -- it's a complete mess.

BOLDUAN: You know, and, Tim, this standstill. I mean, despite what the -- they say publicly, the standstill's been going on for months now. I mean, the old adage rings true, nothing's agreed to until everything's agreed to and that could not be more true now.

I mean, Democrats, they don't seem to be moved by Biden's pleas or whatever he is saying to them behind closed doors to get this done. And get this done on these deadlines they keep setting for themselves.

I want to play for you the chair of the house progressive caucus in which she is saying like if there is no text on the bigger bill, she's still a no on infrastructure.

(BEGIN VIDEO CLIP)

RAJU: So the vote comes tomorrow, Congresswoman, the infrastructure bill, you are going to vote against it?

REP. PRAMILA JAYAPAL (D-WA): I don't think the speaker has ever brought a bill to the floor that doesn't have the votes.

[19:35:01]

And right now, there are over three dozen members and that number is only increasing who feel very strongly that these two bills need to move together.

RAJU: And the president couldn't convince you to change your mind?

JAYAPAL: I don't think so.

(END VIDEO CLIP)

BOLDUAN: I'm wondering, Tim, if there is any other tool in the presidential toolbox on this? Because as you said, like if he is known as a dealmaker and he can't get his own party to make a deal on his entire domestic agenda, I mean --

NAFTALI: Well, you know, the Great Society Congress that Lyndon Johnson had, had 68 Democrats in the Senate and 295 Democrats in the House. And Lyndon Johnson had won by 61 percent in the 1964 election.

There isn't mandate for the -- the kind of progressive agenda that the 95 members of the Progressive Caucus in -- in the House would like to have. The challenge really for the president is to be pragmatic and to remind folks that you can only use power that you have. And the fact of the matter is that Representative Jayapal is pushing for an outcome for which her caucus just doesn't have the votes. And they have to work with moderates.

Now, if they don't want any kind of deal, that's very possible. But if you want a deal in this Congress at this time, you have got to count the votes and the votes are not with the progressives.

BOLDUAN: They're not with anybody at this point is what I am seeing.

You know, Gloria, it's not as you are talking about what's in or out of the bill. It's also how to pay for it. I mean, that they are clearly not determined on. They have got Senate Democrats unveiled today a billionaire's wealth tax as one revenue source.

But what do you think is actually the bigger problem here? Is it what programs Democrats will agree to or actually priority enough to keep in the bill? Or is it how they cover the cost of what ever they decide, eventually, to put in this thing?

BORGER: Look, I think it's both, Kate. I mean, when they sort of came up with this billionaire's tax which Senator Wyden, apparently, has been working on for years but nobody can figure out how it works and it would only apply to a few -- you know, a few people, obviously. It looks like a stunt. You know, it just looks like they are grasping at straws here.

And so, they wanted a corporate tax. Well, maybe, there will be a minimum tax for corporations. Maybe Kyrsten Sinema didn't like certain things about corporate tax. I mean, they are just trying to cobble together things in a way that's not very appealing when you are sitting out there watching this.

And you are saying wait a minute, guys, you're the governing majority. As Tim says, very, very narrow, very, very slim majority. But this is your one moment, so figure out how to get something done. Figure out a way to pay for it. And then, come out and claim victory, rather than doing it this way. It -- it -- it doesn't look good for them.

BOLDUAN: You can be sure that might be something of the message that you hear from Speaker Pelosi when she is in that House caucus meeting tomorrow morning. Thank you, both, very, very much.

NAFTALI: Thank you.

BOLDUAN: OUTFRONT next, an attorney aligned with Donald Trump who was line behind a six-point plan to overturn the election in 2020 doubles down on his plan as we learn the January 6th Select Committee wants to speak with him.

Plus, Senator Mitch McConnell having a change of heart when it comes to Republican Senate candidate Herschel Walker. Why?

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER PRESIDENT: You know, Herschel is not evenly a Georgia hero, he is an American legend.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[19:42:38]

BOLDUAN: Tonight, new video showing Trump-aligned attorney John Eastman criticizing former Vice President Mike Pence for not following his six-step memo on how to overthrow the 2020 election.

Here's Eastman with a Democratic activist who was posing as an Eastman supporter and fan of Donald Trump to get him to talk.

(BGIIN VIDEO CLIP)

DEMOCRATIC ACTIVIST: But, I mean, like, you know, supporter to supporter, like, why do you think that Mike Pence didn't do it? JOHN EASTMAN, TRUMP-ALIGNED ATTORNEY: Well, because Mike Pence is an

establishment guy at the end of the day. It's all of the establishment Republicans in D.C. bought into this very myopic view that Trump was destroying the Republican Party. And what Trump was doing is destroying the inside the Beltway Republican Party and reviving the Republican Party, right, what they all consider the deplorable flyover country.

(END VIDEO CLIP)

BOLDUAN: As video emerging as CNN has confirmed the January 6th Select Committee is preparing to subpoena John Eastman.

And just days after Eastman told the national review that the legal strategy outlined in hat memo was not viable is what he told them then, and would have been crazy to pursue.

OUTFRONT now, Elie Honig, CNN senior legal analyst.

Elie, what do you think the select committee can get from Eastman?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: I'd have a lot of questions for John Eastman, Kate. Most fundamentally, he wrote this document that's really a blueprint, a roadmap to a coup. Now, he is trying to distance himself from this, as you just said. Now, he's saying it's crazy. I agree with that.

But that's not what the memo says. The memo is very clear. It says, here is the scenario we propose. He says this is what the law is. These are what the facts are.

And so, the big questions that I'd have for John Eastman are how did this memo fit into the overall effort, scheme, perhaps conspiracy, to steal the election? Who told you, John Eastman, to write this?

Now, "The National Review" asked him that. He said he did not remember. I find that -- I will be polite here, I find that difficult to believe. Who paid you for your legal services? What did you did with this memo? Who did you give it to? Who did you discuss it with?

Those are all questions I think are squarely in play for the committee.

BOLDUAN: In the memo, Eastman says Pence, you know, could toss out state electoral votes, himself, writing this in part. The main thing here is that Pence should do this without asking for permission.

[19:45:03]

The fact is that the Constitution assigns this power to the vice president as the ultimate arbiter. So, when you take all of this together, especially the questions you just laid out, do you think Eastman is the key to finding out exactly how close Donald Trump was to all of this?

HONIG: He could be so crucial for that, Kate, because Eastman worked himself into Donald Trump's inner-inner circle very, very quickly. And if you look at the history of the days leading up to January 6th, Eastman, on January 2nd, reportedly was on a conference call with Trump and Rudy Giuliani and hundreds of state legislators where they laid out the plan. January 4th, Eastman reportedly met with Trump in the Oval Office. January 5th and 6th, Eastman's with this group of people in the Willard Hotel. Rudy, Steve Bannon.

And then, on January 6th, Eastman spoke at the rally. He is standing there when Rudy says we need trial by combat. I would want to know every detail about all of those conversations and what Trump was doing and saying. That could be critical evidence.

BOLDUAN: Let us see. It's good to see you, Elie, thank you.

HONIG: Thanks, Kate.

BOLDUAN: And tonight, don't miss a special report "Stop the Vote: The Big Lie's Assault on Democracy". That airs tonight, 9:00 p.m. Eastern.

OUTFRONT for us next, Senator Mitch McConnell never seemed to be a fan of Herschel Walker's Senate campaign but that's all changed. Why McConnell caved to Trump on a candidate with a questionable past.

Plus, a warning tonight from a top-U.S. general about China's surprise hypersonic missile test.

(COMMERCIAL BREAK)

[19:50:36]

BOLDUAN: Tonight, Senate Republican Leader Mitch McConnell caving to Donald Trump by endorsing the Georgia Senate campaign of former NFL star Herschel Walker who launched his campaign at Trump's urging. McConnell and other Republicans had privately expressed concerns about Walker.

Sunlen Serfaty is OUTFRONT.

(BEGIN VIDEOTAPE)

HERSCHEL WALKER (R-GA), SENATE CANDIDATE: You know what qualified me to run is because I love America.

SUNLEN SERFATY, CNN WASHINGTON CORRESPONDENT (voice-over): Senate Minority Leader Mitch McConnell throwing his support behind Herschel Walker. The latest sign the Republican establishment is coalescing behind the Georgia Senate candidate.

I am happy to endorse Herschel Walker for U.S. Senate in Georgia, McConnell said in a statement Wednesday. Herschel is the only one who can Unite the Party, defeat Senator Warnock, and help us take back the Senate.

But McConnell didn't always feel that way. Over the summer, the GOP leader had privately expressed concerns with Walker's potential candidacy against incumbent Senator Raphael Warnock and even tried to recruit former Senators David Perdue and Kelly Loeffler to run for the seats. McConnell becomes the sixth Republican senator to endorse walker including South Dakota Senator John Thune, the number two Senate Republican on Monday.

With today's apparent change of heart, McConnell is now in full alignment with former-President Trump.

TRUMP: You know, Herschel is not only a Georgia hero, he is an American legend.

SERFATY: Walker, a former-football star, was recruited by Trump to run.

WALKER: I have known Donald Trump for 37 years and I don't mean just casual ran into him from time to time. I am talking about a deep personal friendship.

SERFATY: The political newcomer has faced scrutiny over his past allegations of abuse. He was accused of threatening his ex-wife and friend of hers in the early 2000s.

WALKER: You can get angry but the anger that you can go out and really, really hurt someone and that's that is when you know you got a problem.

SERFATY: Walker spoke to CNN in 2008 about his struggle with dissociative identity disorder, previously known as multiple personality disorder, which his campaign has said he has received help for since the alleged incidents.

DR. SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: How many altars did you or do you have?

WALKER: You know, to be honest, I have no idea.

SERFATY: His ex-wife detailing how he threatened her with knives and guns as he struggled with his mental illness.

CINDY GROSSMAN, EX-WIFE OF HERSCHEL WALKER: He held the gun to my temple and said he was going to blow my brains out.

SERFATY: An ex-girlfriend also said Walker threatened to kill her in this 2012 police report which his campaign has denied. Walker has also embraced Trump's lies about the 2020 election.

WALKER: We got to do what's right, right now. And not certify this here and let's find out what's really going on in the state of Georgia.

SERFATY: While the former president, in turn, looks to boost Walker's campaign.

TRUMP: What a guy. Thank you, Herschel.

(END VIDEOTAPE)

BOLDUAN: All right. Sunlen is joining me now from Washington.

Sunlen, McConnell would like to, of course, be majority leader once again. So was it Trump's support that caused McConnell to ultimately change course on Walker and endorse him?

SERFATY: Yeah, well money speaks, Kate. Trump's support certainly helps Herschel walker raise a ton of it. $3.5 million just in the first-five weeks of his campaign and that's not lost on Republican leaders like Mitch McConnell who have been impressed with his fundraising abilities. And we are also told by his performance on the campaign trail, as well.

Now, McConnell, of course, is squarely focused on winning back the Senate majority and Georgia is a huge opportunity for Republicans to potentially pick up a Senate seat, a seat that may determine control of the Senate.

Today on Capitol Hill, incumbent Senator Warnock, he was asked about McConnell's endorsement of walker and he says, quote, has he moved to Georgia yet? Certainly, a jab at his potential opponent who faced residency questions for living in Texas, Kate, just a few months ago.

BOLDUAN: Sunlen, thank you very much.

OUTFRONT for us, next. Why a top-U.S. general is calling China's hypersonic weapons test very close to a, quote, Sputnik moment.

(COMMERCIAL BREAK)

[19:58:59]

BOLDUAN: Tonight, the top U.S. general with a stark warning about China's hypersonic missile test. Chairman of the joint chiefs, General Mark Milley, saying he is very concerned after China tested the nuclear-capable weapon designed to travel great distances at high speeds. Meaning, it could evade U.S. missile defense systems.

(BEGIN VIDEO CLIP)

GENERAL MARK MILLEY, CHAIRMAN OF THE JOINT CHIEFS OF STAFF: What we saw was a very significant event of a test of a hypersonic weapon system. And it is very concerning. I think I saw in some of the newspapers, they -- they used the term Sputnik moment. I don't know if it's quite a Sputnik moment but I think it's very close to that. So it's a very significant technological event that occurred or test that occurred by the Chinese. And it has all of our attention.

(END VIDEO CLIP)

BOLDUAN: Milley referring there to the moment in 1957 when the Soviet Union shocked the world by launching their Sputnik satellite into space, raising alarm that the U.S. was falling behind.

Now, developing a hypersonic missile is a major priority of the United States. But the Pentagon suffer added a major blow last week when its latest weapons test failed. Thank you so much for being with us tonight. I'm Kate Bolduan.

"AC360" starts right now.