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Erin Burnett Outfront

Russia Demanded An Ex-Russian Spy And Assassin Be Swapped For Whelan; New Video, Info On What Griner Endured Inside Russian Penal Colony; Sinema Drops Bombshell On Capitol Hill, Leaves Democratic Party; Federal Judge Declines To Hold Trump In Contempt Of Court. Aired 7-8p ET

Aired December 09, 2022 - 19:00   ET

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

[19:00:31]

ERIN BURNETT, CNN HOST: OUTFRONT next, Putin wants more. Tonight, the Russian assassin who Putin wanted in exchange for American citizen Paul Whelan. How far will Biden go to bring Whelan home?

Plus, new details about Brittney Griner's time in a Russian penal colony, cutting off her hair in an effort to survive, singled out because of her height and size of her hands. The reporter breaking those details is OUTFRONT.

And going to extremes. Self-proclaimed lava junkies putting their lives on the line just to catch a close glimpse of Hawaii's erupting volcano. That story tonight.

Let's go OUTFRONT.

And good evening. I'm Erin Burnett.

OUTFRONT tonight, Putin's assassin demand. We're learning tonight that Putin refused to release American Paul Whelan along with it being Griner, unless Viktor Bout was returned in addition to a convicted assassin and former Russian spy.

This news coming as we are hearing new details about Griner's nearly ten months in prison tonight. She landed in Texas today, and tonight, we are learning her forced labor consisted of helping make uniforms, along with other key details of her imprisonment.

But we still don't know tonight what condition Paul Whelan is in, because Putin is refusing to release him, unless he gets this assassin back. You're looking at him.

His name is Vadim Krasikov. And he's currently serving a life sentence in Germany for giving someone four years ago, execution style, in broad daylight in a park. Krasikov executed his target using a silencer, approaching him from behind, shooting him twice in the body, and then, shooting him in the back of the head as he lay on the ground.

It was a hit the German court found was ordered by the Russian government itself. Now, I'm going to be speaking with Paul Whelan sister in a few

moments, because as Whelan is still suffering in a Russian penal colony tonight, there are celebrations and Russia, celebrations for Viktor Bout triumphant return. Bout freed from American prison where he was serving 25 years for his work is the most prolific arms dealer in history, and for plotting to kill Americans.

Russian newspapers displaying a big smiling picture of Bout across the front pages. The headline on this paper, for example, reading, Bout is happy. How the Russian businessman, that's what they call him, managed to return from prison in the U.S.

Now, Bout also went on Russia Today. It's a Russian state media program. And he did it right away.

It took this swipe at the United States, making it clear that he is now focused on Ukraine.

(BEGIN AUDIO CLIP)

VIKTOR BOUT, RUSSIAN ARMS DEALER (through translator): The West believes that they did not finish us off in 1990, when the Soviet Union began to collapse.

(END AUDIO CLIP)

BURNETT: This is a point that Putin himself makes repeatedly. The point is that the West is now using Ukraine as a way to destroy Russia itself.

Bout and Putin seemed to share a world view, and Bout now owes Putin his freedom, and Putin maybe ready to ask for payback.

And here's the woman quoted by the secretary general of the U.N., for Bout's arrest, told me yesterday what that payback could be.

(BEGIN VIDEO CLIP)

KATHI LYNN AUSTIN, TRACKED VIKTOR BOUT FOR 15 YEARS: Putin is going to be ready to deploy Viktor Bout. He comes with years of experience, years of contact, he started in Ukraine. And I think that's one of the areas we have to be concerned about right away. Viktor Bout will be a major asset for Putin.

(END VIDEO CLIP)

BURNETT: A major asset for Putin, and a major asset, is what Putin desperately needs right now. Let me play for you this surprising and notable exchange today between a reporter and Putin. And I say surprising, because what you are going to hear here is that the report to references the deluge of social media posts and leaked phone conversations we've been playing for you, where Russian soldiers slammed their equipment, their training, and their commanders.

(BEGIN VIDEO CLIP) REPORTER (through translator): Recently, there have been conflicting reports about the supply of the army. You said that the problems are being solved or they have already been solved. But, nevertheless, the flow of messages from the fighters from the front lines does not stop. Appeals go to the military commissars, to volunteers. They ask not only for uniforms but also for medicine because consumables run out very quickly.

And the question is who to believe, Department of Defense reports or the front line soldiers?

VLADIMIR PUTIN, RUSSIAN PRESIDENT (through translator): You can't trust anyone, only I can be trusted.

(END VIDEO CLIP)

BURNETT: Don't trust the soldiers on the front lines, don't trust the military, only I can be trusted.

[19:05:02]

He says it with a smirk, the words of a dictator who sees only one path out of Ukraine, victory. In fact, tonight, Putin said he's considering formally altering the military doctor of Russia to allow for Russia to strike first, to launch a preemptive nuclear strike against a foreign power.

Kylie Atwood begins our coverage of OUTFRONT tonight in Washington.

And, Kylie, Putin tonight, saying the door is open for another prisoner exchange, perhaps, referencing that assassin we're talking about, saying they want Krasikov back. What is the likelihood this happens?

KYLIE ATWOOD, CNN NATIONAL SECURITY CORRESPONDENT: Well, listen, we know that U.S. officials have already received that request from Russians a number of times. And they simply said, it's not something they can deliver on, it's not something that Germany is willing to do.

But the last few months are going to greatly inform what the following months, the months to come looks like because U.S. officials know the types of things they could offer Russia, but they're not going to accept.

Some of the names that we know that U.S. officials floated in an effort to get home Paul Whelan with Brittney Griner, include Alexander Vinnik. He's a Russian who's expatriated to the United States, just in August. And he is facing charges of money laundering and extortion, just among a few.

And then, there is another Russian. Alex -- excuse me -- Roman Seleznev. He is someone who's been involved in cyber criminals. He's facing a 14 year prison sentence serving that in the United States right now. That's not to say that those names won't come up again, but they're not going to be posed to the Russians in the same form that they have in the past. I spoke with a senior administration official who explained that the

Biden administration realizes that they need to put forward some new ideas here, and that's what they are thinking about right now. They're trying to figure out a way forward. They're trying to figure out something that Russia will accept.

Now, as you noted, out of the gates there, Erin, President Putin did say today that it's possible, and there could be another prisoner swap. On the face of it, that sounds great. But we heard, just in recent hours, from the deputy national security adviser, John Finer, who expressed some caution, saying you can't take everything that president Putin says for face value. But the U.S. is committed to try and get Paul Whelan home -- Erin.

BURNETT: Certainly, certainly true with that comment.

All right, thank you so much, Kylie Atwood with all those details from Washington.

I want to go now to Paul Whelan sister, Elizabeth.

And, Elizabeth, I'm glad to speak to you again. You know, obviously, I would have hoped it would have been in different circumstances, with celebration for your family. But you're still waiting tonight. When you hear these details that Putin may do another exchange, that you desperately wants Vadim Krasikov, that he had tried to engineer that swap, possibly.

Do you think that makes sense? Should Krasikov be handed over in exchange for your brother?

ELIZABETH WHELAN, SISTER OF PAUL WHELAN, AMERICAN DETAINED IN RUSSIA: You know, it's very interesting. Ever since B.G.'s release yesterday, members of Congress, pundits in the media, have been weighing in with heartaches about Bout, about Brittney, about this guy, this assassin, and about my brother. And it's been very difficult for my family to hear. My brother discussed as if his only value is what you would have to give up for him.

BURNETT: You know, look, at some point, it's a poignant thing to say. I guess on a certain level, from a policy perspective, it does boil down to that. I mean, has your family had any conversations with -- with the government about this, about what they're willing to do to bring him home?

WHELAN: I think we've made it pretty clear that as far as I'm concerned, at least, my brother is worth more, and has a greater value than any Russian criminal.

BURNETT: So, are they responsive to that? Do they understand where you are coming from? Do they -- do they internalize it in a meaningful way?

WHELAN: Well, I've tried not to discuss Putin's gift registry -- but so much, I'm going to carry the water for the Russians. If they've got an argument to make about something that they want, they need to make it through the diplomatic channels.

And I expect that now B.G. is back, the teams that have been working to help get Paul home over the last months and years are going to hit the ground running, trying to figure out a new way to solve this problem.

BURNETT: And do you think that the U.S. learned anything? You talk about B.G., of course, Brittney Griner, has the U.S. learned anything from what's happened here, from the fact that they were able to secure her release, you know, in exchange for notorious arms dealer, Victor Bout. I think that could help with securing Paul's release?

[19:10:00]

WHELAN: I certainly hope so, because Paul has been waiting for a very, very long time. You know, he sat through the previous administration, and now this one, watching other people go home. I can't imagine what his life is like, day-to-day, in the prison, the resolve that he is showing.

But how long will that resolve last? And I'm hoping that people are feeling a greater sense of urgency to solve this problem and get him home.

BURNETT: Elizabeth, I'm curious, whether in your conversations with that U.S. government, if they ever talked to you about why they think it has been harder to secure his release? You know, why others -- you pointed out, he's been there's so much longer than so many others, right? And others come, and others go, swaps happen. And yet, not him?

WHELAN: Yes, I mean, really, from the start, the FSB sent a Paul up, they gave him a USB drive, and arrested him 25 minutes later, saying the USB drive contained state secret. And from that point on, they held him for 14 months in pre-trial detention, and then they had a sham trial, and sentenced him to 16 years for this, quote/unquote, espionage.

And so, ever since then, this is a Russian fairytale. And they've decided that because of this, quote/unquote, value Paul has, that they should be able to ask for something big in return.

BURNETT: And do you have any more or less hope tonight, Elizabeth, after the Griner swap, that Paul will be home soon? And I use that word, soon, I know it's indefinable. But do you have more hope or less hope tonight?

WHELAN: It really hasn't changed. Just an extent, because Trevor and Paul, Trevor and Brittney situations were treated differently, that's to left the situation with Paul and how is that going to get resolved.

I do know that I will be bearing down much more, with much more pressure on the people I've been working with, because I don't want to see this happen again.

BURNETT: Well, certainly, you have continued to be an indefatigable fighter for your brother. Elizabeth, thank you very much for taking the time and speaking to me.

WHELAN: Thanks so much. I appreciate being on.

BURNETT: All right, I want to go now to Andrei Soldatov, a Russian investigative journalist who's website is focusing on Russian secret services has been blocked in Russia now. He's also the author of the new book, "The Compatriots: The Russian Exiles Who Fought Against the Kremlin".

So, Andrei, you know, you hear Elizabeth, and her justifiable frustration, right? That others who are held for shorter periods of time could needed to be swapped and go home. And Putin has been just and willing to release Paul Whelan, looking for something big, big, bigger. No one knows exactly what.

This assassin, Vadim Krasikov, that we understand Putin has asked for, who is he? How dangerous is he? And why does Putin want him back so much?

ANDREI SOLDATOV, RUSSIAN INVESTIGATIVE JOURNALIST: Yes, it's a very interesting question that the Kremlin wanted Krasikov. He -- I mean, Krasikov, he is not a professional spy. He is an assassin, and not a very good one. I mean, he was caught immediately by German police.

But, nevertheless, Putin wants him. And he wants him because, I think, he wants to send a message. He wants to send a message to all Russian exiles and to the Russian immigrants who left the country after the war started, but not only we can get after you, even if they get caught, we can get our people back, and we can save them.

So, that's, I think, his idea. That is his message.

BURNETT: And that gives him I -- guess what you are saying, some sort of a position of strength. It looks like he's doing some.

SOLDATOV: Absolutely, and Putin is -- he knows how to play this game with swapping and trading people. He started doing this 20 years ago during the Chechen War when he learned how to build what they call a bank of hostages. He did the same thing with Zelenskyy, when Zelenskyy was just elected as Ukrainian president, and he had a ton of people at the very last moment. So, he knows how to play this game.

BURNETT: So when it comes to Viktor Bout, the so-called merchant of death, right, the most prolific arms dealer in history, also convicted of planning to kill Americans, he is swapped for Brittney Griner.

How do you think Putin is going to use Viktor Bout now?

SOLDATOV: Well, Bout is -- could be very useful for the Kremlin, for several reasons. Of course, there is a big propaganda call because the Kremlin spent years while increasing their reputation of Bout in the country. And now he's seen in the country as someone who never give up to American pressure, who's always stubborn.

So, he has this kind of reputation. But also, his contacts, especially in places like Africa.

[19:15:00]

Well, Moscow is still playing, trying to play's superpower. These contacts and these communications might be extremely helpful.

BURNETT: All right. Andrei, thank you very much. I appreciate your time tonight.

SOLDATOV: Thank you.

BURNETT: Andrei, joining us, as always, from London.

And next, new video of Griner's life in a notorious Russian penal colony. Why she was barred from doing some tasks as the other prisoner members were doing. An ESPN reporter with a lot of new details on her captivity is my guest.

Plus, a Democrat goes rogue. Arizona's Kyrsten Sinema, officially, no longer a member of the party that barely controls the Senate.

(BEGIN VIDEO CLIP)

SEN. KYRSTEN SINEMA (D-AZ): So, like many across the state, and the nation, I have decided to leave that partisan process.

(END VIDEO CLIP)

BURNETT: What does it mean for Democrats?

And a federal judge, refusing to hold Donald Trump in contempt of court at the Mar-a-Lago documents case. Why, and what does it mean?

(COMMERCIAL BREAK)

BURNETT: New tonight. CNN is learning that Brittney Griner was able to call her father, midflight, as she returned to the U.S. This is according to the Democratic Congresswoman Sheila Jackson Lee. And it comes as we're learning new details about Brittney Griner's life in a Russian penal colony.

We've got some new video here we'll show you. This is her, with short hair, in her prison. Her lawyer telling ESPN that Griner cut her hair to survive the Russian winter because there was no way to dry her hair. She was freezing. An indication, Griner thought, she would be serving her sentence for many more months to come.

[19:20:04]

We're learning that Griner, also, could not be forced to sow among other women because she was too tall, her hands were too big for the work.

I want to go to T.J. Quinn, the investigative reporter and senior writer for ESPN, who's been breaking all of these details. T.J., you know, I mean, it is amazing. It gives you just a window into

what she was living, every day. What more are you learning about Griner's time at the penal colony?

T.J. QUINN, ESPN INVESTIGATIVE REPORTER LEADING COVERAGE IN GRINER CASE: Well, we have yet to hear from her, of course, but what her lawyer said to me, and other people around her have spoken to, is it could have been much worse. They were very concerned when she was moved from the relatively safer Moscow jail, where she had been through her trial, to this penal colony. These are -- these colonies are the descendants of the old Soviet gulags. They're work camps.

Like you said, most of the women sit there, and sow all day. Her job was carrying fabric around. There was concern that she could be a target.

She is a six foot nine, Black lesbian, from the United States. And no one knew, could she be the target of another inmate? Of a guard?

What her lawyer was saying to me, and she was speaking for Moscow, so, with all due respect to her, you need to take a grain of salt with it, is that they assign somebody to her to, help show the rules, because it's very easy in these camps to, suddenly, commit an infraction that gets your privileges taken away, or put in solitary, but, for the one month that she was there, she did okay.

But you're right, she was looking for the long haul, even when she was in jail. There is a basketball hoop, but no ball. Her lawyers offered to bring her a ball, and she said, I'm not really ready to think about basketball. If I'm still here in the spring, bring it to me then.

BURNETT: So, either it is amazing the details, and obviously, important that you point out the lawyer was speaking to you for Moscow. But, Griner's lawyer also told, you I know, I promising signs came earlier this week, right?

So, not much of a warning, right? Earlier this week, and that quickly turned into concern about Griner's whereabouts. So, what happened?

QUINN: Right. Well, they heard, last week, that something might be happening. They got a little optimistic, guarded, as you would expect, but then Monday, suddenly, they got word that she was moved back to Moscow. Now, that should have been a great sign. But then, they didn't hear from her, or about her, for days.

She had little concerns, like the fact that Brittney had broken her glasses while she was in the prison camp. They did not know she could see, if she could read. She said, we didn't know if she was getting food.

So, essentially, no one slept, because on one hand, you can't account for her, you worry about her safety, but on the other hand, this might be the crucial step that, actually, gets her home.

BURNETT: Amazing. Those last details, just in those hours, not knowing where she was, it sort of leaves me speechless. T.J., thank you so much. I really appreciate it.

QUINN: Thanks, Erin.

BURNETT: T.J., breaking so many of those details.

And I want to go to now to one of Griner's teammates, who helped lead the efforts to bring her home, Brianna Turner.

Brianna, you hear T.J.'s reporting, right? Getting a sense of, you know, that she moved to Moscow, and then her glasses were broken. And they didn't know whether she could see. They did not know about whether she was getting food. They did not know any of this.

And you've got this new video, she had to cut her hair. And you're hearing about her life in this penal colony, right? You know, forced labor, carrying fabric, in her case.

You know, you know her so well, you're her friend, you're her teammate, how hard is it for you to hear all of these details?

BRIANNA TURNER, BRITTNEY GRINER'S TEAMMATE ON PHOENIX MERCURY: It's definitely difficult. Obviously, the past 294 days, she was detained was very hard, but at the same time, there was a sense of relief that she's back with her wife, with her family, that she can now start the road to recovery.

BURNETT: So, obviously, you and Brittney go way back. You're teammates, you both grew up in Texas, you watched her play in high school. I mean, you know, this is a many, many years relationship. The newest images we have seen of her getting off the plane today, in San Antonio, are powerful. Any American watching this, you watch someone come off that plane and, you choke up a little bit. But, for you, it's so deeply personal.

What emotions are you feeling when you watch this, and when you watched her come off the plane?

TURNER: Definitely, excitement. Again, relief, it has been such a long time coming. I think, obviously, seeing on the news earlier how she was in the air, on her way, but to literally see her land in San Antonio, to see her step off the plane, I mean, it was -- the feeling was indescribable.

BURNETT: So, I have to ask you something that I think may surprise a lot of people, because it has to do with the fact that there is still a lot of basketball players choosing to play basketball in Russia, right now. I think many people would not expect that, given the situation, right, specifically, with her, and broadly.

You have also played basketball in Russia in the past, and "The New York Times" reports tonight, there are about 30 American men's basketball players, playing, right now, in Russia, or planning to return to play there soon. What do you think about that? Do you think that any Americans should be continuing to play there now? TURNER: I think it definitely should make Americans hesitant. I know

there is a lot less female basketball players there, playing there today than there was in previous years, but at the end of the day, people have to make their own decisions, and weigh the cost, and do as they choose. I do think it should cause some hesitation for some players.

BURNETT: Yeah. I mean, it's amazing to think, people do that. I do understand, the economic pressure, they have their reasons for doing it, but I think, it's surprising for many to hear.

Look, Brianna, you have played a major role in this effort to keep a spotlight on Brittney's story. If it weren't for you, and a few others, she may not be coming home. You are out there talking about it, and making sure that the U.S. government, in this administration, had to hear about it every day, right? They couldn't put it on the backburner, because you weren't going to let them do it.

You had the hashtag "we are BG", the slogan, the display for initials, her number, 42, on the basketball courts.

Was there ever a day where you felt this day may not come?

TURNER: I would definitely say it was a collective effort. There were so many people involved in BG's story and efforts to get her home, a lot of volunteers, WNBA, the NBA saw a lot of work, they went into getting to her home, but just looking forward, was I feeling less optimistic?

No, I always keep my hope alive. I think would be easy to feel like nothing is going to happen. That the trades will be done quickly enough, but I never lost hope.

BURNETT: All right. Well, Brianna, thank you so much for sharing your thoughts with us tonight.

TURNER: Thank you.

BURNETT: And next, Arizona's Kyrsten Sinema stuns Democrats, still celebrating their extremely slim Senate majority win. It was a majority, and then all of a sudden, Kyrsten Sinema says, guess what? I' m no longer Democrat. What does this mean?

And Donald Trump wins a reprieve in federal court today. There is more trouble, though, in the Mar-a-Lago classified documents case for the former president. Ryan Goodman will break it down.

(COMMERCIAL BREAK)

[19:31:30]

BURNETT: Tonight, a political earthquake on Capitol Hill. Arizona Senator Kyrsten Sinema is no longer a Democrat. She's telling Jake Tapper today that she's left the party and is now registered as an independent. This news coming just as Democrats were celebrating their 51/49

majority. I mean, they fought so hard for that in Georgia. That was after Raphael Warnock's win.

Sunlen Serfaty is OUTFRONT with the details of Sinema's decision and more on who is the senior senator from Arizona.

(BEGIN VIDEOTAPE)

SUNLEN SERFATY, CNN WASHINGTON CORRESPONDENT (voice-over): Arizona Senator Kyrsten Sinema's bombshell decision.

SEN. KYRSTEN SINEMA (I-AZ): I know some people might be a little bit surprised by this, but actually, I think it makes a lot of sense.

SERFATY: Revealing today she has left the Democratic party and is registered as an independent.

SINEMA: I've never fit neatly into any party box. I've never really tried. I don't want to.

SERFATY: The move coming just days after Senator Raphael Warnock won the Georgia runoff election to give Democrats a 51/49 majority has been a long time coming. Making official what has been unofficially a thorn in the side for Democratic leaders for years. A dynamic that has placed her at the center of some of the most contentious debates, gaining her outside power in a slim majority as one of the two key moderate Democrats in the senate.

SINEMA: I don't think anything will change about how I do my job.

SERFATY: This is just the latest chapter in this senator's unconventional political evolution. Sinema first started out far left of center as a Green Party activist, entering politics in Arizona as a Ralph Nader supporter, organizing antiwar protests after the September 11th attacks, which drew criticism years later when she ran for Senate.

AD ANNOUNCER: Kyrsten Sinema was protesting us in a pink tutu.

SERFATY: An Arizona state legislature, she fought for LGBTQ rights and against Arizona's controversial immigration law.

SINEMA: They passed an unconstitutional immigration bill that does nothing to solve our state's problems.

SERFATY: Her politics began to shift as she sought higher office.

After winning her first congressional campaign in 2012, she joined the Blue Dog coalition, a group of centrist House Democrats.

SINEMA: The American public doesn't care much about Republican or Democrat. They just want solutions.

SERFATY: And with her assent to the Senate, she attempted to take over the late Senator John McCain's mantel of maverick. SINEMA: With Senator McCain's example lighting the way, and with the

trust of the people of Arizona shaping my service, I recommit to ignoring political games.

SERFATY: Her maiden speech on the Senate floor foreshadowing how far she has come from her leftist roots, opposing abolishing the filibuster and voting against raising the minimum wage, bucking her party in the model of McCain.

Sinema came from humble beginnings. She grew up in Arizona poor. Her family at one point living in an abandoned gas station.

SINEMA: I learned a lot about independence, about the importance of, you know, working hard and overcoming challenges.

SERFATY: She was raised Mormon but later left the church.

REPORTER: Do you believe in god?

SINEMA: You know, I'm not a member of any faith community.

SERFATY: At 19 years old, she was briefly married, then divorced a few years later.

SINEMA: Can we get a spouse? Just kidding. Just kidding.

SERFATY: She broke barriers coming to Congress as the first out bisexual member of Congress. At 46 years old, she is a marathoner and triathlete with a unique and edgy style, from this F-off ring to her colorful wigs, to this "dangerous creature" shirt she wore to preside over the Senate floor.

[19:35:09]

SEN. MITT ROMNEY (R-UT): You're breaking the Internet.

SINEMA: Good.

(END VIDEOTAPE)

SERFATY (on camera): And the balance of power here in the Senate will not change. But it does give Democrats less breathing room. Sinema is expected to keep her committee's assignments, which means it'll be easier for Democrats to move forward with things like nominations.

Of course, the timing here, Erin, is so notable given that this came on the very same week that Democrats were celebrating their 51-seat majority right after the runoff in Georgia -- Erin.

BURNETT: All right. Sunlen, thank you very much.

And let's go now to Harry Enten.

So, Harry, here's the thing. Everyone is saying, okay, you fight for this whole month.

HARRY ENTEN, CNN SENIOR DATA REPORTER: Yeah.

BURNETT: Oh my gosh, years have gone by. You finally have the majority. And Kyrsten Sinema goes, hmm, okay.

ENTEN: Meh.

BURNETT: All right. So, can we just take a look at her voting record to understand what this really would mean? How often did she vote with her party before she announced this today?

ENTEN: Yes. So, you know, if you take a look at the time that she's been in Congress, I also want to include Joe Manchin because he's the other moderate in the United States Senate. She voted with the party a little bit more than Joe Manchin did. The average Democrat voted with the party about 90 percent of the time. Manchin was close to 60 percent. Sinema was closer to 70 percent.

But, you know, she said people would be surprised by this decision. I'm not exactly surprise, because the fact was she was the second most moderate Democrat in the United States Senate. She was frequently a little bit of a thorn in the side of leadership both in the house. And then when she joined the United States senate.

BURNETT: Right. OK, but they're all trying to -- Senator Schumer today, oh, nothing to see here, it's all cool, we got our committees. You know, okay.

But if her record before was only 70 percent, what's going to happen now? I mean, I guess the way to look at that -- you know, you've been looking at Joe Lieberman who was a Democrat, switched to be an independent. What happened when he made that switch? Did that voting with the party number go up or down?

ENTEN: Yeah. So, you know, back in 2006, I remember this, he lost the primary. Kyrsten Sinema's afraid of losing a primary in 2022. And he ran as an independent or a third-party candidate in the general and won re-election. If you look at Joe Lieberman's record and you compare him before and after he made that switch to being independent, he was ten points less likely to vote with the party.

So, right now, you see Kyrsten Sinema's slightly more likely to vote with the party than Joe Manchin is. I would not be surprised that she actually votes either about the same percentage of time or even less. She'll be even more of a thorn in the Democrats' side, in my opinion.

BURNETT: Right. So, this, nothing to see here is a little bit of bluster.

ENTEN: I would say so.

BURNETT: All right. So, now you mentioned that this is about a primary, perhaps, in some sense. 2024, she's up for re-election. Look, Democrats have, before this, made no secret of the fact that they want to primary her.

ENTEN: Right. BURNETT: And that they think she doesn't work with them enough. They want someone much more liberal.

So, what does this mean for Democrats?

ENTEN: Right. If you look right now at the Senate math going into 2024, right, Democrats have a lot more vulnerabilities than Republicans. The vast majority of seats that are up are for Democrats. There are seven Democrats who are up in states that Donald Trump at least won once, that includes Arizona.

Now imagine that a Democrat actually runs in Arizona and Sinema runs as an independent. They this makes it, in my mind, a much easier for a Republican win. It doesn't guarantee it by any sense. We don't know exactly what will occur in Arizona.

But if now, let's say you have a Democrat and somebody who's formerly a Democrat and Democrats only have a two-seat majority and they can only afford to lose one seat, this to me puts the Senate even more in play than it already was.

This is not a great thing for Democrats. But, of course, we'll have to wait and see. We just had an election day. We're still about two years from one, but still.

BURNETT: It is amazing, right? She waited through election day. And then you wake up this morning and -- wow. OK.

ENTEN: That's the world for us. It was always changing, right?

BURNETT: All right. Harry, thank you.

ENTEN: Thank you.

BURNETT: So next, a test for Donald Trump's team. Is anyone, anyone willing to guarantee the DOJ that Trump has turned over all classified documents? Anyone, anyone? That's what the Justice Department is asking tonight.

And so-called junkies having a field day in Hawaii. They've been risking their lives to get close.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: My group of friends is definitely the far outer limits of that range.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[19:43:14]

BURNETT: New tonight, a federal judge declining to hold Donald Trump in contempt for ignoring the Justice Department's subpoena for classified documents. Sources telling CNN that the judge told prosecutors and the Trump team to go figure it out together.

Now, one demand from the DOJ was this, that anyone from the Trump legal team come forward, anyone come forward if you can guarantee that all classified documents have been returned to the government. Well, we're told Trump's legal team has not done that, in large part because any lawyer who raises his or her hand and comes forward with that statement will almost certainly face legal jeopardy.

Now we have Ryan Goodman, the co-editor in chief of the "Just Security" legal blog.

Ryan, so let's just we're two years after Trump left office. We're multiple searches and subpoenas in.

And still nobody will raise their hand to definitively say you got it all, we're sure there's no more classified documents. What does that say?

RYAN GOODMAN, CO-EDITOR-IN-CHIEF, JUST SECURITY: It shows a deep level of distrust within his own legal team that they can't rely on his statements to be able to say that. And it also is just mind- boggling that they won't be able to say before a court or to the Justice Department that we've returned everything that's of classified material. Just astounding that we're in that situation two years out.

BURNETT: Right. And it shows that the people around are the people who are in his inner circle or the people who he's paying to represent him, they don't trust him, they don't trust him, because they would be -- they would be, if they were to do that, obviously, have a legal risk themselves, right, criminal risks.

GOODMAN: Yeah, they've seen this movie before, in a certain sense, which is in June his lawyers do make that statement, that they have returned all the documents in response to the subpoena, to the best of their knowledge, and then that particular lawyer is actually told you're in legal jeopardy now because it's proven to be false.

[19:45:04]

BURNETT: Proven to be false, right? That was the search and now they just found some more documents. This seems never-ending.

And, yet, the federal judge did not side with the Justice Department in this contempt issue, right? They wanted -- the Justice Department had asked to hold Trump in contempt of subpoena. And the judge refused to do that, saying go work this out, outside of court.

Does that mean anything to you?

GOODMAN: It means a couple things. It is interesting and important that the Justice Department does believe that he is in contempt. That was what they were trying to get the judge to do. So, that's one part.

But the fact that the court doesn't go along with them. It's difficult to know what that means. "The New York Times," for example, is reporting we don't know if that was our final decision. It sounds like she's saying maybe not now. Exhaust all of your efforts to try to figure this out because CNN's reporting is that, for example, the Justice Department was -- had concerns about the details of the search of Bedminster and what they had found or hadn't found.

So they might be trying to resolve that and she might think it's not ripe yet to hold him in contempt.

BURNETT: It's basically go through more mediation before -- okay. But what does it tell you about the new special counsel, that they decided to go this route and go in and ask for it right away? They were regressive.

GOODMAN: Very much. So, it sounds like the special counsel is taking a very different approach. It's not like this hands-off we're going to give you another month, another month and it comes to be 18 months before they finally go in. He seems to be approaching Donald Trump as he would other citizens of the United States who might be in defiance of law and saying we're going to enforce these subpoenas. We're going to enforce these court orders.

And I think that's a bad omen for Donald Trump. I think the way he gets out of the situation is if he's treated not like everybody else.

BURNETT: Treated like everybody else. Obviously, the precedent would show serious penalties and an indictment.

GOODMAN: Yeah.

BURNETT: All right, thank you very much, Ryan Goodman, as always.

And next, the lava junkies watching every inch of lava flow in Hawaii. They can't get enough.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: It's what gives us our excitement. It's what gives us our adrenaline for the day.

(END VIDEO CLIP)

BURNETT: It's an amazing report.

And then this. This 200-pound dinosaur skull called "Maximus" fetches millions at auction.

(COMMERCIAL BREAK)

[19:51:09]

BURNETT: Tonight, lava from the world's largest active volcano in Hawaii stopping just short of a major highway narrowly averting a potential disaster for now. But the eruption is still ongoing and the situation on the ground remains unpredictable for what they call themselves, quoting, lava junkies. They risk incredible danger to get up close.

David Culver is OUTFRONT from Hawaii.

(BEGIN VIDEOTAPE)

DAVID CULVER, CNN CORRESPONDENT (voice-over): Seemingly photogenic from every angle, there is a striking beauty to Mauna Loa's eruption, especially as captured by this photographer C.J. Kale.

C.J. KALE, PHOTOGRAPHER: The volcano is different every single day. Every single time you go, it's always different.

CULVER: C.J. driving us to his picture perfect spot, at 4:00 in the morning. The best view he believes the rising sun greeting the glowing lava. Many hours of sleep sacrificed for just a few minutes of perfect lighting, weather permitting.

KALE: Yeah. That is -- that is super thick.

CULVER: We step out into the cold rain hoping it'll burn off. As we wait, CJ admits to us he is a particular kind of thrill seeker.

KALE: A lava junkie. Kind of the term here. We all call ourselves lava junkie. It's kind of our fix. It gives us our excitement, what gives us our adrenalin for the day.

CULVER: This lava junkie has even gone swimming with it, catching these fiery waves in 2018's Kilauea eruption.

Is there a range of lava junkie? Those who get a little bit too close and too extreme?

KALE: My group of friends is definitely the far outer limits of that range. I wouldn't recommend pushing it far for everybody.

CULVER: But some are still pushing it.

Good morning.

If you caught our live report Monday for "CNN THIS MORNING", you might have noticed this person, head lamp on, returning from a trek to the lava's edge. Officials have repeatedly warned folks of the dangers getting that close to the flow. Not to mention it's trespassing.

UNIDENTIFIED MALE: You know you can live caged up and have a pretty boring life or you can go see for yourself and take the chance.

CULVER: Curtis and Sherry Grumbles (ph) perhaps rookie lava junkies, hiked five hours round trip over unstable lava rock out to the edge of the flow. They recorded this video about 50 yards from the crawling lava.

Then there are those going to the source of the lava, the expert lava junkies if you will. USGS scientists in protective gear, collecting samples of the lava and bringing them here.

UNIDENTIFIED FEMALE: We put them in the drying oven. CULVER: The University of Hawaii at Hilo is helping run the rapid

response lab for the Mauna Loa eruption. We got a rare look inside. These samples collected since the lava started spewing.

UNIDENTIFIED FEMALE: It was thrown up in the air and landed and was -- they scooped it up while it was still molten and quenched it and if you look at it you'll see it is very, very bubbly, soft. Like you can break it in your hand.

CULVER: Researchers here quickly turning out data to help the USGS chart where the lava flow might be heading especially as it is inching closer to crossing Saddle Road, a major highway connecting east and west of the big island. They warn the slower pace is deceptive at times.

UNIDENTIFIED FEMALE: So, it might look like a big wall of hot rock and it doesn't look like it is moving much but they can surge where all of a sudden the front breaks off and lava comes spewing out.

CULVER: Dangerous perhaps but for C.J. Kale, an eruption is never destructive.

KALE: At what point did it become destruction, when you put a house in the way? You can't do that. I lost property during the 2018 eruption. I have many friends that lost properties. My mom lost a house.

We don't view it as loss. We view it as borrowed time.

CULVER: Speaking of time, sun's up and our view is still this.

[19:55:04]

Does it feel like a washout when you get to this point and suddenly there is nothing? Do you feel disappointment?

KALE: You know, it is all part of the journey. If every single time we pulled up it was absolutely amazing, it wouldn't be as special as it is on the days it is amazing.

CULVER: David Culver, CNN, Hawaii.

(END VIDEOTAPE)

BURNETT: Amazing. We don't view it as loss. We view it as borrowed time. Words that we could all use.

Well, next the massive dinosaur skull sells for millions. We'll show you.

(COMMERCIAL BREAK)

BURNETT: It's the dinosaur skull that cost an arm and a leg. This Tyrannosaurs Rex specimen called "Maximus" sold today for $6 million. It is an adult T-Rex head, 76 million years old, complete with teeth. It weighs 200 pounds. That's without the skin and the flesh. And it is over 6 feet tall, for the skull.

"Maximus" was discovered on private land in South Dakota. The only time a skull like this has come up for auction as a stand alone piece, the only known T-Rex skull available for private ownership.

So, early sale estimates came in up to $20 million. Bidding back and forth for six minutes before the gavel came down at $6 million. Who bought it? Wouldn't you love to know? We have no idea.

Thanks for joining us.

"AC360" starts now.