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Erin Burnett Outfront

Trump Warns Of "Bedlam" If He's Not Given Presidential Immunity; NTSB Searching For Unrecovered Door Bolts From 737 Flight; Trump Unloads Sharpest Attacks On Haley As She Rises In Polls; Pentagon Reveals Reason For Defense Chief's Hospital Stays; Final Epstein Docs Reveal Many More Mentions Of Clinton, Trump. Aired 7-8p ET

Aired January 09, 2024 - 19:00   ET

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

[19:00:41]

ERIN BURNETT, CNN HOST: OUTFRONT next:

Donald Trump making his case in court and not ruling out violence if his case is moved ahead.

The former Trump White House lawyer Ty Cobb is OUTFRONT.

And federal investigators looking for four bolts crucial to securing the door plug that blew off that Alaska Airlines plane. But were they ever on the door in the first place? I mean, it's an incredible question.

We go inside the investigation as Boeing calls an all emergency staff meeting.

And the Pentagon finally revealing what sent Defense Chief Lloyd Austin to the hospital twice even as the president and his own deputy were in the dark. Will the explanation be enough to save his job or make it worse?

Let's go OUTFRONT.

And good evening. I'm Erin Burnett.

OUTFRONT tonight, Trump threatening chaos. The former president warning today if his prosecution continues, very bad things will happen.

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER PRESIDENT: I think they feel this is a way they're going to try and win, and that's not the way it goes. There'll be bedlam in the country. It's a very bad thing.

(END VIDEO CLIP)

BURNETT: And Trump's actions actually match his words in this case because he chose to spend his day in a courtroom in Washington instead of on the campaign trail in Iowa. The first votes, of course, of the 2024 election are just six days away. And Trump was not in Iowa.

Just to be very clear here, he did not have to be in court. He chose to be there so he could make the case to a courtroom and to the television cameras there.

(BEGIN VIDEO CLIP)

TRUMP: I feel that as a president you have to have immunity, very simple.

(END VIDEO CLIP)

BURNETT: Of course, that argument is not very simple. I mean, the three-judge panel hearing the case were very skeptical today. Trump's team tried to say that Trump would actually be immune if he had ordered a murder while president.

(BEGIN AUDIO CLIP)

JUDGE FLORENCE PAN: Could a president order SEAL Team Six to assassinate a political rival? That's an official act, an order to SEAL Team Six?

D. JOHN SAUER, TRUMP ATTORNEY: He would have to be and speedily be, you know, impeached and convicted before the criminal prosecution.

(END AUDIO CLIP)

BURNETT: So there's back and forth about this whole, oh, do you have to impeach first and all of that. Well, then here's the judge again.

(BEGIN AUDIO CLIP)

PAN: I asked you a yes or no question. Could a president who ordered SEAL Team Six to assassinate a political rival who was not impeached, could he be subject to criminal prosecution?

SAUER: If he were impeached and convicted first.

PAN: So, your answer is no?

SAUER: My answer is a qualified yes. There's a political process that would have to occur.

PAN: Once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away.

(END AUDIO CLIP)

BURNETT: And here's how the Republican appointed judge on the panel called Trump's team out.

(BEGIN VIDEO CLIP)

JUDGE KAREN HENDERSON: I think it's paradoxical to say that his constitutional duty to take care of the laws he basically executed allows him to violate criminal laws.

(END VIDEO CLIP)

BURNETT: I mean, she did put it so clearly. It's almost as if when you say it that way -- but since Trump's team was talking about a murder today, a hypothetical murder, it's actually worth recalling something Trump said a long time ago, something he said almost as a joke that was at its heart even been deadly serious.

(BEGIN VIDEO CLIP)

TRUMP: I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn't lose any voters, okay?

(END VIDEO CLIP)

BURNETT: And so, here we are, eight years later, Trump's lawyers in court arguing even if he had ordered the murder of a political rival while president, he'd be immune from prosecution, unless he's been impeached and removed from office by Congress? As an American citizen, this is stunning argument to hear.

OUTFRONT now, Evan Perez.

And, Evan, you were in the court today for the oral arguments and you can see the president there. I know you were sitting and you could see the back of him. The judges obviously were skeptical as we were playing part of what they said, but you heard all of it.

So what happens next?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Well, Erin, what -- we have to wait to see whether this -- how this three-judge panel rules. And one of the things that John Sauer, Donald Trump's attorney, said near the end of his presentation was if you rule against us, we ask you that you put a stay on it so that we can continue appealing. That's a nod to the strategy that the former president and his legal team have, which is to try to buy more time, to try to push back the date of this trial, which right now is still scheduled for March 4th.

[19:05:12]

But that is obviously very, very doubtful. The former president as you pointed out, Erin, did not have to be there today. He was with -- gave rapt attention really to the three-judge panel. He listened to their questions, and then when the government began their presentation, James Pearce, who works on special counsel Jack Smith's team, he started writing notes, furiously writing notes, passing them onto his attorney, John Sauer.

Now, we don't know whether Sauer took any of those notes and actually made any presentations on it. Near the end of his presentation he did say, wanted to reiterate that he believed that what the former president is accused of, everything that he's accused of happened while he was in office, sort of motioning to Donald Trump, the former president nodded, again, very visibly. It gives you a sense of why he was there, which was to see with his

own eyes, to see what these judges were going to say. And look, it's very clear that they expect that this is not going to go their way, but the whole goal here is to try and delay this trial perhaps into beyond the election -- Erin.

BURNETT: Thank you very much, Evan.

And also as you point out crucial, you know, how intimately he is involved, and that he chose to be there. He does on some level grasp the gravity of it beyond obviously seeing the television -- you know, see the television camera outside the room but he grasps the gravity on some level.

All right. Evan, thank you very much.

And now, let's go as promised to Ty Cobb, the former Trump White House lawyer.

So, Ty, let's start off with where you stood on this prior to the arguments we heard today. You and more than a dozen other lawyers and government officials signed a friend of a court briefing, amicus curiae, in the D.C. Circuit Court of Appeals, and you all argue against Trump's immunity claim.

So did anything that you heard today from Trump's attorney change your mind?

TY COBB, FORMER TRUMP WHITE HOUSE LAWYER: Oh, absolutely not. In fact, I think, you know, Trump may have approached this with some optimism and attended with interest. But I think his lawyers knew that, you know, today would be a fateful day. Their legal arguments and constitutional arguments were largely specious.

I think that came out today. They basically abandoned I think as Judge Pan carefully extracted the concession that they had to make based on the law and the Constitution, that the only real argument they have -- they have conceded that under certain circumstances he could be prosecuted for even official acts, and they also conceded on the double jeopardy argument.

All they have left is the fig leaf of a negative inference from the impeachment judgment clause, which makes plain that if he is impeached and convicted, he's also subject to criminal jurisdiction and prosecution. There's -- it's silent as to, you know, a president who's impeached and not convicted. It's silent as to presidents who are not impeached.

Clearly, there is no guidance in the Constitution that provides the immunity that they have asked for.

BURNETT: Right.

COBB: And I think that ruling will come fast and forcefully.

BURNETT: So the judges did express skepticism, all three of them. You know, you mention Judge Pan. She said Trump's argument, quote, falls away when you lay out these -- the context of impeachment.

Judge Henderson called it paradoxical, and I thought the way she really laid it out is sort of one of these eureka moments. Okay, she put that really clearly, right? How can you --

COBB: Yes, no --

BURNETT: Yeah.

COBB: She definitely -- I mean, her point that, you know, it's hard for me to understand how you're saying his duty to faithfully execute the laws somehow allows him to be a criminal.

BURNETT: Right. I mean, it -- it is nonsensical in that sense. Sort of the way she put it was quite beautifully said.

But also, Ty, you know, again I was just sitting here as a citizen like anybody else watching, to hear the argument made in a courtroom if there's a situation where a president can order the murder of his political rival, right, through SEAL Team Six and that would be okay, you know, if he hadn't been impeached for it is a bit jarring. It stopped me in my tracks because they made it with great seriousness.

And because of that, I guess it put into context a bit perhaps some of the things Trump has said about the world leaders he most admires like these.

(BEGIN VIDEO CLIP)

TRUMP: President Xi is a brilliant man. How smart is Kim Jong-un? Top of the line. Putin, very smart.

(END VIDEO CLIP)

BURNETT: We know how those leaders and regimes behave.

[19:10:02]

When you talk about political rivals, it's one example. And we've been told, Ty, so many times not to take Trump literally. But in this moment, and it is a grave moment, would it be a mistake not to?

COBB: I think you have to take Trump seriously because he poses the gravest threat to democracy that we've ever seen. On the other hand, I think his legal arguments are, you know, interposed solely for delay. I think as the government's lawyer, special counsel's lawyer argued today that at the end of the day, it would be very scary if there's no accountability as Trump's counsel has argued for the types of conduct that have been charged here when a president tries to prevent the peaceful transfer of power and uses the levers available to him to subvert the Democratic, Republican electoral system.

I think the, you know, lack of accountability that he desires, which Putin has, ayatollah has, Xi has, as you -- as you allude to, he may want an American that is like that. But the Founders when they crafted the Constitution tried desperately and dutifully to make it plain that this was not going to be a country where we had a king. This was going to be a country where we had an accountable executive.

BURNETT: All right. Ty, thank you as always.

I want to go to David Axelrod now, the former senior advisor to President Obama, joining me from Des Moines tonight, just six days before those Iowa caucuses.

So, David, as you hear all this, what did you take away from the political perspective of the chicken and egg argument that we heard from Trump's attorneys in court today, that a president can't be prosecuted for crimes in office unless a president has already been impeached and we just run around and around in that circle.

DAVID AXELROD, CNN SENIOR POLITICAL COMMENTATOR: Yeah, you remember, Erin, that the argument made when there was an impeachment was that no, we can wait and let the courts handle this. So, you know, this is shifting scenario here.

But, look, you know, on the substance of it, it is -- it is frightening to hear a president's lawyers make the argument that he can do virtually anything, including murder and then have immunity for it when you have the president out there promising retribution, talking about the execution -- you know, executing the former head of the joint chiefs of staff.

But, you know, it is disturbing. As a practical political matter, you were raising the question before about why he would show up. I said for a long time, you know, in the 19th century, we had front porch campaigns. This for Trump at least in the term is going to be a courthouse steps campaign.

He thinks there's political value in showing up for the court because for his base, his aroused base, they believe that he's being persecuted and targeted for political reasons. This is his perverse -- perversion of the democracy argument. So I think he does it for you. I think that's why he shows up. He thinks it benefits him politically.

BURNETT: And you know what's interesting, I mean, you're in Des Moines, right? Six days away from the votes. He's not. And obviously, we hear your explanation as to probably why that is.

And yet it does show an incredible confidence with the polls which he, you know, expresses such disdain for. He believes them to be right. He believes himself to be in such a strong position without uncertainty there.

AXELROD: Yeah, I guess he's coming back, you know, to do a town hall tomorrow. I think that they should be confident. I've talked to people in all the campaigns and I think there's a broad consensus that he's going to win tomorrow and probably more -- I'm sorry, tomorrow, next Monday.

BURNETT: Right.

AXELROD: And probably by more than a little. But there's always and especially with caucuses on a very chilly night which is what's forecast for Des Moines, there's always concern when he shows up a lot of supporters are in rural areas where they have to drive 10 or 15 miles to participate in the caucuses.

So he wants an aroused base going into these caucuses, and he may be believe that showing up at the courthouse today and emphasizing the things he's emphasized will help light that fire under that base to come out at the caucuses.

BURNETT: All right. Well, thank you very much. And, of course, we'll see you tomorrow ahead of that debate, of course, here on CNN.

Thank you, David.

AXELROD: Thanks, Erin. Thank you.

BURNETT: And next, investigators trying to find the four bolts that held a door plug in place on that terrifying Alaska Airlines flight. A woman who was there and sat next to a teen whose shirt had been sucked out of the plane and almost sucked out himself from what we understand is my guest next.

[19:15:00]

And Nikki Haley is continuing to rise, and Trump is taking notice.

(BEGIN VIDEO CLIP)

TRUMP: If Nikki Haley got her way, most seniors would work their entire lives.

(END VIDEO CLIP)

BURNETT: How real is her surge?

Plus, breaking news. New court documents revealing Jeffrey Epstein pleaded the Fifth hundreds of times, including to questions about Bill Clinton and the magician David Copperfield.

(COMMERCIAL BREAK)

BURNETT: Tonight, federal investigators are looking for four bolts that were critical to securing the door plug that blew off the Alaska flight. Those bolts could lie at the center of the cause of that huge chunk ripping from the plane. It was flying at 16,000 feet and 177 people were onboard.

And what is incredibly disturbing about this even now is that the NTSB cannot say if the bolts were even installed on the plane in the first place.

Tom Foreman is OUTFRONT with this first report.

(BEGIN VIDEOTAPE)

TOM FOREMAN, CNN CORRESPONDENT (voice-over): An astonishing question raised by federal investigators, could it be that the plug which burst free of that Alaska Airlines plane forcing an emergency landing was not properly locked into place? After all, the National Transportation Safety Board has the plane, the plug, and lots of other evidence, but --

[19:20:01]

CLINT CROOKSHANKS, AEROSPACE ENGINEER, NTSB: We have not yet recovered the four bolts that restrain it from its vertical movement, and we have not yet determined if they existed there. That will be determined when we take the plug to our lab in Washington, D.C.

FOREMAN: While plugs are not normal doors, each can be opened somewhat like a normal door for maintenance according to this website by a former 737 pilot.

UNIDENTIFIED MALE: As it shows in this photo here, they open outwards and hinge downwards.

FOREMAN: Two bolts at the top and two at the bottom are supposed to prevent that. But the holes that are would have held those bolts aviation experts note show no signs of tearing or stress.

UNIDENTIFIED MALE: There's no apparent damage to the inside frame.

FOREMAN: And both Alaska and United say their inspections of plugs after the incident reveal loose hardware on other Boeing 737 MAX 9s.

Ed Pierson is a former Boeing employee turned sharp critic.

ED PIERSON, FORMER SR. MANAGER, BOEING 737 PROGRAM: It's completely unacceptable to leave loose bolts or anything like that. If one person makes a mistake, they might make a mistake on another plane and another plane. This is really disturbing.

FOREMAN: Four times in the past two months, pressurization warnings appeared on the jet involved and last just a minute before the plug flew out causing explosive depressurization.

At least, it wasn't cruising at 30,000 feet says the chair of the National Transportation Safety Board.

JENNIFER HOMENDY, NTSB CHAIR: Folks don't have seat belts on, they're going to restrooms. The flight attendants are providing service to passengers. We could have ended up with something so much more tragic, and we're really fortunate that that did not occur here.

(END VIDEOTAPE)

FOREMAN (on camera): Authorities say nobody was actually seated right next to the part where this plane blew open this way, so there is that. But amid the seriousness of all this, Boeing held a staff-wide safety meeting today which the CEO pledged they would fully and trance apparently cooperate with all of the investigation. And he said Boeing is acknowledging its mistake, but what exactly that mistake is we don't yet know -- Erin.

BURNETT: No, we don't. What a miracle no one was sitting in that seat.

Tom, thank you.

FOREMAN: All right.

BURNETT: As we learn those new details about the loose bolts found on MAX 9 Boeing planes, we're also hearing the remarkable story of a woman who was seated three rows in front of the huge hole in the Alaska flight. When a teenage boy just jumped into the empty seat next to her, and this boy whose shirt was ripped off from the force of the wind, the boy had been seating at the window seat just in front of the door plug when it blew out of the plane.

That passenger, Kelly Bartlett, is OUTFRONT now.

And, Kelly, I really appreciate your being willing to talk to me and relive this extremely traumatic experience that you had. But this moment is incredible. You hear this extremely loud boom, a chunk is ripped from the plane. You're sitting just in front of it so you're maybe trying to figure out what happened and this teenage boy jumps in the seat next to you, his shirt off -- ripped off.

I mean, can you tell me more about exactly what happened?

KELLY BARTLETT, PASSENGER WHO WAS SEATED NEAR BLOWN OUT ALASK AIRLINES DOOR: Yeah, it was crazy. It was just so scary when you it happened because you just hear that loud noise and the plane filled with wind and the masks dropped and something you don't want to be experiencing on flights.

So, it was chaos for a few minutes when everyone was putting their masks on. You know something was wrong but you don't know exactly what. We didn't know how serious it was. Like I said I was sitting in front of the hole, so it's behind me. And I didn't what was happening and so it wasn't until later we started putting all these pieces together to figure out why this person had jumped into the empty seat, why he had no shirt on and what was happening. So, it was definitely a scary moment.

BURNETT: I mean, to this kid, a teenager jumps in next to you, his shirt is ripped off. I mean, at this point, you become even more it terrified as you're trying to figure out what's going on.

Then, Kelly, though, you do something -- incredible presence of mind but also giving all of us just a brief moment of understanding what you were going through. It was so loud that you couldn't hear a thing even if you were screaming. I mean, just -- I don't know, for some reason, that brings this alive to me.

And so you take your phone and use the notes app to communicate with the teenager. And so, you're basically writing to him. So tell me about that.

BARTLETT: Yeah, yes, well, I mean I kind of wanted to figure out what was going on. And when I looked over my shoulder I saw a hole in the wall. And from my view the seats were obstructing the bottom part of the wall. So, I only could see the top and I thought just the window. So, I think just the window had blown out, and I figured that's where he came from.

And I ask him on my note, because like you said, we couldn't talk, we had our masks on and the plane was very loud. So I asked him were you hurt and said were you sitting there, and just through a little bit of chat. It wasn't much at all, but he told me he was okay physically.

[19:25:01]

I was worried -- I was really worried. But he told me he was okay physically. We kind he gave each other a thumbs-up to let each other know that it was okay, and for a moment, I mean, we were safe, we were buckled in and we had a mask on, and at that point, there was nothing else to do.

It was really great that he got -- he and his mom got away from that row and had other places to sit for the descent.

BURNETT: I mean, it's incredible. You know, as you share, he wrote that was unbelievable. My name is, Jack, by the way, thanks for your kindness. I mean, showing in him an incredible presence of mind to be able to respond to you in that moment.

I mean, he almost died, his shirt was ripped off. And the "Seattle Times" spoke exclusively with his mother, and she tells them that she saw his seat twisting backward toward the hole. She saw his seat headrest ripped off and sucked into the void. She sees her son's arms jerked upward. She pulls him towards her, filled with adrenaline as I've ever been in my life. I mean I'm sure she struggles to even find the words. This is what had just happened.

BARTLETT: Right, I know, and I couldn't imagine being that situation. That's why I didn't write very much, and he didn't either because, honestly, our adrenaline was both so high. It was super scary, nobody can really find the right words. There just really are no adequate words to describe, you know, the terror that you're feeling. And I cannot imagine what his mom must have been feeling like in that moment.

So, I mean, I was just glad to know he was safe, his mom was safe seated and we just needed to get back down on the ground. That was it.

BURNETT: Yeah. Well, Kelly, thank you so much.

BARTLETT: Thank you.

BURNETT: And next, is Nikki Haley the new Ron DeSantis? Because right now, she is in Trump's crosshairs. He is zeroing in on her. So what is behind her surge in the polls?

And is it really possible that she could beat Trump in New Hampshire? Or is that a lot of talk?

And the Pentagon announcing Defense Secretary Lloyd Austin is being treated for prostate cancer is the explanation for his secretive hospital visits, but even that was news to the White House.

(BEGIN VIDEO CLIP)

JOHN KIRBY, NSC SPOKESMAN: Nobody at the White House knew that Secretary Austin had prostate cancer until this morning.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[19:31:04]

BURNETT: Tonight, threatened. Former President Trump slamming Republican presidential candidate Nikki Haley as she rises in the polls.

(BEGIN VIDEO CLIP)

TRUMP: If Nikki Haley got her way, most seniors would work their entire lives right up until the end and then not live long enough to receive the benefits they earned and asked paid for.

(END VIDEO CLIP)

BURNETT: Of course, it's very different than what she's proposing, but it comes as a new CNN poll shows Haley surging in New Hampshire, rising 12 points from CNN's November poll and cutting Trump's lead to single digits.

Kristen Holmes is OUTFRONT.

(BEGIN VIDEOTAPE)

TRUMP: Hello, Iowa, very, very happy New Year.

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT (voice-over): Days out from the Iowa caucuses, Donald Trump and his team are ramping up attacks on GOP rival Nikki Haley.

TRUMP: Nikki Haley has been in the pocket of the open border establishment donors her entire career.

HOLMES: During campaign stops in Iowa, leveling his sharpest attacks on Haley to date.

TRUMP: She's a globalist. You know, she likes the global. I like America first.

Haley recently said Iowa voters will need to be corrected by other states. No, I don't know if that's -- look, I don't know. But it doesn't seem nice, right?

HOLMES: Quote, all the lame nicknames in the world don't change the fact that Donald Trump is clearly terrified of Nikki Haley's momentum, Haley's communication director said in a statement.

Haley has seen a rise in poll numbers in both Iowa and New Hampshire.

NIKKI HALEY (R), PRESIDENTIAL CANDIDATE: It is six days until caucus. We have been waiting for this.

HOLMES: While Trump maintains a sizable lead in Iowa, a new CNN poll shows Haley has trimmed Trump's lead to single digits in New Hampshire.

The former president has tried to diminish her rising poll numbers.

TRUMP: That's because it's fake.

HOLMES: But his team is really taking her seriously.

While they stopped spending money on ads attacking Florida Governor Ron DeSantis, Trump's campaign and the super PAC supporting the former president are spending a combined $4.5 million targeting Haley in television ads. MAGA Inc. alone spending $1.3 million a week in New Hampshire, slamming the former South Carolina governor on immigration.

Last week, the campaign targeted Haley on the same message.

AD ANNOUNCER: Haley and Biden oppose Trump's border wall.

HOLMES: Haley hitting back.

HALEY: Just because President Trump says something doesn't make it true. He's taking snippets of things I said. I said you shouldn't just do the border wall, you have to do more than that. That's what I said.

HOLMES: A Trump advisor told CNN they will continue to go after her on immigration as they believe it's a top issue in the Granite State.

Trump has complained both privately and publicly about Haley who served as ambassador to the United Nations under his administration, calling her disloyal.

TRUMP: Nikki would sell you out just like she sold me out.

HOLMES: Haley for her part has also sharpened her attacks on the former president.

HALEY: Chaos follows him, and we all know that's true. Chaos follows him, and we can't have a country in disarray and a world on fire and go through four more years of chaos. We won't survive it. And you don't defeat Democrat chaos with Republican chaos.

(END VIDEOTAPE)

HOLMES: And, Erin, I am told that Trump's campaign has also been closely monitoring internal polling that has Haley rising in Iowa as well. A senior Trump campaign advisor insisting to me today that their strategy has not changed. They say that Donald Trump has always said he would set his sights on whoever is in second place. And now that appears to be Nikki Haley -- Erin. BURNETT: All right. Thank you very much, Kristen.

So, now, let's go beyond the numbers with Harry -- Enten, at least anybody needs to know. You're -- I think you're a one-namer now.

HARRY ENTEN, CNN SENIOR DATA REPORTER: Thank you.

BURNETT: OK. Can someone come back -- first of all, she has surged. We talk about the 12-point surge.

ENTEN: Yeah.

BURNETT: So the surge in recent weeks has been dramatic, but right now, 7-point poll deficit in New Hampshire two weeks to go until the primary. Has anyone closed that gap?

ENTEN: Absolutely. In fact, there are four examples through history that we can list for you that close that gap. So, you go back to 1984, Gary Hart did it.

[19:35:02]

You go back to 1996, Pat Buchanan did it.

But, of course, also, two future nominees who did. John Kerry was way behind Howard Dean at this point in 2004 in New Hampshire. And John McCain was well behind Mitt Romney in 2008 in New Hampshire, and both of them went onto be the nominee.

So the answer to your question is 100 percent absolutely Nikki Haley can close that gap in New Hampshire and maybe go on to win nationally as well.

BURNETT: Okay. So who is fueling her rise in New Hampshire?

ENTEN: Yes. So, if you know one thing about New Hampshire, it's that independents play a major role in that primary, perhaps more so than any of the other voting states. What we see is among Republicans, in fact, Nikki Haley is still well behind Donald Trump. But if you look among independents, look at that, she's up by 35 points. She's down by 23 points among Republicans.

And I will point out, Erin, this sort of way of doing things, winning independents in New Hampshire has worked before for a number of folks who went onto win New Hampshire. So if you look back in 1984, you saw Gary Hart. He was able to win because of independents. He outperformed what he did with Democrats by 22 points.

You look in 2000, John McCain outperformed what he did among Republicans by 47 points with independents.

BURNETT: Right.

ENTEN: So the fact is, using independents in New Hampshire, it does work to fuel a victory there. BURNETT: Right, and as you point out when you showed Gary Hart, you

also showed John McCain who did go on to win. And that's the real question.

Now, in Iowa, it was interesting out there last week. You know, you can register as a Republican up until caucus day and vote, but you've got to register and be a Republican. And, obviously, New Hampshire is extremely different. So, which has a better record of predicting the eventual nominee? Iowa, where you got to register as a Republican, or New Hampshire where obviously independents played this outsized role?

ENTEN: The answer is New Hampshire on the Republican side. In fact, there are only two examples of Republicans who won Iowa and lost New Hampshire and went onto be the nominee. Dole in '96, and Bush in 2000.

And the thing I should also point out is, you know, polling isn't the only metric where we see that Nikki Haley is doing very well in New Hampshire. We see it in Google searches as well. There are a lot of people who are interested in Nikki Haley searching for her. She has twice as many searches in New Hampshire than she does in Iowa and five times as many in New Hampshire is nationally.

BURNETT: Right, and, obviously, right now, that is -- that says so much.

OK. Harry, thank you very much.

ENTEN: Thank you.

BURNETT: And next, the Pentagon announcing that the Defense Secretary Lloyd Austin is being treated for prostate cancer. But a journalist who's long covered Austin and many other defense secretaries says it's time for him to go.

And breaking news, Jeffrey Epstein pleading the fifth hundreds of times -- hundreds in new legal support documents, as OUTFRONT looks at how Epstein actually built his fortune. Where the heck did he come from? How did he get in those powerful social circles? A special report coming up.

(COMMERCIAL BREAK)

[19:41:35]

BURNETT: Tonight, the Pentagon finally announcing why Defense Secretary Lloyd Austin had two secretive stays in the hospital, revealing that he was hospitalized on December 22nd for a procedure to treat prostate cancer. A hospitalization Austin did not inform the White House or his own deputy about at the time, despite being under general anesthesia.

The Pentagon also now confirming that when Austin returned to the hospital in an ambulance in severe pain on January 1st, he was diagnosed with a urinary tract infection. And, obviously, of course, you know, he stayed in for many days. Now, again, Austin did not tell the White House about it. And the

White House revealing in fact it only found out that the defense secretary of the United States had prostate cancer today.

(BEGIN VIDEO CLIP)

KIRBY: Nobody at the White House knew that Secretary Austin had prostate cancer until this morning, and the president was informed immediately after.

(END VIDEO CLIP)

BURNETT: Significant there. John Kirby not trying to mince words or anything, just putting the facts out there.

OUTFRONT now, Fred Kaplan, the Pulitzer Prize-winning journalist and national security columnist for "Slate". He's covered the Pentagon and Secretary Austin extensively. He published an op-ed before today's news titled why the secretary of defense's mysterious disappearance means he needs to go.

And, you know, everyone can read a lot of your reasoning there in that, Fred. But has anything changed your mind that we've -- I mean, this was before today when you found out that the White House only found out about his diagnosis of cancer today.

FRED KAPLAN, NATIONAL SECURITY COLUMNIST, SLATE: I think it solidifies this view. I mean, look, we are on the edge of war in a couple of different theaters. You know, deployed aircraft carriers into the Mediterranean. They're going to be used possibly. If the president wants to give an order to the combatant commander in the Middle East or anyplace to use offensive force, that order goes through the secretary of defense.

If there's a senior meeting of the cabinet level officials in the National Security Council, the secretary of defense represents the entire Department of Defense. If he's not going to be there, you know, that's fine, he has a medical whatever. There are procedures for notifying the deputy secretary of defense.

The deputy was called on vacation in Puerto Rico to say you're going to have to assume some of his duties without being told why, without being told he was in the hospital.

BURNETT: And she's on vacation.

KAPLAN: She's on vacation. I mean, if she knew that he's in the hospital, he's under anesthesia, she probably would have got on a plane and come back.

BURNETT: Right.

KAPLAN: So, now, we learned just today the president didn't even know why he was in the hospital. I mean, I don't think he can be trusted. It sounds like he was trying to save his job. He was -- he was keeping vital strategically important information from the president, from the deputy national security advisor, from the national security advisor, perhaps to save his own skin. It's unclear why, but in any event I don't see how trust in him can be --

BURNETT: I mean, it's incredible. Just to be clear, the president learns Austin was in the hospital days after, right?

KAPLAN: Days after.

BURNETT: December it 22nd, he goes in for a prostate procedure. So, obviously, he had a diagnosis of cancer well before that.

KAPLAN: Didn't know -- didn't know about that that all.

BURNETT: Didn't know about that at all, never knew about that. Then he goes back to hospital with a severe pain and forced to go in in an ambulance.

KAPLAN: First, the president finds out on the 4th.

BURNETT: Okay, but then John Kirby admits. And then -- OK, then they have a conversation, Biden and he finally have a conversation.

[19:45:00]

KAPLAN: This is the other thing --

BURNETT: He doesn't tell him he has prostate cancer.

KAPLAN: Right, bizarre.

One other thing worth nothing -- he was nominated to be secretary of defense because he and Biden had had a previous relationship, a fairly close relationship. And that's fine, but we're in the middle of a bunch of crises.

BURNETT: Yeah.

KAPLAN: The president doesn't even know the secretary of defense is missing in action for four days. In other words, he hasn't gotten on the phone with the secretary of defense. It shows he's not really an essential player. If he was in essential player like I can't get rid of him, he's a vital member of my team, he's involved --

BURNETT: He wouldn't be able to disappear for four days.

KAPLAN: Well, that's exactly right.

BURNETT: Yeah, that's a layer -- an important layer that you point out.

All right, Fred, thank you very much.

KAPLAN: Sure.

BURNETT: I hope everyone agreed as you say it only solidifies your point of view, but, again, your op-ed on why the secretary of defense's mysterious disappearance means needs to go. Thank you so much.

KAPLAN: Thank you.

BURNETT: And next, the breaking news. We have the new court documents just released on Jeffrey Epstein. He went from being a math teacher with no college degree to the center of really one of the most elite social scenes on this planet. How, how? We have a special report tonight.

And armed men interrupting a live TV broadcast taking hostages. What and where.

(COMMERCIAL BREAK)

[19:50:11]

BURNETT: Breaking news, the fifth and last batch of court documents related to sex offender Jeffrey Epstein just has been released. And Epstein pleads the Fifth hundreds of times.

Former Presidents Bill Clinton and Donald Trump are both mentioned numerous times again.

And Jean Casarez has been going through these new pages and joins me now.

And, Jean, now you have been through every single thing that has been released. I mean, what are you finding in this latest batch?

JEAN CASAREZ, CNN CORRESPONDENT: Five thousand pages have been released. But what is brand-new is the deposition of Jeffrey Epstein, the actual deposition. He states his name, but then for the next five hours, he pleads the Fifth.

And, so, because of that, we really don't know what he answered, but we do know some questions. There were many questions to him about sexual abuse, right, of him. But also many questions about Bill Clinton, and he was asked -- here's an example. When Bill Clinton came to your island, he was accompanied by two young women approximately 18 years old, right? His response, fifth.

And then -- now we do want to say that Bill Clinton has never been accused of any crimes or wrongdoing, as people have always said. Yes, he was on the plane. He was never on the island. And Virginia Giuffre in her own deposition actually said that she was not aware at all that former President Bill Clinton or Donald Trump engaged in any, any times of sexual abuse crimes.

Now, David Copperfield was also mentioned in all of this. Here is a question posed to Epstein about Copperfield. Based on everything I know in this case, the attorney says, it would seem logical you provided girls under the age of 18 to David Copperfield for sexual purposes. Am I missing something, or can I reach that conclusion? Fifth.

Now, here's what's interesting -- 30 pages of the deposition of Jeffrey Epstein remain sealed tonight. They are still sealed in that veil of secrecy.

(BEGIN VIDEOTAPE)

CASAREZ (voice-over): Much of convicted sex offender Jeffrey Epstein's life remains a mystery, from how he accumulated his multi-million dollar fortune to how he developed ties to incredibly influential people.

UNIDENTIFIED MALE: Could you please give us your name?

JEFFREY EPSTEIN, SEX OFFENDER: Jeffrey Epstein.

CASAREZ: From former Presidents Bill Clinton and Donald Trump, actor Kevin Spacey, Microsoft founder Bill Gates, magician David Copperfield, Google co-founder Sergey Brin, and even Saudi Crown Prince Mohammed bin Salman, Epstein associated with an elite circle. He owned lavish properties in Manhattan, Palm Beach, Florida, New Mexico, Paris, and a private island in the Caribbean, according to court filings. He also owned at least 15 vehicles and had access to two private jets.

Born in Brooklyn to working class parents, he actually never received a college degree. But that didn't stop him from getting a job teaching mathematics at the prestigious Dalton School in New York City. It was there he tutored the daughter of Bernstein chairman Alan Greenberg and wound up getting a job at the investment bank. There, he met billionaire Leslie Wexner, who ran L Brands and Victoria Secret. And Epstein not only became his money adviser, but was given power of attorney over finances.

In the '80s, Epstein began operating his own money management firms. In the early '90s, Ghislaine Maxwell, a British socialite would become his Epstein's lifelong companion. For years, the pair would host billionaires, politicians and celebrities. But in 2005, Epstein was accused of paying a 14-year-old girl for sex and was criminally charged in 2006.

Epstein was charged with Florida state prostitution crimes. He pleaded guilty in 2008, served 13 months in a jail work release program and registered as a sex offender.

Despite his criminal conviction, Epstein and Maxwell continued to mingle with the rich and famous and continued to recruit young girls for massages, a code word for sexual services according to the court documents. But 11 years later, Epstein's legal troubles caught up with him again. Wexner wrote that Epstein, quote, misappropriated vast sums of money from Wexner and his family more than a decade ago, over $46 million, according to the "The Wall Street Journal".

And in July 2019, a federal indict indictment charged Epstein with sex trafficking and conspiracy to commit sex trafficking.

UNIDENTIFIED MALE: Epstein is alleged to have abused dozens of victims by causing them to engage in sex acts with him at his mansion in New York and at his estate in Palm Beach, Florida. CASAREZ: While awaiting trial in New York, Epstein died by suicide,

denying justice for his victims and leaving so many questions forever unanswered.

(END VIDEOTAPE)

[19:55:06]

CASAREZ (on camera): And in the last five days, we have brought you what we know from those unsealed documents.

Here's what we don't know. We don't know who the actual clients were that participated in sexual abuse of girls.

BURNETT: And that is the most incredible thing, what we still don't know and whether we will ever know that.

Thank you so much, Jean.

And, next, the incredible video of armed men storming a television station in a string of potentially coordinated attacks. We'll tell you what we know.

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BURNETT: Tonight, Ecuador's president declaring a, quote, internal conflict in the country. There was a stunning incident in which gunman took over a live television broadcast, incredibly violent. Viewers were stunned. They actually watched the men forcing the station staff on to the floor, hearing shots in the background.

It is the latest in a string of violent incidents unfolding after a national state of emergency was declared after the escape of a notorious gang leader from prison. Since then, another gang leader has escaped from a different prison. And the situation is deteriorating, largely driven by rival criminal organizations battling to control drug trafficking routes.

And our David Culver reported OUTFRONT last night, Ecuador is a central part of a massive underground operation that is smuggling immigrants illegally into the United States of America along that southern border.

Thanks so much for joining us.

"AC360" starts now.