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Trump Meeting Mitt Romney Again; Carrier to Retain Jobs In U.S.; Burning American Flag; Trump Stifling Free Speech; Citizens Respects Flag's Symbolism; Trump To Drain The Swamp. Aired 10-11p ET

Aired November 29, 2016 - 22:00   ET


[22:00:00] DON LEMON, CNN HOST: Guess who's coming to dinner, at one of New York's fanciest restaurants.

This is CNN TONIGHT. I'm Don Lemon.

President-elect Trump has dinner tonight with Mitt Romney and Reince Priebus, but is a job offer on the menu? Or will Romney be left with nothing but a doggy bag?

This as Donald Trump gets what appears to be a big win, a deal with Carrier that will keep nearly a thousand factory jobs in Indiana. And just moments ago, Donald Trump and Mitt Romney wrapped up their dinner at New York's Jean-Georges restaurant. No coincidence. It's at the Trump international hotel. Listen to what a gracious Romney had to say.


MITT ROMNEY, FORMER MASSACHUSETTS GOVERNOR: I had a wonderful evening with President-elect Trump. We have another discussion about affairs throughout the world and these discussions I've had with him have been enlightening and interesting and engaging. I've enjoyed them very, very much.

I was also very impressed by the remarks he made on his victory night. By the way, it's not easy winning. I know that myself. He did something I try to do and was unsuccessful in accomplishing, he won the general election.

And he continues with a message of inclusion and bringing people together and his vision is something which obviously connected with the American people in a very powerful way.


LEMON: And our Jim Acosta asked Donald Trump whether Romney will be his secretary of state. The answer, quote, "Well, we're going to see what happens."

There's a lot to get to. Mark Preston, Dana Bash both here this evening. Hello to you, both of you. Mark, I'm going to start with you. You have some new reporting on Donald Trump delivering of his campaign promises and also on this, what happened at Trump Tower. What can you tell us?

MARK PRESTON, CNN POLITICS EXECUTIVE EDITOR: Right. So let's just start with these jobs...


LEMON: Or at Jean-Georges.

PRESTON: Sure, at the Jean-Georges. Let's just start out in Indiana, though, first.


PRESTON: You know, Donald Trump had made a big deal about keeping manufacturing jobs here in the United States. It's something that helped have him win. Well, we saw from United Technologies today, which is the parents company of Carrier, they put out a tweet that said, "We are pleased to have reached a deal with the President-elect Trump and V.P.-elect Pence to keep close to 1,000 job in Indiana or rather in Indi."

Let's just talk about just this a little bit. There were 1400 jobs that were on the block in Indianapolis. There were another 700 in a town nearby. Carrier about a year ago said that they were going to move these jobs they were going to shut these plants down. We're seeing right now that at least 1,000 of those jobs are going to stay.


LEMON: You said it's close to 1,000?

PRESTON: Yes, I'm sorry. Close to 1,000, but there are 2100 jobs that were on the line. So, we still don't know what the deal is and we don't know what's going to happen to those other jobs. What we do know, though, is that United Technologies is also a very big defense contractor. They get about $5.6 billion a year from U.S. taxpayers so you have to wonder if that was part of a deal that Donald Trump said will start hold this contract.

LEMON: Dana, before you weigh in, here's what Donald Trump said at a rally last April. Listen to this.


DONALD TRUMP (R), PRESIDENT-ELECT: They're going to call me and they're going to say, "Mr. President, Carrier has decided to stay in Indiana. Thank you, sir."


And by the way, 100 percent, OK? One hundred -- it's not like we have an 80 percent chance of keeping them or a 95 percent. One hundred percent.


LEMON: Yes. So, Dana, we don't know the details. It wasn't 100 percent of the jobs.


LEMON: But it was, you know, 800 to a thousand.

BASH: Fifty percent.

LEMON: Fifty percent of the jobs.

BASH: Right.

LEMON: So, I mean, that's pretty symbolic...


BASH: But it's better than zero percent.

LEMON: .. given that he's not even in the White House. Yes. Given that he's not even in the White House yet and you have to give him his due.

BASH: No question about it. Look, as you all said, we don't know what the stick was to get this carrot, if you will, but what we do know is that if Carrier itself sent this tweet out, it's very telling.

And that Donald Trump and Mike Pence, we should say who is still the governor of Indiana, are going to go there later this week and, you know, have a rally and talk about this.

Look, this is and was a very, very big deal. Politically this announcement happened right before the Indiana primary. You remember, the Indiana primary was the one that actually put Donald Trump over the top. It made him the effective nominee for the republican presidential -- the republican presidential nominee, rather, and Ted Cruz dropped out.

The Carrier situation happened like in the days before that primary. So, this is something that has been near and dear to Donald Trump's heart, because of that, because of fact that jobs -- and jobs going overseas has been and had been one of his top issues and because of course, because his vice president is the governor of Indiana.

LEMON: And, Mark, let's talk about this last episode and the latest episode of "The Apprentice," Mitt Romney and Donald Trump meet for dinner.

[22:05:04] PRESTON: Right.

LEMON: So fill us in on the details. We saw some of it, there he is with Reince Priebus at Jean-Georges which is just right across from where we are at the Trump hotel and tower.


LEMON: Shocking that he would pick that hotel.



LEMON: That restaurant I should say.

PRESTON: Keep it in the family.


PRESTON: You know, first of all, Jim Acosta was in the restaurant and literally witnessed them having a dinner, which probably was a little unsettling, I think, for the participants. But from what I understand from people in the restaurant, was able to speak to somebody who was also there, you know, and witnessed this conversation is that it was very collegial, very cordial.

There's a lot of laughing going on. And what I think was very telling is what Mitt Romney said and we showed the clip right at the very top, what he said about Donald Trump when he said, "By the way, it's not easy winning, I know that myself. He did something I tried to do and was unsuccessful in accomplishing. He won the general election."

Why this is important because there had been a lot of talk within Trump circles that Mitt Romney had to apologize if he was going to become secretary of state for all the bad things that he had said about Donald Trump.

Now there is no way that Mitt Romney is going to come out and apologize in a way that I think...


LEMON: That was the apology in a sense?

PRESTON: Well, as someone in the transition orbit told me, this is the beginning of the mea culpa of Mitt Romney and he's saying all the right things.

LEMON: OK, let me ask you this, because this is -- it's a lot of people said bad things about Donald Trump.


LEMON: Some people who are close to him. If we could re-rack and play the tapes, why would Mitt Romney have to apologize and they would have to apologize some of them who worked for him now.

PRESTON: Well, because Mitt Romney, I mean, if we went back and re- racked the Mitt Romney tapes, I mean, he was...


LEMON: Let's play some of it.

PRESTON: Let's hear. Right.

LEMON: Here it is.


ROMNEY: Donald Trump is a phony, a fraud.

TRUMP: Mitt was a disaster as a candidate.

ROMNEY: He's playing the members of the American public for suckers.

TRUMP: Romney let us all down. He was a very poor campaigner.

ROMNEY: He gets a free ride to the White House and all we get is a lousy hat.

TRUMP: Romney choked like a dog, he choked. He went...

ROMNEY: His promises are as worthless as a degree from Trump University.

TRUMP: I have a lot of friends. No, I have a lot of friends. By the way, Mitt Romney is not one of them.


LEMON: Go ahead Mark Preston and Dana.

PRESTON: Well, first of all, this is how Dana and I usually talk to each other when we're working together in Washington, D.C. That's why we're so close. Look.

BASH: All with love.

PRESTON: All with love. The difference is, and let me pass it off to Dana, is that Mitt Romney went out and gave a specific speech.

BASH: Exactly.

PRESTON: When he went to tear down Donald Trump and then try to run a third-party candidate against him.

LEMON: But Dana, if we played some of Chris Christie's remarks, if we played even some of -- granted, they were not as harsh, even some of his campaign managers...

BASH: Yes.

LEMON: ... you know, Kellyanne Conway's remarks...


BASH: That's true. Right on your show.

LEMON: On this show. Not nice things to say about Donald Trump. And I don't understand why Mitt Romney needs to apologize. I know he gave a specific speech and they don't need to apologize. What gives here? BASH: I think Mark said it exactly right. That they were making

comments in the heat of battle because they were representing other candidates. In Chris Christie's case he was representing himself, he was the opponent of Donald Trump.

Mitt Romney made an effort, a concerted effort to write the speech, which we remember real-time we reported he wrote himself, and to -- and to announce to the world in very, very excruciating detail but also really biting criticism about the core and character of who he thinks Donald Trump is and the reason why he shouldn't be president. That's really different from the others.

I mean, and, by the way, this is the most recent republican nominee making that statement.

LEMON: Right.

BASH: It was a -- it was a really monumental time.


BASH: So that's the reason why. Now, having said that, I agree with Mark 100 percent that I thought the most telling part of Mitt Romney's remarks, first of all, that he came out to make remarks to reporters at all. And made an effort to say winning is not easy and I couldn't do it and he did it. I mean, applause to him.


BASH: I was talking to somebody going into this dinner saying, OK, what is Donald Trump really thinking the whole time. And this is somebody who's close to him, said he's thinking this guy is never going to be loyal to me.

Now, whether or not that's true, who knows. Maybe this is a complete turn-around in this dinner and Reince Priebus, who was there, who is the incoming White House chief of staff we know from our reporting has been one of the biggest proponents of Mitt Romney as secretary of state.

So, you know, it would -- it would certainly not be the biggest surprise if Donald Trump decided after this dinner, you know what, I'm in.

LEMON: How much loyalty is there in politics anyway. Stand by you two, because I also want to talk about this. Because Donald Trump also criticized Mitt Romney when Mitt Romney was running as well.

And if you listen to the remarks from just this season on the campaign trail, Donald Trump was very critical of Mitt Romney as well this season.

[22:10:03] So, I want to bring in now Kevin Sheridan, who is a senior advisor on the Romney-Ryan presidential campaign. Thank you for joining this panel. You know Mitt Romney very well. These two men could not have been more

different, although they both have business successes -- success in common. Do you think that he will be the secretary of state in the Trump administration?

KEVIN SHERIDAN, FORMER ROMNEY-RYAN SENIOR ADVISER: I have no idea other than what I read and what I see on your air. I can -- all I can say is that if Donald Trump wants to pick the best people for his cabinet, and it seems like that's what he's doing, his criteria seems to be he's just looking for the best people, Mitt Romney would be a great choice for that.

Now, I have no inside knowledge to what anybody is thinking here, I'm just reporting on what I know from what I read. But Mitt Romney is a turnaround artist and he could obviously do a lot of good at the State Department and turn that organization around and be a good secretary of state.

But I have no idea what their conversation was like. I have no idea whether or not they could get on the same page in terms of being, you know, a voice and a face for Donald Trump's foreign policy.

But, look, it's a good sign that they're talking. It's a good sign the party is coming together. I continue to believe that this is good for the party and good for the country that these two men are talking.

LEMON: Kevin, do you agree with Dana and with Mark that Mitt Romney's criticism was sort of above and beyond everybody else's criticism and that he, in some way needed to apologize to Donald Trump.

SHERIDAN: Look, I think this was a very heated last year and the Republican Party frayed in a lot of different ways. And there were some things said between candidates I've never heard before in politics in 20 years in politics. And I think that goes a lot in different ways.


LEMON: That put them lightly.

SHERIDAN: Yes. Some of that was, you know, Donald Trump saying it's other people. He, you know, he got very personal with people and other people got very personal back with him. Look, everybody has now come together. We've got a unified republican governor -- government for the first time in years. This is a very good sign.

LEMON: Does Romney want this job?

SHERIDAN: I have no idea. I would think that he would -- he would strongly consider anything he was offered, but I have no idea whether or not he would ultimately take it.

LEMON: Kevin, Dana, Mark, thank you all. I appreciate it.

BASH: Thanks, Don. LEMON: When we come right back, Donald Trump is filling his cabinet,

but what do his choices tell us about what to expect for the next years?


LEMON: The president-elect kicks off his thank you tour across the Midwest later this week. A return to the massive rallies that animated his campaign. But soon enough. Enough he'll have to turn to the hand -- the hard work of governing, I should say. So, is he ready to make America great again?

Here to discuss, New York Times columnist Nicholas Kristof. Nicholas, good evening to you.

We've been watching this transition take place. On one level he's got the tweets, he's got Steve Bannon appointment, he's got, you know, some controversial appointments. He's got the press that he's been criticizing. But then he's also making some headway in his transition. What strikes you the most about this transition and his cabinet?

NICHOLAS KRISTOF, NEW YORK TIMES COLUMNIST: I mean, guess a couple of things. One is that for a populist, some of the folks who are going to be storming Washington aren't carrying pitchforks, they're carrying Swiss bank accounts.

We have Penny Pritzker in the Obama administration as Secretary of Commerce was the first billionaire ever to serve in a cabinet position. I mean, so far we -- it looks like we'll have Wilbur Ross as commerce secretary, we've got Betty DeVos as education secretary, and Trump himself and you know, who knows else who else will come along in the Trump cabinet.

And I guess I'd also say that yes, some of the first appointees, I mean, Bannon, Mike Flynn the national security advisor just I think sent waves of terror around the world. If the secretary of state is Mitt Romney, is Dave Petraeus, somebody like that, I think that will be clearly reassuring from a pretty low bar.

LEMON: Yes. We have been looking at these Twitter storms and you mentioned all these people, right, the Bannon's and so forth. In the midst of that also while that was happening the Twitter storms. And do you think that was a distraction from some of the people he was appointing?

KRISTOF: Well...


LEMON: And from some of the conflicts of interest?

KRISTOF: I mean, yes, I think that some of the Twitter storms were an intended distraction. I think that, you kow, when we in the media try to cover some conflict or some other issue, then Trump has been very, very shrewd at unleashing some tweet and we all go scurrying off after it, like dogs chasing a car. So I think he's been quite effective in manipulating us to that

extent. I must say, though, you know, President Obama put out exactly one tweet as president-elect and it was a very noble thing about thank you for bringing about change.

And it really is kind of different to have a president-elect watch a TV show and fly off these tweets into the ether. I mean, you kind of wonder, if that's how he's going to try to manage the world over the next four years.

LEMON: It is very interesting, especially when a lot of them are not -- are not true at all. One wonders what happens as president, because it's not just you know, I mean he's the president-elect, the whole world will be watching. They're watching now. But when he's president it's a different story.

KRISTOF: That's right. I mean, the comments of the lowliest press secretary in the State Department are vetted 18 times before they are -- because people around the world are watching it, the president even more so.

And the notion that the president is going to be watching what's happening in North Korea and firing something off that will shape the world I think is really troubling.

LEMON: He said his second meeting with Mitt Romney tonight and here's what Romney had to say about it. Listen to this.


ROMNEY: I happen to think that America's best days are ahead of us. I think you're going to see America continue to lead the world in this century.

And what I've seen through these discussions that I've had with the President-elect Trump, as well as what we've seen in his speech the night of his victory, as well as the people he selected as part of this transition all of those things combined give me increasing hope that President-elect Trump is the very man who can lead us to that better future. Thank you.


LEMON: He says we're going to see what happens next. What do you think happens next?

KRISTOF: Well, that wasn't an apology but it was certainly a different admiring...


[22:20:02] LEMON: That Donald Trump is a phony, a fraud.

KRISTOF: A long way from that. And you know, indeed I do think that it would be a shrewd appointment by Trump. And that you know the moment there is prize everybody is going to forget about the bad blood in the past and they are going to be looking to what is the U.S. doing about it.

I think that Romney doesn't know a lot about foreign affairs, he's not immensely experienced in it, but he does inspire confidence on the part of just about everybody. I think that at the assistant secretary of state level he would be able to attract to top flight republican talent in a way that Giuliani, for example, would not.

LEMON: Do you think it bothers Donald Trump that Mitt Romney appears more presidential than he does? If you were looking at -- the two standing together, you would think Mitt Romney was the president.

KRISTOF: You would certainly would. And President-elect Trump is sometimes seen as just a wee bit insecure. But on the other end, he said he wants a secretary of state who looks the part. And you know, Romney is from central casting.

LEMON: Yes, some people have pointed out that during the campaign that actually when you do the transition and you know, you're establishing a cabinet, the governing is actually the toughest part of this.

Do you think that we're going to see a difference? Because I think he's actually making headway. I think he's actually putting his cabinet together pretty quickly.

KRISTOF: He is putting his cabinet together really quickly. I'm -- I mean, I really am troubled by some of the appointments. Mike Flynn, I --you know, the idea of Mike Flynn as national security advisor and trying to listen to what the Pentagon is saying, what State Department is saying, what energy department is saying trying to formulate a foreign policy, you know, I can't imagine him being appointed by any other administration.

Some of the other appointments I think are much more mainstream and Trump is not an ideologue. He's sort of an empty vessel for ideology. He's also not an interventionist. If you're going to have a really impetuous person, it's best that he be a non-interventionist.

LEMON: Of some of the people in his cabinet, I mean, there's pretty sort of classic republicans and, you know, he talks a lot about draining the swamp but these folks have been around for a while, most of them. I know that you're troubled by some of them. But besides that, does any of that surprise you, does any of this feel like a new breed to you?

KRISTOF: Well, I mean, Elaine Chao I think is reassuring she knows Washington incredibly well and I think she was really a shrewd pick. Because if you're trying to have infrastructure spending and one of the obstacles is Senate republicans who are worried about how to finance it, then the wife of the senate majority leader is probably a pretty shrewd lobbyist on your behalf.

So, you know, I think so far it's been a mix. I think it's still a little bit too early to see how the overall shape of the cabinet will be. And a lot will depend how they -- you know, where does Betsy DeVos take education. So pretty unclear. LEMON: Thank you. Always a pleasure.

KRISTOF: Good to be with you.

LEMON: We're glad you're OK.

KRISTOF: Thank you.

LEMON: I heard about your ordeal on Twitter, yes, harrowing.

KRISTOF: Well, I'm all well now. I testified against the guy today, so.

LEMON: Good. All right. Look it up, if you guys are interested in what happened.

When we come right back, Donald Trump suggest if you burn the American flag you should lose your citizenship. But does he really mean it? Or is it all a distraction.


LEMON: The president-elect's latest Twitter tirade erupting in a political firestorm. Trump suggesting if you burn the American flag, you could lose your citizenship.

Let's discuss now. Alan Dershowitz is here, the author of "Electile Dysfunction: A Guide for Unaroused Voters." Also CNN senior legal analyst Jeffrey Toobin, and Bryan Garner who co-authored two books with his friend, the late Antonin, Justice Antonin Scalia. Good evening to all of you. Thank you so much for coming on.

Jeffrey, I'm going to start with you. Flag burning a very emotional issue. I think we probably discussed it before but I'm going to read Donald Trump's tweet early this morning. He said, "Nobody should be allowed to burn the American flag. If they do, there must be consequences. Perhaps loss of citizenship or a year in jail."

So, give us a brief recap on this flag burning in the Constitution.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: OK. There are two legal issues raised by that tweet. The first is the Supreme Court in 1989 and 1990 has said that burning the flag is a political act protected by the First Amendment, so you can't be thrown in jail for burning the flag.

The second point is the Supreme Court has also said that the law may not punish anyone with removal of your citizenship. You can be thrown in jail, you can be executed, you can lose the right to vote, but citizenship is not something that can be removed from someone for committing a crime.

LEMON: Bryan, to you now, I want to play a clip that's of your friend and the co-author of the two books that I mentioned, Justice Antonin Scalia, who was deciding a vote, a key vote in 1989 about flag burning. A ruling there voting that is, it is constitutional. Listen to this.


ANTONIN SCALIA, SUPREME COURT JUSTICE: If I were king, I would not allow people to go about burning the American flag. However, we have a First Amendment which says that the right of free speech shall not be abridged, and it is addressed in particular to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.


LEMON: You spent a lot of time with him. Was this flag burning decision a tough one for him?

BRYAN GARNER, BLACK'S LAW DICTIONARY EDITOR IN CHIEF: It was a very difficult one because I think he was torn on the one hand. He was very patriotic, and on the other hand he understood that given the court's precedence that this kind of protest is speech.

Mr, Trump, of course is having to get acclimated to the rather rarefied air of the presidency, and it looks as if we are in for a long acclimation.

[22:30:00] UNIDENTIFIED MALE: Well thought, Bryan.

LEMON: That was -- that was I like that remark. So, at -- Donald Trump has often praise, Alan, he's praised Justice Antonin Scalia, but he's talking now about stifling free speech, threatening citizenship. What would Justice Scalia have thought about that?

DERSHOWITZ: He praises Justice Scalia because he doesn't know anything about Justice Scalia. He doesn't understand Justice Scalia's philosophy. He just knows that Justice Scalia was a conservative member of the court and he was pandering to the hard right.

What worries me more about Donald Trump is not the flag burning. You know, that's a close case, five to four, Hillary Clinton to bill. Most elected politicians would vote to ban flag burning, so that's a close question.

What I'm worried about is anything Donald Trump doesn't like, he'd like to ban. He'd like to ban criticism of him. He's like to ban the large media. He thinks that as president he's going to get his way, and it's going to be free speech for me but not for thee, and it's going to come home to hurt him if that ever happened.

Because if he ever eliminated the laws of libel he would be the first guy sue for defamation. He's called everybody, everything under the sun. He is protected by the First Amendment.

LEMON: What would happen to his Twitter account if he -- if he...


TOOBIN: Well, I mean, the good news is presidents as powerful as they are don't get to change constitutional law. That's up to the -- that's up to the courts.

DERSHOWITZ: That's up to the justices.

TOOBIN: Well, that's certainly -- that's certainly true. But I do think that the troubling aspect to this is not his expression -- his opinion about flag burning, which as Alan points out a lot of people share, is if you look at his tweets and statements since he was elected president, there is this extreme sensitivity to criticism, whether it was the protests in Portland right afterwards, whether it was the cast of Hamilton.

LEMON: Right.

TOOBIN: This is something that -- I mean, yes, it's fine to express your first amendment rights, but when you're president, I think we all have to be a little worried if you are talking about stifling the rights of others.

LEMON: Bryan, I want to read -- this is a tweet because as recently as February 2013, Donald Trump seemed to have different views when it comes to freedom of speech. He tweeted, this is again in February of 2013. "If freedom of speech is taken away, then dumb and silent we may be led like sheep to the slaughter." And then he was quoting George Washington.

So, I mean, on this and other policies, it's hard to know where he stands. Are these kinds of flip-flops -- is it going to be a problem for him when it comes to the law and how people understand it?

GARNER: Well, you know, maybe not, because there were 11 years in a row when the House and the Senate voted on -- well, actually the House voted to have a constitutional amendment, from 1995 to 2006, banning desecration of the flag. It never got through the Senate.

But he could always, because of the vagueness of the tweet this morning, he could always say that what he suggests and hopes for is a constitutional amendment that would strip people of their citizenship if they were convicted of burning the flag and have other penalties as well.

I think it's vague enough that he could be saying that he supports that. Now, the interesting thing is, would he actually, for example, vet Supreme Court nominees based on whether they would agree to go with what had been the minority in the 5-4 votes of 1989 and 1990 and overturn that 27-year-old precedent.

LEMON: Go ahead, Alan.

DERSHOWITZ: If that's his priority, we are in real trouble. The situation now is perfect. Everybody hates flag burners. They lose in the court of public opinion. Why should we bring them in front of the court of law and make them martyrs. The situation is perfect. It is not broke. Why is he fixing it? He's the president-elect.

LEMON: I get what you're instigating here but I don't know if everyone hates flag burners. I think people believe that it's your right as an American...


DERSHOWITZ: It's your right to wear Swastikas too, but everybody hates people who wear Swastikas. You know, believe me, I've had 50 years of defending people whose speech is hateful. I hate them. I hate what they're saying, but I defend their right to say it.

LEMON: But, Alan, I have to disagree with you. I don't think it's the same thing. I think people burn the flag because -- well, some people burn the flag because they feel that they're not represented in this country by government. Many minorities, many people who are underrepresented in the country feel that way.

People burn -- people wear Swastikas because of hate. Those are two different things. So, I think the -- I don't think everyone hates flag burners. I think most people would defend the right for people to do it, but they don't necessarily like it.

DERSHOWITZ: Look, I would defend a football player's right to kneel down during the Pledge of Allegiance but I wouldn't do it myself. You know, free speech for me but not for thee is the most common form.


DERSHOWITZ: You do polls. Everyone wants to censor what they disagree with. That's what's so great with the first amendment. And generally, conservatives or liberals agree. It's the radicals on the hard left that are trying to censor and the radicals on the hard right and President Trump should not join those two groups.

LEMON: All right. We'll continue our conversation. We'll be right back.


LEMON: The First Amendment contains the principles that make America what it is. So does Donald Trump really want to change that?

Back with me Alan Dershowitz, Jeffrey Toobin, and Bryan Garner. I'm having a great conversation. Bryan, let's start with you. Let's take a look now at the First Amendment. This is a short passage and is a huge amount of what makes this country great.

"Congress shall make no law expecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press, or the right of people peaceably to assemble and to petition -- and to petition the government for a redress of grievances."

So Donald Trump has spoken out about many of these rights publicly as a candidate and as the president-elect. Do you think he understand how sacred this passage is?

GARGER: Well, I mean you could make the argument that cynically he does and that he is perhaps doing what I suggested earlier and going for a constitutional amendment. But you could also make the argument that our president-elect needs a basic lesson in civics, and the separation of powers and civil liberties and what they mean in this country.

[22:40:03] You know, it's cynical in the sense that this declaration this morning appeals to the -- let's say the hoi polloi sense of patriotism. And the only people who are going to disagree and be upset by it are experts or highly educated folks who understand what civil liberties mean.

LEMON: Yes. Go ahead, Jeffrey.

TOOBIN: I'm not sure. I mean, I actually think -- I give sort of the American people a little more credit than that. I think people understand that the government shouldn't be deciding what sort of speech is permissible and what's not. I don't think that's necessarily an elite point of view.

I do agree that flag burning does bring out the anti-free spirit -- anti-free speech spirit in a lot of people, but I think this is a sufficiently core value that it's not a matter of income or education or age. I think most people get it.

DERSHOWITZ: Well, I think, though, most people, however, if you put a poll out, most people would say that the First Amendment should be amended to prohibit flag burning.

By the way, the liberals are trying to amend the First Amendment too. Not me, but they want to amend the First Amendment to prohibit citizens united and to limit fund-raising. I don't think anybody left or right should tamper with that amendment.


DERSHOWITZ: Prior presidents have tried to, The Alien and Sedition Acts by President Adams, even Jefferson, you know, had famously said before he was president given the choice of being in governments without newspapers or newspapers without governments, he would take, you know, newspapers without governments and then he served as president for eight years and he said I'll never read another newspaper again, they're full of lies. You know, when you're the president you don't like what newspapers say about you.

LEMON: That sets me up for the -- for my very next question and maybe you can answer it, Alan. Because it's not the first time he's attacked the First Amendment. He said during the campaign that he wanted to make it easier for journalists who reported negative stories about him to be sued for libel. Do you think he has a deeper ambition to silence critics or control dissent here?

DERSHOWITZ: Absolutely. There's no question in my mind that if he had his way, he would say I get to say what I want on Twitter about anybody else but you don't get to say what you think about me.

Again, it's for me but not for thee and we have -- you know, I don't agree with Senator McCain that we should ignore this. We have to fight back and we have to tell him that we, the American people, whether we're experts or the ordinary folk, are going to fight to defend our First Amendment.

LEMON: Do we have John McCain -- do we have John McCain's sound bite then we can play because you just mentioned it, but go on.

TOOBIN: Well, I just think it's important to remember in the context of all this is that the press at this moment is very unpopular too.

LEMON: Right.

TOOBIN: He is -- he hasn't had a press conference in months. He hasn't answered questions from the press. He has -- he doesn't have a press pool following him around the way other presidents-elect have.

So, I mean, you know, it's not like we are embraced by the public as their representatives, and I think that -- he knows that. And that was why when he had rallies, you know, particularly with his core supporters, you know, the press would be in a pen there and he would say they're scum, they're despicable, and people would cheer.

So, you know, it's not just that we are, you know, embracing the Constitution, it's that, you know, we're perceived as an interest group, too. We are not necessarily seen just as the public's representatives.

LEMON: You mentioned John McCain. Our Manu Raju caught up with him about this earlier. Listen.


JOHN MCCAIN, ARIZONA SENATOR: I have not been commenting on Mr. Trump. And I will continue not to comment on Mr. Trump.

MANU RAJU, CNN SENIOR POLITICAL REPORTER: I mean, he said that the people who burn the flag should be prosecuted. What do you think about that?

MCCAIN: There was a very close decision on the United, by the United States Supreme Court. I do not approve of burning the flag. I think that there should be some punishment, but right now the Supreme Court decision is that people are free to express themselves that way.

But I do not approve of it and I think there's other ways for people to express their views rather than burn a flag that so many Americans fought and died for.

RAJU: He even said lose citizenship over it. He even said that people should lose citizenship.

MCCAIN: I do not comment on Mr. Trump's comments. I have not and will not.


LEMON: So he's commenting without commenting. Bryan, what do you make of that?

GARNER: Well, in 1989, Justice Kennedy in agreeing with the prohibition of flag, of any ban on flag burning, Justice Kennedy said the American flag protects even those who hold it in contempt.

And that is one of the great ironies here is that the flag is a symbol -- it means so many things to so many different people but it fundamentally is about American core values. And it does protect those who hold it in contempt.

DERSHOWITZ: Well, but let's hope it continues to protect them because he has control over appointments to the Supreme Court. And all he has to do is appoint one more justice, fill the Scalia vacancy, and the First Amendment could be in danger.

[22:45:02] That's why I think the Senate has to play a very important role in making sure that the president doesn't through Supreme Court appointments eviscerate our basic constitutional rights.

LEMON: One of his signature policies that he has mentioned is banning Muslims, some Muslims from coming into the country and if possible registration of Muslims. Would that undermine another aspect of the First Amendment?

TOOBIN: That's a very interesting question and a lot would depend on how it was framed. You know, presidents have control of the borders. They can decide on quotas from certain countries. They -- you know, immigration policy is obviously a power of the federal government.

You certainly could not have a policy that said all Muslims are not allowed in the United States, and that was how he initially phrased that proposal. He's sort of backed away from it lately. I don't know where it currently stands. But I think it's complicated constitutionally and it may be simply that he doesn't have the right to do what he wants to do.

LEMON: Bryan, I want to ask you because Donald Trump has a SCOTUS vacancy to fill which Jeffrey just mentioned here. He has said that he would look for a justice in the mold of Scalia. What do you think Scalia would say to him about this issue, and about the First Amendment?

GARNER: I think he would say leave the First Amendment alone and leave the Texas versus Johnson decision and Eichman, the two decisions in which the Supreme Court held that flag burning is protected speech, leave it alone.


DERSHOWITZ: But you say that he has this vacancy to fill. No, this was Obama's vacancy to fill. There was a very long period of time where the republicans would not allow the vacancy to be filled. I wouldn't be surprised if there were some democrats who would say this is not Trump's vacancy.

We're going to keep this empty, quote Senator Cruz. What's wrong with 4 to 4. We'll wait for there to be another vacancy, but this is not Trump's vacancy to fill. That may be a position that some senators will take.

LEMON: I really enjoyed this conversation. Thank you very much, gentlemen.

TOOBIN: Thank you, sir.

LEMON: Thank you, Bryan. I appreciate it.

GARNER: Thank you.

LEMON: Coming up, Donald Trump campaigned on his promise to drain the swamp in Washington, but do some of his cabinet picks tell a different story?


LEMON: Donald Trump is filling his cabinet; so far the position of secretary of state is open. The night is still young. Maybe we'll hear something.

Let's discuss now with CNN political commentator Sally Kohn and former Congressman Jack Kingston. He was a senior adviser to the Trump campaign. So far, I mean, Mitt Romney said, we'll see. Donald Trump said, we'll see. It was a cordial. All right.

So let's discuss. Sally, you first. We know that Trump had dinner with Mitt Romney tonight. If he picks Mitt Romney as his secretary of state, what does that say about him, about Trump?

SALLY KOHN, CNN POLITICAL COMMENTATOR: That -- mean, I don't know, that his capacity for forgiveness is unparalleled. I mean, it would actually be a pretty stunning thing frankly given the things he said Trump picks Romney.

I do think it's more interesting in the other direction if Romney, who tried to take a very principled stand in the campaign decides, yes, you know, power is more important than principles and this person who I bashed as uniquely disqualified, unqualified to be leader of the free world.

I'm now going to actually go help him and serve his bastardly agenda, that would be a pretty low mark for Romney who, you know, for all his shortcomings I think a lot of people still saw as a pretty moral and upstanding person.

LEMON: I take that Representative Kingston has a few words to say about this.

JACK KINGSTON, TRUMP SENIOR ADVISER: Well, I'd say this. I think Mitt Romney is a guy who wants to serve his, you know -- you know, in public service, once you get bug you have it until you die. And I think he's a guy who's got some game left in him and he wants to answer the call of the country. And I think there's this great charm in America that when the president of the United States calls you and asks you to do something you certainly want to do it. And in this case it might only be an interview, but Mitt Romney is stepping forward, but, you know...


LEMON: You think it's real, Jack. Do you think he would -- Donald Trump would pick him?

KINGSTON: I think it is real, but I also think that Kellyanne Conway's comments were real and those were echoed also by Congresswoman Chris Collins and Congresswoman Marsha Blackburn.

LEMON: And probably Donald Trump as well because she wouldn't go off the reservation like that.

KINGSTON: Well, yes. But I think, you know, there would be some concern about it from the base. And Sally has put an interesting perspective on it, but I think the base, Don, as you know, and I had the honor of being a frequent visitor on your show during September and October, and there were some bleak days.

There were some tough days and I think those of us who were in the foxhole to pass on ammunition. And if you did not see somebody and now they're out up there for cabinet consideration, you tend to think, oh, man, that's a little bit bothersome.

But again, let me say this. He needs to get the guy who he likes, somebody who is going to implement his policy and work for him.

LEMON: And that's officially known as Kingstonism.

Go ahead, Sally.

KOHN: I mean, no, this is a very interesting perspective to think about, look, you know, Donald Trump won the presidency, won the Electoral College. But the majority of voters did not vote for him, and yet, he has shown stunningly little interest in appealing to that majority of voters who did not support his presidency, let alone by the way, many of the republican voters who probably pull the lever only because they disliked him less than they dislike the other up...


LEMON: Do you think if the situation had been reversed do you think that Hillary Clinton's supporters would be reaching out to embracing...

KOHN: I'm not talking about even the supporters; I'm just talking about the candidates themselves.


LEMON: Or Hillary Clinton would be embracing who supported Donald Trump. KOHN: My point is for contrast. All we have to do is look at the

presidency of President Obama who in 2008 won a pretty strong margin, who had a very large mandate, and yet he in his -- in his cabinet appointed moderates, appointed conservatives, republicans...


KOHN: ... really looked for an ideological experiential diversity.

KINGSTON: Sally, but...


KOHN: And Donald Trump...

LEMON: Quickly, Jack, because I want to move to some other stuff.

KINGSTON: General Flynn is a democrat. One of his first and highest ranking cabinet members, advisers is General Flynn. He is a democrat.

[22:55:01] KOHN: Yes, and so was Donald Trump once. I don't think it counts at this point in that sense.

KINGSTON: Well, you know, Sally, I mean, I think no matter who he picks you may have a concern about it and I understand about that, but he won the election and it's his right to pick whoever he wants.

LEMON: OK. Representative, I want to ask you this. And I'm Sorry for calling you Jack, you are representative.


KINGSTON: Jack works, I'm fine.

LEMON: All right. In an interview with USA Today here's what Newt Gingrich said. He said, "This is really a bigger job than I thought." So, what's your reaction to that?

KINGSTON: Well, and in reference to being secretary of state, is that the context?

LEMON: That's what Newt Gingrich said that Donald Trump told him, pardon me for not putting that out there.

KINGSTON: Well, I think that's true. I think no matter who you are, whatever you're elected to, whether it's city council or mayor or congress which I've experienced or certainly president, you're just amazed that, well, there's a lot more to it than I thought.

And I think that's just part of, you know, the process that you go through, and I think other president-elects have said the same sort of thing. But I do want to say this, that I think Donald Trump is being a student of this job.

He is going out and he's carefully interviewing people. The weekend before last he interviewed 20 people over the weekend, which is exhausting, but he's listening to different perspectives.

Michelle Rhee, for example, another democrat that he did interview and Betty DeVos, they disagreed on common core but came to a meeting of minds of it, Nikki Haley, of course, was opposed to him but he's put her in the cabinet.


LEMON: Got to run, Representative.

KINGSTON: So, he's reaching out and I think he's doing a lot of things right. I feel like he's being very patient.

LEMON: Thank you both. I appreciate it. When we come right back, Donald Trump chooses a Wall Street big wig for treasury secretary. Will that sit well with his voters?